Stepp v. Getgo Gas & Grocery , 2012 Ohio 5184 ( 2012 )

[Cite as Stepp v. Getgo Gas & Grocery, 2012-Ohio-5184.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98325
BRENDA STEPP
PLAINTIFF-APPELLANT
vs.
GETGO GAS AND GROCERY, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-760733
BEFORE: Stewart, J., Blackmon, A.J., and Keough, J.
RELEASED AND JOURNALIZED: November 8, 2012
ATTORNEY FOR APPELLANT
Anthony D. Jordan
420 Lakeside Place
323 Lakeside Avenue, West
Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
Roger H. Williams
Ian R. Luschin
Williams, Moliterno & Scully Co., LPA
2241 Pinnacle Parkway
Twinsburg, OH 44087
MELODY J. STEWART, J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1, the record from the Cuyahoga County Court of Common Pleas, and
the briefs of counsel. Plaintiff Brenda Stepp brought this complaint against defendant
Getgo Gas and Grocery, claiming that she suffered injuries after slipping on a large pool
of water in the aisle of a Getgo convenience store. The court granted summary judgment
to Getgo, holding that Stepp offered nothing more than speculation that Getgo employees
knew of a hazard and thus failed to show that Getgo employees had actual or constructive
knowledge of a dangerous condition.
{¶2} The parties agree that Stepp was a business invitee and that Getgo owed her a
duty of ordinary care to maintain the business premises in a reasonably safe condition so
its invitees were not unnecessarily and unreasonably exposed to danger. Campbell v.
Hughes Provision Co., 153 Ohio St. 9, 90 N.E.2d 694 (1950), paragraph one of the
syllabus. The Getgo employees staffing the convenience store denied any actual
knowledge of water on the floor of the convenience store, so Stepp had to show that
Getgo had constructive notice of water on the floor. To make a showing that Getgo had
constructive knowledge of a hazard, Stepp was required to provide evidence as to the
length of time the hazard existed to create an inference that the failure to warn against it
or remove it was a breach of ordinary care. Presley v. Norwood, 36 Ohio St.2d 29, 32,
303 N.E.2d 81 (1973).
{¶3} To prove that Getgo should have been aware of the water, Stepp offered an
affidavit stating that she slipped and fell in a “huge pool of water.” In fact, she claimed
there was so much water, that as she lay on the floor she became “utterly soaking wet
unto my skin” and that she “never expected the floor to be soaking wet” because it was a
warm, dry day.
{¶4} We agree with the court that Stepp failed to create a triable issue of fact on
whether Getgo had constructive notice of the water that allegedly caused her to slip and
fall. Although a plaintiff can create an inference that a business owner had constructive
notice of a hazard by showing the length of time that a hazard existed, the plaintiff must
come forward with evidence, not speculation, to support the inference. Barnes v. Univ.
Hosps. of Cleveland, 8th Dist. No. 66799, 1994 Ohio App. LEXIS 3231 (July 21, 1994);
Calabrese v. Romano’s Macaroni Grill, 8th Dist. No. 94385, 2011-Ohio-451, ¶ 19.
{¶5} Stepp admittedly did not know how the water that allegedly caused her fall
came to be on the floor. Nor did she have any witnesses who could identify the source
of the water. This left her to argue that Getgo had reason to know that there was water in
the aisle where she fell because the amount of water on the floor indicated that it had been
on the floor for a long period of time. This conclusion is speculation — a mere opinion
that does not constitute probative evidence. Aufrance v. Columbia Gas of Ohio, Inc., 3d
Dist. No. 5-88-2, 1990 Ohio App. LEXIS 1239 (Mar. 30, 1990); Merritt v. Big D & Lulu,
Inc., 1st Dist. No. C-090056, 2009-Ohio-5972, ¶ 11. Indeed, throughout this litigation,
Stepp’s description of the amount of water on the floor grew in ever-increasing terms: in
her complaint, she alleged that she “slipped and fell on water”; in deposition, she testified
that there was a “puddle” of water that caused the bottom of her skirt to get wet; in her
affidavit filed in support of her brief in opposition to summary judgment, Stepp
characterized the water as a “huge pool” that left her “utterly soaking wet unto my skin”;
and in her appellate brief, she resorted to pure hyperbole to argue that “[s]hoppers do not
expect to encounter a swimming pool when the [sic] go pay for gas.”
{¶6} Absent evidence showing the source of the water, it would be speculation to
say that the amount of water on the floor was sufficiently large that Getgo should have
been aware of the water on the floor. Reasonable minds could not differ on whether
Getgo had constructive notice of the water that allegedly caused Stepp to slip and fall.
The court did not err by granting summary judgment.
{¶7} Judgment affirmed.
It is ordered that appellees recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. A certified
copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
MELODY J. STEWART, JUDGE
PATRICIA ANN BLACKMON, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR