[Cite as Martin v. Giant Eagle, Inc., 2014-Ohio-2657.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



Donald Martin,                                           :

                 Plaintiff-Appellant,                    :
                                                                    No. 13AP-809
v.                                                       :      (C.P.C. No. 11CVC-14861)

Giant Eagle, Inc.,                                       :   (ACCELERATED CALENDAR)

                 Defendant-Appellee.                     :



                                          D E C I S I O N

                                       Rendered on June 19, 2014


                 Blumenstiel, Evans, Falvo & Blumenstiel, LLC, and James B.
                 Blumenstiel, for appellant.

                 Williams, Moliterno & Scully Co., L.P.A., and Roger H.
                 Williams, for appellee.

                   APPEAL from the Franklin County Court of Common Pleas

SADLER, P.J.
        {¶ 1} Plaintiff-appellant, Donald Martin, appeals from the judgment of the
Franklin County Court of Common Pleas granting summary judgment in favor of
defendant-appellee, Giant Eagle, Inc. For the following reasons, we affirm the judgment
of the trial court.
I. BACKGROUND
        {¶ 2} Appellant filed a complaint in the court of common pleas seeking damages
for injuries he suffered as the result of the alleged negligent acts of appellee. According to
the complaint, appellant entered a Giant Eagle shopping center "where the customer carts
were kept" and slipped and fell on a "large collection of water." (Complaint, 1.) The
No. 13AP-809                                                                                2


complaint alleges appellee failed to properly inspect and maintain the floor in a safe
condition, failed to warn the patrons of the presence of water, and failed to place mats
sufficient to "secure the footing" of patrons in the area. (Complaint, 2.) Appellee filed an
answer denying the allegations of negligence.
       {¶ 3} Appellee filed for summary judgment and argued that tracked in water or
snow near the entrance of a building constitutes an open and obvious condition for which
liability does not attach. In support of their motion, appellee filed the depositions of
appellant and appellant's brother, Craig Martin ("C. Martin"). According to appellant's
deposition testimony, on November 24, 2010, Thanksgiving eve, appellant and C. Martin
arrived at a Giant Eagle shopping center between the hours of five and six in the evening.
Appellant testified that he had been shopping at this particular store for the last four or
five years. Appellant described the weather conditions that day as "rain turning to snow,
so it was just—it was icy rain," and "when we got to the store, there was—the snowflakes
on the windshield * * * there was a freezy rain." (Depo. of Donald Martin, 59-60.) Due to
the weather conditions, appellant stated he was required to use his windshield wipers
while driving to the store.
       {¶ 4} According to appellant, the "freezy rain" continued as he walked into the
store. (Depo. Of Donald Martin, 60.) He testified that he entered the store following
behind six to eight people, while a "lot of people" exited the store through the same doors.
(Depo. of Donald Martin, 67.) Appellant testified that, as he entered the store, he stepped
onto a permanent carpet near the entrance, but, as he took his first step towards the carts
onto the tile, his "foot just went out from underneath [him]." (Depo. of Donald Martin,
67.) When presented with "Plaintiff's Exhibit E," a photograph depicting the area where
he fell, appellant testified that a "stick figure" drawing on the exhibit accurately reflected
where he fell. Exhibit E demonstrates appellant fell within a few feet of the store's
entryway. Appellant testified it was not until after falling that he was aware of the water
and snow near the entrance to the store. When asked the origin of the water and snow,
appellant stated "the people that were coming into the entrance were dragging the water
and snow in." (Depo. of Donald Martin, 72.) According to appellant, there were no mats,
wet floor signs or blowers on the tiled area near the entrance.
No. 13AP-809                                                                                3


       {¶ 5} C. Martin testified that he accompanied appellant to Giant Eagle. C. Martin
stated "[i]t was a rainy day, rain mixed with snow." (Depo. of C. Martin, 5.) According to
C. Martin, he did not observe appellant fall but observed, after the fact, that the floor upon
which appellant fell was wet. C. Martin stated that the source of the water was from other
patrons who had tracked it in as they entered Giant Eagle.
       {¶ 6} Appellant filed a memoranda contra appellee's motion for summary
judgment arguing genuine issues of material fact exist regarding whether the tracked in
water was an open and obvious hazard, whether appellee possessed superior knowledge of
the inclement weather conditions, and whether appellee destroyed an incident report
allegedly created by a Giant Eagle employee. In support of his memorandum contra,
appellant filed his own affidavit, the depositions of Giant Eagle employees, James
MacDonald, Michael Weigand, Kristy Anderson, and David McLaughlin, as well as the
deposition of Jennifer Rounds, a witness to the incident. In appellant's affidavit, he stated
"there were probably as many as 15 to 20 people walking into the same door as I was," and
an equivalent number was exiting through the same door. (Affidavit of Donald Martin,
¶ 9.) According to appellant, "[t]here was a lot of confusion and bumping of people and
you could not see the floor due to the congestion." (Affidavit of Donald Martin, ¶ 9.)
Appellant stated "[a]s I crossed the carpeted area near the entrance, I took no more than a
step or two on the tile floor when my feet shot out from underneath me and I landed on
my left shoulder and arm." (Affidavit of Donald Martin, ¶ 10.)
       {¶ 7} James MacDonald worked as a center store group leader at Giant Eagle.
According to MacDonald, the store was busy that day. MacDonald testified that it is Giant
Eagle policy to be alert for hazards caused by inclement weather year round. According to
MacDonald, all Giant Eagle employees are responsible for examining the floors near the
entrance for potential safety hazards, including wet floors due to inclement weather
conditions. MacDonald testified that the primary responsibility of inspecting the front
entrances belonged to a staff member named "Kristy." (Depo. of James MacDonald, 11.)
MacDonald stated that, if the floors become wet during inclement weather, blowers,
temporary mats, and wet floor signs are available for utilization by Giant Eagle.
MacDonald stated there are no guidelines on "how bad it's got to get before you put the
mats down." (Depo. of James MacDonald, 47.)
No. 13AP-809                                                                                 4


       {¶ 8} Michael Weigand testified that he worked as a front end coordinator for
Giant Eagle. Weigand stated that Thanksgiving eve is one of the busiest days of the year.
When questioned on Giant Eagle's safety policies, Weigand stated that it was the
responsibility of all employees to keep "hazardous slip and fall conditions out of the store
environment." (Depo. of Michael Weigand, 23.) According to Weigand, Kristy Anderson
was his direct supervisor and was primarily responsible for inspecting the front lobby.
Weigand testified he was one of the first employees to respond to appellant's fall and,
while examining appellant, observed "a little bit of water" on the floor. (Depo. of Michael
Weigand, 15.) He stated that he did not recall seeing warning signs, temporary mats or
blowers in the lobby. According to Weigand, the door appellant entered through was
actually an exit door but conceded many customers use it as an entrance.
       {¶ 9} According to the testimony of Kristy Anderson, she worked as an assistant
front end team leader at Giant Eagle. Anderson stated her responsibilities included
"taking care of the front end" and "the cashiers."         (Depo. of Kristy Anderson, 8.)
Anderson described her responsibility, relative to the "lobby where the carts were stored,"
in part, as "[m]aking sure that it was free of debris, spills" and to inspect the area every 30
to 60 minutes "to make sure [the area] was being kept up by our cart guys." (Depo. of
Kristy Anderson, 10, 11.) Anderson testified that the "cart guys" worked under her
supervision and were required to make sure the area was "free of debris, clean, dry, that
the carts are there. * * * They'll put up 'Wet Floor' signs. They will get dry mops if it's
really bad weather." (Depo. of Kristy Anderson, 11.) She testified the weather that day
was "between raining and snowing and had been all afternoon."               (Depo. of Kristy
Anderson, 12.)
       {¶ 10} According to Anderson, she remembers patrolling the front lobby area and
testified that, prior to appellant's fall, she did not observe, and was not alerted to, water
on the tile floors in the lobby. Anderson admitted that, at the time of appellant's fall,
temporary mats, blowers, and warning signs were not in use in the lobby. Anderson
testified that she filled out a formal incident report after appellant fell and denoted on the
report there was no substance on the floor because, at the time of the incident, she did not
observe a substance on the floor. According to Anderson, any wetness on the floor was
not "obvious" to her. (Depo. of Kristy Anderson, 31.)
No. 13AP-809                                                                                   5


       {¶ 11} David McLaughlin worked as a grocery leader for Giant Eagle. McLaughlin
stated his primary responsibility was the grocery department, and "Kristy" had the
responsibility to inspect the lobby area. (Depo. of David McLaughlin, 8.) McLaughlin
agreed that the weather conditions were "somewhere between rain and snow" for most of
the afternoon. (Depo. of David McLaughlin, 9.) McLaughlin acknowledged that
temporary mats, blowers, and warning signs are available for use in the store but were not
in use at the time appellant fell. According to McLaughlin, after appellant's fall, he
noticed that "[t]here was moisture that had been tracked in" by carts and customers.
(Depo. of David McLaughlin, 13.)
       {¶ 12} Jennifer Rounds, a Giant Eagle patron, had finished her shopping and was
exiting the store when she observed appellant fall. According to Rounds, as she left the
store, she stopped because several people were "coming in the exit, and [appellant] was
one of them." (Depo. of Jennifer Rounds, 12.) Rounds stated that, as appellant "came in,
he got off the carpeting onto the * * * tile floor, and his feet went out from under him and
he hit— * * * —the ground." (Depo. of Jennifer Rounds, 12-13.) Rounds testified she
recalled at least three people, including appellant and C. Martin, entering the store and a
"few other people were exiting," including her. (Depo. of Jennifer Rounds, 13.) Rounds
stated that other patrons entering the store had tracked water onto the floor. Rounds
testified "I don't think there were any large puddles, but there were definitely wet
footprints. Other people came in and out across the tile." (Depo. of Jennifer Rounds, 21.)
According to Rounds, Weigand was "taking all the information down" on an "incident
report." (Depo. of Jennifer Rounds, 28-29.)
       {¶ 13} In granting summary judgment in favor of appellee, the trial court
concluded "reasonable minds could only conclude that there are no outstanding genuine
issues of fact in this case that would attach liability to [appellee], and [appellee] is entitled
to summary judgment as a matter of law." (July 25, 2013 Decision, 4.) This appeal
followed.
II. ASSIGNMENTS OF ERROR
       {¶ 14} Appellant brings the following assignments of error for our review:
              [I.] The Trial Court erred in ruling there were no genuine
              issues of material fact as to attendant circumstances that
No. 13AP-809                                                                              6


              contributed to cause Martin's slip and fall with resulting
              serious injury.

              [II.] The Trial Court erred in ruling the store had no duty of
              care in spite of their superior knowledge they had taken none
              of their customary precautions to protect their patrons,
              thereby perpetuating and aggravating the slipping hazard on
              the tile floor.

              [III.] Where the initial incident report stating there was water
              on the floor was replaced by a report stating there was "no
              water" on the floor in conflict with all eyewitnesses, the Trial
              Court erred in ruling there were no genuine issues of material
              fact regarding spoliation and credibility, which is the exclusive
              province of the jury.

III. STANDARD OF REVIEW
       {¶ 15} Appellate review of summary judgments is de novo. Titenok v. Wal-Mart
Stores E., Inc., 10th Dist. No. 12AP-799, 2013-Ohio-2745, ¶ 6; Coventry Twp. v. Ecker,
101 Ohio App.3d 38, 41 (9th Dist.1995). Summary judgment is proper only when the
party moving for summary judgment demonstrates: (1) no genuine issue of material fact
exists, (2) the moving parties are entitled to judgment as a matter of law, and
(3) reasonable minds could come to but one conclusion and that conclusion is adverse to
the party against whom the motion for summary judgment is made, that party being
entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel.
Grady v. State Emp. Relations Bd., 78 Ohio St. 3d 181 (1997).
       {¶ 16} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75
Ohio St.3d 280, 293 (1996). The moving party, however, cannot discharge its initial
burden under this rule with a conclusory assertion that the nonmoving party has no
evidence to prove its case; the moving party must specifically point to evidence of a type
listed in Civ.R. 56(C), affirmatively demonstrating that the nonmoving party has no
evidence to support the nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421
(1997).   Once the moving party discharges its initial burden, summary judgment is
appropriate if the non-moving party does not respond, by affidavit or as otherwise
No. 13AP-809                                                                               7


provided in Civ.R. 56, with specific facts showing that a genuine issue of material fact
exists for trial. Dresher at 293; Vahila at 430; Civ.R. 56(E).
IV. DISCUSSION
       A. First Assignment of Error
       {¶ 17} In appellant's first assignment of error, he argues there is a genuine issue of
material fact as to whether attendant circumstances contributed to his slip and fall such
that the condition of the floor could not constitute an open and obvious hazard.
Specifically, appellant claims that pedestrian traffic constituted an attendant
circumstance which prevented him from looking down and observing the wet lobby floor.
       {¶ 18} Before reaching the merits of appellant's argument, we first address
appellant's proposition that the open and obvious nature of a hazard and the existence of
attendant circumstances are questions of fact for a jury alone to decide. We previously
addressed this issue in Haller v. Meijer, Inc., 10th Dist. No. 11AP-290, 2012-Ohio-670. In
Haller, we noted that "this court has reached differing conclusions about whether the
open and obvious nature of a hazard and the existence of attendant circumstances is a
question of law or a question of fact." Id. at ¶ 11. We went on to conclude, however, that it
is appropriate to decide the open and obvious nature of a hazard, as well the existence of
attendant circumstances, as a matter of law, provided there are no genuine issues of
material fact. Id. at ¶ 16. Thus, consistent with Haller, the open and obvious nature of a
hazard and the determination of attendant circumstances may be decided as a matter of
law.
       {¶ 19} We next address appellant's argument that appellee's negligence caused him
to slip and fall in the lobby of Giant Eagle. "[T]o establish actionable negligence, one
seeking recovery must show the existence of a duty, the breach of the duty, and injury
resulting proximately therefrom." Strother v. Hutchinson, 67 Ohio St.2d 282, 285 (1981).
The parties agree both that appellant was a business invitee of appellee and that store
owners owe business invitees a duty of ordinary care in maintaining the premises in a
reasonably safe condition so that its customers are not unnecessarily and unreasonably
exposed to danger. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203 (1985).
       {¶ 20} Generally, " '[t]he open-and-obvious doctrine provides that premises
owners do not owe a duty to persons entering those premises regarding dangers that are
No. 13AP-809                                                                                  8


open and obvious.' " Pesci v. Miller, 10th Dist. No. 10AP-800, 2011-Ohio-6290, ¶ 13,
quoting Hill v. W. Res. Catering, Ltd., 8th Dist. No. 93930, 2010-Ohio-2896, ¶ 9. "The
rationale underlying this doctrine 'is "that the open and obvious nature of the hazard itself
serves as a warning. Thus, the owner or occupier may reasonably expect that persons
entering the premises will discover those dangers and take appropriate measures to
protect themselves." ' " Id., quoting W. Res. Catering at ¶ 9, quoting Simmers v. Bentley
Constr. Co., 64 Ohio St.3d 642, 644 (1992). "When applicable, 'the open-and-obvious
doctrine obviates the duty to warn and acts as a complete bar to any negligence claims.
* * * It is the fact that the condition itself is so obvious that it absolves the property owner
from taking any further action to protect the plaintiff.' " Pesci at ¶ 13, quoting W. Res.
Catering at ¶ 10.
       {¶ 21} In general, "[o]pen-and-obvious dangers are those not hidden, concealed
from view, or undiscoverable upon ordinary inspection." Thompson v. Ohio State Univ.
Physicians, Inc., 10th Dist. No. 10AP-612, 2011-Ohio-2270, ¶ 12. However, an individual
"does not need to observe the dangerous condition for it to be an 'open-and-obvious'
condition under the law; rather, the determinative issue is whether the condition is
observable." Id. at ¶ 10. Thus, "[e]ven in cases where the plaintiff did not actually notice
the condition until after he or she fell, this court has found no duty where the plaintiff
could have seen the condition if he or she had looked." Id.
       {¶ 22} This court, as well as various "Ohio courts[,] have held that tracked in water
or snow near the entrance of a building constitutes an open and obvious condition for
which liability does not attach." Pesci at ¶ 16; see Blair v. Vandalia United Methodist
Church, 2d Dist. No. 24082, 2011-Ohio-873, ¶ 43 (defendant had no duty to warn of an
area just inside the entrance that became wet due to tracked in water because the water
was an open and obvious condition); Towns v. WEA Midway, LLC, 9th Dist. No.
06CA009013, 2007-Ohio-5121, ¶ 14 ("appellant knew it had been raining when she
entered the mall and presumptively knew as a result of the rain that the floor might be wet
and slippery"); Lupica v. Kroger Co., 3d Dist. No. 9-91-48 (May 29, 1992) (tracked in
water near the store's entrance which causes a patron to slip "will not give rise to a cause
of action against the owner or lessee of the store").
No. 13AP-809                                                                               9


       {¶ 23} Tracked in water "is a condition created by inclement weather and everyone
should be aware of the conditions." Boston v. A & B Sales, Inc., 7th Dist. No. 11 BE 2,
2011-Ohio-6427, ¶ 41, citing Boles v. Montgomery Ward & Co., 153 Ohio St. 381 (1950).
"The Supreme Court of Ohio has held that, '[o]rdinarily, no liability attaches to a store
owner or operator for injury to a patron who slips and falls on the store floor which has
become wet and slippery by reason of water and slush tracked in from the outside by
other patrons.' " Pesci at ¶ 15, quoting Boles at paragraph two of the syllabus. "Everybody
knows that the hallways between the outside doors of * * * buildings and the elevators or
business counters inside the building during a continued rainstorm are tracked all over by
the wet feet of people coming from the wet sidewalks, and are thereby rendered more
slippery than they otherwise would be." S.S. Kresge Co. v. Fader, 116 Ohio St. 718, 723-
24. "[I]n light of weather conditions, plaintiff 'should have been aware or anticipated the
presence of water on the floor inside the mall because on a rainy day, one can expect to
find water on the floor in such heavily trafficked areas.' " Id., quoting Johnson v. Serv.
Ctr. Invest. Trust, 8th Dist. No. 75256 (Dec. 2, 1999). "[S]tore owners have no duty to
protect its patrons from tracked-in water from snow or rain near the entrance to the
stores." Middleton v. Meijer, Inc., 2d Dist. No. 23789, 2010-Ohio-3244, ¶ 17.
       {¶ 24} Here, it is uncontested both that appellant was aware of the inclement
weather conditions prior to entering the store and that appellant slipped and fell on water
that had been tracked into Giant Eagle by other patrons. We find the analysis in Pesci to
be instructive.
       {¶ 25} This court was faced with a similar circumstance in Pesci, wherein the
plaintiff slipped and fell on tracked in water in the entryway of her place of employment.
Despite the plaintiff's failure to observe the tracked in water before she fell, we held that
"tracked in water or snow near the entrance of a building constitutes an open and obvious
condition for which liability does not attach." Id. at ¶ 16. We reasoned, "in light of
weather conditions, plaintiff should have been aware or anticipated the presence of water
on the floor * * * because on a rainy day, one can expect to find water on the floor in such
heavily trafficked areas." Id. (internal citations omitted). As in Pesci, appellant was aware
of the inclement weather conditions involving snow and rain and should have anticipated
No. 13AP-809                                                                               10


water in the Giant Eagle entrance. Accordingly, we find the water in the entrance of Giant
Eagle to have been an open and obvious hazard.
       {¶ 26} Appellant argues the tracked in water rule should not bar him from recovery
because attendant circumstances prevented him from discovering that the floors were
wet. "An attendant circumstance is any significant distraction that would divert the
attention of a reasonable person in the same situation and thereby reduce the amount of
care an ordinary person would exercise to avoid an otherwise open and obvious hazard."
Haller at ¶ 10. "In order to be considered an exception to the open-and-obvious doctrine,
'an attendant circumstance must be "so abnormal that it unreasonably increased the
normal risk of a harmful result or reduced the degree of care an ordinary person would
exercise." ' " Ratcliff v. Wyandotte Athletic Club, LLC, 10th Dist. No. 11AP-692, 2012-
Ohio-1813, ¶ 20, quoting Mayle v. Dept. of Rehab. & Corr., 10th Dist. No. 09AP-541,
2010-Ohio-2774, ¶ 20, quoting Cummin v. Image Mart, Inc., 10th Dist No. 03AP-1284,
2004-Ohio-2840, ¶ 10. "[A]ttendant circumstances are facts that significantly enhance
the danger of the hazard." Haller at ¶ 10. Furthermore, the attendant circumstance must
be an " 'unusual circumstance of the property owner's making.' " Id., quoting McConnell
v. Margello, 10th Dist. No. 06AP-1235, 2007-Ohio-4860, ¶ 17. "Attendant circumstances
do not, though, include regularly encountered, ordinary, or common circumstances."
Colville v. Meijer Stores Ltd. Partnership, 2d Dist. No. 2011-CA-011, 2012-Ohio-2413,
¶ 30, citing Cooper v. Meijer, 10th Dist No. 07AP-201, 2007-Ohio-6086, ¶ 17.
       {¶ 27} The record does not support appellant's argument that the pedestrian traffic
he encountered constituted an attendant circumstance.          Appellant testified when he
entered Giant Eagle, he encountered anywhere between 6 and 15 people entering and
exiting through the same door. The record established that Thanksgiving eve is typically
one of the busiest shopping days of the year. However, the record fails to demonstrate
that the pedestrian traffic present at the time of appellant's fall was either unexpected or a
condition created by Giant Eagle. Even when viewing this evidence in a light most
favorable to appellant, we are not able to find the alleged attendant circumstances so
abnormal that they unreasonably increased the normal risk of a harmful result or reduced
the degree of care an ordinary person would exercise.          Ratcliff; Seifert v. Great N.
Shopping Ctr., 8th Dist. No. 74439 (Nov. 5, 1998) (crowded parking lot and heavy traffic
No. 13AP-809                                                                             11


in store parking lot on the afternoon of Good Friday not an attendant circumstance to
cause a trivial defect to become substantial).
       {¶ 28} Construing the evidence in a light most favorable to appellant, reasonable
minds could only conclude that appellant has failed to demonstrate a genuine issue of
material fact exists that attendant circumstances distracted appellant from appreciating
the open and obvious hazard of tracked in water on the floor in the Giant Eagle entrance.
       {¶ 29} Accordingly appellant's first assignment of error is overruled.
       B. Second Assignment of Error
       {¶ 30} In appellant's second assignment of error, he argues "[t]he Trial Court erred
in ruling the store had no duty of care in spite of their superior knowledge" that "it was
raining and snowing outside." (Appellant's brief, 20, 21.) Moreover, appellant claims
appellee's internal safety polices created a duty of care towards its patrons during
inclement weather conditions and that failure to engage in these safety policies
perpetrated and aggravated the slipping hazard on the floor.
       {¶ 31} We have previously held that "[a] violation of an internal policy does not
establish the standard of care." Marsh v. Heartland Behavioral Health Ctr., 10th Dist.
No. 09AP-630, 2010-Ohio-1380, ¶ 35; Baus v. Lowe, 8th Dist. No. 87765, 2007-Ohio-
275, ¶ 22-23. As such, appellee's safety policy requiring employees to examine the floors
near the entrance during inclement weather for potential safety hazards did not create a
legal duty of care on behalf of appellee to protect against an open and obvious condition.
See King v. E. Worthington Village, 10th Dist. No. 13AP-324, 2013-Ohio-4160, ¶ 18. Nor
does a failure to comply with such a policy establish superior knowledge of a slippery
condition on the floor entrance caused by tracked in water. We find the record devoid of
any evidence demonstrating that appellee possessed knowledge superior to that of
appellant of either the inclement weather conditions or the condition of the lobby floor
with regard to the tracked in water.
       {¶ 32} Accordingly, appellant's second assignment of error is overruled.
       C. Third Assignment of Error
       {¶ 33} In appellant's third assignment of error, he asserts the trial court erred in
granting summary judgment on his spoliation claim. Specifically, appellant claims
No. 13AP-809                                                                             12


Weigand's "initial report [has] disappeared" creating a genuine issue of material fact.
(Appellant's brief, 10.)
       {¶ 34} "Recovery on a spoliation claim in Ohio is dependent upon proof of all of the
following elements: '(1) pending or probable litigation involving the plaintiff,
(2) knowledge on the part of defendant that litigation exists or is probable, (3) willful
destruction of evidence by defendant designed to disrupt the plaintiff's case,
(4) disruption of the plaintiff's case, and (5) damages proximately caused by the
defendant's acts." Patriot Water Treatment, LLC v. Ohio Dept. of Natural Resources,
10th Dist. No. 13AP-370, 2013-Ohio-5398, ¶ 16. "In order to establish a spoliation claim,
a plaintiff is required to show that a defendant 'willfully destroyed, altered or concealed
evidence.' " Marok v. Ohio State Univ., 10th Dist No. 13AP-12, 2014-Ohio-1184, ¶ 36,
quoting Drawl v. Cornicelli, 124 Ohio App.3d 562, 567 (11th Dist.1997). "Ohio does not
recognize a cause of action for negligent spoliation of evidence." Id.
       {¶ 35} Appellant bases his spoliation claim solely on the testimony of Rounds who
testified that Weigand was "taking all the information down" on an "incident report."
(Depo. of Jennifer Rounds, 28-29.) On this issue, Weigand specifically testified that he
did not create an incident report, and Anderson testified that, as the manager, she created
the only formal incident report. Despite these different assertions, Rounds' testimony
alone fails to allege specific facts on each required element of spoliation. The record does
not demonstrate willful destruction of an incident report, nor whether the alleged
destruction was done with the design to disrupt appellant's case. Viewing the evidence in
a light most favorable to appellant, we find no genuine issue of material fact exists as to
the claim of spoliation.
       {¶ 36} Appellant also argues in his third assignment of error that the testimonies of
Weigand and Anderson create a genuine issue of material fact as to whether the tracked in
water was open and obvious. According to appellant, Anderson's testimony that she did
not observe water on the floor and Weigand's testimony that he did observe water on the
floor creates a genuine issue of material fact. We find our disposition of appellant's first
assignment of error dispositive of this argument. Applying S.S. Kresge Co. and Pesci, we
previously determined that, because the source of the water here was indisputably tracked
in, appellant should have anticipated the presence of tracked in water on the floor and is
No. 13AP-809                                                                            13


charged with knowledge that the floor might be wet. Accordingly, construing the evidence
in a light most favorable to appellant, the testimonies of Weigand and Anderson do not
create a genuine issue of material fact on the issue of whether the water was an open and
obvious hazard.
       {¶ 37} Accordingly, appellant's third assignment of error is overruled.
       {¶ 38} Having construed the evidence in a light most favorable to appellant on
each issue presented for review, we find appellant has failed to demonstrate genuine
issues of material fact exist and that appellee is entitled to judgment as a matter of law.
Accordingly, the trial court properly granted summary judgment in favor of appellee.
V. CONCLUSION
       {¶ 39} Having overruled appellant's first, second, and third assignments of error,
the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
                                                                       Judgment affirmed.

                                     BROWN, J., concurs.
                                     TYACK, J., dissents.
TYACK, J., dissenting.
       {¶40} I simply do not agree that no material facts were in serious dispute before
the trial court. Therefore, I do not believe summary judgment was appropriate.
       {¶41} Donald Martin fell on the evening before Thanksgiving Day in 2010. As
might be expected, the Giant Eagle where he routinely shopped and where he fell was
busy with all the last minute shoppers one would anticipate at that date and time.
       {¶42} Because it had been raining and snowing that afternoon, apparently
shoppers had tracked moisture into the store. How much moisture had been tracked in
and how visible the moisture was are material facts which were genuinely at issue in the
trial court and are still genuine issues.
       {¶43} Kristy Anderson, whose duties included supervising the entrance area
where the fall occurred, swore under oath that she observed no water in the entrance area.
She even generated a report to Giant Eagle that there was no water observable by her in
the area. If the person from Giant Eagle whose job it was to observe the area and who
claimed that she had observed the area that afternoon and early evening could swear
under oath that no water was observable in that area, I do not see how the trial court
No. 13AP-809                                                                                14


could find summary judgment was appropriate based upon a finding that the moisture on
the tile floor was open and obvious. Donald Martin did not see it before he fell. Kristy
Anderson never saw it. Whether the moisture was open and obvious was a genuine issue
of material fact.
       {¶44} Perhaps Anderson and Martin did not see it because of the volume of
pedestrian traffic going in and out of the store on a busy holiday eve. In legalese, the
hazard was not readily observable due to attendant circumstances. The "why" is not really
the critical issue. The critical issue is the fact that the moisture was not readily observable
to either the store employee whose job included putting out warning signs, mats, and fans
when moisture was an open and obvious hazard in the store, or to a store patron like
appellant who was used to such precautions being taken when a danger of falling on
moisture was present in the area. Indeed, the utter lack of such safety precautions being
taken when that Giant Eagle store had a long history of taking such precautions was more
proof that the hazard had not been observed by store personnel—that the hazard was not
open and obvious.
       {¶45} I believe that the trial court judge was wrong to grant summary judgment,
and this court is even more wrong to affirm that judgment.
       {¶46} I respectfully dissent.
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