[Cite as Ebersole v. Toledo Hosp., 2025-Ohio-260.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Jaimee Ebersole Court of Appeals No. L-24-1045
Appellant Trial Court No. CI0202201367
v.
The Toledo Hospital, et al. DECISION AND JUDGMENT
Appellees Decided: January 24, 2025
*****
Jeffrey W. Swiech, Kevin J. Boissoneault, And Andrew J. Nash, for appellant.
Julia Smith-Wiley and Jeff M. Smith, for appellees.
* * * * *.
SULEK, P.J.
{¶ 1} Appellant Jaimee Ebersole appeals the judgment of the Lucas County Court
of Common Pleas, granting appellee The Toledo Hospital’s (“the hospital”) motion for
summary judgment on her claim for negligence based on premises liability. For the
following reasons, the trial court’s judgment is affirmed. I. Factual Background and Procedural History
{¶ 2} On February 15, 2020, Ebersole sustained injuries when she fell on the sixth
floor of the hospital. At the time, she was caring for her mother who was a regular
patient in the oncology ward. As part of her care, Ebersole made frequent trips to a
kitchenette located a short distance away to heat her mother’s food. She estimated that
she made around twenty or more trips a day during the days that her mother was at the
hospital receiving treatment.
{¶ 3} To reach the kitchenette, Ebersole traversed down her mother’s hallway and
through a corridor to an adjacent hallway. In the corridor between the two hallways was
a station with a cart for soiled food trays. She described the hallways and corridors as
common areas with foot traffic from patients, family members, and hospital employees.
{¶ 4} On the day of the fall, Ebersole went to heat up her mother’s lunch, which
would have been at least her fifth or sixth trip that day to heat up food. She testified that
on her way to the kitchenette she did not see anything on the floor. She was in the
kitchenette for about four or five minutes. As she returned, she slipped and fell near the
cart for used food trays. She described that her left buttocks and hip hit first, followed by
her left arm and shoulder, and then her head.
{¶ 5} Within seconds, several hospital employees approached to see if she was
alright. One of the employees made a comment that the floor was wet. Ebersole then
noticed three or four quarter or half-dollar sized droplets of water on the floor, and a
larger puddle that was approximately the size of a softball. She also noticed that her
2. clothing on her left side was wet, but not soaked. She testified that before she fell she did
not see the water, and that there was no way to see it. Ebersole stated that she believed
the water was present on the floor from condensation from the food trays.
{¶ 6} At either end of the corridor were nurses’ stations. Ashley Reed, a
registered nurse employed by the hospital, testified that a nurse or nurse’s aide is almost
always present at the stations. In addition, she testified that housekeeping is part of the
nurses’ duties and she was not aware of any spills in the soiled tray area prior to
Ebersole’s fall “because we would clean it up after.”
{¶ 7} Ebersole initiated the present matter on February 8, 2022, when she filed her
premises liability complaint against the hospital,1 seeking compensation for severe and
permanent injuries to her knees, ankle, heel, wrist, and back.
{¶ 8} Following pretrial discovery, the hospital moved for summary judgment on
Ebersole’s claim, arguing that there was no evidence showing that (1) it was responsible
for creating the hazard, (2) it had actual knowledge of the hazard, or (3) the hazard
existed for a sufficient length of time such that it had constructive knowledge.
{¶ 9} Ebersole opposed the motion, first arguing that the hospital created a process
that caused the hazard by designing its floor such that visitors and patients must heat food
products in a singular area and return food trays to a cart. She stated that in so doing,
1 Ebersole also listed “John Doe Number One” as a defendant. The trial court dismissed the claim against John Doe Number One in its order granting summary judgment, and Ebersole does not assign any error on that issue.
3. visitors naturally spill their food and drinks, and steam condenses from the used plates in
the single food cart, which she testified was the mechanism that produced the water that
caused her fall. She thus asserted that the hospital had actual knowledge of the hazard it
created.
{¶ 10} Alternatively, Ebersole maintained that the hospital had constructive
knowledge of the hazard. Specifically, she stated that her fall occurred in a high-traffic
area of the hospital, in direct view of the nurses’ stations, and the nurses and staff
members were required to perform sweeps and inspect the premises to discover hazards.
According to her, however, no employees performed their inspections, and a hazardous
condition was allowed to exist, demonstrating that the hospital had constructive
knowledge of the hazard.
{¶ 11} The trial court granted the hospital’s motion for summary judgment,
holding that there was no evidence presented that the hospital created or had actual
knowledge of the hazard. As to constructive knowledge, the trial court held that how the
water came to be on the floor and how long it was present left too much to speculation to
raise a genuine issue of material fact. It noted that Ebersole did not observe any water
near the food tray during any of her many trips to the kitchenette, including the trip
moments before she fell while returning to her mother’s room. Further, Ebersole testified
that she could not see the water and there was no way to see it unless someone had gotten
down on the floor and looked at eye level. The trial court reasoned that a “hands-and-
4. knees inspection of the premises would not be reasonable,” and therefore the hospital did
not violate its duty of ordinary care.
II. Assignment of Error
{¶ 12} Ebersole timely appeals the judgment of the Lucas County Court of
Common Pleas, asserting one assignment of error for review:
1. The trial court erred when it granted summary judgment in favor
of Appellee the Toledo Hospital, L.L.C.
III. Analysis
{¶ 13} An appellate court reviews the grant of summary judgment under a de novo
standard of review. Koler v. Grand Harbour Condo. Owners Assn., 2014-Ohio-1299, ¶ 5
(6th Dist.), citing Doe v. Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment
should be upheld when there is no issue of material fact, the moving party is entitled to
judgment as a matter of law, and when viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can only come to one conclusion that is adverse to
the nonmoving party. Id., quoting Harless v. Willis Day Warehousing Co., 54 Ohio St.2d
64, 66 (1978).
{¶ 14} The hospital moved for summary judgment on the ground that Ebersole
could not prove her case. Where that occurs, the moving party “bears the initial burden
of informing the trial court of the basis for the motion, and identifying those portions of
the record that demonstrate the absence of a genuine issue of material fact on the
essential element(s) of the nonmoving party’s claims.” Dresher v. Burt, 75 Ohio St.3d
5. 280, 293 (1996). “The moving party cannot discharge its initial burden under Civ.R. 56
simply by making a conclusory assertion that the nonmoving party has no evidence to
prove its case.” Id. “Rather, the moving party must be able to specifically point to some
evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the
nonmoving party has no evidence to support the nonmoving party’s claims.” (Emphasis
sic.) Id. “[I]f the moving party has satisfied its initial burden, the nonmoving party then
has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that
there is a genuine issue for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party.” Id.
{¶ 15} Turning to the merits of this case, under Ohio law, “a visitor of a patient in
a hospital is an invitee.” DeVault v. St. Charles Mercy Hosp., 2006-Ohio-1626, ¶ 13 (6th
Dist.), citing Bowins v. Euclid General Hosp. Assn., 20 Ohio App.3d 29, 30 (8th Dist.
1984). “A business owner owes its invitees 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.’” Id., quoting Paschal v. Rite Aid Pharmacy, Inc., 18
Ohio St.3d 203 (1985). “But a business owner is not an insurer of an invitee’s safety.”
Id., citing Paschal at 203.
{¶ 16} To recover against the hospital, Ebersole must establish
(1) that the premises owner through its officers or employees was responsible for the hazard complained of; or (2) that at least one of those persons had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly; or (3) that the danger had
6. existed for a length of time sufficient to justify the inference that the failure to warn against it or remove it was attributable to a lack of ordinary care.
Id. at ¶ 14, citing Johnson v. Wagner Provision Co., 141 Ohio St. 584, 589 (1943).
{¶ 17} The parties dispute whether a genuine issue of material fact exists as to
each of the three avenues for recovery. As will be discussed below, the record
demonstrates that Ebersole has no evidence to support her claim that the hospital created
the hazard, had actual knowledge of the hazard, or had constructive knowledge of the
hazard.
A. No Evidence that the Hospital Created the Hazard
{¶ 18} First, there is no evidence in the record demonstrating a genuine issue of
material fact regarding whether the hospital created the hazard. Ebersole advances two
theories as to how the water came to be on the floor: (1) someone spilled the water, and
(2) the water occurred as a result of condensation from hot food trays that were placed on
the cart.
{¶ 19} Regarding the spill theory, the record contains Reed’s testimony that
nursing staff, nurse aides, and nurses place the used food trays in the cart, but long-stay
patients can take their own trays. Another nurse, Cassandra Holden, similarly testified
that it is the nursing staff or other hospital staff that typically use the food cart, but “it is
not unheard of” that a patient or family member would use it.” Both nurses were
unaware of any spills in the area and Reed testified that she did not believe there would
be a spill there “because we would clean it up after.” Ebersole likewise testified that
7. she did not know who spilled the water, noting only that she did not do it. Thus, the
evidence shows only that no one knows who spilled the water, and there is no evidence
that any hospital employee spilled it.
{¶ 20} Rather than presenting evidence that a hospital employee spilled the water,
Ebersole postulates that the water occurred as a result of condensation from hot food
trays that were placed on the cart. Specifically, she argues that “[the hospital] created the
hazard when it created a process whereby [the hospital’s] employees placed soiled food
trays in the tray cart, which caused steam and condensation liquid to accumulate on the
floor of The Hallway when opening and closing the door.”
{¶ 21} In support of her position, Ebersole cites Webb v. Breeze, 2011-Ohio-6475
(8th Dist.), in which the Eighth District reversed an award of summary judgment to the
business owner on a slip and fall claim. In that case, the plaintiff was injured when she
slipped and fell on a puddle of water near a serving station at a Bahama Breeze
restaurant. Breeze at ¶ 13. The record included the deposition testimony of a witness,
Syverson, who saw the puddle of water where the plaintiff had fallen and noticed several
ice water pitchers sitting on the counter of the serving station. Critically, Syverson
testified that he had been in Bahama Breeze on several occasions prior to the day of the
incident and had seen ice water pitchers on the serving counter and water on the floor
each of those times. Id. at ¶ 14. Relying on Syverson’s testimony, the Eighth District
reasoned that “given Syverson’s prior observation of ice water pitchers on the counter of
the serving station and his observation of water on the floor on his several visits to the
8. restaurant, a reasonable trier of fact could find that it was more probable that the liquid on
the floor was created by Bahama Breeze’s employees and not from another source.” Id.
at ¶ 15.2
{¶ 22} Ebersole also relies on Moore v. Aldi, Inc., 1994 WL 95239 (2d Dist.),
where the plaintiff sued for damages after a box fell on her head while she was
attempting to retrieve a package of frozen chicken from the freezer compartment. The
Second District noted that the plaintiff’s deposition testimony established that she did not
know how long the box had been in the freezer, how the box had gotten into the position
that it occupied immediately prior to falling on her, nor did she have any information that
any employees were aware of how or where the box was positioned prior to its fall. Id. at
*1. In reversing the award of summary judgment, the appellate court determined that the
plaintiff’s testimony was sufficient to raise an issue of material fact as to whether the
employees created the hazard. Specifically, it reasoned,
From Ms. Moore’s description of the box, it almost certainly belonged to Aldi. That Aldi personnel first placed the box in the freezer compartment is an almost inescapable inference. The box fell upon Ms. Moore, so it is beyond dispute that the box, before it fell, was a hazard. There was no evidence that anyone other than Aldi personnel handled the box once it had been placed in the freezer compartment.
Id.
2 Although the Eighth District’s reasoning discusses whether Bahama Breeze created the hazard, it framed the issue as whether Bahama Breeze had actual or constructive knowledge of the condition. Id. at ¶ 13, 17.
9. {¶ 23} Ebersole argues that the present situation is similar to Webb and Moore.
She contends that, like Syverson’s testimony in Webb, her testimony regarding the
condensation of the water is sufficient to explain how the water accumulated on the floor.
In particular, she testified that she had prior experience working at nursing homes from
which she learned that steam would emanate from food trays, form condensation on the
cart door, and then fall onto the floor.3 Further, she argues that the location of the cart, its
frequent use for 24 patients, the location of the accumulation of water, the location of her
fall, and her prior knowledge and experience with similar food tray carts establishes the
same “inescapable inference” that the hospital created the hazard as seen in Moore.
{¶ 24} Upon review, assuming that Ebersole’s explanation of how the water came
to be on the floor is correct, the evidence she cites still does not establish an inference
that the hospital created the hazard. In Webb, the evidence demonstrated a repeated and
habitual liquid hazard caused by the business’s use of the serving counter and the
placement of the ice water pitchers. There is no similar evidence of a repeated or
habitual liquid hazard from condensation in this case. Rather, the evidence demonstrates
that this was the only time that it was ever noticed. The soiled food tray cart is
consistently located in the same area and is used often throughout each day. Yet, no one
testified to frequently observing liquid on the floor around the food cart. Ebersole,
herself, walked by that food cart hundreds of times and testified, “There was nothing
3 The hospital asserts that Ebersole’s theory of condensation is flawed in that the food tray cart was used for soiled trays that would have already cooled.
10. there going through, there was nothing there all the times before, all these times before.”
In addition, she stated:
Q. And you didn’t see any puddle of water on your way to the kitchenette or back from the kitchenette prior to the fall, correct? A. No. I had seen papers on the floor, I’ve seen other objects on the floor. I’ve stopped and used a napkin to pick them up, or told the staff. I seen nothing.
Thus, unlike Webb and Moore, there is no basis to conclude that the manner in which the
hospital used the food cart caused the water to condense and fall, and consequently there
is no basis to infer that the hospital created the hazard.
{¶ 25} In sum, the hospital satisfied its initial burden to show that it did not create
the hazard—either through a spill or through its process of using the soiled food tray
cart— by pointing to the deposition testimony of Ebersole, Reed, and Holden, and
Ebersole failed to satisfy her reciprocal burden to demonstrate that a genuine issue of
material fact exists. Summary judgment, therefore, is appropriate for the hospital as to
Ebersole’s claim that the hospital created the hazard.
B. No Evidence that the hospital had actual knowledge of the hazard
{¶ 26} Second, there is no evidence that the hospital had actual knowledge of the
hazard. Ebersole argues that “[b]ecause [the hospital] created the hazardous condition, it
had actual knowledge.” Since, however, there is no evidence that the hospital created the
hazardous condition, her argument must fail.
{¶ 27} Moreover, the deposition testimony of Reed and Holden demonstrates that
neither of them knew about the water on the floor, and Ebersole has presented no
11. evidence that any other hospital employee knew that the hazard existed. Summary
judgment, therefore, is appropriate for the hospital as to Ebersole’s claim that the hospital
had actual knowledge of the hazard.
C. No evidence that the hospital had constructive knowledge of the hazard
{¶ 28} Finally, there is no evidence that the hospital had constructive knowledge
of the hazard. “If a plaintiff cannot show that a defendant had actual knowledge of an
existent hazard, evidence as to the length of time the hazard existed is necessary to
support an inference that defendant had constructive notice.” Presley v. City of Norwood,
36 Ohio St.2d 29, 32 (1973). The dangerous condition must have “existed for a sufficient
time reasonably to justify the inference that the failure to warn against it or remove it was
attributable to a want of ordinary care.” Id., quoting Johnson v. Wagner Provision Co.,
141 Ohio St. 584 (1943).
{¶ 29} Ebersole argues that she established a genuine issue of material fact as to
whether the hospital had constructive knowledge through the testimony of Reed and
Holden, who stated that the staff were responsible for housekeeping duties, which
included cleaning the floor, putting things away, and making sure that there are no wet
spots on the floor. Reed also testified that the hospital’s “environmental services” staff
cleans the floors periodically throughout the day. Based on this evidence, Ebersole
contends that the hospital had a duty to perform reasonable inspections of the premises—
including, in particular, looking for liquids and wet spots on the floor—and that it failed
to conduct those inspections as demonstrated by the fact that she slipped and fell from
12. liquid on the floor. Relying on Bartlett v. Tan Pro Exp., LLC, 2020-Ohio-2760 (6th
Dist.), she asserts that “where [the hospital] failed to conduct such inspections, which
would have revealed the existence of the hazard that caused Appellant’s injuries, a
question of fact remains as to whether [the hospital] had constructive knowledge of the
hazard.”
{¶ 30} In Bartlett, the plaintiff was injured when he allegedly slipped on an oily
substance on a floor mat in a spray-tanning booth. Id. at ¶ 6. The evidence in that case
included an employee’s testimony that cleaning the tanning room was one of her
responsibilities, and the company required her to clean each tanning room after each use
by wiping down the tanning equipment, paper towel dispenser, seat, door handle, and
floor mat. Id. at ¶ 11. She also agreed that the company had a duty to inspect spray tan
rooms to ensure that the floors are dry and that there are no fluids or oils on the floor. Id.
{¶ 31} The trial court granted summary judgment to the company. In reversing
the award of summary judgment, this court recognized a factual dispute on two issues:
“(1) whether there was some type of liquid on the mat that caused Bartlett to fall, and (2)
if Bartlett did slip on liquid, whether the liquid was on the mat because [the employee]
failed to inspect and clean the room before Bartlett entered it.” Id. at ¶ 25. As to the first
issue, the record contained the conflicting testimony of Bartlett that there was oil on the
floor, and the testimony of the employee that the floor was “spotless.” Id. at ¶ 26. As to
the second issue, again there was a conflict between Bartlett’s testimony that he did not
see anyone go in or out of the tanning room after the prior customer left, and the
13. employee’s testimony that she was “[p]retty confident that [she] had that room spotless”
even though she did not say that she cleaned the room in between the prior customer and
Bartlett. Id. at ¶ 28. Construing the evidence in Bartlett’s favor, this court reasoned that
“reasonable minds could conclude that Bartlett’s injuries resulted from the presence of
liquid on the mat that [the company] admits should have been cleaned, but was not
actually cleaned, before he entered the spray tan room.” Id. at ¶ 30.
{¶ 32} Ebersole attempts to apply Bartlett too broadly because in this case there is
no evidence that the hospital failed to conduct reasonable inspections to discover the
hazard. The theory of liability based on constructive knowledge requires a determination
of whether the hazard would have been discovered by a reasonable inspection. See
Presley, 36 Ohio St.2d at 32. Bartlett satisfies this requirement by recognizing that the
company required an inspection of the room between each use, and therefore the
employee’s failure to do so would be a failure to perform a reasonable inspection. Here,
in contrast, there is no evidence that the hospital defined when inspections must occur.
{¶ 33} Bartlett is somewhat unique in the realm of slip and fall cases in that the
business had an established inspection schedule. In the majority of cases, courts look to
the length of time that the hazard existed and the surrounding circumstances to determine
if it would have been discovered in the exercise of ordinary care. For example, in
Strzesynski v. Franks Nursery & Crafts, Inc., 2002-Ohio-4348, ¶ 4 (6th Dist.), this court
determined that there was no genuine issue of material fact as to whether the company
had constructive knowledge where the hazard was present for less than one hour and the
14. plaintiff did not present any evidence that the company’s inspection procedures were
unreasonable for the size and traffic of its store. Or in Combs v. First Natl.
Supermarkets, Inc., 105 Ohio App.3d 27, 30 (8th Dist. 1995), the Eighth District
determined that summary judgment was not appropriate as to constructive knowledge
where the liquid was on the floor of the main aisle for 15 to 20 minutes. But where no
evidence is presented as to the length of time that the hazard existed, courts find no
genuine issue of material fact regarding constructive knowledge. See May v. Kroger Co.,
2017-Ohio-7696, ¶ 26 (5th Dist.) (listing cases).
{¶ 34} In the present case, the only evidence regarding how long the water was on
the floor is Ebersole’s statement that she did not see anything when she walked to the
kitchenette four or five minutes before she fell. Without evidence of the length of time
that the hazard existed, Ebersole cannot demonstrate a genuine issue of material fact that
the hospital had constructive knowledge. See Hudzik v. Boulevard Centre Co., 2017-
Ohio-9345, ¶ 25 (11th Dist.) (no constructive knowledge where plaintiff “failed to
produce competent evidence as to the length of time that the alleged defective condition
existed”); Swick v. Patty’s Market & Dept. Store, Inc., 2016-Ohio-4984, ¶ 16 (2d Dist.)
(Without evidence of how long the hazard existed “it is impossible to determine whether
a premises owner should have discovered the hazard upon a reasonable inspection.”); Ray
v. Wal-Mart Stores, Inc., 2013-Ohio-2684, ¶ 50 (4th Dist.) (“Without evidence
concerning the length of time that the hazard existed, appellants are unable to establish
that appellees should have discovered, and thus should have been aware of, the hazard.”);
15. Price v. United Dairy Farmers, Inc., 2004-Ohio-3392, ¶ 12 (10th Dist.) (no genuine issue
of material fact as to constructive notice where the plaintiff “did not present any evidence
as to the length of time the alleged hazard existed on the store’s floor before he fell”);
Harrison v. The Andersons, Inc., 2000 WL 819057, *2 (6th Dist.) (“[E]vidence of how
long the hazard existed is mandatory in establishing a duty to exercise reasonable care.”).
{¶ 35} Moreover, if the water came to be on the floor within four to five minutes
of Ebersole’s fall, this was not a sufficient amount of time to create a genuine issue of
material fact, particularly where, as Ebersole described, the water was imperceptible. To
hold otherwise would be to require the hospital to hyper-vigilantly examine all floors at
all times, effectively imposing strict liability and violating the principle that a business
owner is not an insurer of the invitee.
{¶ 36} Summary judgment, therefore, is appropriate for the hospital as to
Ebersole’s claim that the hospital had constructive notice of the hazard.
IV. Conclusion
{¶ 37} Unfortunately, an accident happened in this case and Ebersole was injured
when she slipped on a puddle of water. She, however, has failed to demonstrate a
genuine issue of material fact exists that the hospital created the hazard, had actual
knowledge of the hazard, or had constructive knowledge of the hazard. Accordingly, the
trial court did not err when it awarded summary judgment in favor of the hospital on
Ebersole’s slip and fall claim. Her assignment of error is not well-taken.
16. {¶ 38} For the foregoing reasons, the judgment of the Lucas County Court of
Common Pleas is affirmed. Ebersole is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Charles E. Sulek, P.J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
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