Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Allen v. 5125 Peno, LLC

Court of Appeals of Ohio, Eleventh District, Trumbull

December 11, 2017

CAROL J. ALLEN, a.k.a CARLY ALLEN, Plaintiff-Appellant,
v.
5125 PENO, LLC, d.b.a. EL JALAPENO, et al., Defendant-Appellee.

         Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CV 00171.

          Ilan Wexler, Anzellotti, Sperling, Pazol & Small Co., L.P.A. and Richard L Goodman, Richard L. Goodman Co., L.P.A. For Plaintiff-Appellant.

          Kirk E. Roman, For Defendant-Appellee.

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} Appellant, Carol J. Allen, appeals the trial court's decision granting summary judgment in favor of appellee, 5125 Peno, LLC ("Peno"). We affirm.

         {¶2} 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.

         {¶3} Allen asserts two assigned errors, which we address collectively:

         {¶4} "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).

         {¶5} "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, and 7)."

         {¶6} 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 trial. Id.

         {¶7} 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. 2505 (1986).

         {¶8} 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).

         {¶9} 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).

         {¶10} 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.

         {¶11} 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:

         {¶12} "(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.

         {¶13} 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.

         {¶14} Allen testified to the following:

         {¶15} "Q. Was there any reason you were in a hurry at the time to get to the table or to eat at all?

         {¶16} "A. No.

         {¶17} "Q. Was there anything blocking or obstructing your view of the floor as you walked to the area where you fell?

          {ΒΆ18 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.