COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77991 LILLIAN ROBERTS : : ACCELERATED DOCKET Plaintiff-Appellant : : JOURNAL ENTRY -vs- : : AND SAM'S CLUB : : OPINION Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 9, 2000 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-395022 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: WILLIAM P. LANG, ESQ. 680 Moore Road P. O. Box 108 Avon Lake, Ohio 44012-0108 For Defendant-Appellee: JOHN R. SCOTT, ESQ. Reminger & Reminger 113 St. Clair Building 7th Floor Cleveland, Ohio 44114 -2- PATRICIA ANN BLACKMON, J.: Appellant Lillian Roberts appeals the trial court's decision granting appellee Sam's Club summary judgment on her negligence claim. Roberts assigns the following error for our review: THE TRIAL COURT ERRED WHEN IT GRANTED THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT EVEN THOUGH MATERIAL QUESTIONS OF FACT EXISTED AND THE DEFENDANT WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. Having reviewed the record and the legal arguments of the parties, we affirm the trial court's judgment. The apposite facts follow. On June 5, 1999, Roberts shopped at the Sam's Club store in Willoughby Hills, Ohio and used a shopping cart to hold the items she wished to purchase. The cart contained a rear compartment intended for use as a child seat. The seat compartment contained two openings through which a child's legs may extend when seated. The rear compartment also contained a flap to cover the two openings, preventing items from falling through, when not in use as a child seat. Roberts placed a number of items in the cart, including a glass jar of preserves that she placed in the rear compartment or the child seat area. Roberts did not use the flap to cover the two openings in the rear compartment of the cart. At the checkout line, a Sam's Club cashier unloaded items from the cart. During the unloading process, the jar of preserves dislodged from the cart and fell on Roberts' toe. -3- On October 25, 1999, Roberts brought suit alleging negligence against Sam's Club. Sam's Club denied Roberts' allegations. On February 22, 2000, Sam's Club filed a motion for summary judgment. In its motion, Sam's Club argued its cashier was not responsible for the jar falling on Roberts' toe because he did not create the hazard and did drop any item on Roberts; and therefore, Sam's Club argued its cashier was not negligent and it was entitled to judgment as a matter of law. Sam's Club supported its motion with an affidavit from its cashier which stated: Affiant states that he was removing merchan- dise from the Plaintiff's shopping cart and in particular the seat portion of the Plaintiff's shopping cart when another item believed to have been a jar of preserves fell from the cart striking Plaintiff on the foot. Affiant states that the jar was in the seat compartment of the shopping cart along with multiple items of other merchandise. *** Affiant states that the item of merchandise which fell out of the cart fell from the seat compartment and through one of the leg holes of that compartment striking the Plaintiff. Affiant states that Plaintiff had placed multiple items in the seat compartment but had failed to put up the flap thereby permitting a jar to fall through the leg hole. In her memorandum in opposition to summary judgment, Roberts argued there existed a genuine issue of material fact regarding whether the Sam's Club cashier failed to use due care to prevent her injury. Roberts argued the cashier took sole possession of the cart and was the only person withdrawing items from the cart. Moreover, Roberts argued the cashier knew the flap was open and failed to determine whether he could safely remove items from the -4- cart. Thus, Roberts argued the trial court should deny Sam's Club's motion for summary judgment. On April 11, 2000, the trial court concluded Roberts failed to establish all elements of the negligence claim. Accordingly, the trial court granted Sam's Club's motion for summary judgment and dismissed Roberts' case. Roberts appealed. Before addressing the merits of Roberts appeal, we set forth the standard of review. The trial court may grant summary judgment only when it determines pursuant to Civ.R. 56 that no genuine issues of material fact remain to be litigated, the moving party is entitled to judgment as a matter of law, and, viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, which is adverse to the nonmoving party. Holliman v. Allstate Ins. Co. (1999), 86 Ohio St.3d 414, 715 N.E.2d 532; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 273-274. We review her claim de novo. Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St.2d 116, 413 N.E.2d 1187; Temple. De novo review means this Court uses the same standard the trial court should have used, and we examine the evidence to determine if as a matter of law genuine issues exist for trial. Dupler. De novo review requires that we review the trial court's decision independently and without deference to it. Northeast Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs. (1997) 121 Ohio App.3d 188, 699 N.E.2d 534; Weiper v. W.A. Hill & Assoc. (1995), 104 Ohio App.3d 250, 661 N.E.2d 796; Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153. -5- In her sole assignment of error, Roberts argues the trial court erred in granting Sam's Club summary judgment on her negligence claim because a genuine issue of material fact existed regarding the actions of Sam's Club's cashier. Roberts argues her status as a business invitee required the Sam's Club cashier to exercise due care for her safety in unloading the shopping cart and that he failed to do so. To establish her negligence claim, appellant must show appellees had a duty of care, breached the duty of care, and such breach proximately caused injury to appellant. Byers v. Riser Foods, Inc., et al. (1998), Cuyahoga App. No. 73613, unreported citing Mussivand v. David (1989), 45 Ohio St. 3d 314, 318, 544 N.E.2d 265. Where a plaintiff claims negligence on the part of a shopkeeper, the plaintiff must show the shopkeeper through its officers or employees was responsible for the hazard complained of; or that at least one of such persons had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly; or that such danger had existed for a sufficient length of time reasonably to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care. Id. citing Johnson v. Whener Provision Co. (1943), 141 Ohio St. 584, 589, 49 N.E.2d 925, 927. From our review of the record, we conclude, like the trial court, that Roberts failed to establish her negligence claim. The record reveals Roberts created the hazard complained of by failing to use the flap on the child seat, not Sam's Club. Further, -6- contrary to Roberts' assertion, the record contains no evidence suggesting the Sam's Club employee possessed actual knowledge that Roberts failed to use the flap prior to the jar falling from the cart. Further, the record does not support a conclusion that the danger complained of existed for a sufficient length of time to justify the inference that failure to warn against it or remove it was attributable to a want of care. Accordingly, we overrule Roberts' assignment of error. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, J., CONCUR. TERRENCE O'DONNELL, P.J., DISSENTS. (SEE ATTACHED DISSENTING OPINION.) PATRICIA ANN BLACKMON JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA LILLIAN ROBERTS : : Plaintiff-Appellant : DISSENTING : v. : OPINION : SAM'S CLUB : : Defendant-Appellee : DATE: NOVEMBER 2, 2000 TERRENCE O'DONNELL, P..J., DISSENTING: Respectfully, I dissent. In my view, the circumstances of this case are not appropriate for summary disposition. Mr. Fryer, the cashier, took exclusive control of the shopping cart and became solely responsible to remove items from it and to place them into an adjacent cart. The issue presented here is whether Fryer negligently removed items from the cart causing an item to fall on Roberts. I believe this is a matter for a fact-finder to resolve. .