Sams v. College Bowl Lanes, Inc. ( 2012 )

[Cite as Sams v. College Bowl Lanes, Inc., 2012-Ohio-150.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
LOU SAMS, et al., : William B. Hoffman, P.J.
: Sheila G. Farmer, J.
Plaintiffs-Appellants : Julie A. Edwards, J.
:
-vs- : Case No. 2011CA00138
:
:
THE COLLEGE BOWL LANES, INC., : OPINION
et al.,
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil Appeal from Stark County
Court of Common Pleas Case No.
2010CV03686
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 17, 2012
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
DONALD P. KOTNIK DOUGLAS N. GODSHALL
600 West Maple Street RAYMOND C. MUELLER
North Canton, Ohio 44720 Brenton Commons, Suite 400
8040 Cleveland Avenue, N.W.
North Canton, Ohio 44720
[Cite as Sams v. College Bowl Lanes, Inc., 2012-Ohio-150.]
Edwards, J.
{¶1} Plaintiffs-appellants, Lou and Larry Sams, appeal from the May 27, 2011,
Judgment Entry of the Stark County Court of Common Pleas granting summary
judgment in favor of defendant-appellee The College Bowl Lanes, Inc.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 7, 2008, appellant Lou Sams was bowling at The College
Bowl, a bowling alley owned and operated by appellee The College Bowl Lanes, Inc.
Appellant Lou Sams, on such date, had stopped at the bowling alley to talk to a friend
and was asked to be a substitute for one of the bowlers on her friend’s bowling team. As
appellant Lou Sams was bowling in the fourth frame of her first game that night, she
slipped and fell a couple of feet back from the foul line on the approach. Prior to bowling
her first game, appellant Lou Sams had thrown a couple of practice balls. As a result of
her fall, appellant Lou Sams sustained injuries to her thumb and hand.
{¶3} On October 6, 2010, appellant Lou Sams and her husband, appellant
Larry Sams, filed a negligence/personal injury complaint against appellee. Appellants, in
their complaint, alleged that, prior to the fall, appellee’s employees and/or agents had
applied oil to the bowling lanes and, in doing so, had negligently caused an excess
puddle or puddles of oil to collect and/or form in the area of the bowling lane. Appellants
alleged that appellant Lou Sams had stepped into one of the puddles, causing her to
slip and fall.
{¶4} On April 26, 2011, appellee filed a Motion for Summary Judgment.
Appellants filed a memorandum in opposition to the same on May 9, 2011. As
Stark County App. Case No. 2011CA00138 3
memorialized in a Judgment Entry filed on May 27, 2011, the trial court granted
appellee’s motion.
{¶5} Appellants now raise the following assignments of error on appeal:
{¶6} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
IN FAVOR OF APPELLEE COLLEGE BOWL AND BY HOLDING THAT APPELLEE
HAD NOT BREACHED ITS DUTY TO EXERCISE ORDINARY CARE IN THE
MAINTENANCE OF THE BOWLING LANE USED BY APPELLANT LOU SAMS.
{¶7} “II. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT
IN FAVOR OF APPELLEE COLLEGE BOWL ON THE GROUNDS THAT THE
EVIDENCE AND TESTIMONY THAT APPELLANT LOU SAMS SLIPPED ON OIL ON
THE BOWLING LANE IS BASED ON NOTHING MORE THAN MERE SPECULATION
WHICH IS NOT A SUFFICIENT BASIS ON WHICH TO ESTABLISH A PREMISES
OWNER’S LIABILITY.”
STANDARD OF REVIEW
{¶8} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212, (1987). As
such, we must refer to Civ.R. 56(C) which provides, in pertinent part: “Summary
judgment shall be rendered forthwith if the pleading, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence in the pending
case 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
Stark County App. Case No. 2011CA00138 4
judgment as a matter of law. * * * A summary judgment shall not be rendered unless it
appears from such 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 against whom the motion for summary judgment is made, such party being
entitled to have the evidence or stipulation construed most strongly in the party's favor.”
{¶9} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,
1997-Ohio-259, 674 N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d
264, (1996).
{¶10} It is subject to this standard of review that we address appellants'
assignments of error.
I, II
{¶11} Appellants, in their two assignments of error, argue that the trial court
erred in granting summary judgment in favor of appellee. We disagree.
{¶12} In order to establish actionable negligence, a plaintiff must prove (1) the
defendant owed him a duty of care; (2) the defendant breached that duty of care; and
(3) as a direct and proximate result of the defendant's breach, the plaintiff suffered
injury. Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707,
(1984).
{¶13} In the case sub judice, it is undisputed that appellant Lou Sams was a
business invitee of appellee. While a business owner is not an insurer of the safety of
his business invitees, an owner owes such invitees “a duty of ordinary care in
maintaining the premises in a reasonably safe condition so that his customers are not
Stark County App. Case No. 2011CA00138 5
unnecessarily and unreasonably exposed to danger.” Paschal v. Rite Aid Pharmacy,
Inc., 18 Ohio St.3d 203, 480 N.E.2d 474, (1985). The mere occurrence of an injury to a
business invitee does not give rise to a presumption or an inference of negligence.
Parras v. Standard Oil Co., 160 Ohio St. 315, 116 N.E.2d 300, (1953), paragraph one of
the syllabus.
{¶14} A long standing rule of law in Ohio requires that a plaintiff in a premises
liability action be able to identify or explain the reason for the fall. Hildebrandt v. Kroger
Co., 5th Dist. No. 01-CA-114, 2002-Ohio-2544, at ¶7, citing Cleveland Athletic
Association v. Bending, 129 Ohio St. 152, 194 N.E. 6, (1934). See also Spognardi v.
Scores Of Mansfield, Inc., 5th Dist. No. 1999CA56, 2000 WL 1627, (Dec. 29, 1999), and
Rawls v. Cinemark USA, 5th Dist. No. 2007 CA 00107, 2007-Ohio-5511. Speculation or
conjecture by the plaintiff as to the culpable party who caused his fall and what caused
his fall is not sufficient, as a matter of law, since the issue of proximate cause is not
open to speculation. See Scott v. Kings Island Co., 12th Dist. No. CA-98-04-044, 1999
WL 7458, 6-7, (Feb. 16, 1999), and Denton v. Cracker Barrel Old Country Store, Inc.,
10th Dist. No. 02-AP-1211, 2003-Ohio-2890, ¶22.
{¶15} In the case sub judice, the trial court stated in its May 27, 2011 Judgment
Entry, in relevant part, as follows:
{¶16} “Since there has not been any evidence provided that the alleged
presence of oil or liquid on the approach existed for a sufficient period of time for the
‘Defendant to become aware of and clean up in it’s (sic) exercise of ordinary care, or
any of evidence of prior complaints or falls would have put the Defendant on notice of a
defect, the court finds that there was no breach of duty by the Defendant in this case.”
Stark County App. Case No. 2011CA00138 6
{¶17} The trial court further found that appellant Lou Sams had speculated that
oil on the lanes caused her fall and that speculation was an insufficient basis on which
to establish appellee’s liability as a premise owner. Appellants now contend that the trial
court erred in failing to recognize that notice is immaterial when the hazardous condition
is created by the property owner and that there was evidence that the substance on
which appellant slipped was oil negligently left on the bowling lane by appellee.
{¶18} During her deposition, appellant Lou Sams testified she did not see
anything that she slipped on and did not see anything before she fell. She further
testified that she “would say” that the liquid that she slipped on was oil. Deposition of
appellant Lou Sams at 54. In support of their memorandum in opposition to appellee’s
Motion for Summary Judgment, appellants submitted the affidavits of Sherri Guidone
and Virginia Carothers, both who were bowling with appellant Lou Sams on October 7,
2008. Guidone, in her affidavit, stated, in relevant part, as follows:
{¶19} “4. As we started to bowl, I heard someone shout ‘she fell!’ and I turned
around and saw Lou Sams lying on her back in the bowling lane. I observed her as she
tried to roll over on her stomach into the gutter in an attempt to get up but she could not
get up on her own.
{¶20} “5. An employee of College Bowl that I know as ‘Larry’ came down and
helped Lou Sams get-up off of the bowling lane.
{¶21} “6. I then observed Larry get a rag and use it to wipe-up some type of
liquid on the bowling lane. I believe the liquid may have been excess oil from when the
lanes were oiled and polished shortly before we started bowling. (Emphasis added).
Stark County App. Case No. 2011CA00138 7
{¶22} “7. After he used the rag to wipe-up the liquid, I then saw Larry use some
type of rough paper, possibly sand paper, to rub over the same spot he used the rag to
wipe-up the liquid on the bowling lane.”
{¶23} Carothers, in her affidavit, stated that after appellant Lou Sams fell, she
observed Larry use a rag to wipe up “some type of liquid on the bowling lane”
{¶24} Based on the foregoing, we concur with the trial court that the evidence
produced by appellants constituted mere speculation as to what caused appellant Lou
Sams to fall. We further concur with the court that “[s]ince speculation is an insufficient
basis on which to establish a premises owner’s liability as a matter of law, as plaintiff
cannot point to a wrongful or negligent act by the defendant, Defendant is entitled to
judgment in this case.”
{¶25} Appellants’ two assignments of error are, therefore, overruled.
{¶26} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
Judgment affirmed.
By: Edwards, J.
Farmer, J. concurs
Hoffman, P.J. dissents
______________________________
______________________________
______________________________
JUDGES
JAE/d1107
Stark County App. Case No. 2011CA00138 8
Hoffman, P.J., dissenting
(¶27) I respectfully dissent from the majority opinion.
(¶28) While I agree speculation or conjecture as to what caused the fall is
insufficient, as a matter of law, to establish proximate cause, I believe the deposition
testimony of James Aufderheide, an employee of Appellee, when coupled with
Appellant’s affidavit and that of Guidone and Carothers, provide legally sufficient
evidence to support a finding of proximate cause.
(¶29) In his deposition, Aufderheide testified the lanes had been oiled less than
two hours before the league started bowling on the night of the incident and it was not
unusual for oil to get on the approach portion of the lanes as the lane conditioner
machine was moved from one lane to another. If oil gets on the approach portion of
lane, a maintenance person would use a towel or Scotch Brite Pad to clean up the
excess oil or liquid.
(¶30) Appellee’s employee, Larry Wakeley, was observed using some type of
rough paper to rub over the same spot from which he had earlier wiped-up excess
liquid. This was the same spot Appellant had just slipped and fallen. While Appellant
was unable to inspect or identify the liquid because it was cleaned up by Wakely shortly
after her fall, I find Aufderheide’s testimony, when coupled with that of Appellant and her
witnesses, legally sufficient to support a finding of proximate cause.
________________________________
HON. WILLIAM B. HOFFMAN
[Cite as Sams v. College Bowl Lanes, Inc., 2012-Ohio-150.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LOU SAMS, et al., :
:
Plaintiffs-Appellants :
:
:
-vs- : JUDGMENT ENTRY
:
THE COLLEGE BOWL LANES, INC., :
et al., :
:
Defendants-Appellees : CASE NO. 2011CA00138
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
appellants.
_________________________________
_________________________________
_________________________________
JUDGES