Allen v. 5125 Peno, L.L.C.

[Cite as Allen v. 5125 Peno, L.L.C., 2017-Ohio-8941.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
CAROL J. ALLEN, a.k.a : OPINION
CARLY ALLEN,
Plaintiff-Appellant, :
CASE NO. 2016-T-0120
- vs - :
5125 PENO, LLC, d.b.a. :
EL JALAPENO, et al.,
Defendant-Appellee. :
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CV
00171.
Judgment: Affirmed.
Ilan Wexler, Anzellotti, Sperling, Pazol & Small Co., L.P.A., 21 North Wickliffe Circle,
Youngstown, OH 44515, and Richard L. Goodman, Richard L. Goodman Co., L.P.A.,
720 Youngstown-Warren Road, Suite E, Niles, OH 44446 (For Plaintiff-Appellant).
Kirk E. Roman, 50 South Main Street, Suite 502, Akron, OH 44308 (For Defendant-
Appellee).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Carol J. Allen, appeals the trial court’s decision granting
summary judgment in favor of appellee, 5125 Peno, LLC (“Peno”). We affirm.
{¶2} In January of 2013, Allen was a patron at appellee’s Mexican-style
restaurant. After entering the restaurant and upon walking toward her family’s table,
Allen slipped and fell on a “grimy, greasy” spot on the floor sustaining injuries. Allen
filed suit in January 2015 alleging the restaurant’s owner, Peno, was negligent.
Following discovery, the trial court granted Peno’s motion for summary judgment.
{¶3} Allen asserts two assigned errors, which we address collectively:
{¶4} “The trial erred in granting summary judgment in favor of Defendant-
Appellee, 5125 Peno LLC (‘El Jalapeno’), by failing to construe the evidence most
strongly in favor of the nonmoving party, Plaintiff-Appellant Carly Allen (‘Carly Allen’),
when it found that Carly Allen ‘failed to prove that Defendant was responsible for the
grease on the floor or had any actual or constructive notice of any alleged danger
associated with the floor where she slipped.’ (T.d. 25, paras. 2, 6, and 7).
{¶5} “The trial court erred by granting summary judgment in favor of Defendant-
Appellee, 5125 Peno, LLC (‘El Jalepeno’) if the trial court based its decision in any way
upon its finding that Plaintiff-Appellant, Carly Allen (‘Carly Allen’), was in any way unable
to articulate exactly what caused her fall.’ (T.d. 25, paragraphs 2, 4, and 7).”
{¶6} Appellate courts review decisions awarding summary judgment de novo.
Northeast Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188,
191, 699 N.E.2d 534 (8th Dist.1997). We review the trial court's decision independently
and without deference, pursuant to the standards in Civ.R. 56(C). Brown v. Scioto Cty.
Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). 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)
viewing the evidence most strongly in favor of the nonmoving party, reasonable minds
can reach only one conclusion adverse to the nonmoving party. Holliman v. Allstate Ins.
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Co., 86 Ohio St.3d 414, 415, 715 N.E.2d 532 (1999). The initial burden is on the
moving party to set forth specific facts demonstrating that no issue of material fact exists
and the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75
Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant meets this burden, the
burden shifts to the nonmoving party to establish that a genuine issue of material fact
exists for trial. Id.{¶7} A “material fact” for summary judgment depends on the type of the claim
being litigated. Hoyt, Inc. v. Gordon & Assocs., Inc., 104 Ohio App.3d 598, 603, 662
N.E.2d 1088 (8th Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–
248, 106 S.Ct. 2505 (1986).
{¶8} In order to establish actionable negligence, a plaintiff must prove the
existence of a legal duty, the defendant's breach of that duty, and injury proximately
caused by the defendant's breach. Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d
266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶22 (2002).
{¶9} Allen was a business invitee at the time she fell. As a business invitee,
Peno owed Allen a duty of “ordinary care in maintaining the premises in a reasonably
safe condition so that its customers are not unnecessarily and unreasonably exposed to
danger. * * * A shopkeeper is not, however, an insurer of the customer's safety.”
(Citations omitted.) Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 203-204,
480 N.E.2d 474 (1985).
{¶10} A storeowner has a duty to exercise ordinary care and to protect
customers by maintaining the premises in a safe condition. This duty includes warning
invitees of latent defects of which it has actual or constructive knowledge. Kornowski v.
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Chester Props., Inc., 11th Dist. Geauga No. 99-G-2221, 2000 WL 895594. *3 (June 30,
2000); Brymer v. Giant Eagle, Inc., 11th Dist. Lake No. 2010-L-134, 2011-Ohio-4022,
¶10.
{¶11} When a business invitee slips and falls as a result of a foreign substance
on the floor of a business, the plaintiff has the burden to prove one of three conditions to
recover:
{¶12} “(a) that the defendant or his agent was responsible for the substance
being on the floor; (b) that the defendant knew of the substance on the floor and failed
to remove it; or (c) that the substance was on the floor for a long enough period of time
so that the defendant should have known about it and removed it. Johnson v. Wagner
Provision Co. (1943), 141 Ohio St. 584, 589, 49 N.E.2d 925; Orndorff v. Aldi, Inc.
(1996), 115 Ohio App.3d 632, 635-36, 685 N.E.2d 1298. See, also, Parras v. Standard
Oil Co. (1953), 160 Ohio St. 315, 317, 116 N.E.2d 300.” Phares v. Midway Mall Dev.
Corp., 9th Dist. Lorain No. 97CA006814, 1998 WL 208826, *2; Brymer, supra, at ¶14.
{¶13} Here, Allen alleges that Peno is liable because it either created the hazard
on the floor or should have known of the hazard and either warned of the danger or
remedied it.
{¶14} Allen testified to the following:
{¶15} “Q. Was there any reason you were in a hurry at the time to get to the
table or to eat at all?
{¶16} “A. No.
{¶17} “Q. Was there anything blocking or obstructing your view of the floor as
you walked to the area where you fell?
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{¶18} “A. No.
{¶19} “Q. I mean other people?
{¶20} “A. No.
{¶21} “Q. Employees or anything like that?
{¶22} “A. No.
{¶23} “Q. What caused you to fall?
{¶24} “A. I believe it was grease of some sort.
{¶25} “Q. Do you know?
{¶26} “A. Exactly what it was, no. But when I fell, I turned around to see what
was on the floor, and I remember doing this with my hands * * *
{¶27} “Q. Touching the floor?
{¶28} “A. Touching the floor.
{¶29} “Q. The tile?
{¶30} “A. The tile. It was tile, and I remember it was grimy, greasy.
{¶31} “Q. Can you give me an idea at all what the area was in size of this grimy
greasy substance which you felt with your hand after you fell?
{¶32} “A. * * * I would say 10, 12 inches.
{¶33} “Q. Like a 10 or 12 inch circle?
{¶34} “A. Yes.
{¶35} “Q. Did it have any type of color?
{¶36} “A. No.
{¶37} “Q. Do you know the substance that you believe caused you to fall, do
you know how it got there?
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{¶38} “A. No, I don’t know how it got there.
{¶39} “Q. Do you know who caused it or what caused it to get there?
{¶40} “A. I don’t know anything for sure.
{¶41} “Q. Do you know how long it was on the floor where you fell before you
fell, this grimy greasy substance?
{¶42} “A. No; no.”
{¶43} Allen’s daughter, Ashley Mokros, states in her affidavit that she visited the
restaurant on two occasions in the year before her mother’s fall and on both prior visits
Mokros observed the floors to be greasy and filmy. She does not identify the area in the
restaurant that she previously encountered greasy and filmy floors.
{¶44} Further, Allen’s daughter-in-law, Taylor Rupeka, states in her affidavit that
she visited the restaurant on several occasions and that she had slipped two to three
times on the floor. She states: “I have previously been a customer of the restaurant of
Defendant and have slipped on the surface of the floor between 2 and 3 times prior to
Carly [Allen] falling. The floor was not wet but just felt slippery.” Rupeka does not give
a date or time period when she experienced these slippery floors and does not indicate
which part of the restaurant she was in when she slipped.
{¶45} Pablo Martinez, the restaurant manager, testified that employees sweep
and mop the floor with bleach every morning before opening. Martinez also confirmed
that the restaurant always keeps a yellow “wet floor” sign displayed on the floor near the
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entrance to alert customers of a potentially slippery floor.1 It is unclear whether
Martinez was present when Allen fell.
{¶46} We disagree with Allen’s argument that she presented evidence that Peno
or his agents created the hazard. Contrary to Allen’s argument, Martinez did not testify
that grease spatters all over the restaurant when fajitas are served. To the contrary,
Martinez explained that the restaurant cooks the fajita meat in butter, which does not
splatter:
{¶47} “Q. How do you cook the meat for the fajitas?
{¶48} “A. The grill. You cook the meat first.
{¶49} “Q. In a pot? * * *
{¶50} “A. No, it’s a big grill, like I was talking about * * *.
{¶51} “ * * *
{¶52} “Q. You have to use oil in order to cook the meat a little bit so it doesn’t
stick?
{¶53} “A. Not oil. It’s like butter, because oil is like – I don’t know. What is it
called when you drop the oil?
{¶54} “Q. It spatters?
{¶55} “A. Spatters all over.
{¶56} “Q. The butter spatters?
{¶57} “A. Butter doesn’t. It cooks perfectly and better taste. Better flavor too.”
1. While Martinez testified that the restaurant always maintains a yellow “wet floor” sign near the hostess
station, and Allen does not dispute the presence of the sign the night she fell, neither party raises the
issue of the sign or whether it was adequate to warn Allen. Thus, we do not address.
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{¶58} Although Allen established that the restaurant serves fajitas, a popular
dish, on a hot platter, she surmises but does not present evidence that Peno was
responsible for the slippery spot causing her fall. This theory requires inference
stacking, which is insufficient to defeat summary judgment. Hughes v. Kroger Co., 12th
Dist. Clermont No. CA2005-10-099, 2006-Ohio-879, ¶7. “‘[N]egligence is a fact
necessary to be shown; it will not be presumed.’ Boles v. Montgomery Ward & Co.
(1950), 153 Ohio St. 381, 388, 92 N.E.2d 9. A negligence claim based on conjecture,
speculation, or the stacking of inference upon inference cannot succeed. Id.” Id.{¶59} Allen likewise failed to come forward with evidence that Peno had
constructive notice of the spot on the floor.
{¶60} “‘[C]onstructive notice requires proof by direct or circumstantial evidence
that the store in the exercise of ordinary care had or should have had notice of the
condition or foreign substance because of the length of time of its presence on the
floor.’ Catanzano v. [The Kroger Company, 1st Dist. Hamilton No. C-930761, 1995 WL
8956] at *6, citing Presley v. Norwood (1973), 36 Ohio St.2d 29, 31, 303 N.E.2d 81;
Hardgrove v. Isaly Dairy Co. (1942), 139 Ohio St. 641, 41 N.E.2d 862; J.C. Penny Co.
v. Robison (1934), 128 Ohio St. 626, 193 N.E. 401. To demonstrate plaintiff had
constructive notice, plaintiff must show that the ‘danger had existed for a sufficient
length of time reasonable to justify the inference that the failure to warn against it or
remove it was attributable to a want of ordinary care.’ Finast Supermarkets at *3. ‘“The
standard for determining sufficient time to enable the exercise of ordinary care requires
evidence of how long the hazard existed.”’ Hudspath v. Cafaro Co., 11th Dist. No.2004-
A-0073, 2005-Ohio-6911, ¶ 10, quoting Combs [v. First National Supermarkets, Inc.,
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105 Ohio App.3d 27,] at 30, 663 N.E.2d 669 (8th Dist.1995), citing Anaple v. The
Standard Oil Co. (1955), 162 Ohio St. 537, 541, 124 N.E.2d 128.” Brymer v. Giant
Eagle, Inc., 11th Dist. Lake No. 2010-L-134, 2011-Ohio-4022, ¶19-20.
{¶61} Allen avers based on her experience and her daughter and daughter-in-
law’s testimony that the floor was perpetually greasy so as to put Peno on constructive
notice. However, neither Rupeka nor Mokros described the area in the restaurant
where they had previously encountered slippery or greasy floors, and neither identified
the slipperiness that they encountered as the same greasy grimy 10 to 12 inch area that
caused Allen to slip and fall. Allen testified that she did not know how long the
substance had been on the floor before she fell.
{¶62} Moreover, she fell upon entering the dining room just beyond the entryway
to the restaurant and the hostess’ station. And Martinez testified that this area and all
the floors in the restaurant are mopped with bleach daily.
{¶63} The facts presented in Mokros’ and Rupeka’s affidavits are too indefinite
as to time and location and are insufficiently connected to the night in question to
establish that Peno had constructive notice of the greasy spot on which Allen slipped
and fell in January 2013 to enable us to conclude that the danger Allen encountered
“had existed for a sufficient length of time reasonable to justify the inference that the
failure to warn against it or remove it was attributable to a want of ordinary care.”’”
(Citations omitted.) Brymer, supra. There is no evidence as to how long the greasy
spot had been on the floor that night before Allen encountered it and fell. The fact that
other individuals encountered slippery floors in the restaurant the year before Allen’s fall
does not establish a want of ordinary care by Peno on the night Allen fell.
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{¶64} “The record contains no evidence as to how long the [substance] existed
on the tile floor before appellant fell. Such evidence is necessary to support an
inference that appellees breached a duty of ordinary care to invitees, and the absence
of such evidence is fatal to appellant's claim. See McDowell v. Target Corp., Franklin
App. No. 04AP-408, 2004-Ohio-7196 (affirming summary judgment for premises owner
in slip-and-fall case where there was no evidence that the slippery condition was
present long enough that defendants should have known about it).” Caravella v. W.-
WHI Columbus Northwest Partners, 10th Dist. Franklin No. 05AP-499, 2005-Ohio-6762,
¶25.
{¶65} We agree with the trial court’s decision. As the moving party, Peno
satisfied its initial burden of identifying the portions of the record demonstrating the
absence of a genuine issue of fact on Allen’s negligence claims. While Allen produced
evidence that she slipped on a greasy grimy substance on the floor of the restaurant,
she did not come forward with evidence that the restaurant caused the greasy
substance to be on the floor or that it had actual or constructive notice of the substance
prior to her fall.
{¶66} Accordingly, Allen failed to carry the reciprocal burden setting forth
specific facts demonstrating a genuine issue for trial. The trial court properly rendered
judgment for Peno, and the trial court’s decision is affirmed.
CYNTHIA WESTCOTT RICE., P.J.,
TIMOTHY P. CANNON, J.,
concur.
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