[Cite as Smith v. Zuchowski, 2014-Ohio-4386.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101043
IRIS SMITH
PLAINTIFF-APPELLANT
vs.
CHARLES ZUCHOWSKI, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-12-793647
BEFORE: Blackmon, P.J., McCormack, J., and Stewart, J.
RELEASED AND JOURNALIZED: October 2, 2014
ATTORNEY FOR APPELLANT
Anthony D. Jordan
11811 Shaker Boulevard
Suite 420
Shaker Heights, Ohio 44120
ATTORNEY FOR APPELLEES
Stephen J. Yeargin
Law Offices of John V. Rasmussen
6060 Rockside Woods Boulevard
Suite 131
Independence, Ohio 44131
PATRICIA ANN BLACKMON, P.J.:
{¶1} In this accelerated appeal, appellant Iris Smith (“Smith”) appeals the trial
court’s decision granting summary judgment in favor of appellees Charles Zuchowski, et
al. (“Zuchowski”). Smith assigns the following error for our review:
The trial court erred to the substantial prejudice of the appellant when it
granted the appellee’s motion for summary judgment when a genuine
question of disputed material fact created a jury question as to whether the
appellee had constructive or actual notice of a latent hazardous condition in
the lobby when the floor was extremely slippery and another person had
fallen in the same area before.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
decision. The apposite facts follow.
{¶3} On October 16, 2012, Smith filed a complaint against Zuchowski alleging
injuries sustained on January 4, 2012, when she slipped and fell in the lobby of the
Maylee Building in Cleveland Heights, Ohio. Smith subsequently amended the
complaint to name Maylee Building, Inc. (“Maylee”) as the proper party, and the trial
court dismissed Zuchowski from the suit.
{¶4} In the complaint, Smith asserted a claim for negligence on the grounds that
Maylee maintained the lobby floor in an unsafe condition and failed to warn her of the
unsafe condition that caused her to be injured. Smith also alleged that the lobby floor
was wet before she fell and that Maylee was negligent for failing to mop the floor or put
down mats. In addition, Smith alleged that Maylee’s failure to correct the unsafe
condition of the floor or to warn thereof, amounts to negligence per se.
{¶5} On August 30, 2013, after answering Smith’s complaint and denying all
allegations, Maylee filed a motion for summary judgment. On September 30, 2013,
Smith filed her motion in opposition to Maylee’s motion for summary judgment. On
January 27, 2014, the trial court granted summary judgment in favor of Maylee.
Summary Judgment
{¶6} In her sole assigned error, Smith argues the trial court erred when it granted
Maylee’s motion for summary judgment.
{¶7} We review an appeal from summary judgment under a de novo standard of
review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio
Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th
Dist.1997). Accordingly, we afford no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is appropriate.
{¶8} 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) when 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.
{¶9} The moving party carries an initial burden of setting forth specific facts that
demonstrate his or her entitlement to summary judgment. Brigadier Constr. Servs. v. JLP
Glass Prods., 8th Dist. Cuyahoga No. 98672, 2013-Ohio-825, citing Dresher v. Burt, 75
Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this
burden, summary judgment is not appropriate; if the movant does meet this burden,
summary judgment will be appropriate only if the nonmovant fails to establish the
existence of a genuine issue of material fact. Id.; Dresher at 293.
{¶10} In order to defeat a motion for summary judgment on a negligence claim, a
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. Cuyahoga No. 88807, 2007-Ohio-3922, citing Texler v. D.O.
Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998).
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).
{¶11} In the instant case, at her deposition, Smith testified that on the morning of
January 4, 2012, she was reporting to work in her office located in the Maylee Building.
Smith testified that it had snowed heavily the day before causing schools to be closed
because of the inclement weather. Smith testified that as she approached the building,
she kicked off the snow from her heavy boots on the front steps before entering through
the building’s front door. Smith testified that upon entering the building and walking
across the lobby to the elevators, she slipped and fell.
{¶12} Smith testified in pertinent part as follows:
Q. Do you know what caused you to fall?
A. No.
Tr. 17.
***
Q. While you were there in the chair, did you see anything on the floor?
A. No.
Q. What happened next?
A. Well, I sat there a few minutes. I called upstairs to let my supervisor know
that I was down in the lobby, that I had fallen, and I was going to regroup.
They got me to the elevator, and I went up to my office.
Q. So they helped you into the elevator, and you went up to your office on the
third floor.
A. Uh-huh
Q. Yes?
A. I’m sorry. Yes.
Q. At any time while you were down there in the lobby, did you notice
anything on the floor?
A. No. I noticed that my sleeves were wet from falling on the floor.
***
Q. But you never saw anything on the floor?
A. I don’t remember seeing it. No, I didn’t see anything on the floor.
Q. This wetness on your coat, was that water? Could you tell what it was that
caused it to be wet?
A. No.
Q. Did somebody spill something on the floor, or was it tracked in water?
A. I don’t know. I just know that I felt it.
Q. You felt wetness, but you don’t know what the source of the wetness was?
A. Right.
Q. You assumed that it came off the floor?
A. Well, I hadn’t felt it before I walked in there.
Tr. 20-22.
***
Q. You didn’t notice that people had walked in and tracked water across the
floor or anything like that?
A. Normally I come in the back door because I would drive. My car wouldn’t
start that morning, so I came through the front door this time. So I pretty
much wasn’t familiar with coming in that front door anyway. * * * So, no, I
never really noticed what was on the floor.
Q. So you don’t know what caused you to fall?
A. I just know — no, I don’t.
Q. There wasn’t anything leaking around the area or anything like that you
saw?
A. I only know that the security guard said that the floors — he said the floors
are wet, and we asked them to come put mats down and get water up.
Q. So this security guard told you the floors were wet?
A. Yeah.
Q. And he asked somebody to come put mats down?
A. Right.
Q. Did he say anything about why the floors were wet or where the wetness
had come from? I’m assuming that it was people walking into the building
and their shoes were wet.
A. No. He never said where it came from.
Q. So, you don’t know that?
A. No.
Tr. 42-43.
{¶13} A review of the above excerpt, as well as elsewhere in the record, indicates
that initially Smith could not identify what caused her to fall. Smith ultimately opined
that she had to have slipped on water on the floor because she noticed later that the right
sleeve of her coat was wet. Despite ultimately opining that she fell because the floor
was wet, Smith testified that as she was sitting in the lobby on a chair after the fall, she
did not notice anything on the floors. Smith also testified that she did not notice if
people had tracked water across the floors or whether there was a leak that caused water
to be on the floor.
{¶14} In granting Maylee’s motion for summary judgment, the trial court noted
that Smith’s testimony was practically identical to plaintiff’s testimony in Coleman v.
Dave’s Supermarket, Inc., 8th Dist. Cuyahoga No. 88661, 2007-Ohio-2381, one of our
earlier decision where the plaintiff could only speculate as to what caused her fall. In
Coleman, plaintiff testified that she “felt it was wet,” based on the fact that her pants were
wet when she got up.
{¶15} There we reiterated, “‘[a]n inference of negligence does not arise from mere
guess, speculation, or wishful thinking, but rather can arise only upon proof of some fact
from which such inference can reasonably be drawn.”’ Id., Goodin v. The Kroger Co.,
12th Dist. Butler No. CA93-01-009, 1993 Ohio App. LEXIS 3152 (June 21, 1993),
quoting Parras v. Std. Oil Co., 160 Ohio St. 315, 116 N.E.2d 300 (1953), paragraph two
of the syllabus.
{¶16} Likewise, in Mines v. Russo’s Stop & Shop, 8th Dist. Cuyahoga No. 55073,
1989 Ohio App. LEXIS 609 (Feb. 23, 1989), the plaintiff could not explain the actual
cause of her fall. In Mines, plaintiff claimed that a depression was in the pavement
where she fell, but she did not say that she tripped in the depression. Plaintiff even
admitted the possibility that her fall might not have resulted from a defect in the
pavement.
{¶17} We also faced a similar circumstances in Sollberger v. USA Parking Sys.,
8th Dist. Cuyahoga No. 94859, 2011-Ohio-216, where plaintiff could only speculate as to
the cause of her fall. In Sollberger, plaintiff parked her car in a parking garage owned by
the corporation, exited, and fell as she was walking down a flight of nine concrete stairs.
{¶18} Like the instant case, plaintiff ultimately concluded that loose gravel caused
her to fall. However, she testified that she had an unobstructed view as she walked
down the steps prior to falling. She also testified that there was nothing on the steps in
front of her as she walked down the stairs, and that she had seen gravel on previous
occasions when she used the stairs, but could not remember if that was the case on the
day she fell.
{¶19} Thus, the failure to identify or explain the reason for a fall while a plaintiff
is on a property owned by a defendant precludes a finding that the defendant acted
negligently. Bailey v. St. Vincent DePaul Church, 8th Dist. Cuyahoga No. 71629, 1997
Ohio App. LEXIS 1884 (May 8, 1997).
{¶20} Finally, although Smith speculates that tracked-in water might have led to
her fall, we note tracked-in water is a condition created by inclement weather and
everyone should be aware of the conditions. Boston v. A & B Sales, Inc., 7th Dist.
Belmont No. 11 BE 2, 2011-Ohio-6427, ¶ 41, citing Boles v. Montgomery Ward & Co.,
153 Ohio St. 381, 92 N.E.2d 9 (1950).
{¶21} The Supreme Court of Ohio has held that, “‘[o]rdinarily, no liability attaches
to a store owner or operator for injury to a patron who slips and falls on the store floor
which has become wet and slippery by reason of water and slush tracked in from the
outside by other patrons.”’ Pesci v. William Miller & Assocs., L.L.C., 10th Dist. Franklin
No. 10AP-800, 2011-Ohio-6290, ¶ 15, quoting Boles at paragraph two of the syllabus.
“Everybody knows that the hallways between the outside doors
of * * * buildings and the elevators or business counters inside the building
during a continued rainstorm are tracked all over by the wet feet of people
coming from the wet sidewalks, and are thereby rendered more slippery
than they otherwise would be.”
Martin v. Giant Eagle, Inc., 10th Dist. Franklin No. 13AP-809, 2014-Ohio-2657, quoting
S.S. Kresge Co. v. Fader, 116 Ohio St. 718, 723-724, 158 N.E. 174 (1927).
{¶22} “‘[I]n light of weather conditions, plaintiff’ should have been aware or
anticipated the presence of water on the floor inside the mall because on a rainy day, one
can expect to find water on the floor in such heavily trafficked areas.’” Id., quoting
Johnson v. Serv. Ctr. Invest. Trust, 8th Dist. Cuyahoga No. 75256, 1999 Ohio App.
LEXIS 5697 (Dec. 2, 1999). Thus, if her fall resulted from tracked-in water, as Smith
appears to speculate, it would have been an open and obvious hazard.
{¶23} After construing the evidence most favorably to Smith, we find that the
record discloses no genuine issue of material fact. Summary judgment was properly
granted in favor of Maylee because Smith could only speculate as to the cause of her fall.
Accordingly, we overrule the sole assigned error.
{¶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.
__________________________________________________
PATRICIA ANN BLACKMON, PRESIDING JUDGE
TIM McCORMACK, J., and
MELODY J. STEWART, J., CONCUR