[Cite as Cintron-Colon v. Save-A-Lot, 2014-Ohio-4574.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100917
MARIA CINTRON-COLON
PLAINTIFF-APPELLANT
vs.
SAVE-A-LOT, ET AL.
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-800654
BEFORE: E.A. Gallagher, J., Boyle, A.J., and Jones, J.
RELEASED AND JOURNALIZED: October 16, 2014
ATTORNEY FOR APPELLANT
Thomas Silk
Mark J. Obral & Associates
The Standard Building, Suite 1520
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Michelle J. Sheehan
Reminger Co., L.P.A.
101 West Prospect Avenue, Suite 1400
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Appellant Maria Cintron-Colon (“appellant”) appeals the trial court’s grant of
summary judgment in favor of the appellee, Moran Foods, Inc., d.b.a. Save-A-Lot
(“Save-A-Lot”) on negligence claims resulting from a slip and fall accident at a
Save-A-Lot grocery store. Appellant argues that genuine issue of material fact exist that
preclude the granting of the motion for summary judgment. For the following reasons,
we affirm the decision of the trial court.
{¶2} On September 10, 2009, Save-A-Lot employee Jose Martinez swept the store
floor at approximately 4:10 p.m. and, during that sweep, did not see or learn of any
substances on the floor. Thirty minutes later, appellant entered the Save-A-Lot grocery
store and, with a shopping cart, walked to a display and picked up a 20-pound bag of rice.
As she walked back to her shopping cart, she slipped on a puddle of bright yellow liquid
and fell. The appellant sprained her wrists and strained her back.
{¶3} Appellant filed a complaint against Save-A-Lot claiming negligent
maintenance of the premises and/or failure to correct and/or warn of a dangerous
condition that they knew, or should have known, existed on the property. Save-A-Lot
responded, and filed a motion for summary judgment asserting that the appellant’s
injuries resulted from an open and obvious condition. Further, Save-A-Lot asserted that
there was no evidence showing Save-A-Lot had actual or constructive knowledge of the
bright yellow liquid. Save-A-Lot attached the transcript from the appellant’s deposition
and the affidavit of Save-A-Lot employee Jose Martinez. Appellant filed a brief in
opposition arguing that she did not see the puddle before she fell and that fact is sufficient
to create a genuine issue of material fact as to the open and obvious nature of the
condition. Appellant further argued that reasonable minds could differ with regard to
whether the puddle was observable and as to the open and obvious nature of the liquid.
{¶4} On December 20, 2013, the trial court granted Save-A-Lot’s motion for
summary judgment finding that the bright yellow liquid was open and obvious as a matter
of law and that there was no evidence that Save-A-Lot knew or should have known of the
spill. The trial court dismissed the matter with prejudice. Appellant appeals, raising
the following assignment of error:
It was error for the trial court to grant summary judgment to the moving
defendant in the face of several significant questions of fact.
{¶5} The proper standard of review for a trial court’s grant of summary judgment
is de novo. Ekstrom v. Cuyahoga Cty. Community College, 150 Ohio App.3d 169,
2002-Ohio-6228, 779 N.E.2d 1067 (8th Dist.). Summary judgment may be granted if
the trial court determines the following:
(1) no genuine issue as to any material fact remains to be litigated, (2) the
moving party is entitled to judgment as a matter of law, and (3) it appears
from the evidence that reasonable minds can come to but one conclusion,
and viewing the evidence most strongly in favor of the nonmoving party,
that conclusion is adverse to the nonmoving party.
State ex rel. Dussell v. Lakewood Police Dept., 99 Ohio St.3d 299, 2003-Ohio-3652, 791
N.E.2d 456, ¶ 1-10, citing State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio
St.3d 190, 191, 672 N.E.2d 654 (1996).
{¶6} To defeat a motion for summary judgment on a negligence claim, the
nonmoving party 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. Texler v.
D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271
(1998).
{¶7} There is no dispute that the appellant was a business invitee. An owner or
occupier of the premises owes its business invitees a duty of ordinary care in maintaining
the premises in a reasonably safe condition and has the duty to warn its invitees of latent
or hidden dangers. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d
474 (1985). A premises owner is obligated to warn invitees of latent or concealed
dangers if the owner knows, or has reason to know, of hidden dangers. Rogers v. Sears,
1st Dist. Hamilton No. C-010717, 2002-Ohio-3304. Where a hazard is not hidden from
view or concealed and is discoverable by ordinary inspection, a trial court may properly
sustain a motion for summary judgment made against the claimant. Parsons v. Lawson
Co., 57 Ohio App.3d 49, 566 N.E.2d 698 (5th Dist.1989).
{¶8} The Supreme Court of Ohio recognized in Armstrong v. Best Buy Co., Inc.,
99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 11-15, that the
open-and-obvious doctrine relates to the threshold issue of duty in a negligence action.
By focusing on duty, “the rule properly considers the nature of the dangerous condition
itself, as opposed to the nature of the plaintiff's conduct in encountering it.” Id. Where
a condition is open and obvious, the premises owner is absolved from taking any further
action to protect the plaintiff. Id. The open-and-obvious nature of the hazard serves as
a warning, and the owner or occupier may reasonably expect that persons entering the
premises will discover those dangers and take appropriate measures to protect themselves.
Id. at ¶ 4-8, citing Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d
504 (1992). When the open-and-obvious doctrine is applicable, it obviates the duty to
warn and acts as a complete bar to recovery. Armstrong at ¶ 4-8.
{¶9} The question of whether a danger is open and obvious is an objective one.
Goode v. Mt. Gillion Baptist Church, 8th Dist. Cuyahoga No. 87876, 2006-Ohio-6936, ¶
25. The fact that a plaintiff was unaware of the danger is not dispositive of the issue.
Id. Hence, a court must consider whether, in light of the specific facts and
circumstances of the case, an objective, reasonable person would deem the danger open
and obvious. See Stanfield v. Amvets Post No. 88, 2d Dist. Miami No. 06CA35,
2007-Ohio-1896, ¶ 12.
{¶10} Notwithstanding the objective nature of the inquiry, the question of whether
a danger is open and obvious is not always a question that can be decided as a matter of
law simply because it may be visible. Furano v. Sunrise Inn of Warren, Inc., 11th Dist.
Trumbull No. 2008-T-0132, 2009-Ohio-3150, ¶ 23; Hudspath v. Cafaro Co., 11th Dist.
Ashtabula No. 2004-A-0073, 2005-Ohio-6911. To the contrary, the “attendant
circumstances” of a slip and fall may create a material issue of fact regarding whether the
danger was open and obvious. Id. Attendant circumstances involve all facts relating to
the slip and fall. Armstrong v. Meade, 6th Dist. Lucas No. L-06-1322, 2007-Ohio-2820,
¶ 14. In effect, attendant circumstances include any distraction that might divert an
ordinary person’s attention in the same circumstances and consequently reduce the
amount of care a reasonable person would exercise. Hudspath at ¶ 19.
{¶11} In the present case, the appellant stated in her deposition that she slipped on
a two-foot round puddle of bright yellow liquid of unknown origin. She further stated
that nothing was covering the puddle and she did not know how long it had been there.
Appellant argues that the application of the open-and-obvious doctrine is fact specific,
and therefore each case must be examined. She then presents several cases in support of
her position that whether a condition qualifies as open and obvious does not depend
solely on whether the condition is observed by the plaintiff; rather, whether the condition
is observable is determinative. The appellant argues that despite her attempts to walk
cautiously while shopping, the liquid was not observable prior to her fall. She argues
that this precludes the application of the open-and-obvious doctrine.
{¶12} Save-A-Lot responds that the puddle was a bright yellow liquid on a white
floor. The appellant admits in her deposition that nothing was covering the puddle and,
when she looked, she was able to see the puddle. Save-A-Lot argues that because she
was able to see the puddle when she looked, the condition was open and obvious.
Save-A-Lot’s argument that the bright yellow liquid puddle was an open-and-obvious
condition relies heavily on the assertion that appellant admitted in her deposition that had
she looked prior to slipping, she would have seen the liquid. In support of this statement
Save-A-Lot cites to appellant’s deposition. However, after a thorough review of the
entire record, this statement was not found. The appellant actually stated that when she
looked after she fell, she was able to see the puddle.
{¶13} Nonetheless, we agree with the trial court’s conclusion that the yellow
puddle constituted an open-and-obvious condition. In arguing the trial court’s grant of
summary judgment was improper, the appellant relies on cases that are factually
distinguishable from the present case. Specifically, she cites to the following: Collins v.
McDonald’s Corp., 8th Dist. Cuyahoga No. 83282 2004-Ohio-4074 (concerning a
plaintiff who was distracted by people in front of him and tripped on a pothole);
Middleton v. Meijer, Inc., 2d Dist. Montgomery No. 23789, 2010-Ohio-3244 (concerning
a plaintiff who slipped on clear laundry detergent that had been tracked through the store
and had been reported to a store employee); Trimble v. Frisch’s Ohio, Inc., 2d Dist.
Montgomery No. 21977, 2007-Ohio-4614 (concerning a plaintiff who slipped on a freshly
mopped wet floor). However, a careful review of the facts in this case reveal that the
appellant was not distracted by conditions outside of her control and she testified that the
puddle had not been tracked through the store; rather it was concentrated in one area.
{¶14} We conclude that the bright yellow liquid would have been observable to a
reasonable person. Therefore, the puddle was an open-and-obvious condition and the
store owed no duty to the appellant to warn of its existence.
{¶15} We further note that, even if we were to conclude that the puddle was not
open and obvious, there is no evidence to suggest the store had been aware of the puddle
prior to the appellant’s fall or had constructive knowledge of the condition. When the
defendant can show they had no actual knowledge of the condition, the plaintiff must
show they had constructive knowledge in order to maintain the negligence claim. Stepp v.
Getgo Gas & Grocery, 8th Dist. Cuyahoga No. 98325, 2012-Ohio-5184. Save-A-Lot
submitted a sworn affidavit from employee Jose Martinez stating he had swept the floor
at approximately 4:10 p.m.
{¶16} The only argument the appellant raises with regard to whether Save-A-Lot
knew or had constructive knowledge of the liquid is a brief mention about video
surveillance footage. This footage supposedly contradicts the Save-A-Lot employee’s
sworn affidavit. However, the videotapes were never entered into the record.
Therefore, we will only consider the Save-A-Lot employee’s affidavit.
{¶17} Given that the store had no actual knowledge of the puddle, the appellant
must show that the length of time the puddle existed was sufficient to form constructive
knowledge. In order to show the store had constructive knowledge of the puddle, the
plaintiff is required to show that the length of time the hazard existed created the
“inference that the failure to warn against it or remove it was a breach of ordinary care.”
Stepp at ¶ 2, discussing Presley v. Norwood, 36 Ohio St.2d 29, 32, 303 N.E.2d 81 (1973).
However, the appellant states in her deposition that the puddle had not been tracked
through the store and she did not know how long it had been there. There is no
indication that the puddle existed for a length of time sufficient to manufacture
constructive knowledge nor is there evidence to suggest the store had actual knowledge of
the puddle.
{¶18} Based on the foregoing, we overrule appellant’s sole assignment of error
and affirm the decision of the trial court.
{¶19} Judgment affirmed.
It is ordered that appellee 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.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
LARRY A. JONES, SR., J., CONCUR