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Burke v. Giant Eagle, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 15, 2017

LAURIE ANN BURKE PLAINTIFF-APPELLANT
v.
GIANT EAGLE, INC. DEFENDANT-APPELLEE

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-852492

          ATTORNEYS FOR APPELLANT Andrew S. Goldwasser Robert A. West Ciano & Goldwasser, L.L.P.

          ATTORNEYS FOR APPELLEE Ian R. Luschin Louis R. Moliterno Williams, Moliterno & Scully Co., L.P.A.

          BEFORE: Celebrezze, J., McCormack, P.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶1} Appellant, Laurie Ann Burke, appeals the grant of summary judgment in favor of appellee, Giant Eagle, Inc. ("Giant Eagle"), in her negligence action that related to a slip and fall inside a Giant Eagle store. Burke claims there are material issues of fact that cannot be resolved in summary judgment. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶2} On October 28, 2013, Burke entered the Giant Eagle grocery store located at Legacy Village in Lyndhurst, Ohio. Burke was there to get a flu shot at the store's pharmacy. As she proceeded past the customer-service desk and cash-register area toward the pharmacy, she slipped and fell. After the fall, she noticed a sticky brown substance on the floor where she fell. A Giant Eagle employee, Anthony Mann, came over to Burke after the fall. He left, found some cleaning supplies, and cleaned up the roughly three-inch sticky brown spot. Burke asked to speak to a manager, and Sara Lane was summoned and spoke to Burke. An incident report was completed that documented the area of the fall, the nature of the liquid on the ground, and Burke's injuries.

         {¶3} On October 12, 2015, Burke filed a negligence action against Giant Eagle. Giant Eagle answered and the case proceeded through discovery. On July 8, 2016, Giant Eagle filed a motion for leave to file a motion for summary judgment, with a motion for summary judgment attached. The trial court granted leave, and Burke filed an opposition brief On September 16, 2016, the trial court issued a written decision and opinion granting Giant Eagle's motion. Burke then filed the instant appeal assigning a single error for review:

         I. Summary judgment was not properly granted because a genuine issue of material fact exists regarding constructive notice.

         II. Law and Analysis

         {¶4} Burke argues that there are genuine issues of material fact that make summary judgment inappropriate in this case. She claims that it is premature to rule that Giant Eagle did not have constructive notice of the spill, and is thus responsible for her injuries sustained in the fall.

         {¶5} Civ.R. 56(C) provides in part:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, 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 ...

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