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Ray v. Wal-Mart Stores Inc.

Court of Appeals of Ohio, Fourth District

June 20, 2013

MARIANNE RAY, et al., Plaintiffs-Appellants,
v.
WAL-MART STORES, INC., et al., Defendants-Appellees.

CIVIL CASE FROM COMMON PLEAS COURT

COUNSEL FOR APPELLANTS: John E. Triplett, Jr., and Daniel P. Corcoran, Theisen Brock

COUNSEL FOR APPELLEES: D. Patrick Kasson, Reminger Co., LPA, Capitol Square

DECISION AND JUDGMENT ENTRY

Peter B. Abele, Judge

{¶ 1} This is an appeal from a Washington County Common Pleas Court summary judgment in favor of Wal-Mart Stores, Inc. and Wal-Mart Real Estate Trust, defendants below and appellees herein.

{¶ 2} Marianne and John D. Ray, plaintiffs below and appellants herein, assign the following error for review:

"THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS-APPELLEES BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT REGARDING LIABILITY"

{¶ 3} The present appeal arises out of a trip and fall that occurred at a Wal-Mart store in Marietta, Ohio. Mrs. Ray fell when she tripped on a produce crate that partially protruded from beneath a produce display table.

{¶ 4} After appellants filed a negligence complaint against appellees, appellees requested summary judgment. The trial court subsequently entered summary judgment in appellees' favor and appellants appealed. We reversed the trial court's decision to grant appellees summary judgment and we concluded that genuine issues of material fact remained regarding whether the produce crate hazard was open and obvious. Ray v. Wal-Mart Stores, Inc., 4th Dist. No. 08CA41, 2009-Ohio-4542.

{¶ 5} On remand, appellees again requested summary judgment and asserted that appellants possessed no evidence to show that appellees breached any duty of care that it owed to Mrs. Ray. Appellees argued that the evidence fails to show that appellees breached the standard of care by creating the hazard, or by failing to warn of the hazard. Appellees asserted that appellants presented no evidence to show how the crate ended up beneath the produce display table in a partially protruding position and, thus, could not show that appellees created the hazard. Appellees further contended that appellants failed to present evidence to demonstrate that appellees had actual or constructive knowledge of the hazard, thus giving rise to a duty to warn Mrs. Ray of the hazard. Appellees observed that Mrs. Ray stated in her deposition that she did not know (1) how the black crates came to be beneath the display, (2) how long they had been positioned there before she fell, and (3) whether any of appellees' employees knew that the crates had been placed under the display. Appellees thus asserted that Mrs. Ray's deposition demonstrated that no genuine issues of material fact remained as to whether it breached the standard of care.

{¶ 6} Appellants countered that the record contained sufficient genuine issues of material fact concerning whether the appellees created the hazard and as to whether they possessed actual or constructive knowledge of the hazard. Appellants asserted that the following facts and inferences demonstrate that genuine and material factual issues remained: (1) appellees' owned the crate; (2) only appellees' employees had access to the crate; (3) appellees had exclusive control of the crate from the time of delivery until it was returned to the storeroom; and (4) at all times, at least one employee monitored the produce area. Appellants asserted that the foregoing facts led to a reasonable inference that appellees created the hazard by not returning the crate to the storeroom and, instead, leaving it on the produce floor. They argued that appellees failed to present evidence to show that someone other than one of appellees' employees carried the crate to the produce area and left it under the produce display in a hazardous position. Appellants further asserted that because at least one employee monitored the produce section at all times, then at least one employee must have observed the crate partially protruding from beneath the produce display. They additionally contended that if an employee did not actually observe the hazard, then the employee should have observed the hazard. Appellants inferred that had an employee conducted a reasonable inspection of the produce area, the employee would have discovered the hazard.

{¶ 7} On August 17, 2010, the trial court entered summary judgment in appellees' favor and concluded that appellants failed to demonstrate that any genuine issues of material fact remained as to whether appellees breached the standard of care. The court found that appellants did not produce any evidence to show how the crate "ended up in a 'hazardous location'" and, thus, that appellants failed to demonstrate any genuine issues of material fact as to whether appellees created the hazard. The court agreed with appellants that they produced evidence showing that (1) appellees use the crates to ship produce to the store and to transport produce to the sales floor, (2) one of appellees' employees initially brought the crate to the produce area, and (3) appellees' policy states that employees should not leave the crates in the produce area on the floor beneath produce displays. The court, however, did not agree with the inferences appellants derived from the evidence. Appellants claimed that the evidence led to a reasonable inference that no one other than one of appellees' employees could have placed the crate in such a position that it partially protruded from beneath the produce display. The court, however, determined that appellants' assertion that only appellees had access to the crate is akin to an argument that appellees had exclusive control of the crate. The court concluded that an argument regarding "exclusive" control had relevance when the res ipsa loquitor doctrine applied. It further concluded, however, that the res ipsa loquitor doctrine "had no application in a public area of a busy retail store." The court thus determined that appellants failed to present evidence showing that a genuine issue of material fact remained regarding whether appellees created the hazard.

{¶ 8} The trial court further found that appellants failed to produce any evidence to demonstrate that genuine issues of material fact remained regarding whether appellees had actual or constructive knowledge of the hazard. The court observed that appellants failed to produce any affirmative evidence to show that one of appellees' employees actually knew that the crate partially protruded from beneath the produce display. It rejected appellants' argument that the presence of at least one employee in the produce area led to a reasonable inference that at least one employee must have seen the hazard. The court found that this argument related to whether appellees possessed constructive, not actual, knowledge.

{¶ 9} The trial court additionally determined that appellants failed to show that appellees possessed constructive knowledge of the hazard. The court noted that appellants did not present any evidence to show when the hazard was created or when the crate initially was brought to the produce area. The court concluded that without such evidence, appellants could not show that the hazard existed for a sufficient length of time so that appellees should have discovered the hazard.

{¶ 10} Appellants appealed the trial court's decision. We, however, dismissed that appeal for lack of a final appealable order. Ray v. Wal-Mart Stores, Inc., 4th Dist. No. 10CA27, 2011-Ohio-5142. We observed that the trial court's summary judgment did not dispose of appellants' spoilation of evidence claim. Appellants then amended their complaint to remove the spoilation of evidence claim. This appeal followed.

{¶ 11} In their sole assignment of error, appellants assert that the trial court improperly entered summary judgment in appellees' favor. In particular, they assert that the trial court wrongly determined that no genuine issues of material fact remained regarding whether appellees breached the standard of care. Appellants contend that genuine issues of material fact remain as to whether appellees breached the standard of care either (1) by creating the hazard, or (2) by failing to warn of the hazard when appellees knew or should have known that the hazard existed. Appellants additionally argue that the trial court improperly determined that the doctrine of res ipsa loquitor did not apply. They assert that the evidence shows that the produce crate was within appellees' exclusive management and control.

A SUMMARY JUDGMENT STANDARD OF REVIEW

{¶ 12} Initially, we note that when reviewing a trial court's decision regarding a summary judgment motion, an appellate court conducts a de novo review. E.g., Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶6; Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate court must independently review the record to determine if summary judgment was appropriate and need not defer to the trial court's decision. Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (1993); Morehead v. Conley, 75 Ohio App.3d 409, 411-12, 599 N.E.2d 786 (1991). Thus, in determining whether a trial court properly granted a summary judgment motion, an appellate court must review the Civ.R. 56 summary judgment standard, as well as the applicable law.

{¶ 13} Civ.R. 56(C) provides, in relevant part, as follows:

* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

{¶ 14} Thus, a trial court may not grant a summary judgment motion unless the evidence before the court demonstrates that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. E.g., Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶12; New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶24; Vahila v. Hall 77 Ohio St.3d 421, 429-30, 674 N.E.2d 1164 (1997).

{¶ 15} Under Civ.R. 56, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a material fact. Vahila, supra; Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). The moving party cannot discharge its initial burden under the rule with a conclusory assertion that the nonmoving party has no evidence to prove its case. Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 147, 677 N.E.2d 308 (1997); Dresher, supra. Rather, the moving party must specifically refer to the "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, " which affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C); Dresher, supra.

{¶ 16} "[U]nless a movant meets its initial burden of establishing that the nonmovant has either a complete lack of evidence or has an insufficient showing of evidence to establish the existence of an essential element of its case upon which the nonmovant will have the burden of proof at trial, a trial court shall not grant a summary judgment." Pennsylvania Lumbermans Ins. Corp. v. Landmark Elec, Inc., 110 Ohio App.3d 732, 742, 675 N.E.2d 65 (1996). Once the moving party satisfies its burden, the nonmoving party bears a corresponding duty to set forth specific facts showing that there is a genuine issue for trial. Civ.R. 56(E); Dresher, supra. A trial court may grant a properly supported summary judgment motion if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that there is a genuine issue for trial. Id; Jackson v. Alert Fire & Safety Equip., Inc., 58 Ohio St.3d 48, 52, 567 N.E.2d 1027 (1991).

B NEGLIGENCE

{¶ 17} A successful negligence action requires a plaintiff to establish all of the following: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached the duty of care; and (3) as a direct and proximate result of the defendant' breach, the plaintiff suffered injury. E.g., Texler v. D.O. Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 217 (1998); Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989); Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 472 N.E.2d 707 (1984). If a defendant points to evidence illustrating that the plaintiff will be unable to prove any one of the foregoing elements and if the plaintiff fails to respond as Civ.R. 56 provides, the defendant is entitled to judgment as a matter of law. E.g., Lambert v. Sack 'N Save, Inc., 4th Dist. No. 12CA3319, 2012-Ohio-4686, ¶7.

C

DUTY

{¶ 18} In a premises liability case, the relationship between the owner or occupier of the premises and the injured party determines the duty owed. E.g., Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996); Shump v. First Continental-Robinwood Assocs., 71 Ohio St.3d 414, 417, 644 N.E.2d 291 (1994). A business premises owner or occupier possesses the duty to exercise ordinary care to maintain its premises in a reasonably safe condition, such that its business invitees[1] will not unreasonably or unnecessarily be exposed to danger. E.g., Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 203, 480 N.E.2d 474 (1985). The standard of ordinary care does not, however, require a premises owner or occupier to insure its invitees' safety. Id Instead, the standard of ordinary care requires the premises owner to keep its premises in a reasonably safe condition. Perry v. Eastgreen Realty Co., 53 Ohio St.2d 51, 53, 372 N.E.2d 335 (1977). Keeping the premises in a reasonably safe condition generally means that a premises owner (1) must not create a dangerous condition on its premises, and (2) must warn its invitees of latent or concealed dangers, if the premises owner has actual or constructive knowledge of those dangers. Jackson v. Kings Island, 58 Ohio St.2d 357, 358, 390 N.E.2d 810 (1979); Perry, 53 Ohio St.2d at 52; Johnson v. Wagner Provision Co., 141 Ohio St. 584, 589, 49 N.E.2d 925 (1943). The premises owner also must "'inspect the premises to discover possible dangerous conditions of which [the premises owner] does not know.'" Perry, 53 Ohio St.2d at 52, quoting Prosser on Torts (4 Ed.), 392-93 (1971). Accord Hann v. Roush ex rel. Estate of Rice, 4th Dist. No. 00CA55, 2001-Ohio-2614. "A premises owner or occupier will be charged with constructive notice of hazards * * * that would have been revealed by a reasonable inspection." Hansen v. Wal-Mart Stores, Inc., 4th Dist. No. 07CA2990, 2008-Ohio-2477, ¶11, citing Hann, and Shetina v. Ohio University, 9 Ohio App.3d 240, 242, 459 N.E.2d 587 (1983).

{¶ 19} In the case sub judice, we determined in a previous appeal that sufficient factual issues remained regarding whether appellees owed a duty of reasonable care. Thus, for purposes of this appeal, we presume that appellees owed appellants a duty of ordinary care, which included a duty (1) not to create a hazard on the premises, (2) to warn of known latent or concealed dangers, and (3) to reasonably inspect the premises to uncover hidden dangers.

D

BREACH

{¶ 20} Appellants argue that appellees breached the standard of care by either creating the hazard or by failing to warn of the hazard. Appellants assert that appellees knew, or should have known, of the hazard and, thus, should have warned Mrs. Ray of the hazard.

{¶ 21} A business invitee bears the burden to prove that the premises owner breached the standard of care. Perry, 53 Ohio St.2d at 52-53 ("The burden of producing sufficient proof that an owner has failed to take safeguards that a reasonable person would take under the same or similar circumstances falls upon the invitee."). Accord Tucker v. Pope, 2nd Dist. No. 2009CA30, 2010-Ohio-995, ¶15. Whether a premises owner breached the standard of care ordinarily is a factual question left to the jury. Hansen at ¶12. "However, where there is no genuine issue of fact for the jury to decide, a court may grant summary judgment if the moving party is otherwise entitled to judgment as a matter of law." Id (citations omitted).

{¶ 22} To establish that a premises owner failed to exercise ordinary care, the plaintiff must demonstrate one of the following three conditions: (1) the premises owner created the hazard; (2) the premises owner possessed actual knowledge of the hazard and failed to give adequate notice of its existence or to remove it promptly; or (3) the hazard existed for a sufficient length of time to justify the inference that the failure to warn against it or remove it was attributable to a lack of ordinary care. E.g., Ashbaugh v. Family Dollar Stores, 4th Dist. No. 99CA11 (Jan. 20, 2000), citing Johnson v. Wagner Provision Co., 141 Ohio St. 584, 589, 49 N.E.2d 925 (1943). "If the premises owner created the hazardous condition, then we presume that the premises owner had knowledge or notice of the condition at issue." Louderback v. McDonald's Restaurants, 4th Dist. No. 04CA2981, 2005-Ohio-3926, ¶20 (citations omitted).

"When the owner or occupier of the premises creates the hazardous condition, plaintiff is not required to show specifically that defendant had knowledge or notice. Knowledge or notice of the owner or occupier is required to be shown in slip-and-fall cases only where the alleged ...

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