Pass v. Calvino's Pizza

2016 Ohio 8527

• Court: Ohio Court of Appeals
• Decided: December 30, 2016
• Docket: L-16-1019
• Status: Published

Opinion

[Cite as Pass v. Calvino’s Pizza, 2016-Ohio-8527.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Michele Pass Court of Appeals No. L-16-1019

Appellant Trial Court No. CI0201404568

v.

Calvino’s Pizza, et al. DECISION AND JUDGMENT

Appellees Decided: December 30, 2016

*****

Jeffrey Swiech, for appellant.

Timothy C. James and Lorri J. Britsch, for appellee.

***** OSOWIK, J.

{¶ 1} Appellant, Michele Pass, appeals from a judgment of the Lucas County

Court of Common Pleas granting summary judgment to appellee, Calvino’s Pizza, et al.,

(“Calvino’s”) regarding a trip and fall on a set of stairs in a two-story restaurant. For the

reasons set forth below, we affirm the judgment of the trial court. {¶ 2} On February 11, 2011, appellant (“Pass”) visited Calvino’s Pizza with

several friends. Calvino’s is a small restaurant with seating on the street level and on the

second floor which is accessed solely by a flight of stairs. At that time, the restaurant

was owned by Iazk, Inc. The president of Iazk, Inc. was Issam Kodeih, a/k/a Fred

Calvino, who also managed the restaurant. On the night of the accident, Pass and her

party were seated on the second floor of the restaurant. Pass climbed the stairs to her

table without incident. After dining, Pass descended the steps while holding onto the

handrail. As she neared the bottom of the stairs, she fell. Pass walked out of the

restaurant and later sought medical care, when she was diagnosed with a compression

fracture in her back.

{¶ 3} Pass originally filed a complaint against appellees in February 2013. She

voluntarily dismissed the action in November 2013 and refiled the same action in

November 2014, claiming that appellees breached a duty of ordinary care owed to her as

a business invitee by failing to maintain their premises in a reasonably safe condition.

Appellees moved for summary judgment on September 17, 2015, and on January 4, 2016,

the motion was granted.

{¶ 4} Pass sets forth the following sole assignment of error:

I. The trial court erred when it granted summary judgment in favor of

Appellee Calvino’s Pizza.

{¶ 5} In support of her assignment of error, Pass asserts that Calvino’s created a

hazard by way of a long-term pattern of negligent maintenance of the stairs in the

2. restaurant, which led to loose carpeting that she claims caused her to fall. She also

asserts Calvino’s had actual knowledge of the alleged loose carpeting on the stairs.

{¶ 6} When reviewing a trial court’s summary judgment decision, the appellate

court conducts a de novo review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

671 N.E.2d 241 (1996). Summary judgment will be granted when there are no genuine

issues of material fact, and when construing the evidence most strongly in favor of the

nonmoving party, reasonable minds can only conclude that the moving party is entitled to

judgment as a matter of law. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64,

67, 375 N.E.2d 46 (1978). When a properly supported motion for summary judgment is

made, the adverse party may not rest on mere allegations or denials in the pleading, but

must respond with specific facts showing that there is a genuine issue of material fact.

Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984).

{¶ 7} To maintain an action for negligence, the plaintiff must show that the

defendant owed a duty of care to the plaintiff, that the defendant breached that duty, and

that the breach proximately caused the plaintiff’s injuries. See Strother v. Hutchinson, 67

Ohio St.2d 282, 285, 423 N.E.2d 467 (1981); Texler v. D.O. Summers Cleaners & Shirt

Laundry Co., 81 Ohio St.3d 677, 693 N.E.2d 271 (1988). It is undisputed in this case that

appellant was a business invitee on the premises at the time of the accident. Generally,

an owner or occupier of land owes an “invitee” a duty of ordinary care to maintain the

premises in a reasonably safe condition and a duty to warn the invitee of “latent or hidden

dangers.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788

3. N.E.2d 1088, ¶ 5. It is well-established, however, that a business owner is not an insurer

of a customer’s safety or against all types of accidents that may conceivably occur on his

premises. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474

(1985).

{¶ 8} As the Supreme Court of Ohio declared in Presley v. City of Norwood, 36

Ohio St.2d 29, 303 N.E.2d 81 (1973), in the absence of proof that the owner or its agents

created the hazard, or that the owner or its agents possessed actual knowledge of the

hazard, no liability may attach. Id. at 32.

{¶ 9} Here, appellant testified at deposition that she could not identify where the

loose carpeting was located on the stairs. When asked what evidence she had that the

carpeting was loose, appellant stated, “I don’t know how to explain it, it just felt like

something grabbed onto my, something grabbed onto my shoe, I don’t know how else to

explain it.” A friend of appellant’s who dined with her that evening also claimed by way

of affidavit that she fell on loose carpeting but did not identify where the loose carpet was

located. The restaurant owner/manager testified at deposition that the carpet on the stairs

was replaced every two to three years depending on its condition. Appellant presented no

evidence that Calvino’s previously had a problem with loose carpeting on the stairs.

Further, there is no support in the record for appellant’s claims that Calvino’s created a

hazard on the stairs by failing to maintain the area and that loose carpeting existed for

such a period of time that it should have been discovered by appellees. Additionally,

appellant offered no testimony or evidence that Calvino’s had actual or constructive

4. knowledge of any loose carpeting or other defect on the stairs prior to appellant’s fall.

This court has held that when the evidence does not establish a store’s actual or

constructive notice of the alleged hazard, summary judgment is appropriate. See

Strzesynski v. Franks Nursery & Crafts, Inc., 6th Dist. Lucas No. L-02-1103, 2002-Ohio-

4348.

{¶ 10} Based on the foregoing, we find that reasonable minds can only conclude

that appellees are entitled to judgment as a matter of law. Accordingly, the trial court

properly entered summary judgment for appellees and appellant’s sole assignment of

error is not well-taken.

{¶ 11} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant 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.

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Stephen A. Yarbrough, J. JUDGE CONCUR. _______________________________ JUDGE

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