[Cite as Estate of Merrill v. Meijer Stores Ltd. Partnership, 2016-Ohio-1432.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           CLERMONT COUNTY




THE ESTATE OF JENNIFER MERRILL,                           :

        Plaintiff-Appellant,                              :           CASE NO. CA2015-10-090

                                                          :                      OPINION
    - vs -                                                                        4/4/2016
                                                          :

MEIJER STORES LIMITED                                     :
PARTNERSHIP,
                                                          :
        Defendant-Appellee.
                                                          :



        CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                            Case No. 2014 CVC 1045



Gary F. Franke Co., L.P.A., Gary F. Franke, Michael D. O'Neill, 120 East Fourth Street, Suite
1040, Cincinnati, Ohio 45202, for plaintiff-appellant

Weston Hurd LLP, W. Charles Curley, Kaitlin L. Madigan, 10 West Broad Street, Suite 2400,
Columbus, Ohio 43215, for defendant-appellee



        PIPER, P.J.

        {¶ 1} Plaintiff-appellant, the Estate of Jennifer Merrill, appeals a decision of the

Clermont County Court of Common Pleas, granting summary judgment in favor of defendant-
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appellee, Meijer Stores Limited Partnership.1

        {¶ 2} Merrill fractured four vertebrae in her lower back and also injured her left leg

when she slipped and fell at a Meijer store. Merrill and her friend, Beverly Brewster, went to

the Meijer store at approximately 7:15 a.m. in order to purchase a stroller they planned on

using later that day at a tractor show. After picking out the stroller, Merrill and Brewster went

to the grocery side of the store in order to purchase snacks for the day. At that time, Merrill

had been in Meijer for approximately 15 minutes.

        {¶ 3} Merrill, who was pushing a full-sized cart, was walking near the seafood section

when she turned the corner of an aisle, took one or two steps, and then slipped. As the cart

went forward, Merrill's left leg went backwards, causing her to fall. While on the floor, Merrill

felt her pants because they were wet. When she placed her hand on the floor, Merrill also

felt a clear watery liquid on the floor.

        {¶ 4} Merrill looked around while on the floor, and observed an endcap with a

wooden pallet holding cases of bottled water. Merrill later estimated that an amount of water

equal to between one and two 12-ounce bottles had leaked, causing a "stream" of water,

which had puddled where she slipped and fell. Merrill also stated that the stream was

"coming from" under the pallet upon which the cases of water had been stacked.

        {¶ 5} Two Meijer employees, who were texting on their cellular phones, passed

Merrill sitting on the floor after her fall. Engaged with their respective phones, the two

employees continued to text, apparently not noticing Merrill sitting on the floor. However, an

employee from the seafood counter came over to assist Merrill, and a store manager later

became involved.

        {¶ 6} Merrill's injuries eventually required back surgery in order to fuse the broken


1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar for purposes of
issuing this opinion. Also, during the pendency of the case, Merrill passed away. As such, Merrill's estate was
substituted as a party to this action.

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vertebrae, and her medical expenses exceeded $174,000. Merrill filed suit, alleging that

Meijer negligently maintained the condition of its store by permitting hazardous conditions to

exist and failing to warn invitees of such conditions. After discovery occurred, during which

several individuals were deposed, Meijer filed a motion for summary judgment. The trial

court granted the motion, finding that Meijer was entitled to judgment as a matter of law

because Merrill's claims regarding Meijer's negligence were based on mere speculation.

Merrill now appeals the trial court's decision, raising the following assignment of error.

        {¶ 7} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN

FAVOR OF DEFENDANT-APPELLEE, MEIJER STORES LIMITED, PARTNERSHIP.

        {¶ 8}   Merrill argues in her sole assignment of error that the trial court erred in

granting summary judgment to Meijer because genuine issues of material fact remain to be

litigated.

        {¶ 9} This court's review of a trial court's ruling on a summary judgment motion is de

novo. Lindsay P. v. Towne Properties Asset Mgt. Co., 12th Dist. Butler No. CA2012-11-215,

2013-Ohio-4124, ¶ 16. Civ.R.56 sets forth the summary judgment standard and requires that

there be no genuine issues of material fact to be litigated, the moving party is entitled to

judgment as a matter of law, and reasonable minds can come to only one conclusion which

is adverse to the nonmoving party. Slowey v. Midland Acres, Inc., 12th Dist. Fayette No.

CA2007-08-030, 2008-Ohio-3077, ¶ 8. The moving party has the burden of demonstrating

that there is no genuine issue of material fact. Harless v. Willis Day Warehousing Co., 54

Ohio St.2d 64 (1978).

        {¶ 10} The nonmoving party "may not rest on the mere allegations of his pleading, but

his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts

showing the existence of a genuine triable issue." Mootispaw v. Eckstein, 76 Ohio St.3d 383,

385 (1996). A dispute of fact can be considered "material" if it affects the outcome of the

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litigation. Myers v. Jamar Enterprises, 12th Dist. Clermont No. CA2001-06-056, 2001 WL

1567352, *2 (Dec. 10, 2001). A dispute of fact can be considered "genuine" if it is supported

by substantial evidence that exceeds the allegations in the complaint. Id.

       {¶ 11} In a negligence action, the plaintiff must demonstrate that the defendant owed a

duty of care, breached the duty of care, and as a direct and proximate result of the breach,

the plaintiff suffered injury. Smith v. Kroger Co., 12th Dist. Butler No. CA2010-09-233, 2011-

Ohio-1871, ¶ 11. A shopkeeper owes its business invitees a duty of ordinary care to

maintain the premises in a reasonably safe condition so that the invitees are not

unreasonably or unnecessarily exposed to danger. Paschal v. Rite Aid Pharmacy, Inc., 18

Ohio St.3d 203 (1985). However, the shopkeeper is not an insurer of an invitee's safety and,

further, owes no duty to warn invitees of open and obvious dangers on the property.

Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, syllabus.

       {¶ 12} A danger that is open and obvious "is in itself, a warning." Uhl v. Thomas, 12th

Dist. Butler No. CA2008-06-131, 2009-Ohio-196, ¶ 15. Where a hazard is not hidden from

view or concealed and is discoverable by ordinary inspection, the court may properly sustain

a summary judgment against the claimant. Smith, 2011-Ohio-1871 at ¶ 14.

       {¶ 13} Regarding the breach of a duty owed an invitee in a slip and fall case, we have

previously indicated,

              Specific to the breach element in a slip-and-fall case, in order to
              avoid summary judgment * * * an appellant must present
              evidence showing one of the following: (1) that one or more of
              the appellees was responsible for placing the hazard in her path;
              (2) that one or more of the appellees had actual notice of the
              hazard and failed to give appellant adequate notice of its
              presence or remove it promptly; or (3) that the hazard had
              existed for a sufficient length of time as to warrant the imposition
              of constructive notice, i.e., the hazard should have been found by
              one or more of the appellees.

Tholen v. Wal-Mart, 12th Dist. Butler No. CA2009-03-090, 2010-Ohio-3256, ¶ 13. As stated


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by the Ohio Supreme Court, there is a breach when the "defendant or his employees had or

should, in the exercise of ordinary care, have had notice of the hazard for a sufficient time to

enable them in the exercise of ordinary care to remove it." Anaple v. Standard Oil Co., 162

Ohio St. 537, 541 (1955).

           {¶ 14} After reviewing the record, we find that genuine issues of material fact remain to

be litigated. The record is undisputed that Meijer employees had sole control over the

placement of the cases of water, and that the employees placed the cases of water on an

endcap near where customers would be walking. The record also demonstrates that the

plastic water bottles were stacked on wooden pallets that often contained nails and hard

edges. In fact, Meijer employees stacked the wooden pallets on top of plastic pallets in order

to keep the nails and wood from "tearing up" the store's flooring. The fact that such

precautions were taken in regard to the destructive nature of the wooden pallets creates a

genuine issue of material fact regarding whether similar damage occurred to the cases of

water and whether such leakage of the water bottles resulted in a dangerous condition for

Merrill.

           {¶ 15} The deposition testimony of a former Meijer employee demonstrates that Meijer

was completely aware of an ongoing problem with leaking cases of water. The former

employee, who had extensive knowledge of the movement and storage of water pallets, was

deposed during discovery. When asked whether Meijer had any knowledge of "water leaking

from pallets of water," the former employee answered "Sure. I mean, that was an ongoing

issue. You would get – as pallets are pulled on and off these trucks, you'd get a leaker in

one of the pallets and it would drip. I mean, you try to find it and get it out of there." When

asked to confirm that the leaking bottles were referred to by Meijer employees as "leakers,"

the former employee responded, "yeah. Bottles get pinched or whatever * * *." This

testimony indicates that Meijer was aware that the movement of cases of water caused

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leakage on an "ongoing" basis. The only action the store took to alleviate any possible

danger was to try to take the leaking bottles out before the pallet was moved from storage

and transported into the store for purchase.

        {¶ 16} There was no indication in the deposition testimony that Meijer took any other

steps once the pallets were moved into the store, such as place a receptacle or barrier to

catch water that leaked, display a warning sign that water could be present on the floor, or

have an employee actually check the pallet of stacked water after it had been moved into the

main store area. In fact, a Meijer manager who was also deposed testified that no policy was

in place to ensure that the pallet of stacked water went undamaged, and that there was

nothing in place to prevent water from leaking through the pallet onto the aisle floor. Despite

Meijer's knowledge there was an "ongoing issue" with water leaking from crushed or pinched

bottles, Meijer took no action to ensure that any damaged plastic bottles, once transported

into the front of the store, did not result in wet floors.2

        {¶ 17} As previously stated, the trial court determined that Merrill's belief that she

slipped in water coming from the pallet was solely speculation, as she had no proof that the

liquid on which she slipped was water or that it came from a particular bottle within the cases

of water stacked on the pallet. The trial court supported its conclusion by comparing the

circumstances surrounding Merrill's fall to those that occurred in Louderback v. Big Bear

Stores Co./Big Bear Bakeries, 4th Dist. Pike No. 96CA569, 1996 WL 571407 (Oct. 2, 1996).

However, we find Louderback significantly distinguishable from the case at bar.

        {¶ 18} In Louderback, a woman slipped on water in the produce section of the grocery

store. The woman concluded that she slipped on water from a sprayer in the produce


2. Specific to whether a premise owner owes a duty to "prevent, remove, or warn against a particular hazard,"
the Ohio Supreme Court has determined that the question depends on factors such as "the potential hazard
involved, the opportunity which such an invitee apparently would or would not have to avoid that potential hazard
by the exercise of ordinary care, and the practicability of preventing, removing or warning against such hazard."
Anaple v. Standard Oil Co., 162 Ohio St. 537, 541-542 (1955).

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section that intermittently misted fruits and vegetables. However, the produce manager

testified that no water went directly onto the floor from the sprayer. Further, the produce

manager testified he had checked approximately 35 minutes before the woman fell and there

was no water on the floor. He also stated that there were other actual circumstances wherein

water reached the floor, such as customers intervening by transferring wet produce to their

carts or water bouncing off items after being picked up and replaced incorrectly by

customers. The Louderback court concluded that there was no evidence that water was

sprayed directly on the floor, and that the store was not on notice of the water on the floor

from other sources. The Louderback court determined that the plaintiff made improper

inferences based upon speculation or conjecture when claiming she fell from water sprayed

onto the floor from the produce misters.         We find the facts of the case sub judice

distinguishable from Louderback, especially when required to construe the facts in a light

most favorable to Merrill.

       {¶ 19} The record demonstrates that Merrill slipped on a clear liquid that she described

as "watery," and that Merrill saw the liquid coming from beneath the pallet containing cases

of water. Brewster also testified in her deposition that the liquid upon which Merrill slipped

was water and that she saw that the water had "leaked out of the pallet." While Brewster did

not see the water dripping from any particular bottle of water, she testified that she personally

observed water coming "out from underneath the pallet," and that one end of the water

puddle was under the pallet. Significant is Meijer's knowledge that after being moved, bottles

of water could be caused to leak and such was "an ongoing issue." Unlike Louderback, our

record does not reveal any viable cause for the water being on the floor other than the cases

of water stacked on the pallet recently transported and deposited at the endcap.

       {¶ 20} Meijer asserts that Merrill expressly stated she was "speculating" as to what the

substance was and where it came from. However, upon reviewing Merrill's deposition, she

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simply agreed to a leading question proposed by counsel. Nothing indicates Merrill was

aware of the legal implication and difference between "speculation" and a reasonable

inference based upon factual observations. Prior to agreeing with counsel's phraseology,

Merrill had described facts she observed firsthand that support a reasonable inference that

the substance was water and that it came from the pallet containing bottles of water.

       {¶ 21} Also distinguishable from the situation in Louderback, there remain genuine

issues of material fact regarding whether Meijer had constructive knowledge because it could

have or should have known that the water was on the floor at the time Merrill fell. As

previously stated, Meijer employees testified that the cases of water sat on top of a wooden

pallet, and that the pallet had to be placed on a plastic pallet so that its nails and hard edges

would not damage the floor. Store employees were also aware that water bottles from the

cases would leak because the cases were moved by forklifts that would crush and pinch the

plastic bottles. The former employee testified that the employees were aware that leaking

bottles referred to as "leakers" were an "ongoing issue" at the store. This testimony is

therefore distinct from Louderback where store employees never testified that water on the

floor from the misting system was an ongoing problem.

       {¶ 22} Moreover, testimony from the Meijer manager and a past employee indicated

that all employees were expected to locate obstacles, including spills, on the floor and

remove or clean them up. The former employee testified that while no one person was

tasked with keeping the floors clean, "that's part of everybody's job description, to make sure

that you keep things – if you see a mess, identify it, call it in, you know, get the signs out, and

get it cleaned up." The Meijer manager also testified that his "team members were also

responsible for ensuring that there were no issues or situations on the floor * * *" and that the

employees were told to walk the store aisles, and regularly check for hazards on the floors.

The store manager also testified that sometime between 5 a.m. and 7 a.m., an employee

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goes "up and down every single aisle to scan" for areas that need restocking. Despite the

fact that Meijer employees understood their responsibilities to include scanning the floors for

possible dangers and messes, the record does not indicate such was done on the day in

question. Additionally, the record reveals at least two employees who were not scanning the

floors for issues that needed attention, those being the two that walked past Merrill while

texting on their phones while she was on the floor. The record indicates that the water was

on the floor long enough to empty from one or two bottles and form a puddle and "stream"

into the aisle without it being cleaned up by Meijer employees.

       {¶ 23} We find the facts of the case sub judice more similar to Jordan v. Simon

Properties Group, L.P., 11th Dist. Lake No. 2004-L-060, 2005-Ohio-4480. In Jordan, the

plaintiff slipped and fell on a puddle of water that formed on the floor from a leaking skylight.

Jordan was at first unaware of what caused her fall, but then observed water leaking from the

overhead skylight. Another mall patron explained that the water was coming from a leaky

skylight, and the mall's operations manager later testified in his deposition that leaking

skylights were an "ongoing problem" at the mall. Id. at ¶ 5. Although there was no evidence

this particular skylight was known by the mall to be actually leaking on the day in question,

the mall had knowledge of the "ongoing problem." Id. Even so, "no standard procedures

existed for inspecting the safety of the mall premises prior to opening," and employees were

merely instructed to report leaking water and wait for maintenance to clean it up. Id. at ¶ 6.

       {¶ 24} Despite the trial court granting summary judgment because Jordan produced

no evidence proving that the mall had actual or constructive notice of the puddle that caused

her fall, the Eleventh District reversed the decision of the trial court, finding instead that

Jordan's presentation of evidence that the mall knew of the ongoing problem of leaking

skylights created a genuine issue of material fact as to whether the mall had constructive




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notice.3 The court concluded that the mall's knowledge of the potential problem should have

made it aware that puddles were "likely to form underneath skylights regardless of which

particular skylight was leaking at the time." Id. at ¶ 23. The court also noted that it was

raining on the day Jordan fell, which should have made it more pressing for the mall to make

sure there were no hazards around the leaking skylights.

        {¶ 25} Similarly, the record in the case at bar indicates that all stocking was done

overnight and into the early-morning hours because there was less customer congestion.

The former Meijer employee testified that the water endcap was one of the last items to be

stocked, and that such stocking occurred at the end of the night shift, usually around 7:00

a.m., but as early as 6:00 a.m. Taken in conjunction with the fact that Meijer employees

knew of the ongoing problem of leaking water bottles, the stocking and moving of the water

pallets onto the storeroom floor made Meijer aware that any leaking bottles of water would

leak onto the floor where customers would be walking. As such, and regardless of Merrill not

being able to point to the exact water bottle that leaked, we find that there are genuine issues

of fact regarding whether Meijer had constructive knowledge of the water that caused Merrill's

slip and fall.

        {¶ 26} While there is no indication in the record that a huge amount of water was on

the floor on the morning that Merrill fell, there are several facts in the record that require

further litigation in regard to whether Meijer knew or should have known about the water's

existence on the floor that morning.

        {¶ 27} As to whether the water was open and obvious, we find that Meijer is not

entitled to judgment as a matter of law on this issue. Instead, the record demonstrates that


3. Judge O'Neill (now Justice O'Neill) quoted Palsgraf v. Long Island RR Co., 248 N.Y. 339, 344 (1928), stating
"[t]he risk reasonably to be perceived defines the duty to be obeyed." He noted that the knowledge of skylights
leaking in the past created a reasonable risk wherein it could be anticipated that skylights could leak in the future,
thereby creating the hazard on the floor. Jordan v. Simon Properties Group, L.P., 11th Dist. Lake No. 2004-L-
060, 2005-Ohio-4480, ¶ 26.

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the water originated from underneath the pallet and was located in such a position that

customers turning the corner of an aisle, such as Merrill, may not have been able to observe

the water. The record demonstrates that neither Merrill nor Brewster saw the water before

Merrill fell. While Merrill estimated between 12 and 24 ounces of water was coming from

beneath the pallet, Brewster testified that the amount may have been just a few ounces.

Either way, both women testified that the water was not observable as they walked around

the endcap. Thus, whether the water was discoverable by ordinary inspection is a genuine

issue of material fact that must be determined at trial.

       {¶ 28} After reviewing the record, and mindful of our obligation to construe the factual

significance of evidence in favor of the nonmoving party, we find that there exist genuine

issues of material fact that require further litigation. As such, the trial court erred in granting

summary judgment, and Merrill's sole assignment of error is sustained.

       {¶ 29} Judgment reversed, and the cause is remanded for further proceedings

consistent with this opinion.


       RINGLAND and HENDRICKSON, JJ., concur.




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