Stepp v. Getgo Gas & Grocery

2012 Ohio 5184

• Court: Ohio Court of Appeals
• Decided: November 8, 2012
• Docket: 98325
• Status: Published

Opinion

[Cite as Stepp v. Getgo Gas & Grocery, 2012-Ohio-5184.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98325

BRENDA STEPP

PLAINTIFF-APPELLANT

vs.

GETGO GAS AND GROCERY, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-760733

BEFORE: Stewart, J., Blackmon, A.J., and Keough, J.

RELEASED AND JOURNALIZED: November 8, 2012 ATTORNEY FOR APPELLANT

Anthony D. Jordan 420 Lakeside Place 323 Lakeside Avenue, West Cleveland, OH 44113

ATTORNEYS FOR APPELLEES

Roger H. Williams Ian R. Luschin Williams, Moliterno & Scully Co., LPA 2241 Pinnacle Parkway Twinsburg, OH 44087 MELODY J. STEWART, J.:

{¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1, the record from the Cuyahoga County Court of Common Pleas, and

the briefs of counsel. Plaintiff Brenda Stepp brought this complaint against defendant

Getgo Gas and Grocery, claiming that she suffered injuries after slipping on a large pool

of water in the aisle of a Getgo convenience store. The court granted summary judgment

to Getgo, holding that Stepp offered nothing more than speculation that Getgo employees

knew of a hazard and thus failed to show that Getgo employees had actual or constructive

knowledge of a dangerous condition.

{¶2} The parties agree that Stepp was a business invitee and that Getgo owed her a

duty of ordinary care to maintain the business premises in a reasonably safe condition so

its invitees were not unnecessarily and unreasonably exposed to danger. Campbell v.

Hughes Provision Co., 153 Ohio St. 9, 90 N.E.2d 694 (1950), paragraph one of the

syllabus. The Getgo employees staffing the convenience store denied any actual

knowledge of water on the floor of the convenience store, so Stepp had to show that

Getgo had constructive notice of water on the floor. To make a showing that Getgo had

constructive knowledge of a hazard, Stepp was required to provide evidence as to the

length of time the hazard existed to create an inference that the failure to warn against it

or remove it was a breach of ordinary care. Presley v. Norwood, 36 Ohio St.2d 29, 32,

303 N.E.2d 81 (1973). {¶3} To prove that Getgo should have been aware of the water, Stepp offered an

affidavit stating that she slipped and fell in a “huge pool of water.” In fact, she claimed

there was so much water, that as she lay on the floor she became “utterly soaking wet

unto my skin” and that she “never expected the floor to be soaking wet” because it was a

warm, dry day.

{¶4} We agree with the court that Stepp failed to create a triable issue of fact on

whether Getgo had constructive notice of the water that allegedly caused her to slip and

fall. Although a plaintiff can create an inference that a business owner had constructive

notice of a hazard by showing the length of time that a hazard existed, the plaintiff must

come forward with evidence, not speculation, to support the inference. Barnes v. Univ.

Hosps. of Cleveland, 8th Dist. No. 66799, 1994 Ohio App. LEXIS 3231 (July 21, 1994);

Calabrese v. Romano’s Macaroni Grill, 8th Dist. No. 94385, 2011-Ohio-451, ¶ 19.

{¶5} Stepp admittedly did not know how the water that allegedly caused her fall

came to be on the floor. Nor did she have any witnesses who could identify the source

of the water. This left her to argue that Getgo had reason to know that there was water in

the aisle where she fell because the amount of water on the floor indicated that it had been

on the floor for a long period of time. This conclusion is speculation — a mere opinion

that does not constitute probative evidence. Aufrance v. Columbia Gas of Ohio, Inc., 3d

Dist. No. 5-88-2, 1990 Ohio App. LEXIS 1239 (Mar. 30, 1990); Merritt v. Big D & Lulu,

Inc., 1st Dist. No. C-090056, 2009-Ohio-5972, ¶ 11. Indeed, throughout this litigation,

Stepp’s description of the amount of water on the floor grew in ever-increasing terms: in her complaint, she alleged that she “slipped and fell on water”; in deposition, she testified

that there was a “puddle” of water that caused the bottom of her skirt to get wet; in her

affidavit filed in support of her brief in opposition to summary judgment, Stepp

characterized the water as a “huge pool” that left her “utterly soaking wet unto my skin”;

and in her appellate brief, she resorted to pure hyperbole to argue that “[s]hoppers do not

expect to encounter a swimming pool when the [sic] go pay for gas.”

{¶6} Absent evidence showing the source of the water, it would be speculation to

say that the amount of water on the floor was sufficiently large that Getgo should have

been aware of the water on the floor. Reasonable minds could not differ on whether

Getgo had constructive notice of the water that allegedly caused Stepp to slip and fall.

The court did not err by granting summary judgment.

{¶7} Judgment affirmed.

It is ordered that appellees recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.

MELODY J. STEWART, JUDGE PATRICIA ANN BLACKMON, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR