Burke v. Giant Eagle, Inc.
2017 Ohio 4305
Oh. Ct. App. 8th Dist. Cuyahog...2017Background
- On Oct. 28, 2013, Laurie Burke slipped on a roughly three-inch sticky brown substance in the aisle near Giant Eagle’s customer-service/cash-register area while entering the store to get a flu shot.
- A Giant Eagle employee (Anthony Mann) responded, retrieved cleaning supplies, and wiped the spot; a manager (Sara Lane) completed an incident report.
- Burke sued Giant Eagle for negligence (premises liability) on Oct. 12, 2015; Giant Eagle moved for summary judgment and the trial court granted it. Burke appealed claiming summary judgment was improper because a genuine issue exists on constructive notice.
- Burke produced no evidence that an employee created the hazard or had actual knowledge of it; she relied on constructive notice, arguing the location was high-traffic and the spot must have been present before she entered.
- The record lacked evidence about how long the substance had been on the floor (no description showing prolonged drying, no dirt/track marks), and there was no reliable proof of video surveillance from the time of the incident.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Giant Eagle had constructive notice of the spill | Burke: spill in high-traffic checkout area and absence of anyone creating it shows it existed earlier, creating jury question | Giant Eagle: no evidence of how long spill existed; no employee created or knew of it; no surveillance showing timing | Held for Giant Eagle — Burke failed to show evidence of duration required for constructive notice |
| Whether Giant Eagle had actual notice or created the hazard | Burke: implied by location and absence of observed creator | Giant Eagle: no testimony or evidence employees knew of or created spill before fall | Held for Giant Eagle — no evidence of actual notice or creation |
| Whether failure to follow post-fall cleanup procedures affects notice inquiry | Burke: employee did not follow store protocol (stand by and summon equipment) | Giant Eagle: post-fall cleanup procedure violations do not prove prior notice or causation | Held for Giant Eagle — procedural lapse after fall irrelevant to notice burden |
| Whether possible missing video creates a material fact issue | Burke: alleged cameras existed and recordings might show timing | Giant Eagle: no evidence recordings existed in 2013; no spoliation claim was made | Held for Giant Eagle — speculation about video insufficient to create fact issue |
Key Cases Cited
- Sidle v. Humphrey, 13 Ohio St.2d 45 (business owes invitees ordinary care; elements of liability for invitee injuries)
- Kokinos v. Ohio Greyhound, Inc., 153 Ohio St. 435 (evidence of prolonged drying can support constructive-notice inference)
- Johnson v. Wagner Provision Co., 141 Ohio St. 584 (constructive notice standard for premises liability)
- Celotex Corp. v. Catrett, 477 U.S. 317 (moving party’s burden on summary judgment)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary-judgment standard — genuine issue for jury)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (nonmoving party must produce persuasive evidence if claim implausible)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (appellate court reviews summary judgment de novo)