Before: Judith A. Christley, P.J., Robert A. Nader, J., and William M. O'Neill, J.
Atty. Michael Georgiadis (For Plaintiff-Appellant)
Attys. Edward L. LaVelle and Bruce M. Broyles (For Defendant-Appellee)
Appellant, Bobrea Robinson, appeals the order of the Trumbull County Court of Common Pleas, which granted appellee, Martin Chevrolet, Inc., summary judgment.
Appellant filed a complaint against appellee on January 24, 1997. In her complaint, appellant alleged that she was a customer in appellee's garage when she suffered injuries caused by the negligent maintenance of its premises. Appellant filed the complaint as a result of a fall that occurred at the garage. Appellee filed a motion for summary judgment on September 15, 1997.
In appellee's motion for summary judgment, it argued that appellant could not establish that it had breached a duty owed to her because: she could not establish the existence of a defect or imperfection with appellee's floor; she could not establish that the fall was caused by a foreign substance about which appellee should have known; and, appellee was not obligated to warn her about dangers that were open and obvious. In support of its motion, appellee relied entirely on appellant's deposition, taken on May 12, 1997.
Appellant testified to the following events at the deposition.
On March 13, 1996 at about 4:30, she went to appellee's garage to get a hose for her car. On that day, the ground was slushy and there were snow flurries. She was wearing shoes with heels that were about an inch high. She walked into the garage without difficulty, then walked back out with an employee to show him her car, again without difficulty. Upon re-entering the shop, she slipped and fell onto her left knee. She did not know what caused the fall, but noticed little pebbles, like salt grains, on her pantyhose when she got up. She did not fill out an accident report at the time, but was given a number to call by an employee. When she called the number, she was told to send them her medical bills. As a result of the fall, appellant sustained injuries to her left knee and foot, which required her to seek medical attention and miss time at work. She did not submit her medical bills to appellee.
Appellant filed a response to appellee's motion and argued that summary judgment was improper because issues of fact remained about whether appellee's floor was free from defects and whether the foreign substance on the floor was open and obvious. Appellant supported her response with an affidavit in which she summarized her deposition testimony.
The trial court granted appellee's motion for summary judgment, stating that:
"After drawing all inferences in favor of Plaintiff, she cannot aintain that a dangerous condition existed about which the Defendant knew or should have known. Although there is some argument raised about potential defect in construction or aintenance by Plaintiff, there is no presentation of fact concerning a construction defect.
"Therefore, reasonable minds can only conclude that the cement floor was open and visible and absent of conditions wherein there was any duty to warn Plaintiff or which Plaintiff could reasonably not observe for her own safety."
Appellant appeals this order and raises the following assignment of error for our review:
"The trial court erred in granting summary judgment because pursuant to Civil Rule , the issue was raised as the presence of the gravel/stones and water located inside the premises and the causation of the fall which was in question of a material fact upon which reasonable minds could differ."
In her assignment of error, appellant asserts that the trial court erred by granting summary judgment because an issue of fact existed with regard to the presence of a foreign substance, which caused her fall.
Appellant was indisputably a business invitee in appellee's garage. Under Ohio law, a shopkeeper owes a business invitee a duty of ordinary care in maintaining the premises in a reasonably safe condition but is not an insurer of its customer's safety. Paschal v. Rite Aid Pharmacy, Inc. (1985), Ohio St.3d 203, 480 N.E.2d 474. The duty of the shopkeeper is to warn of latent or concealed perils, not those that are open and obvious. Keiser v. Giant Eagle, Inc. (1995), 103 Ohio App.3d 173, 176, 658 N.E.2d 1115.
In order to impose liability for injury to an invitee because of a dangerous condition of the premises resulting from a foreign substance on the floor, the condition must have been known to the owner or occupant, or have existed for such a time that it was the duty of the owner or occupant to know of it. Tiberi v. Fisher Bros. Co. (1953), 96 Ohio App. 302, 303, 121 N.E.2d 694, 695. See also, Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 49 N.E. 2d 925; Boles v. Montgomery Ward & Co. (1950), 153 Ohio St. 381, 92 N.E.2d 9; Presley v. Norwood (1973), 36 Ohio St.2d 29, 303 N.E.2d 81.
As we have previously set forth, in Owens v. Taco Bell Corp. (June 21, 1996), Lake App. No. 95-L-180, unreported, citing Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, in order to overcome appellee's motion for summary judgment, appellant was required to show:
1) That appellee through its officers or employees was responsible for the hazard complained of; or
2) That 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) That such a 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 attributable to a want of ordinary care.
Appellant could not describe how she fell, was unable to conclusively state what caused her fall, and produced no evidence that her fall was caused by something within appellee's control or knowledge. During the nine months from the time appellant filed her complaint until appellee moved for summary judgment, she was unable to produce any evidence to the trial court from which reasonable minds could conclude that appellee breached a duty owed to her. Therefore, the trial court did not err by granting appellee's motion for summary judgment and appellant's assignment of error lacks merit.
For the foregoing reasons, we affirm the judgment of the trial court.Christley, P.J., and O'Neill, J., concur.