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Norris v. Riesbeck Food Markets, Inc.

Court of Appeals of Ohio, Seventh District, Belmont

January 5, 2018

JAMES D. NORRIS, PLAINTIFF-APPELLANT,
v.
RIESBECK FOOD MARKETS, INC. DEFENDANT-APPELLEE.

         CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common Pleas of Belmont County, Ohio Case No. 16 CV 0112

          For Plaintiff-Appellant Attorney Amy Pigg Shafer

          For Defendant-Appellee Attorney Matthew P. Mullen Attorney Aletha M. Carver

          JUDGES: Hon. Gene Donofrio Hon. Mary DeGenaro Hon. Carol Ann Robb

          OPINION

          Gene Donofrio, Judge

         {¶1} Plaintiff-appellant, James Norris, appeals from a Belmont County Common Pleas Court judgment granting summary judgment in favor of defendant-appellee, Riesbeck Food Market, on Norris's slip and fall action.

         {¶2} This matter stems from Norris's October 20, 2014, visit to Riesbeck's grocery store located in Bridgeport Ohio.

         {¶3} According to Norris, he was walking down a center aisle toward the large rear aisle when he came upon an elderly woman at the end of the aisle where the center aisle meets the rear aisle. Norris maneuvered around the woman, turned the corner, and began to enter the rear aisle. As Norris conducted the turn he noticed the floor looked shinny or wet. By the time Norris noticed the shiny floor, he was standing on it. Immediately upon noticing the shiny floor, Norris slipped and his feet came out from under him.

         {¶4} Norris claimed the fall came about so fast that he was unable to complete the turn. Norris claimed he landed flat on his back and hit his head on the ground. Once he fell, Norris was dazed, could not stand up, and was in severe pain. Norris got himself up off the ground by using his shopping cart to brace himself and continued to lean on the shopping cart as he made his way to the front of the store. Upon reaching the front of the store, Norris talked to the store manager and the store manager called an ambulance. The ambulance transported Norris to the hospital.

         {¶5} Norris filed a complaint against Riesbeck asserting a claim for negligence. Riesbeck filed a motion for summary judgment. The trial court granted Riesbeck's motion for summary judgment. The court found that there was no genuine issue of material fact and the court determined the hazard that caused appellant Norris's fall was open and obvious. The court also found Norris's admission to observing the hazard prior to his fall established that he was aware of the hazard. In addition, the court found Riesbeck's placement of safety cones around the hazard provided sufficient warning.

         {¶6} Norris timely filed this appeal on February 8, 2017. He now raises two assignments of error asserting summary judgment was improper.

          {¶7} An appellate court reviews the granting of summary judgment de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8 Thus, we apply the same test as the trial court in determining whether summary judgment was proper.

         {¶8} A court may grant summary judgment only when (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) the evidence can only produce a finding that is contrary to the non-moving party. Mercer v. Halmbacher, 9th Dist., 2015-Ohio-4167, 44, 44 N.E.3d 1011 N.E.3d 1011, ¶ 8; Civ.R. 56(C). The initial burden is on the party moving for summary judgment to demonstrate the absence of a genuine issue of material fact as to the essential elements of the case with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). If the moving party meets its burden, the burden shifts to the non-moving party to set forth specific facts to show that there is a genuine issue of material fact. Id.; Civ.R. 56(E). "Trial courts should award summary judgment with caution, being careful to resolve doubts and construe evidence in favor of the nonmoving party." Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346, 617 N.E.2d 1129 (1993).

         {¶9} Norris's first ...


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