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Titenok v. Wal-Mart Stores East, Inc.

Court of Appeals of Ohio, Tenth District

June 27, 2013

Nadezhda Titenok Plaintiff-Appellant,
v.
Wal-Mart Stores East, Inc., Defendant-Appellee.

APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 11CVC-10-12456)

Blue Blue, LLC and Douglas J. Blue, for appellant.

Reminger Co., LPA, D. Patrick Kasson and Whitney Cole, for appellee.

DECISION

TYACK, J.

{¶ 1} Plaintiff-appellant, Nadezhda Titenok, appeals from a judgment of the Franklin County Court of Common Pleas granting the summary judgment motion of defendant-appellee, Wal-Mart Stores East, Inc. Appellant assigns a single error for our review:

THE TRIAL COURT ERRED WHEN IT HELD THAT REASONABLE MINDS COULD COME TO ONE CONCLUSION ON WHETHER DEFENDANT HAD CONSTRUCTIVE NOTICE OF THE HAZARD WHICH CAUSED PLAINTIFF'S INJURIES.

Because the trial court properly concluded appellant failed to present evidence creating a genuine issue of material fact whether appellee had constructive knowledge of the liquid substance in which appellant fell, we affirm.

I. History

{¶ 2} On October 6, 2011, appellant filed a complaint in the common pleas court alleging she slipped, due to an accumulation of water, on the surface of the flooring in one of appellee's stores. Appellant asserted appellee negligently failed to use ordinary care for appellant's safety when it failed to remove the water from the floor, even though it knew or should have known the substance would cause substantial bodily injury. Appellant further alleged appellee negligently failed to provide notice of the dangerous condition the water posed and negligently failed to correct a concealed danger of which it knew or should have known in the exercise of ordinary care. Appellant asserted that as a direct and proximate result of appellee's negligence, she suffered injury, pain, suffering, mental anguish, medical expenses and lost wages.

{¶ 3} Appellee responded with an answer on October 18, 2011, took appellant's deposition and that of her daughter, and a motion for summary judgment on May 3, 2012. After the parties fully briefed the motion, the trial court issued a decision on August 6, 2012 granting appellee's summary judgment motion. Observing that the single issue in the case was whether appellee had constructive knowledge of the substance on the surface of the aisle floor, the trial court noted appellant's evidence amounted to nothing more than speculation, as no evidence indicated the liquid existed for any determinable period of time or any of appellee's employees were aware of the hazard. Although appellant's daughter suggested other patrons had tracked through the liquid, thereby indicating it had existed on the floor for some period of time, the court again could point to no evidence supporting appellant's contention, apart from her daughter's own speculation. Finally, the court noted that although appellant sought to rely on a video from the store to substantiate a traffic pattern, the video was not part of the record. As a result, the court determined the video was not a factor in its decision.

{¶ 4} Ultimately concluding the record contained no evidence creating a genuine issue of material fact as to whether appellee had constructive knowledge of the liquid on which appellant slipped and fell, the court granted appellee's summary judgment motion.

II. Assignment of Error

{¶ 5} Appellant's single assignment of error contends the trial court erred in concluding no genuine issue of material fact exists concerning appellee's constructive knowledge of the hazard that caused appellant's injuries.

{¶ 6} An appellate court's review of summary judgment is conducted under a de novo standard. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is proper only when the parties moving for summary judgment demonstrate: (1) no genuine issue of material fact exists, (2) the moving parties are entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party ...


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