Trout v. Shani DEV8, L.L.C.

2025 Ohio 832

• Court: Ohio Court of Appeals
• Decided: March 13, 2025
• Docket: 113965
• Status: Published

Opinion

[Cite as Trout v. Shani DEV8, L.L.C., 2025-Ohio-832.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CHERYL TROUT, :

Plaintiff-Appellee, : No. 113965 v. :

JAY SHANI DEV8, LLC D.B.A. : MR. HERO, ET AL., : Defendants-Appellants.

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED RELEASED AND JOURNALIZED: March 13, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-21-955789

Appearances:

Tittle & Perlmuter, Kathleen R. Harris, and Scott D. Perlmuter, for appellee.

Carr Law Office, LLC, and Adam E. Carr, for appellant.

DEENA R. CALABRESE, J.:

Defendant-appellant Jay Shani DEV8, LLC d.b.a. Mr. Hero (“Jay

Shani”) appeals the jury’s verdict and award in favor of plaintiff-appellee Cheryl

Trout (“Trout”) stemming from her slip-and-fall accident in the Mr. Hero restaurant

on Smith Road in Brook Park, Ohio. After a review of the evidence presented at trial and in light of applicable law, we find Trout failed to present any evidence of

constructive notice of the alleged hazard. Therefore, we reverse the trial court’s

denial of Jay Shani’s motion for judgment notwithstanding the verdict.

I. Facts and Procedural History

The following summary of events was agreed to by the parties and read

by the judge at the start of the trial:

The plaintiff, Cheryl Trout, alleges that she slipped and fell inside a Mr. Hero restaurant while walking to the counter to pick up food after having ordered the food a few minutes previously while standing at the same counter. Ms. Trout blames her fall on an accumulation of liquid on the floor. Jay Shani Dev 8, the company, which is the defendant in this case, denies any liquid was on the floor. The Mr. Hero restaurant was operated by Jay Shani Dev 8, LLC, under a franchise agreement with Mr. Hero. The plaintiff, Cheryl Trout, claims to have fractured her right kneecap. She additionally seeks damages for loss of consortium to her late husband, David Trout, who was not present in the restaurant at the time of her fall.

(Tr. 71-72.)

Trout testified at trial that on June 7, 2021, she went to the Mr. Hero on

Smith Road, walked up to the counter to place her order and pay and then walked

to the front of the store and sat in a chair by the window. (Tr. 875.) She did not

notice anything wrong with the floor the first time she walked across it. (Tr. 920.)

Trout testified that another customer went up to the counter to get his order and

that she would have “been aware of the commotion” and seen if he had spilled “a

whole drink.” (Tr. 924.) Trout then went up to the counter to get her order, taking

a slightly different route up to the counter but in the same general area where she

had previously walked. (Tr. 926-928.) Trout slipped on her way up to the counter and landed on her right knee. (Tr. 887.) After her fall, she sat on the floor and felt

“something wet soaking into [her] pants.” (Tr. 880, 929.) The store was clean other

than the spot where she fell, and she did not notice any liquid on the floor either

before or after her fall. (Tr. 926, 930-931.) Trout suffered a fractured patella on her

right kneecap that ultimately required two surgeries.

The Mr. Hero franchise where Trout fell is owned and operated by Jay

Shani, and Restaurant Developers Corporation (“R.D.C.”) is the franchisor. (Tr.

613.) Jay Shani is owned by Viren Patel (“Viren”), Archna Patel (“Archna”), and

Mike Patel. Viren and Archna, who are brother and sister, were both working at the

Mr. Hero location on the day Trout fell. (Tr. 612.) Also working with them that day

was their cousin Meet Patel (“Meet”). (Tr. 419.) At the time Trout fell, Viren was in

the back operating the grill and training Meet, and Archna was handling customers

at the counter. (Tr. 81, 191, 419.) Because of COVID-19 restrictions, the chairs and

tables had been moved to the side and were not available for dine-in use. (Tr. 497-

498.)

Archna testified she did not see anything on the floor that would have

caused a fall either before or after Trout fell and that she would have seen a spill

from her position at the cash register. (Tr. 500, 567.) Viren inspected the floor after

the fall and did not see any liquid substance. (Tr. 506.)

Viren testified that after Trout’s fall, he viewed the surveillance-camera

footage starting about five minutes before she fell to the time of the fall. He

perceived that the video did not show anyone spill anything on the floor during that five-minute time frame. (Tr. 479-481.) He also did not see anything in the video

that would have caused a fall. (Tr. 479.) When asked if “someone could have been

in there 20 minutes before and spilled and [he] wouldn’t have seen it by looking at

the video,” Viren answered “Yes.” (Tr. 482.) The surveillance video was never saved,

so after seven days it was automatically overwritten. (Tr. 483.) Viren is the only

person that viewed the surveillance footage before it was overwritten.

On February 7, 2022, Trout filed a second amended complaint alleging

a claim of negligence against Jay Shani and a loss-of-consortium claim on behalf of

her husband David Trout (“David”). A claim against R.D.C. was later dismissed.

Following David’s death, Trout was substituted as executor of his estate.

Following protracted litigation, the case was tried before a jury

beginning on February 5, 2024. Throughout the trial, there were continual

references by Trout’s counsel as to whether this Mr. Hero location followed the

“safety rules” derived from R.D.C.’s operating standards manual given by R.D.C. to

the franchise owners. Specifically, the testimony centered around the manual’s

requirement that employees clean during “slow times,” the existence and placement

of rugs on the floor, and employee training.

Jay Shani moved for a directed verdict after Trout’s counsel’s opening

statement, arguing “there was no evidence as to how the liquid got there or how long

it was there.” (Tr. 321-322.) The trial court denied the motion, pointing out that no

evidence had yet been presented. (Tr. 323.) A second motion for a directed verdict

was made, and denied, at the conclusion of the trial. After both parties rested, the jury returned a verdict finding Jay Shani

negligent. On February 12, 2024, the jury awarded Trout $1,300,000 in

noneconomic damages. On March 11, 2024, Jay Shani filed a motion for judgment

notwithstanding the verdict or for a new trial, arguing that Trout failed to provide

evidence that Jay Shani had constructive notice of a foreign substance on the floor

that caused Trout’s fall. The motion was denied without hearing on April 26, 2024.

(Journal entry Apr. 26, 2024.)

Appellant filed the instant appeal raising four assignments of error.

1. The trial court erred in failing to apply Ohio’s statutory damages cap.

2. The trial court erred in failing to enter judgment for the appellant based on the failure of the appellee to demonstrate that the appellant had actual or constructive notice the substance on which the appellee fell.

3. The trial court erred in allowing the jury to decide the case based on a series of safety rules invented by the appellee instead of following Ohio law on ordinary reasonable care for a negligence claim.

4. The trial court erred in failing to instruct the jury that a corporation is entitled to the same treatment as a natural person under Ohio law.

II. Law and Analysis

A. Constructive Notice

We begin by reviewing Jay Shani’s second assignment of error because

we find it is dispositive of this appeal. In the second assignment of error, Jay Shani

argues that the trial court erred in failing to enter judgment in its favor based on

Trout’s failure to demonstrate that it had actual or constructive notice of the

substance on which Trout fell. Jay Shani specifically argues that the trial court erred when it did not grant Jay Shani’s oral motion for directed verdict at the conclusion

of Trout’s opening statement, and again when it did not grant Jay Shani’s motion

for directed verdict and motion for judgment notwithstanding the verdict after the

conclusion of the trial. Both motions requested judgment in Jay Shani’s favor,

arguing there was no evidence showing Jay Shani had actual or constructive notice

of the substance on the floor prior to Trout’s fall.

B. Motion for Directed Verdict (After Opening Statements)

First, we consider the motion for a directed verdict. A motion for

directed verdict can be made “on the opening statement of the opponent.” Civ.R.

50(A)(1). A trial court shall sustain a motion for a directed verdict when “after

construing the evidence most strongly in favor of the party against whom the motion

is directed, [the court] finds that upon any determinative issue reasonable minds

could come to but one conclusion upon the evidence submitted and that conclusion

is adverse to such party.” Civ.R. 50(A)(4). Counsel’s opening statements are not

evidence. Morton v. Murray, 2018-Ohio-5178, ¶ 8 (8th Dist.), citing L&N

Partnership v. Lakeside Forest Assn., 2009-Ohio-2987 (10th Dist.). “Only if the

opening statement shows that a party is completely unable to sustain a cause of

action should the court take the case away from the jury by directing a verdict.”

Parrish v. Jones, 2013-Ohio-5224, ¶ 32. “Since a directed verdict is a question of

law, our review is de novo.” Geletka v. MetroHealth Sys., 2023-Ohio-934, ¶ 26 (8th

Dist.), citing Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 2002-Ohio-

2842, ¶ 4. In this case, Jay Shani argues that the trial court erred when it did not

grant the motion for a directed verdict after Trout’s opening statement. Upon a

careful review of the transcript, we conclude that nothing in the opening statement

revealed that Trout was completely unable to sustain a cause of action for

negligence. Therefore, we find the court did not err in denying Jay Shani’s motion

for a directed verdict following Trout’s opening statement.

C. Motion for Directed Verdict and Motion for Judgment Notwithstanding the Verdict (At the Conclusion of Trial)

Next, we consider Jay Shani’s motion for directed verdict and

judgment notwithstanding the verdict at the conclusion of the trial. “The standard

for granting a motion for judgment notwithstanding the verdict is the same as that

for granting a motion for directed verdict,” and appellate review is also the same for

both motions. Ringhand v. Chaney, 2014-Ohio-3661, ¶ 7 (12th Dist.). “When

reviewing a motion for judgment notwithstanding the verdict, we employ a de novo

standard of review.” Gerston v. Parma VTA, LLC, 2024-Ohio-3005, ¶ 41 (8th Dist.),

citing Grau v. Kleinschmidt, 31 Ohio St.3d 84, 90 (1987). In reviewing a ruling on a

motion for judgment notwithstanding the verdict,

“[t]he evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied.”

Id., quoting Posin v. A.B.C. Motor Court Hotel, 45 Ohio St.2d 271, 275 (1976). The

trial court does not consider either the weight of the evidence or the credibility of the witnesses when ruling on a motion for judgment notwithstanding the verdict.

Shields v. Bur. of Workers’ Comp., 2023-Ohio-1368, ¶ 34 (8th Dist.), citing Posin at

275.

To establish negligence, a plaintiff must show the existence of a duty,

a breach of that duty, and an injury proximately caused by the breach. Texler v. D.O.

Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680 (1998). ‘“The status

of a person who enters another’s property defines the scope of the legal duty owed

to that person.’” Richie v. Home Depot, 2023-Ohio-68, ¶ 11 (8th Dist.), quoting

Buonopane v. M. Co., 2022-Ohio-4210, ¶ 15 (8th Dist.), citing Gladon v. Greater

Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315 (1996). ‘“Property owners

owe invitees a duty of ordinary care in maintaining the premises in a reasonably safe

condition[.]’” Richie at ¶ 11, quoting Buonopane at ¶ 15, citing Naso v. Victorian

Tudor Inn, L.L.C., 2022-Ohio-1065, ¶ 9 (8th Dist.). “Whether a duty exists is a

question of law for the court to determine.” Webb v. Breeze, 2011-Ohio-6475, ¶ 9

(8th Dist.), citing Frankmann v. Skyline Mgt., LLC, 2007-Ohio-3922, ¶ 5 (8th

Dist.), citing Mussivand v. David, 45 Ohio St.3d 314, 318 (1989).

In Burke v. Giant Eagle, Inc., 2017-Ohio-4305 (8th Dist.), we stated:

In order for a business invitee to recover for an injury sustained in the context of this case, the invitee is required to show that an employee of the business was negligent in creating a hazard, had actual notice of a hazard and failed to remedy it, or had constructive notice by allowing a hazard to exist for an unacceptable amount of time such that the hazard should have been remedied, but was not.

Id. at ¶ 7, citing Kokinos v. Ohio Greyhound, Inc., 153 Ohio St. 435, 436 (1950). “The Ohio Supreme Court has held that ‘it is essential that the

evidence show [the hazard] continued for a period of time sufficient to charge the

defendant with constructive notice thereof.’” Madaras v. Applebee’s Neighborhood

Grill & Bar, 2025-Ohio-169, ¶ 26 (8th Dist.), quoting Kokinos at 438. This court has

previously stated that “an injured party may not rely on mere speculation and

conjecture to attempt to demonstrate that a foreign substance had been present for

a sufficient period of time to give a shopkeeper or his employees constructive notice

of it.” (Cleaned up.) Richie at ¶ 13. “If [a premises owner] did not have actual or

constructive notice of the defect — the [alleged liquid substance on the floor] — it

had no duty to warn [a business invitee].” Washington v. Outrage, Inc., 2021-Ohio-

2263, ¶ 21 (8th Dist.); accord Madaras at ¶ 28.

In this case, there is no dispute that Jay Shani did not place the liquid

substance on the floor and did not have actual notice of it being on the floor. The

question is whether Jay Shani had constructive notice of the substance on the floor

prior to Trout’s fall.

Trout argues that Hardesty v. P.J. Bordner, 1994 Ohio App. LEXIS

6148 (5th Dist. Dec. 29, 1994), is on point, but the facts in Hardesty are so dissimilar

that it is not applicable to this case. In Hardesty, the plaintiff slipped and fell on

water in a grocery store. The existence of the puddle of water was never disputed

and another customer testified the puddle was there five to ten minutes before

plaintiff fell. Thus, the plaintiff in Hardesty put forth evidence as to how long the

substance was on the floor prior to the accident, and therefore, the court held that the plaintiff established constructive notice. Here, we have a dispute that there was

anything on the floor and no evidence as to how long it was allegedly on the floor

In the instant case, Trout attempts to establish a time frame based on

the five-minute mark where Viren started viewing the surveillance footage, and

Viren’s testimony that someone could have spilled something 20 minutes before.

However, Trout’s analysis relies on conjecture to postulate a substance must have

been on the floor for 5 to 20 minutes before Trout fell. Viren testified that the five

minutes of video he watched did not show anyone spill anything and stated the video

never showed any liquid substance on the floor. From this testimony, combined

with her own testimony that while she did not notice anything on the floor, she felt

“something wet” soak into her pants after her fall, Trout speculates that a spill must

have occurred before that five-minute mark. Likewise, Viren’s testimony that

someone could have spilled something 20 minutes before the fall is pure

speculation. Even the theory that the liquid substance allegedly on the floor was the

result of a spill, which Trout asserts repeatedly throughout the case, is speculation.

Trout also argues that under Smith v. Regal Cinemas, Inc., 2005-

Ohio-4703 (8th Dist.), she does not have to prove the amount of time the substance

was on the floor to establish constructive notice. In Smith, there was no dispute that

there was a substance on the floor. The plaintiff testified the substance she slipped

on was sticky, and the court concluded it could have been there for a sufficient

amount of time to dry and become sticky. Thus, plaintiff put forth some evidence to suggest the substance was there long enough to be discovered by a reasonable

inspection. Here, Trout has put forth no evidence to suggest a substance was on the

floor for any length of time.

The Sixth District recently addressed constructive notice in Ebersole

v. Toledo Hosp., 2025-Ohio-260 (6th Dist.). The plaintiff in Ebersole slipped and

fell on a wet spot on a hospital hallway floor she had traversed four or five minutes

prior without issue. She did not see anything on the floor on her previous trip down

the hallway. There was no dispute that there was water on the floor when plaintiff

fell. She argued that she established constructive notice by presenting evidence that

hospital staff were responsible for housekeeping duties, including cleaning the floor

and making sure there were no wet spots on the floor. The court pointed out that

the “theory of liability based on constructive knowledge requires a determination of

whether the hazard would have been discovered by a reasonable inspection.” Id. at

¶ 32. However, even though the Ebersole Court discussed staff housekeeping duties,

it still recognized that established Ohio law required the plaintiff to show how long

a hazard existed to establish constructive notice. The court stated that if

water came to be on the floor within four to five minutes of [plaintiff’s] fall, this was not a sufficient amount of time to create a genuine issue of material fact, particularly where, as [plaintiff] 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.

Id. at ¶ 35. In this case, even with testimony about R.D.C. operating manual

“rules,” Trout must still demonstrate how long the liquid substance was present

prior to the fall. In addition, even if Trout was able to provide evidence that the

liquid substance was on the floor for at least five minutes, we agree with the Sixth

District that five minutes of imperceptible water on the floor is not a sufficient

amount of time to establish constructive notice. To hold otherwise would be holding

Jay Shani to strict liability.

Trout has not established constructive notice because she has not

demonstrated how long a liquid substance was allegedly on the floor prior to her fall.

See Calabrese v. Romano’s Macaroni Grill, 2011-Ohio-451 (8th Dist.) (No

constructive notice where plaintiff attempted to establish it by relying on “mere

speculation,” arguing her acquaintances noticed wet floor signs and saw water on

the floor after her fall); Hudzik v. Blvd. Ctr. Co., 2017-Ohio-9345, ¶ 25 (11th Dist.)

(no constructive notice where plaintiff did not produce evidence as to how long the

alleged defective condition existed); Swick v. Patty’s Market & Dept. Store, Inc.,

2016-Ohio-4984, ¶ 16 (2d Dist.) (no constructive notice where a plaintiff tried to

establish it by asserting a store employee stated, “I bet that’s ham juice from that

ham” after her fall); Ray v. Wal-Mart Stores, Inc., 2013-Ohio-2684, ¶ 50 (4th Dist.)

(no constructive notice “[w]ithout evidence concerning the length of time that the

hazard existed”); Price v. United Dairy Farmers, Inc., 2004-Ohio-3392, ¶ 12 (10th

Dist.) (no 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”). Viewing the evidence adduced at trial most strongly in favor of Trout,

there is nothing in the record demonstrating Jay Shani had constructive notice of a

foreign substance on the floor. We find that Jay Shani’s second assignment of error

is well taken and reverse the trial court’s denial of the motion for judgment

notwithstanding the verdict.1 Because the second assignment of error is dispositive

of the case, we decline to address the remaining assignments of error.

Judgment reversed.

It is ordered that appellant recover from appellee 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.

DEENA R. CALABRESE, JUDGE

LISA B. FORBES, P.J., and SEAN C. GALLAGHER, J., CONCUR

1 Alternatively, the trial court could have granted the motion for directed verdict

because the two motions are identical and would have yielded the same result.