LaPonza v. Sears, Roebuck & Co.

Per Curiam.

This is an accelerated appeal brought pursuant to App. R. 11.1 and Loe. R. 25 of the Eighth District Court of Appeals, Cuyahoga County.

Plaintiffs-appellants, Fred and Jean LaPonza, appeal from the grant of summary judgment by the Cuyahoga County Court of Common Pleas in favor of defendant-appellee, Sears, Roebuck & Co. Fred LaPonza filed suit against appellee on November 14, 1988, for injuries he allegedly suffered on January 26, 1987 when he slipped, but did not fall, on a wet floor at appellee's department store at 6950 West 130 Street, resulting in injuries to his right knee, proximately caused by appellee's alleged negligence. Jean Laponza joined in the suit for the loss of the consortium and services of her husband.

Appellants assign the following two errors for our review, which will be considered together since both rest on common bases of law and fact:

"I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING THE DEFENDANT/APPELLEE'S RULE 56 MOTION FOR SUMMARY JUDGMENT, WHERE REASONABLE MINDS COULD NOT HAVE COME TO BUT A SINGLE CONCLUSION ADVERSE TO THE PLAINTIFFS/APPELLANTS.

"II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING THE DEFENDANT/APPELLEE'S RULE 56 MOTION FOR SUMMARY JUDGMENT, WHERE THE DEFENDANT/APPELLEE WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW."

Essentially, appellants argue that the appellees had not satisfied the requirements for summary judgment, as provided at Civ. R. 56(C), which states in 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 judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, 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 his favor." See Porter v. Miller (1983), 13 Ohio App. 3d 93; Keister v. Park Centre Lanes (1981), 3 Ohio App. 3d 19 (negligence actions).

In the instant case, appellee Sears referred in its motion for summary judgment solely to the deposition testimony of appellant Fred LaPonza and his friend, Michael Gabor, who accompanied appellant to appellee's store on the date of the accident. Appellant's brief in opposition to appellee's motion likewise limits itself to this deposition testimony. No other evidentiary materials listed in Civ. R. 56 were submitted.

It is clear upon thorough review of the record on appeal, including a careful reading of the two depositions, that after viewing the evidence in a light most favorable to appellants, as we are required to do, Morris v. Ohio Cas. Co. (1988), 35 Ohio St. 3d 45, there certainly remains a genuine issue of material fact as to 1) whether the water was tracked in by other customers; and 2) whether appellee breached its duty of ordinary care by allowing the alleged 6' x 6' unnatural accumulation of water to remain standing for an unreasonable period of time. Cf. Cohen v. Kroger Co. (1982), 8 Ohio App. 3d 21; Johnson v. Wagner Provision Co.(1943), 141 Ohio St. 584, at paragraph 3 of syllabus; Presley v. Norwood (1973), 36 Ohio St. 2d 29; Schon v. National Tea Co. (1971), 28 Ohio App. 2d 49; Boles v. Montgomery Ward & Co. (1950), 153 Ohio St. 381; Anaple v. Standard Oil Co. (1955), 162 Ohio St. 537; Keister, supra, at 24.

Accordingly, appellee was not entitled to judgment as a matter of law, and the judgment of the trial court is reversed and remanded for proceedings consistent with this opinion.

Judgment reversed and cause remanded.

PATTON, P.J., and MATIA, J., concur.