Stanton V. Marc's Store, 2015-Ohio-5551.] STATE of OHIO, MAHONING COUNTY

[Cite as Stanton v. Marc's Store, 2015-Ohio-5551.] STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT MELISSA STANTON, et al., ) CASE NO. 15 MA 49 ) PLAINTIFFS-APPELLANTS, ) ) VS. ) OPINION ) MARC’S STORE, et al., ) ) DEFENDANTS-APPELLEES. ) CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 13CV2924 JUDGMENT: Affirmed. APPEARANCES: For Plaintiffs-Appellants: Atty. Justin A. Markota Betras, Kopp & Harshman, LLC 6630 Seville Drive Canfield, Ohio 44406 For Defendants-Appellees: Atty. Marshall D. Buck Comstock, Springer & Wilson Co., LPA 100 Federal Plaza East, Suite 926 Youngstown, Ohio 44503 JUDGES: Hon. Carol Ann Robb Hon. Cheryl L. Waite Hon. Mary DeGenaro Dated: December 22, 2015 [Cite as Stanton v. Marc's Store, 2015-Ohio-5551.] ROBB, J. {¶1} Plaintiffs-Appellants Melissa and Mark Stanton appeal the decision of the Mahoning County Common Pleas Court granting summary judgment in favor of Defendants-Appellees Marc’s Store. The issue is whether there is evidence from which a reasonable juror could find the store was negligent by failing to remove or warn about a spill in the pop aisle. Specifically, we must determine whether the store should be charged with constructive notice of the spill. For the following reasons, the trial court’s judgment is affirmed. STATEMENT OF THE CASE {¶2} On July 3, 2009 at approximately 3:30 p.m., Appellants were grocery shopping at Marc’s Store in Austintown, Ohio. Mr. Stanton went to the pop aisle while Mrs. Stanton went to the produce section. When Mrs. Stanton turned the corner into the pop aisle, she spotted her husband further down the aisle and called his name. At that point, she slipped on a wet spot and fell to her knee. Her husband summoned an employee, and they assisted Mrs. Stanton to her feet. She completed an incident report and was provided ice for her knee before she went home. A physician, who performed surgery on her knee, concluded that the fall caused her to suffer a torn anterior cruciate ligament and a torn lateral meniscus. {¶3} Appellants originally filed suit against the store on July 1, 2011. That case was voluntarily dismissed under Civ.R. 41(A) on October 19, 2012. Appellants refiled the action on October 15, 2013, alleging that the store failed to use ordinary care in keeping the premises safe which caused Mrs. Stanton’s injury and Mr. Stanton’s derivative claim for loss of consortium. Appellants’ depositions were filed with the court. The deposition of the store’s assistant manager, who assisted Mrs. Stanton after her fall, was also submitted. {¶4} The assistant manager worked there for ten years. (Depo. 6-7). He stated the store did not have a written risk management policy. He explained that employees inspect the store throughout the day, walking up and down the aisles, to check for spills and other issues. (Depo. 8). If an employee spots a spill, they are to notify him and remain with the spill until a “wet” sign is placed and the area is -2- cleaned. (Depo. 10, 23-24, 27). New employees are instructed of this policy and informed that it is their number one priority. (Depo. 27). {¶5} The assistant manager stated that he arrived at noon on the day of the injury, explaining that the procedure is for him to inspect the floor at the beginning of his shift. (Depo. 14-15). He thereafter continually walks the floor, going down every aisle, throughout his shift. (Depo. 12). He testified that a complete inspection takes him 20 to 30 minutes if the store is not busy. (Depo. 17). If the store is busy and/or many people ask for his assistance, it could take one to 1.5 hours. (Depo. 17, 21- 22). At the time of the injury, he estimated that 30 people were working with 20 people walking the floors who are instructed to look for spills as they proceed through the aisles. (Depo. 9, 23). He believed the pop aisle would have been inspected every 15 minutes. (Depo. 23). The assistant manager described the floor as a whitish-yellow color and believed the liquid causing Mrs. Stanton’s fall was clear. (Depo. 18). {¶6} Mrs. Stanton testified that she is familiar with the store and it is clean, well-kept, and well-lit. (Depo. 20-22). She explained that she slipped on liquid soon after turning into the pop aisle. (Depo. 23, 25). After she fell, she noticed the liquid was yellow, like the color of Mountain Dew. (Depo. 26-27). Her husband also stated that the substance appeared yellowish, like Mountain Dew or Mello Yello. (Depo. 14). He noted that it could have been clear with the floor color making it appear yellow. (Depo. 7, 14). He did not notice the spill while he was in the pop aisle before the fall. Neither Appellant could say how long the substance had been on the floor, who caused it to be there, or whether an employee knew about it prior to the fall. {¶7} Marc’s filed a motion for summary judgment, urging that because there was no indication an employee created the hazard or had actual knowledge of the hazard, the plaintiff must show the hazard existed for a sufficient length of time to justify an inference that the failure to warn of or remove the hazard was attributable to a want of ordinary care. The motion concluded that negligence could not be demonstrated where there was no evidence of how long the substance was on the floor. -3- {¶8} Appellants agreed that they must demonstrate the defect existed for enough time that the defendant, through the exercise of reasonable care, could and should have discovered the defect and had a reasonable amount of time to remedy or guard against it. (Opp. To S.J. Mot. At 9). They argued that the lack of a written policy for inspecting the store during periods of heavy congestion resulted in constructive notice of the latent defect.1 They noted that the injury occurred on the day before Independence Day, which is known to be a busy time for grocery stores. Appellants pointed to the assistant manager’s statement that his store inspections can take 20 minutes or they can take as long as 1.5 hours if the store is busy. {¶9} On February 27, 2015, the trial court granted summary judgment in favor of Marc’s. Appellants filed the within appeal setting forth the following assignment of error: “The trial court erred in granting summary judgment as there exists a genuine issue of material fact as to whether Defendants-Appellees has or needed constructive notice of the hazard reasonable to justify the inference that the failure to remove the hazard or warn against it was attributable to negligence.” Appellants divide their argument into two sections: (1) whether Marc’s had constructive notice considering the alleged lack of policy for routinely inspecting the store during heavy congestion; and (2) whether Ohio should adopt a burden-shifting “mode of operation” theory. GENERAL LAW {¶10} Summary judgment can be granted when there remains no genuine issue of material fact and when reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). In determining whether there exists a genuine issue of material fact to be resolved at trial, the court is to consider the evidence and all reasonable inferences to be drawn from that evidence in the light most favorable to the non-movant. Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 11. Doubts are to be resolved in favor of the non-movant. Leibreich v. A.J. Refrig., Inc., 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993). A court “may not weigh the proof or choose among reasonable 1 Appellants’ opposition memorandum also argued that the spill was not open and obvious. However, as Marc’s reply pointed out, the motion for summary judgment did not argue the spill was open and obvious. -4- inferences.” Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 121, 18 O.O.3d 354, 413 N.E.2d 1187 (1980). {¶11} Civ.R. 56 must be construed in a manner that balances the right of the non-movant to have a jury try claims and defenses that are adequately based in fact with the right of the movant to demonstrate, prior to trial, that the claims and defenses have no factual basis and no evidence to support them. Byrd v. Smith, 110 Ohio St.3d 24, 26-27, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 11, citing Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant has the initial burden to show that no genuine issue of material fact exists. Byrd, 110 Ohio St.3d 24 at ¶ 10, citing Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). The non-moving party then has a reciprocal burden. Id. The non-movant’s response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine issue for trial and may not rest upon mere allegations or denials in the pleadings. Civ.R. 56(E). {¶12} We consider the propriety of granting summary judgment under a de novo standard of review. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.

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