[Cite as Hidalgo v. Costco Wholesale Corp., 2013-Ohio-847.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

DOLORES HIDALGO, et al.                                   C.A. No.   12CA010191

        Appellants

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
COSTCO WHOLESALE CORPORATION,                             COURT OF COMMON PLEAS
et al.                                                    COUNTY OF LORAIN, OHIO
                                                          CASE No.   10CV169779
        Appellee

                                DECISION AND JOURNAL ENTRY

Dated: March 11, 2013



        MOORE, Presiding Judge.

        {¶1}    Plaintiffs, Dolores Hidalgo and William Marks, appeal the ruling of the Lorain

County Court of Common Pleas, which granted summary judgment to Defendant Costco

Wholesale Corporation (“Costco”). For the reasons set forth below, we affirm.

                                                     I.

        {¶2}    In 2010, Ms. Hidalgo and her husband, Mr. Marks, (collectively “Appellants”)

were shopping at a Costco store. As Mr. Marks was paying for their purchases, Ms. Hidalgo

went to the front of the store, just beyond the check-out counter, to obtain an empty box. After

walking approximately three or four feet past the check-out counter, Ms. Hidalgo slipped and

fell.   After falling, she and two Costco employees noticed a smashed green grape in the

immediate area of where the fall occurred. As a result of the fall, Ms. Hidalgo claimed that she

suffered injuries to her ankle, foot, and knee.
                                               2


        {¶3}   Appellants filed a complaint against Costco, alleging negligence and loss of

consortium.1 Thereafter, Costco filed a motion for summary judgment, and Appellants filed a

brief in opposition to Costco’s motion. On February 8, 2012, the trial court issued a journal

entry granting Costco’s motion for summary judgment and dismissing Appellants’ complaint.

Appellants timely filed a notice of appeal from the February 8, 2012 entry and now present one

assignment of error for our review.

                                               II.

                                 ASSIGNMENT OF ERROR

        THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO[
        ]COSTCO[ ]AS GENUINE ISSUES OF MATERIAL FACT REMAIN THAT A
        JURY SHOULD BE ALLOWED TO CONSIDER WITH RESPECT TO
        WHETHER [COSTCO] CREATED AND/OR HAD NOTICE OF THE
        HAZARD WHICH CAUSED [MS.] HIDALGO TO BECOME INJURED.

        {¶4}   In their sole assignment of error, Appellants argue that the trial court erred in

granting summary judgment to Costco because a genuine issue of material fact existed as to

whether Costco created or had actual or constructive knowledge of the condition which caused

Ms. Hidalgo to fall. We disagree.

        {¶5}   This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary judgment is

proper if:

        (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; and (3) it appears from
        the evidence that reasonable minds can come to but one conclusion, and viewing
        such evidence most strongly in favor of the party against whom the motion for
        summary judgment is made, that conclusion is adverse to that party.




        1
         Appellants also named two John Does as defendants in their complaint. However, the
record does not indicate that service was perfected on these unidentified defendants.
                                                 3


Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

       {¶6}    The party moving for summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts of the record that show the absence of

a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996). The

moving party must support the motion by pointing to some evidence in the record of the type

listed in Civ.R. 56(C). Dresher at 292-93. “If the moving party fails to satisfy its initial burden,

the motion for summary judgment must be denied.” Id. at 293. If the moving party satisfies its

initial burden, the non-moving party bears the burden of offering specific facts to show a genuine

issue for trial. Id. The nonmoving party may not rest upon the mere allegations and denials in

the pleadings but instead must point to, or provide, some evidentiary material that demonstrates a

genuine dispute over a material fact. In re Fike Trust, 9th Dist. No. 06CA0018, 2006-Ohio-

6332, ¶ 10.

       {¶7}    To prevail on a negligence claim, a plaintiff must present evidence establishing

that the defendant owed the plaintiff a duty of care, that the defendant subsequently breached that

duty, and that the breach was the proximate cause of the plaintiff’s injury. Mussivand v. David,

45 Ohio St.3d 314, 318 (1989), citing Di Gildo v. Caponi, 18 Ohio St.2d 125 (1969). With

regard to premises liability matters, the duty owed by the owner of the premises is determined by

the relationship between the owner of the premises and the injured party. Clark v. BP Oil Co.,

9th Dist. No. 21398, 2003-Ohio-3917, ¶ 8, citing Gladon v. Greater Cleveland Regional Transit

Auth., 75 Ohio St.3d 312, 315 (1996). Here, there is no dispute that Ms. Hidalgo was a business

invitee on Costco’s property at the time of her injury. A storekeeper owes its business invitees

“a duty of ordinary care in maintaining the premises in a reasonably safe condition” so that

invitees are not unreasonably exposed to unnecessary danger. Paschal v. Rite Aid Pharmacy,
                                                  4


Inc. 18 Ohio St.3d 203 (1985). However, the storekeeper is not an insurer of an invitee’s safety.

Id. at 203-204.

       {¶8}       To recover for injuries sustained where a business invitee slips and falls on the

premises and claims that a foreign substance on a walkway caused her to slip and fall, a plaintiff

must demonstrate:

       1. That the defendant through its officers or employees was responsible for the
       hazard complained of; or

       2. That at least one of such persons had actual knowledge of the hazard and
       neglected to give adequate notice of its presence or remove it promptly; or

       3. That such danger had existed for a sufficient length of time reasonably to
       justify the inference that the failure to warn against it or remove it was attributable
       to a want of ordinary care.

Johnson v. Wagner Provision Co., 141 Ohio St. 584, 589 (1943); Orndorff v. ALDI, Inc., 115

Ohio App.3d 632, 635-636 (9th Dist.1996).

       {¶9}       Here, the trial court determined that there existed no evidence that would raise a

question of fact that Costco had actual or constructive knowledge that the grape was on the floor.

The trial court further determined that the grape was an “open and obvious” condition. Because

we agree that the trial court properly granted Costco summary judgment on the basis that Ms.

Hidalgo failed to meet her reciprocal burden of establishing a question of fact in regard to

whether Costco created the condition, had actual knowledge of the condition, or should be

charged with constructive knowledge of the condition, we need not reach the merits of the trial

court’s determination that the grape was an “open and obvious” condition.

       {¶10} In its motion for summary judgment, Costco in part maintained that no question

of material fact existed as to whether it created or had actual or constructive knowledge of the

grape on the floor, and it was entitled to judgment as a matter of law on Appellants’ claims. In

support, it pointed to the deposition testimony of Ms. Hidalgo.
                                                    5


        {¶11} During her deposition, Ms. Hidalgo averred that she did not know how the grape

came to be on the floor or how long it had been on the floor prior to her fall. She stated that she

did not purchase any grapes, and she did not witness another customer in line before her

purchase any grapes. Further, she did not see anyone drop any grapes on the floor at any time

before she fell, and she did not hear any Costco employees say anything about grapes on the

floor prior to her fall. She acknowledged it was possible for food items to occasionally fall on

the floor in stores that sell groceries, like Costco.

        {¶12} Based upon this evidence, we conclude that Costco met its initial burden of

pointing to some evidence that Appellants could not establish that Costco caused the grape to be

on the floor, or that it had actual notice that the grape was on the floor, or that it should be

charged with constructive notice that the grape was on the floor. Therefore, the burden shifted to

Appellants to point to, or provide, some evidence establishing that a question of material fact

existed.

        {¶13} In their response to Costco’s motion, Appellants maintained that triable issues

remained as to whether Costco created the hazard and as to whether Costco should be charged

with constructive notice of the hazard. In support, Appellants provided their own affidavits and

the deposition testimony of Costco employees Laura Buza, Joseph Harder, and Christopher

Wittman.

        {¶14} In their affidavits, Appellants averred that Ms. Hidalgo fell approximately three to

four feet past the check-out counter toward the exits. They stated that they believed she fell after

slipping on a green grape, which was discovered on the floor after her fall. Appellants attested

that they did not observe any customers handling merchandise in that area of the store other than

to push their carts from the end of the check-out counter to the exit. Instead, Appellants
                                                  6


maintained that Costco employees were handling the unloading and the loading of the

customers’ carts at the check-out lanes.

       {¶15} In their depositions, Ms. Buza, Mr. Harder, and Mr. Wittman acknowledged that

the store employs “cashier assistants.” These assistants load items from a customer’s cart onto a

conveyer belt to the cashier. After the cashier scans the items, the cashier assistant packs the

items into the customer’s cart. The store does not provide bags for packing the items. However,

the store keeps empty boxes, in which the cashier assistants will pack a customer’s items upon a

customer’s request. However, if cashier assistants are not available, or if a customer prefers, the

customer may load the merchandise back into the cart after the cashier has scanned it.

       {¶16} In her deposition, Ms. Buza attested that, on the date at issue, she was working as

a cashier assistant at Costco. While performing her duties, Ms. Buza saw Ms. Hidalgo fall in

front of the check-out lanes. Ms. Buza acknowledged that, when loading and unloading a

customer’s cart, it is possible for her to spill merchandise onto the floor.

       {¶17} In his deposition, Mr. Harder also averred that he was working at Costco as a

cashier assistant on the date at issue. During that time, he heard someone yell, and looked

toward another check-out lane, at the end of which he saw a group of people standing near Ms.

Hidalgo, who had fallen. He went to assist Ms. Hidalgo, and he noticed a smashed green grape

on the floor in the immediate vicinity of where Ms. Hidalgo fell.

       {¶18} In his deposition, Mr. Wittman, who was employed as the store’s front-end

manager at the time of the fall, was notified that Ms. Hidalgo had fallen in front of the cash

registers. He went to assist Ms. Hidalgo, and, at that time, he also saw a smashed grape in the

immediate area of where the fall occurred.
                                                 7


       {¶19} Based upon this, Ms. Hidalgo maintained that triable issues existed as to whether

Costco employees caused the grape to fall onto the floor and as to whether Costco should be

charged with constructive knowledge that the grape was on the floor.

       {¶20} With regard to the issue of whether Costco created the hazard, Appellants have

essentially argued that, because the grape was located in front of the cash registers, near the area

that cashier assistants were handling the merchandise and packing items into the customers’

carts, a triable issue existed as to whether Costco employees caused the grape to be dropped onto

the floor. However, Appellants and the witnesses agreed that the fall occurred three to four feet

past the check-out lanes, in an area traversed by both store employees and customers. Further,

Ms. Buza, Mr. Harder, and Mr. Wittman attested that customers may also assist in packing their

shopping carts. Therefore, while the grape could have fallen due to the actions of a cashier

assistant, the theory advanced by Appellants, it is equally plausible that the grape could have

fallen or rolled to that location due to the actions of other customers. Compare Braun v. Russo’s,

Inc., 8th Dist. No. 76273, 2000 WL 709041, *3 (June 1, 2000) (no triable issue as to whether

storeowner created hazard where customer advanced only speculative theories as to what caused

the grapes, on which she slipped and fell, to be on the floor in the produce aisle) with Peterson v.

Rockne’s Pub, 9th Dist. No. 19084, 1998 WL 835549, *1, 4 (Dec. 2, 1998) (triable issue existed

of whether restaurant spilled sauce where customer alleged that she slipped on sauce in an area in

which an employee had averred that “only servers and busboys would carry food and dirty

dishes” (Emphasis added.)). We conclude that based upon the evidence provided by Appellants,

a trier of fact would be engaging in mere speculation in determining how the grape came to be on

the floor. Accordingly, Appellants failed to meet their reciprocal Dresher burden of establishing

that a question of material fact existed in regard to whether Costco created the hazard.
                                                 8


       {¶21} Next, Appellants maintained that a question of fact existed as to whether Costco

should be charged with constructive notice of the dropped grape. In support, Appellants relied

heavily on the Tenth District’s holding in Collins v. Emro Marketing Co., 10th Dist. No. 98AP-

1014, 1999 WL 333298, *5 (May 11, 1999) for the proposition that constructive knowledge of a

latent defect can be imposed on a premises owner where a reasonable inspection would have

revealed the defect. Appellants maintained that a material question of fact existed as to whether

Costco’s inspection of the premises was reasonable, and they argued that what was reasonable

under these circumstances should have been a question of fact for a jury to decide.

       {¶22} However, in Beck v. Camden Place at Tuttle Crossing, 10th Dist. No. 02AP-1370,

2004-Ohio-2989, ¶ 23-24, 28, the Tenth District discussed the imposition of constructive

knowledge in premises liability cases, including Collins, and distinguished between cases where

the accident was alleged to be caused by a “latent defect” from those allegedly cause by a “non-

latent defect slip and fall.” In the cases involving “latent defects,” the court determined that, if

the plaintiff proves that “the defect would have been revealed by a reasonable inspection of the

premises, the owner is charged with constructive knowledge of said defect. Accordingly, there is

no need to present evidence as to how long the defect was present, as would be the case in a non-

latent defect slip and fall.” (Emphasis added.) Id. at ¶ 28. Recently, in Balcar v. Wal-Mart

Store No. 2726, 10th Dist. No. 12AP-344, 2012-Ohio-6027, ¶ 23, the Tenth District concluded

that an injury allegedly sustained due to “a spill of clear liquid on the floor” did not involve a

“latent defect.” Because of this, the court determined that, despite the plaintiff’s contention that

a triable issue remained as to whether the store conducted “reasonable inspections,” the plaintiff

was required to demonstrate a triable issue as to how long the hazard had existed. Id. at ¶ 16, 23.

We conclude that the allegations of the present case are analogous to those present in Balcar, as
                                                 9


we cannot discern of any allegation that Ms. Hidalgo’s fall was attributable to a “latent defect”

and Appellants have pointed to no evidence indicating how long the grape was on the floor.

Accordingly, Appellants’ reliance on Collins is misplaced.

       {¶23} Under the circumstances of this case, in order to establish that a triable issue

existed as to constructive notice, Appellants bore the burden of pointing to evidence from which

the trier of fact could determine that the grape was on the floor for a sufficient time “to justify

the inference that the failure to warn against it or remove it was attributable to a want of ordinary

care.” See Johnson at 589, Peterson v. Giant Eagle, Inc., 9th Dist. No. 21772, 2004-Ohio-1611,

¶ 15 (affirming trial court’s award of summary judgment to supermarket where customer who

fell on two grapes failed to set forth sufficient evidence demonstrating a question of fact as to

how long the grapes had been on the floor), quoting Smith v. Playland Park, Inc., 9th Dist. No.

16688, 1994 WL 604127 (Nov. 2, 1994). See also Worley v. Cleveland Pub. Power, 77 Ohio

App.3d 51, 54 (8th Dist.1991). Appellants pointed to no evidence from which a trier of fact

could reasonably make this inference, and therefore, they failed to meet their reciprocal Dresher

burden in regard to constructive knowledge.

       {¶24} Based upon the foregoing, we conclude that Appellants failed to meet their

reciprocal Dresher burden of establishing that a question of fact existed as to whether Costco

created the hazard or had actual or constructive knowledge of the hazard. Therefore, the trial

court did not err in granting summary judgment to Costco.

                                                III.

       {¶25} Accordingly, Appellants’ sole assignment of error is overruled. The judgment of

the Lorain County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                     CARLA MOORE
                                                     FOR THE COURT



CARR, J.
CONCURS.

BELFANCE, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

DOUGLAS S. HUNTER and CHANCE G. DOUGLAS, Attorneys at Law, for Appellants.

DENNIS R. FOGARTY and SHANNON FOGARTY, Attorneys at Law, for Appellee.
