[Cite as Sams v. College Bowl Lanes, Inc., 2012-Ohio-150.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                                     :       JUDGES:
LOU SAMS, et al.,                                    :       William B. Hoffman, P.J.
                                                     :       Sheila G. Farmer, J.
                     Plaintiffs-Appellants           :       Julie A. Edwards, J.
                                                     :
-vs-                                                 :       Case No. 2011CA00138
                                                     :
                                                     :
THE COLLEGE BOWL LANES, INC.,                        :       OPINION
et al.,

                  Defendants-Appellees




CHARACTER OF PROCEEDING:                                      Civil Appeal from Stark County
                                                              Court of Common Pleas Case No.
                                                              2010CV03686

JUDGMENT:                                                     Affirmed

DATE OF JUDGMENT ENTRY:                                       January 17, 2012

APPEARANCES:

For Plaintiffs-Appellants                                     For Defendants-Appellees

DONALD P. KOTNIK                                              DOUGLAS N. GODSHALL
600 West Maple Street                                         RAYMOND C. MUELLER
North Canton, Ohio 44720                                      Brenton Commons, Suite 400
                                                              8040 Cleveland Avenue, N.W.
                                                              North Canton, Ohio 44720
[Cite as Sams v. College Bowl Lanes, Inc., 2012-Ohio-150.]


Edwards, J.

        {¶1}     Plaintiffs-appellants, Lou and Larry Sams, appeal from the May 27, 2011,

Judgment Entry of the Stark County Court of Common Pleas granting summary

judgment in favor of defendant-appellee The College Bowl Lanes, Inc.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}     On October 7, 2008, appellant Lou Sams was bowling at The College

Bowl, a bowling alley owned and operated by appellee The College Bowl Lanes, Inc.

Appellant Lou Sams, on such date, had stopped at the bowling alley to talk to a friend

and was asked to be a substitute for one of the bowlers on her friend’s bowling team. As

appellant Lou Sams was bowling in the fourth frame of her first game that night, she

slipped and fell a couple of feet back from the foul line on the approach. Prior to bowling

her first game, appellant Lou Sams had thrown a couple of practice balls. As a result of

her fall, appellant Lou Sams sustained injuries to her thumb and hand.

        {¶3}     On October 6, 2010, appellant Lou Sams and her husband, appellant

Larry Sams, filed a negligence/personal injury complaint against appellee. Appellants, in

their complaint, alleged that, prior to the fall, appellee’s employees and/or agents had

applied oil to the bowling lanes and, in doing so, had negligently caused an excess

puddle or puddles of oil to collect and/or form in the area of the bowling lane. Appellants

alleged that appellant Lou Sams had stepped into one of the puddles, causing her to

slip and fall.

        {¶4}     On April 26, 2011, appellee filed a Motion for Summary Judgment.

Appellants filed a memorandum in opposition to the same on May 9, 2011. As
Stark County App. Case No. 2011CA00138                                                     3


memorialized in a Judgment Entry filed on May 27, 2011, the trial court granted

appellee’s motion.

       {¶5}   Appellants now raise the following assignments of error on appeal:

       {¶6}   “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

IN FAVOR OF APPELLEE COLLEGE BOWL AND BY HOLDING THAT APPELLEE

HAD NOT BREACHED ITS DUTY TO EXERCISE ORDINARY CARE IN THE

MAINTENANCE OF THE BOWLING LANE USED BY APPELLANT LOU SAMS.

       {¶7}   “II. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT

IN FAVOR OF APPELLEE COLLEGE BOWL ON THE GROUNDS THAT THE

EVIDENCE AND TESTIMONY THAT APPELLANT LOU SAMS SLIPPED ON OIL ON

THE BOWLING LANE IS BASED ON NOTHING MORE THAN MERE SPECULATION

WHICH IS NOT A SUFFICIENT BASIS ON WHICH TO ESTABLISH A PREMISES

OWNER’S LIABILITY.”


                                    STANDARD OF REVIEW


       {¶8}   Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212, (1987). As

such, we must refer to Civ.R. 56(C) which provides, in pertinent part: “Summary

judgment shall be rendered forthwith if the pleading, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence in the pending

case and written stipulations of fact, if any, timely filed in the action, show that there is

no genuine issue as to any material fact and that the moving party is entitled to
Stark County App. Case No. 2011CA00138                                                    4


judgment as a matter of law. * * * A summary judgment shall not be rendered unless it

appears from such evidence or stipulation and only from the evidence or stipulation, that

reasonable minds can come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made, such party being

entitled to have the evidence or stipulation construed most strongly in the party's favor.”

       {¶9}    Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,

1997-Ohio-259, 674 N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d

264, (1996).

       {¶10} It is subject to this standard of review that we address appellants'

assignments of error.

                                               I, II

       {¶11} Appellants, in their two assignments of error, argue that the trial court

erred in granting summary judgment in favor of appellee. We disagree.

       {¶12} In order to establish actionable negligence, a plaintiff must prove (1) the

defendant owed him a duty of care; (2) the defendant breached that duty of care; and

(3) as a direct and proximate result of the defendant's breach, the plaintiff suffered

injury. Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707,

(1984).

       {¶13} In the case sub judice, it is undisputed that appellant Lou Sams was a

business invitee of appellee. While a business owner is not an insurer of the safety of

his business invitees, an owner owes such invitees “a duty of ordinary care in

maintaining the premises in a reasonably safe condition so that his customers are not
Stark County App. Case No. 2011CA00138                                                      5

unnecessarily and unreasonably exposed to danger.” Paschal v. Rite Aid Pharmacy,

Inc., 18 Ohio St.3d 203, 480 N.E.2d 474, (1985). The mere occurrence of an injury to a

business invitee does not give rise to a presumption or an inference of negligence.

Parras v. Standard Oil Co., 160 Ohio St. 315, 116 N.E.2d 300, (1953), paragraph one of

the syllabus.

       {¶14} A long standing rule of law in Ohio requires that a plaintiff in a premises

liability action be able to identify or explain the reason for the fall. Hildebrandt v. Kroger

Co., 5th Dist. No. 01-CA-114, 2002-Ohio-2544, at ¶7, citing Cleveland Athletic

Association v. Bending, 129 Ohio St. 152, 194 N.E. 6, (1934). See also Spognardi v.

Scores Of Mansfield, Inc., 5th Dist. No. 1999CA56, 2000 WL 1627, (Dec. 29, 1999), and

Rawls v. Cinemark USA, 5th Dist. No. 2007 CA 00107, 2007-Ohio-5511. Speculation or

conjecture by the plaintiff as to the culpable party who caused his fall and what caused

his fall is not sufficient, as a matter of law, since the issue of proximate cause is not

open to speculation. See Scott v. Kings Island Co., 12th Dist. No. CA-98-04-044, 1999

WL 7458, 6-7, (Feb. 16, 1999), and Denton v. Cracker Barrel Old Country Store, Inc.,

10th Dist. No. 02-AP-1211, 2003-Ohio-2890, ¶22.

       {¶15} In the case sub judice, the trial court stated in its May 27, 2011 Judgment

Entry, in relevant part, as follows:

       {¶16} “Since there has not been any evidence provided that the alleged

presence of oil or liquid on the approach existed for a sufficient period of time for the

‘Defendant to become aware of and clean up in it’s (sic) exercise of ordinary care, or

any of evidence of prior complaints or falls would have put the Defendant on notice of a

defect, the court finds that there was no breach of duty by the Defendant in this case.”
Stark County App. Case No. 2011CA00138                                                   6


       {¶17} The trial court further found that appellant Lou Sams had speculated that

oil on the lanes caused her fall and that speculation was an insufficient basis on which

to establish appellee’s liability as a premise owner. Appellants now contend that the trial

court erred in failing to recognize that notice is immaterial when the hazardous condition

is created by the property owner and that there was evidence that the substance on

which appellant slipped was oil negligently left on the bowling lane by appellee.

       {¶18} During her deposition, appellant Lou Sams testified she did not see

anything that she slipped on and did not see anything before she fell. She further

testified that she “would say” that the liquid that she slipped on was oil. Deposition of

appellant Lou Sams at 54. In support of their memorandum in opposition to appellee’s

Motion for Summary Judgment, appellants submitted the affidavits of Sherri Guidone

and Virginia Carothers, both who were bowling with appellant Lou Sams on October 7,

2008. Guidone, in her affidavit, stated, in relevant part, as follows:

       {¶19} “4. As we started to bowl, I heard someone shout ‘she fell!’ and I turned

around and saw Lou Sams lying on her back in the bowling lane. I observed her as she

tried to roll over on her stomach into the gutter in an attempt to get up but she could not

get up on her own.

       {¶20} “5. An employee of College Bowl that I know as ‘Larry’ came down and

helped Lou Sams get-up off of the bowling lane.

       {¶21} “6. I then observed Larry get a rag and use it to wipe-up some type of

liquid on the bowling lane. I believe the liquid may have been excess oil from when the

lanes were oiled and polished shortly before we started bowling. (Emphasis added).
Stark County App. Case No. 2011CA00138                                                   7


      {¶22} “7. After he used the rag to wipe-up the liquid, I then saw Larry use some

type of rough paper, possibly sand paper, to rub over the same spot he used the rag to

wipe-up the liquid on the bowling lane.”

      {¶23} Carothers, in her affidavit, stated that after appellant Lou Sams fell, she

observed Larry use a rag to wipe up “some type of liquid on the bowling lane”

      {¶24} Based on the foregoing, we concur with the trial court that the evidence

produced by appellants constituted mere speculation as to what caused appellant Lou

Sams to fall. We further concur with the court that “[s]ince speculation is an insufficient

basis on which to establish a premises owner’s liability as a matter of law, as plaintiff

cannot point to a wrongful or negligent act by the defendant, Defendant is entitled to

judgment in this case.”

      {¶25} Appellants’ two assignments of error are, therefore, overruled.

      {¶26} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

                                                                       Judgment affirmed.

By: Edwards, J.

Farmer, J. concurs

Hoffman, P.J. dissents

                                                    ______________________________

                                                    ______________________________

                                                    ______________________________

                                                                JUDGES

JAE/d1107
Stark County App. Case No. 2011CA00138                                                   8



Hoffman, P.J., dissenting

       (¶27) I respectfully dissent from the majority opinion.

       (¶28) While I agree speculation or conjecture as to what caused the fall is

insufficient, as a matter of law, to establish proximate cause, I believe the deposition

testimony of James Aufderheide, an employee of Appellee, when coupled with

Appellant’s affidavit and that of Guidone and Carothers, provide legally sufficient

evidence to support a finding of proximate cause.

       (¶29) In his deposition, Aufderheide testified the lanes had been oiled less than

two hours before the league started bowling on the night of the incident and it was not

unusual for oil to get on the approach portion of the lanes as the lane conditioner

machine was moved from one lane to another. If oil gets on the approach portion of

lane, a maintenance person would use a towel or Scotch Brite Pad to clean up the

excess oil or liquid.

       (¶30) Appellee’s employee, Larry Wakeley, was observed using some type of

rough paper to rub over the same spot from which he had earlier wiped-up excess

liquid. This was the same spot Appellant had just slipped and fallen. While Appellant

was unable to inspect or identify the liquid because it was cleaned up by Wakely shortly

after her fall, I find Aufderheide’s testimony, when coupled with that of Appellant and her

witnesses, legally sufficient to support a finding of proximate cause.



                                                 ________________________________
                                                 HON. WILLIAM B. HOFFMAN
[Cite as Sams v. College Bowl Lanes, Inc., 2012-Ohio-150.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


LOU SAMS, et al.,                                      :
                                                       :
                         Plaintiffs-Appellants         :
                                                       :
                                                       :
-vs-                                                   :       JUDGMENT ENTRY
                                                       :
THE COLLEGE BOWL LANES, INC.,                          :
et al.,                                                :
                                                       :
                      Defendants-Appellees             :       CASE NO. 2011CA00138




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

appellants.




                                                           _________________________________


                                                           _________________________________


                                                           _________________________________

                                                                        JUDGES
