Fernandez v. Walmart Supercenter #3860

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[Cite as Fernandez v. Walmart Supercenter #3860, 2022-Ohio-1304.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY NELLIE E. FERNANDEZ, Plaintiff-Appellant, v. WALMART SUPERCENTER #3860, et al., Defendants-Appellees. OPINION AND JUDGMENT ENTRY Case No. 21 MA 0045 Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2019 CV 02420 BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges. JUDGMENT: Affirmed. Atty. R. Craig McLaughlin, Elk & Elk Co., Ltd., 6105 Parkland Blvd., Suite 200 ,Mayfield Heights, Ohio 44124, for Plaintiff-Appellant Atty. Robert S. Yallech, Reminger Co., LPA, 11 Federal Plaza Central, Suite 1200, Youngstown, Ohio 44503, for Defendants-Appellees. –2– Dated: March 25, 2022 WAITE, J. {¶1} Appellant Nellie E. Fernandez appeals a May 3, 2021 Mahoning County Common Pleas Court judgment entry granting summary judgment in favor of Appellees Walmart Supercenter #3860, Walmart Stores East, L.P., and Walmart, Inc. Appellant argues that the trial court’s decision is erroneous as there is evidence that Appellees had constructive and actual knowledge of a hazard which caused her to slip and fall. For the reasons provided, Appellant’s arguments are without merit and the judgment of the trial court is affirmed. Factual and Procedural History {¶2} Appellant and her daughter visited a Walmart in Boardman, Ohio. At that time, Appellant wore an orthopedic boot on one foot. When Appellant entered the cosmetic area of the store, her boot slipped on an unknown substance on the floor which caused her to fall. Appellant’s daughter located an employee who called a manager. Several employees, including two managers, eventually arrived at the area. One of the employees cleaned up the substance from the floor. According to Appellant’s deposition, this employee “said that they [employees] were cleaning the area, now that I’m remembering, and that probably one of the employees when they came by didn’t realize that one of their crates had leaked.” (9/17/20 Fernandez Depo., pp. 59-60.) She believed that the employee wrote a statement at the time, however, that statement does not appear to be in the record. {¶3} At her deposition, Appellant stated that she did not look down at the floor as she walked. As she approached the endcap of an aisle, her boot slipped on a substance Case No. 21 MA 0045 –3– that apparently had spilled on the floor, causing her to fall and suffer injuries. She stated that she did not touch the substance but it was all over her pants after the fall. She guessed that it was either hair gel or lotion. (9/17/20 Fernandez Depo., p. 36.) She was treated at the hospital for her injuries. {¶4} A review of two security videos does not reveal when the hazard was created. The videos show different angles of the area where Appellant slipped and fell. The general area is dedicated to cosmetic products. Several customers can be seen walking through the area from the start of the video (timestamp 09:30) until Appellant’s fall, which occurred at 10:37:06. {¶5} Notably, at timestamp 10:32:50 a woman pushed a cart carrying a young child into the area. She parked the cart in what appears to be the exact area where Appellant later slipped and fell. While the woman looked at products on a nearby tower, the child can be seen removing an item from the back of the cart. Shortly thereafter, the child reached back into the cart and pulled out another unidentifiable object. At timestamp 10:34:34, the child appears to look down at the ground for a moment. The child continues to play with the object until the woman noticed and took the item from the child at timestamp 10:34:43. The woman appeared to back up, slightly bend over, and look down momentarily. She then pushed the cart further down the aisle and continued to shop. {¶6} Before this woman moved her cart, an employee can be seen pushing a cart in a nearby aisle. There is no video evidence that the employee looked down towards the floor area of the aisle at issue. A few customers traversed through the general area before Appellant can be seen entering the screen. Case No. 21 MA 0045 –4– {¶7} At timestamp 10:37:06, Appellant slipped and fell. As she slipped, she slid into a split position and hit the endcap of an aisle, causing it to move slightly. An employee arrived a few minutes after the fall and returned with cleaning products. {¶8} On November 26, 2019, Appellant filed a civil complaint against Appellees Walmart Supercenter #3860, Walmart Stores East, L.P., and Walmart, Inc. She also included as defendants John Doe Corporation and Ohio Department of Medicaid, however, they are not parties to this appeal. The complaint raised a negligence claim against the Walmart companies and sought a declaratory judgment that defendant Ohio Department of Medicaid is not entitled to reimbursement for any amount it paid for her medical services. {¶9} All defendants filed an answer and Ohio Department of Medicaid filed a cross-claim. On January 28, 2020, Appellees filed for leave to file a motion for summary judgment. The trial court sent a notice to the parties that a hearing on the motion would be held on March 16, 2021. While the court did not actually hold a hearing, it requested submission of a proposed order granting the motion for summary judgment. On May 3, 2021, the court signed the proposed order granting summary judgment in favor of Appellees. It is from this entry that Appellant timely appeals. Appellate Record {¶10} We note that the security video in this case was apparently the subject of a confidentiality agreement. Although both parties’ briefs heavily relied on the video evidence of the incident and Appellant’s deposition, neither of those documents were part of the record provided to this Court. In fact, it was not immediately apparent from the Case No. 21 MA 0045 –5– record itself, including the docket sheet, that a video was properly filed in the trial court. The first reference to the video was found in Appellant’s brief, as follows: Pursuant to a Stipulated Protective Order Governing Confidentiality signed by the parties, Walmart’s internal documents and the security camera video provided to Appellant pursuant to discovery requests were placed in a sealed envelope marked “Confidential - Subject to Protective Order.” Both items were delivered to the trial court judge and are a part of this Court’s record. (Appellant’s Brf., p. 2.) {¶11} Although both parties apparently knew the documents were filed under seal, neither undertook any effort to ensure this Court’s receipt of the evidence. In fact, in Appellant’s brief she appears to assume that this Court was in possession of the entire record merely because evidence was filed with the trial court. Despite having knowledge of the sealed nature of the video, Appellant placed the burden on this Court to determine the appropriate record on appeal and locate all of the evidence on file. {¶12} After receiving the video, we were unable to view its contents as it was apparently corrupted. On December 16, 2021, we issued a judgment entry requesting that the parties provide a viewable copy of the video. We mandated that the parties agree that the copy is a true and accurate version of the video provided to the trial court. On December 28, 2021, Appellant provided a copy of the video. Although the parties did not provide a joint agreement as requested, Appellant informed this Court that the video was Case No. 21 MA 0045 –6– provided to her by Appellees and she did not contest the authenticity of the video. Appellees did not file any objection to the video. {¶13} We remind the parties that “[i]t is the appellant's duty to transmit the record on appeal.” Ormet Aluminum Products Corp. v. United Steelworkers of Am., 7th Dist. Monroe No. 05-MO-1, 2006-Ohio-3782, ¶ 40. See also App.R. 9(B); App.R. 10(A). Summary Judgment {¶14} An appellate court conducts a de novo review of a trial court's decision to grant summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before summary judgment can be granted, the trial court must determine that: (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, (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most favorably in favor of the party against whom the motion for summary judgment is made, the conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is “material” depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995). {¶15} “[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party has a reciprocal Case No. 21 MA 0045 –7– burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, when presented with a properly supported motion for summary judgment, the nonmoving party must produce some evidence to suggest that a reasonable factfinder could rule in that party's favor. Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997). {¶16} The evidentiary materials to support a motion for summary judgment are listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact that have been filed in the case. In resolving the motion, the court views the evidence in a light most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327, 364 N.E.2d 267. ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEES. {¶17} In Appellant’s sole assignment of error she argues that the record contains evidence the hazard that caused her injury existed for a sufficient time to place Appellees on constructive notice. Appellant argues the security footage of the incident shows that several customers were using “testers” in the area and any one of them could have created the hazard. In addition, Appellant argues that the child seen in the video may have spilled a substance in the area a few minutes before her fall. Appellant contends that a jury could find that one of these individuals was responsible, thus the hazard was created during the time period of from five to twenty-five minutes before her fall. Appellant Case No. 21 MA 0045 –8– also argues that there is some evidence that an employee had actual knowledge of the hazard, as that employee can be seen walking through the general area several minutes before her fall. {¶18} Appellees respond by arguing that there is no evidence that a customer spilled anything on the floor. Appellees assert that there are multiple plausible explanations for the cause of the hazard, and without knowing the exact cause, all of Appellant’s claims are based on mere speculation, which is insufficient to create constructive knowledge. As to whether the employee passing through the area may have had actual notice of the hazard, Appellees argue that the video shows that a shopping cart blocked the employee’s view of the area. Appellees also point out that no other customer had a problem traversing the area and that Appellant was unable to identify the substance that created the hazard. {¶19} “A negligence claim requires the plaintiff to prove: (1) duty; (2) breach of duty; (3) causation; and (4) damages.” Perry v. Anshu, LLC, 7th Dist. Columbiana No. 20 CO 0016, 2021-Ohio-2365, ¶ 10, citing Anderson v. St. Francis-St. George Hosp., Inc., 77 Ohio St.3d 82, 84, 671 N.E.2d 225 (1996). {¶20} When negligence is alleged in the context of premises liability, the applicable duty is defined by the relationship between the landowner and the plaintiff, such as invitee, licensee, or trespasser. Milbert v. Wells Twp. Haunted House, Inc., 2016Ohio-5643, 70 N.E.3d 1143, (7th Dist.), ¶ 26, citing Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 10. Here, the parties agree that Appellant was a business invitee. “A business invitee enters upon the premises of another, by Case No. 21 MA 0045 –9– invitation, express or implied, for some purpose which is beneficial to the owner.” Milbert at ¶ 26, citing Light v. Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986). {¶21} While the mere occurrence of an accident does not give rise to a presumption of negligence, a business invitee is still “owed a duty of ordinary care in maintaining the premises in a reasonably safe condition so they are not unnecessarily and unreasonably exposed to danger.” Milbert at ¶ 28, citing Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 203-204, 480 N.E.2d 474 (1985). “[T]he obligation of reasonable care is a full one, applicable in all respects, and extending to everything that threatens the invitee with an unreasonable risk of harm.” Perry v. Eastgreen Realty Co., 53 Ohio St.2d 51, 52, 372 N.E.2d 335 (1978). {¶22} The business invitee can successfully assert a premises liability negligence claim in three ways: (1) the defendant or an employee negligently created the hazard; (2) the defendant or an employee had actual knowledge of the hazard and neglected to remove it promptly or give adequate warning of its presence; or (3) the defendant or an employee had constructive knowledge of the hazard, such as where it existed for a sufficient length of time to reasonably justify an inference that the failure to correct the condition or warn against it was attributable to a want of ordinary care. Anaple v. Standard Oil Co., 162 Ohio St. 537, 541, 124 N.E.2d 128 (1955). Appellant relies on the latter two of these three. {¶23} “[E]vidence as to the length of time the hazard had existed is necessary to support an inference that defendant had constructive notice.” Stanton v. Marc's Store, 7th Dist. Mahoning No. 15 MA 49, 2015-Ohio-5551, ¶ 18, citing Presley v. City of Norwood, 36 Ohio St.2d 29, 32, 303 N.E.2d 81 (1973). “An inference of negligence does Case No. 21 MA 0045 – 10 – not arise from mere guess, speculation, or wishful thinking, but rather can arise only upon proof of some fact from which such inference can reasonably be drawn.” Stanton at ¶ 21, citing Parras v. Standard Oil Co., 160 Ohio St. 315, 116 N.E.2d 300 (1953), paragraph two of the syllabus. {¶24} There is no conclusive evidence in this matter as to when the hazard was created. About two and half minutes before Appellant fell, a child in a shopping cart can be seen removing items from the back of the cart and either playing with or consuming the items. The woman accompanying the child did not appear to notice as she browsed through items on a nearby tower. {¶25} After the woman chose her product, she appeared to notice the child playing with some item from the cart for the first time. She took the item from the child and appeared to momentarily step back and slightly bend over as if to look down at the floor. She then pushed the cart further down the aisle and continued shopping. The woman remained in the camera’s view just prior to Appellant’s appearance and it is apparent that if she found a substance on the floor, she did not attempt to inform anyone, including a store employee. {¶26} This is the only “evidence” of the creation of a hazard. However, Appellant’s inference that the child may have spilled some substance on the floor is mere speculation, as no spill can actually be seen at any time. A review of this record reveals that Appellant’s arguments in this regard are entirely speculative: shoppers using “testers” “could have” caused a slippery substance on the floor, the child in the shopping cart “probably” spilled a substance on the floor. There is no evidence as to what the substance was, who put it there, or, crucially, when it was placed on the floor. There is no evidence Case No. 21 MA 0045 – 11 – of record whether this unknown substance had been there two minutes, two hours, or two days. Without more, there is no way to create the inference that the hazard had existed for such a length of time that failure to correct the hazard rose to the level of a want of ordinary care. {¶27} As to actual knowledge, Appellant is correct in that an employee can be seen pushing a cart in an aisle perpendicular to the one in which Appellant ultimately fell. However, there is no indication that the employee looked down towards the floor area of this specific aisle, or any other aisle, as she passed through the general area. Significantly, the cart containing the child, to whom Appellant seeks to attribute creation of the hazard, remained in the same area that Appellant later fell in while this employee passed through, and would have blocked any evidence of the hazard if it existed at the time. As such, there is no evidence that the employee had actual knowledge of the hazard. {¶28} Because there is no evidence as to when the hazard was created, Appellant cannot rely on a constructive knowledge analysis in this case. Likewise, there is no evidence that an employee had actual knowledge of the hazard. There is no genuine question of material fact on the record in this matter. Appellant’s sole assignment of error is without merit and is overruled. Conclusion {¶29} Appellant argues that the trial court erroneously granted summary judgment in favor of Appellees as there is evidence that Appellees had constructive and actual knowledge of the hazard before she slipped and fell. For the reasons provided, Appellant’s arguments are without merit and the judgment of the trial court is affirmed. Case No. 21 MA 0045 – 12 – Robb, J., concurs. D’Apolito, J., concurs. Case No. 21 MA 0045 [Cite as Fernandez v. Walmart Supercenter #3860, 2022-Ohio-1304.] For the reasons stated in the Opinion rendered herein, the assignment of error is overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed against the Appellant. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry.

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