Court of Appeals of Ohio, Eleventh District, Trumbull
CAROL J. ALLEN, a.k.a CARLY ALLEN, Plaintiff-Appellant,
5125 PENO, LLC, d.b.a. EL JALAPENO, et al., Defendant-Appellee.
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2015 CV 00171.
Wexler, Anzellotti, Sperling, Pazol & Small Co., L.P.A.
and Richard L Goodman, Richard L. Goodman Co., L.P.A. For
E. Roman, For Defendant-Appellee.
R. WRIGHT, J.
Appellant, Carol J. Allen, appeals the trial court's
decision granting summary judgment in favor of appellee, 5125
Peno, LLC ("Peno"). We affirm.
In January of 2013, Allen was a patron at appellee's
Mexican-style restaurant. After entering the restaurant and
upon walking toward her family's table, Allen slipped and
fell on a "grimy, greasy" spot on the floor
sustaining injuries. Allen filed suit in January 2015
alleging the restaurant's owner, Peno, was negligent.
Following discovery, the trial court granted Peno's
motion for summary judgment.
Allen asserts two assigned errors, which we address
"The trial erred in granting summary judgment in favor
of Defendant-Appellee, 5125 Peno LLC ('El Jalapeno'),
by failing to construe the evidence most strongly in favor of
the nonmoving party, Plaintiff-Appellant Carly Allen
('Carly Allen'), when it found that Carly Allen
'failed to prove that Defendant was responsible for the
grease on the floor or had any actual or constructive notice
of any alleged danger associated with the floor where she
slipped.' (T.d. 25, paras. 2, 6, and 7).
"The trial court erred by granting summary judgment in
favor of Defendant-Appellee, 5125 Peno, LLC ('El
Jalepeno') if the trial court based its decision in any
way upon its finding that Plaintiff-Appellant, Carly Allen
('Carly Allen'), was in any way unable to articulate
exactly what caused her fall.' (T.d. 25, paragraphs 2, 4,
Appellate courts review decisions awarding summary judgment
de novo. Northeast Ohio Apt. Assn. v. Cuyahoga Cty. Bd.
of Commrs., 121 Ohio App.3d 188, 191, 699 N.E.2d 534
(8th Dist.1997). We review the trial court's decision
independently and without deference, pursuant to the
standards in Civ.R. 56(C). Brown v. Scioto Cty. Bd. of
Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th
Dist.1993). Summary judgment is appropriate when (1) no
genuine issue as to any material fact exists; (2) the party
moving for summary judgment is entitled to judgment as a
matter of law; and (3) viewing the evidence most strongly in
favor of the nonmoving party, reasonable minds can reach only
one conclusion adverse to the nonmoving party. Holliman
v. Allstate Ins. Co., 86 Ohio St.3d 414, 415,
715 N.E.2d 532 (1999). The initial burden is on the moving
party to set forth specific facts demonstrating that no issue
of material fact exists and the moving party is entitled to
judgment as a matter of law. Dresher v. Burt, 75
Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant
meets this burden, the burden shifts to the nonmoving party
to establish that a genuine issue of material fact exists for
A "material fact" for summary judgment depends on
the type of the claim being litigated. Hoyt, Inc. v.
Gordon & Assocs., Inc., 104 Ohio App.3d 598, 603,
662 N.E.2d 1088 (8th Dist.1995), citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct.
In order to establish actionable negligence, a plaintiff must
prove the existence of a legal duty, the defendant's
breach of that duty, and injury proximately caused by the
defendant's breach. Wallace v. Ohio Dept. of
Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d
1018, ¶22 (2002).
Allen was a business invitee at the time she fell. As a
business invitee, Peno owed Allen a duty of "ordinary
care in maintaining the premises in a reasonably safe
condition so that its customers are not unnecessarily and
unreasonably exposed to danger. * * * A shopkeeper is not,
however, an insurer of the customer's safety."
(Citations omitted.) Paschal v. Rite Aid Pharmacy,
Inc., 18 Ohio St.3d 203, 203-204, 480 N.E.2d 474 (1985).
A storeowner has a duty to exercise ordinary care and to
protect customers by maintaining the premises in a safe
condition. This duty includes warning invitees of latent
defects of which it has actual or constructive knowledge.
Kornowski v. Chester Props., Inc., 11th
Dist. Geauga No. 99-G-2221, 2000 WL 895594. *3 (June 30,
2000); Brymer v. Giant Eagle, Inc., 11th Dist. Lake
No. 2010-L-134, 2011-Ohio-4022, ¶10.
When a business invitee slips and falls as a result of a
foreign substance on the floor of a business, the plaintiff
has the burden to prove one of three conditions to recover:
"(a) that the defendant or his agent was responsible for
the substance being on the floor; (b) that the defendant knew
of the substance on the floor and failed to remove it; or (c)
that the substance was on the floor for a long enough period
of time so that the defendant should have known about it and
removed it. Johnson v. Wagner Provision Co. (1943),
141 Ohio St. 584, 589, 49 N.E.2d 925; Orndorff v. Aldi,
Inc. (1996), 115 Ohio App.3d 632, 635-36, 685 N.E.2d
1298. See, also, Parras v. Standard Oil Co. (1953),
160 Ohio St. 315, 317, 116 N.E.2d 300." Phares v.
Midway Mall Dev. Corp., 9th Dist. Lorain No. 97CA006814,
1998 WL 208826, *2; Brymer, supra, at ¶14.
Here, Allen alleges that Peno is liable because it either
created the hazard on the floor or should have known of the
hazard and either warned of the danger or remedied it.
Allen testified to the following:
"Q. Was there any reason you were in a hurry at the time
to get to the table or to eat at all?
"Q. Was there anything blocking or obstructing your view
of the floor as you walked to the area where you fell?