Motes v. Cleveland Clinic Found.

[Cite as Motes v. Cleveland Clinic Found., 2012-Ohio-928.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97090
DAVID G. MOTES, SR.
PLAINTIFF-APPELLANT
vs.
CLEVELAND CLINIC FOUNDATION, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-737876
BEFORE: Keough, J., Cooney, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: March 8, 2012
ATTORNEYS FOR APPELLANT
Paul W. Flowers
Paul W. Flowers Co., LPA
Terminal Tower, 35th Floor
50 Public Square
Cleveland, OH 44113
W. Craig Bashein
Anthony N. Palombo
Bashein & Bashein Co., LPA
Terminal Tower, 35th Floor
50 Public Square
Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
Bret C. Perry
Jennifer R. Becker
Jason A. Paskan
Bonezzi Switzer Murphy Polito & Hupp Co., LPA
1300 East Ninth Street
Suite 1950
Cleveland, OH 44114
KATHLEEN ANN KEOUGH, J.:
{¶1} Plaintiff-appellant, David G. Motes, Sr. (“Motes”), appeals the trial court’s
decision granting summary judgment in favor of defendants-appellees, the Cleveland
Clinic Foundation and the Cleveland Clinic (collectively “the Clinic”). For the reasons
that follow, we affirm.
{¶2} In 2008, Motes and his girlfriend, Laura Knight, went to the Cleveland Clinic
to pick up some medications. After obtaining the prescriptions, they walked through the
M-2 hallway towards the parking garage. As Motes was walking, his leg suddenly
slipped out from under him and he fell to the floor. After falling, Motes could see
puddles of clear liquid, presumably water, on the white linoleum floor. As a result of the
fall, Motes suffered a fractured hip. In 2010, Motes filed suit against the Clinic, alleging
that it was negligent in failing to maintain its premises in a reasonably safe condition.
{¶3} The Clinic moved for summary judgment, which the trial court granted with a
written opinion. Motes now appeals, raising as his sole assignment of error that the trial
court erred in granting the Clinic’s motion.
{¶4} We review an appeal from summary judgment under a de novo standard of
review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Accordingly, we afford no deference to the trial court’s decision and independently
review the record to determine whether summary judgment is appropriate. Hollins v.
Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th Dist.).
Under Civ.R. 56, 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) after viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is adverse to the
nonmoving party. Id. at ¶ 13, citing Civ.R. 56; Horton v. Harwick Chem. Corp., 73 Ohio
St.3d 679, 686-687, 653 N.E.2d 1196 (1995).
{¶5} The moving party carries an initial burden of demonstrating an absence of
genuine issues of material fact concerning a material element of the nonmoving party’s
claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107, 662 N.E.2d 264. If the
movant fails to meet this burden, summary judgment is not appropriate; if the movant
satisfies this burden, summary judgment will be appropriate only if the nonmovant fails to
establish the existence of a genuine issue of material fact. Id. at 293.
{¶6} In order to defeat a motion for summary judgment on a negligence claim, the
plaintiff must establish that a genuine issue of material fact remains as to whether (1) the
defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; and
(3) the breach of duty proximately caused the plaintiff’s injury. Frankmann v. Skyline
Mgt., L.L.C., 8th Dist. No. 88807, 2007-Ohio-3922, 2007 WL 2206315, ¶ 5, citing Texler
v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 1998-Ohio-602,
693 N.E.2d 271. Whether a duty exists is a question of law for the court to determine.
Id., citing Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989).
{¶7} In this case, Motes was an invitee at all times he was present at the Clinic.
See Stinson v. Cleveland Clinic Found., 37 Ohio App.3d 146, 524 N.E.2d 898 (8th
Dist.1987), syllabus (hospital visitor is an invitee). An owner of a premises owes an
invitee a duty of ordinary care; the premises must be maintained in a reasonably safe
condition so that patrons are not “unnecessarily and unreasonably exposed to danger.”
Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985). See also
Barnes v. Univ. Hosps. of Cleveland, 8th Dist. No. 66799, 1994 WL 386008 (July 21,
1994). This duty is predicated on the notion that a business owner has superior
knowledge of dangerous conditions that may cause injury to those on the premises.
McGuire v. Sears, Roebuck & Co., 118 Ohio App.3d 494, 497, 693 N.E.2d 807 (1st
Dist.1996), citing Debie v. Cochran Pharmacy-Berwick, Inc., 11 Ohio St.2d 38, 227
N.E.2d 603 (1967). An owner is not, however, an insurer of the patron’s safety. Paschal
at 203, citing Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph
one of the syllabus.
{¶8} In order to prove the breach-of-duty element in a slip-and-fall case, Motes
must establish that (1) the Clinic, through its officers or employees, was responsible for
the hazard complained of; (2) at least one of such persons had actual knowledge of the
hazard and neglected to give adequate notice of its presence or remove it promptly; or (3)
such danger had existed for a sufficient length of time reasonably to justify the inference
that the failure to warn against it or remove it was negligent, commonly referred to as
constructive notice or constructive knowledge. Johnson v. Wagner Provision Co., 141
Ohio St. 584, 589, 49 N.E.2d 925 (1943); Hunter v. Wal-Mart Stores, Inc., 12th Dist. No.
CA2001-10-035, 2002-Ohio-2604, 2002 WL 1058191, ¶ 18.
{¶9} Therefore, in the absence of proof that the owner or its agents created the
hazard, or that the owner or its agents possessed actual or constructive knowledge of the
hazard, no liability may attach. Presley v. Norwood, 36 Ohio St.2d 29, 32, 303 N.E.2d 81(1973).
{¶10} In its motion for summary judgment, the Clinic argued that it did not breach
any duty of care owed to Motes because it did not create or have actual or constructive
notice of any alleged dangerous conditions that caused Motes to fall. Moreover, it
argued that it did not have a duty to protect Motes from an open and obvious condition.
{¶11} Motes first contends that the Clinic failed to satisfy its initial burden under
Civ.R. 56 by failing to attach any affidavits confirming that reasonable efforts had been
undertaken to comply with the duty it owed to him. However, the Ohio Supreme Court
has clearly stated:
Our reading of Celotex [v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986)] and of Civ.R. 56 is that there is simply no requirement
that a party who moves for summary judgment must support the motion
with affidavits negating the opponent’s claims. Indeed, there is no
requirement in Civ.R. 56 that the moving party support its motion for
summary judgment with any affirmative evidence, i.e. affidavits or similar
materials produced by the movant. (Internal citations omitted and
emphasis in original.) Dresher, 75 Ohio St.3d at 291-292, 1996-Ohio-107,
662 N.E.2d 264.
{¶12} We find that the Clinic’s motion was supported with evidentiary materials
contained in the record, as required by Celotex, Dresher, and Civ.R. 56. Furthermore,
from our independent review of the record, we find that the Clinic sustained its initial
burden of demonstrating the absence of a genuine issue of fact on a material element of
Motes’s claims for relief. The Clinic set forth that no testimony, facts, or evidence was
presented demonstrating that it created the alleged hazard, or that it had actual or
constructive notice of the alleged hazard prior to Motes’s fall. Therefore, the fact that
the Clinic did not provide any affidavits negating Motes’s claims was not fatal to the
Clinic’s motion for summary judgment.
{¶13} What is fatal to Motes’s complaint, however, are his hypothetical assertions
without any factual support, which we find are insufficient to establish a genuine issue of
material fact. The mere fact that Motes fell does not establish any negligence on the part
of the Clinic. Green v. Catronova, 9 Ohio App.2d 156, 161, 223 N.E.2d 641 (7th
Dist.1996). When a motion for summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere allegations or denials of the party’s
pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must
set forth facts showing there is a genuine issue for trial. Civ.R. 56; Mootispaw v.
Eckstein, 76 Ohio St.3d 383, 385, 667 N.E.2d 1197 (1996).
{¶14} First, Motes contends there is a genuine issue of material fact whether the
Clinic was responsible or created the hazard because the only plausible explanation for
the amount of water on the floor would be that it came from a Clinic employee. In
support of his argument, Motes cites Baudo v. Cleveland Clinic Found., 113 Ohio App.3d
245, 680 N.E.2d 733 (8th Dist.1996), and Webb v. Bahama Breeze, 8th Dist. No. 96839,
2011-Ohio-6475, 2011 WL 6306616.
{¶15} In Baudo, testimony was given that a bucket of water was in the vicinity of
the area of where the plaintiff fell. Moreover, an employee of the defendant testified that
buckets of water were often transported from a nearby utility room on utility carts. Thus,
this testimony was sufficient to create a genuine issue of material fact whether the
defendant caused the hazard. Similarly in Webb, deposition testimony was presented that
on prior occasions, ice water pitchers were found on the counter of the serving station and
water was observed on the floor in the same location where the fall occurred. This court
concluded that the testimony about these prior occasions created a genuine issue of
material fact as to whether the liquid on the floor was created by the defendant’s
employees and not from another source, and whether the defendant was on constructive
notice of the hazard.
{¶16} However, in this case, there was no testimony even hinting at how the liquid
got on the floor where Motes fell or how long the water was on the floor. The fact that
the amount of water may have been approximately one-half of a pitcher does not create an
issue of material fact regarding whether the Clinic was responsible or created the hazard.
In Allen v. C.G.S. Invests., Inc., 8th Dist. No. 62947, 1992 WL 136497, *3 (June 11,
1992), this court held that
speculation or conjecture on the plaintiff’s part as to the culpable party who
caused the fall and what caused the fall is not sufficient to submit the case
to a jury, as a matter of law, since the issue of proximate cause is not open
to speculation on the jury’s part and plaintiff can point to no wrong or
negligent act committed by the defendant.
The burden is on Motes to prove the existence of a genuine issue of material fact
regarding whether the Clinic placed the substance on the floor. His unsubstantiated
arguments are merely speculative and lack the requisite factual support required by Civ.R.
56. Accordingly, Motes failed to establish that the Clinic, through its officers or
employees, was responsible for the substance causing the fall.
{¶17} Additionally, Motes failed to present any evidence to prove that the Clinic
had actual knowledge of the hazard and failed to promptly remove it or adequately warn
its patrons. Tawana Johnson, the Clinic’s housekeeping supervisor, testified at
deposition that all of the Clinic’s employees are trained to notify housekeeping of any
spills on the floor. She further testified that once any spills or hazards are discovered,
housekeeping is notified; they then go directly to the area and take precautions to protect
individuals, including mopping floors and displaying “wet floor” signs.
{¶18} In their deposition testimony, both Motes and Knight specifically testified
that they had no knowledge as to whether the hospital or any of its employees had notice
of the water on the floor prior to Motes’s fall. After Motes fell, housekeeping was called
to the scene and they cleaned up the water and put up caution cones to indicate that the
floor was wet. Consequently, the record is devoid of any evidence showing that the
Clinic was aware of the hazard prior to the fall.
{¶19} Motes also contends that summary judgment was improper because there are
genuine issues of material fact whether the Clinic had constructive notice or knowledge
of the water in the hallway, suggesting that the Clinic should have inspected its hallways
to locate spills. In support of his argument, he relies on the following two cases.
{¶20} In Shetina v. Ohio Univ., 9 Ohio App.3d 240, 459 N.E.2d 587 (10th
Dist.1983), the facts established that a dormitory window, which was within the exclusive
control of the university, had a latent defect and had not been inspected for nearly ten
years. These facts and circumstances warranted summary judgment survival because “it
was reasonable for the trier of facts to infer that defendant was negligent with respect to
inspection and that a reasonable inspection would have revealed a defective dangerous
condition.” Id. at 242. Unlike Shetina, the facts here do not create a genuine issue of
fact with regard to inspection because nothing in the record suggests that the Clinic did
not inspect the premises of a common-area hallway on a regular basis or that it failed to
maintain the hallway in a reasonably safe condition. Moreover, water on a floor is not a
latent defect.
{¶21} In Lopez v. Cleveland Mun. School Dist., 8th Dist. No. 82438,
2003-Ohio-4665, 2003 WL 22053473, the evidence established that the plaintiff’s son
saw water dripping from the ceiling to the floor four to five months prior to the accident,
and the plaintiff had seen maintenance workers place buckets in these areas prior to her
son falling. Unlike the facts in Lopez, this case contains no evidence that the Clinic had
any knowledge of the water on the floor prior to Motes’s fall. The deposition testimony
established that no drinking fountains, restrooms, mops, or buckets were in the area. In
fact, Mary Harrison, an independent eyewitness, testified at deposition that after she saw
Motes fall, she “remember[ed] being puzzled where this water could come from.”
{¶22} In this case, no testimony or evidence was set forth indicating that the Clinic
did not regularly check its hallways or that water had pooled in that area before, which
would have created an issue of fact as to whether the Clinic should have known about the
water prior to Motes falling. The only evidence presented establishes that the Clinic was
notified of the water after Motes fell.
{¶23} Accordingly, we find that summary judgment was properly granted on the
basis that no genuine issue of material fact exists whether the Clinic breached its duty to
Motes; therefore, we need not address whether the liquid was an open and obvious
condition. Motes’s assignment of error is overruled.
{¶24} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
KATHLEEN ANN KEOUGH, JUDGE
COLLEEN CONWAY COONEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR