Lead Opinion
{¶ 2} On January 11, 2005, Plaintiff, Elizabeth Bozsik ("Ms. Bozsik") filed suit for negligence against Defendant, Aldi, Inc. ("Aldi"), for injuries she incurred in а fall in an Aldi grocery store on January 14, 2003. Aldi sought summary judgment on January 3, 2006. Ms. Bozsik filed her response to the motion for summary judgment on February 8, 2006. The trial court granted summary judgment in favor of Aldi on February 8, 2006.1 Ms. Bozsik has timely appealed the trial court's order granting summary judgment and raises five assignments of error for review.
{¶ 3} Ms. Bozsik asserts that she has sufficiently established a genuine issue of material fact as to the cause of her fall in the Aldi store so as to survive summary judgment. We disagree.
{¶ 4} Appellate courts review the grant of summary judgment de novo, applying the same standard used by the trial court.Grafton v. Ohio Edison Co. (1996),
{¶ 5} Once the moving party's burden has been satisfied, the non-moving party must meet its burden as set forth in Civ.R. 56(E). Id. at 293. The nonmoving party may not rest upon the mere allegations and denials in the pleadings, but instead must point to or submit some evidentiary material to demonstrate a genuine dispute over the material facts. Id.; Henkle v. Henkle (1991),
{¶ 6} A plaintiff alleging negligence must prove "that the defendant owed the plaintiff a duty, that the defendant breached that duty, that the plaintiff suffered harm and that the harm was proximately caused by the defendant's breach of duty."Cooperider v. Peterseim (1995),
{¶ 7} Ms. Bozsik has failed to present evidence to survive summary judgment on the causation element of negligence. Ms. Bozsik's negligence claim must fail because she has no knowledge of what caused her fall. Burth v. CPK Constr., Inc., 9th Dist. No. 22713,
{¶ 8} Ms. Bozsik testified at deposition that her foot "had to" come into contact with the pallet causing her to fall and that she tripped over "something" and did not slip. However, she is only presuming that the pallet was the "something" that сaused her to trip. Mr. James did not see Ms. Bozsik trip. He saw her falling and then looked down and saw the pallet. He "thinks" that Ms. Bozsik tripped over the pallet.
{¶ 9} Without more than conjecture about what caused her fall at the Aldi store, Ms. Bozsik is precluded from establishing a negligence claim. See, Stamper, at 67-68. Ms. Bozsik testifies about what she was doing before the fall and that something had to cause her to fall. Mr. James only has personal knowledge of seeing Ms. Bozsik fall and what happened afterwards. There is no testimony about the cause or reason for the fall. Accordingly, reasonable minds can reach no other conclusion than there was no negligent act or omission on the part of Aldi that proximately causеd Ms. Bozsik's fall.
{¶ 10} Based on the foregoing and viewing the evidence in a light most favorable to Ms. Bozsik, the non-moving party, we find that no genuine issues of material fact remain, that Aldi was entitled to judgment as a matter of law, and reasonable minds can come to only one conclusion, which is adverse to Ms. Bozsik. Ms. Bozsik's first assignment of error is overruled.
{¶ 11} Due to our resolution of Ms. Bozsik's first assignment of error, all other assignments of error are moot and we, accordingly, overrule assignments of error two, three, four and five in addition to assignment of error one.
Judgment Affirmed.
The Court finds that 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 Summit, 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(E).
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 Appellant.
Boyle, J. Concurs
Notes
Dissenting Opinion
{¶ 12} I respectfully dissent from the majority's resolution of Appellant's first assignment of error as I feel that Appellant has met her Dresher burden by offering "specific facts showing that there is a genuine issue for trial" in regards to her negligence claim against Appellee. Dresher v. Burt (1996),
{¶ 13} Civ. R. 56(C) provides in relevant part:
"Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written аdmissions, affidavits, transcripts of evidence, 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 judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from the 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, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor."
{¶ 14} The majority contends that Appellant failed to present evidence to survive summary judgment on the causation element of negligence because she has no knowledge of what caused her to fall. Appellant supported her brief in opposition to Appellee's motion for summary judgment with her deposition testimony and William James' affidavit. In her deposition, Appellant testified that (1) she attempted to make a left turn around a box of bananas, (2) shе believes that her left foot came into contact with the banana box on the pallet, (3) she tripped and fell forward and (4) as she fell, her left thigh collided with the banana box. In his affidavit, Mr. James' testified as follows:
"I was at Aldi's and I saw a lady coming around the corner where there was a box of bananas. She was turning the corner going to her left. I saw her falling and hit thе floor. I looked and saw where the skid under the bananas was sticking out about five or six inches (5" or 6") into the aisle. I thought and still think that she tripped over that skid.
"She was lying there and tried to get up. She spoke broken English. The lady from Aldi's was right there and helped her get up. The lady from Aldi's said they were insured, that she should go to any hospital or doctor she wanted and that Aldi's would take care of it.
"I told the lady from Aldi's that the skid was sticking out and the lady tripped over it. I gave Aldi's my name and address before I left the store."
{¶ 15} The trial court must construe the inferences drawn from the underlying facts contained in the affidavit and deposition in the light most favorable to Appellant, the nonmoving party. Turner v. Turner (1993),
{¶ 16} The majority relies on Burth v. CPK Construction,Inc., 9th Dist. No. 22713,
{¶ 17} In Stamper, a hospital employee (Sharon Stamper) filed suit against the hospital architect and contractor for negligence after she fell in the hospital stairwell. The trial court awarded summary judgment to the defendants. On appeal, Stamper argued that she provided evidence of causation in the affidavit of an engineer hired by Stamper to examine the stairway. The Twelfth District Court of Appeals found that the affidavit did not meet the requirements of Civ.R. 56(E) and thereforе, did not provide competent evidence as to causation. In her deposition, Stamper provided no explanation for her fall. When asked whether the stairs were slippery, whether her legs buckled, or how she fell, she consistently replied that she did not know what happened but simply knew that she "just fell." In light of the absence of any evidence of causation, the court affirmed summary judgment in favor of the defendants.
{¶ 18} The majority cites Stamper for its conclusion that "[w]ithout more than conjecture about what caused her fall at the Aldi store, Ms. Bozsik is precluded from establishing a negligence claim." Here, in contrast to Burth and Stamper, Appellant provided a plausible explanation for the cause of her fall: her foot "had to have" collided with the banana pallet, causing her to fall face forward, sustaining injury. Although she was not certain that the protruding banana pallet caused her fall, construing the evidence in the light most favorable to Appellant, reasonable minds could certainly find that Appellee's negligence in positioning the banana pallet caused her fall. Appellant's belief that she fell as a result of the banana pallet is further supported by Mr. James' affidavit, wherein he averred that he witnessed the fall and believed she tripped over the banana pallet. Not only did Mr. James sign an affidavit as to what he observed, but he also told Aldi's before leaving the store that he believed the protruding pallet caused Appellant to fall. These facts distinguish the instant case from the cases relied upon by the majority. It appears that the trial court as well as the majority ignored this testimony, or at the least failed to construe this evidence in the light most favorable to Appellant, in finding that Appellant "has no knowledge of what caused her fall."
{¶ 19} The fact that Appellant is not certain that this pallet caused her fall is not dispositive. Clearly, Appellant has a reasonable explanation for her fall. The fact that she did not testify that she is certain that the pallet caused her fall merely demonstrates her veracity. The only way a person could be absolutely certain about the cause of her fall is if the person looked down and observed the object or condition before or at the exact time that she collided with it. Reason dictates that if a person observes an object or condition in her pathway, she will avoid the hazard. Moreover, the Ohio Supreme Court has held that "[a] pedestrian using a public sidewalk is under a duty to use care reаsonably proportioned to the danger likely to be encountered but is not, as a matter of law, required to look constantly downward under all circumstances even where she has prior knowledge of a potential hazard." Grossnickle v.Germantown (1965),
{¶ 20} Aside from the failure to view the evidence in a light most favorable to the non-moving party, three potentially undesirable inferences flow from the majority's decision to disallow the jury from considering this matter. First, the majority's decision implies that the Supreme Court erred inGrossnickle when it held that a pedestrian is not, as a matter of law, required to constantly look downward as she walks. In direct contravention of the Supreme Court's holding inGrossnickle, the majority's decision essentially requires a person to constаntly look downward as she walks. Here, because Appellant was not looking downward and therefore did not see her foot make contact with the corner of the pallet, based upon the majority's reasoning, her claim fails.
{¶ 21} Second, this decision suggests that claimants can no longer recover on slip and fall cases in the Ninth District Court of Appeals. We have previously held that the open and obvious doctrine prohibits recovery in slip and fall cases where the condition is open and obvious. See Stein v. Honeybaked Ham Co.,
9th Dist. No. 22904,
{¶ 22} Lastly, the majority's decision insinuates that a рlaintiff must use precise language to establish causation in a slip and fall case. Here, Appellant provided a reasonable explanation for the cause of her fall. However, she did not definitively testify that the pallet caused her to fall. Appellant's testimony must be considered in light of evidence in the record that English was not Appellant's primary language. The trial court afforded no weight to this evidence and instead held her to a standard that produced an unjust result.
{¶ 23} When viewed in the light most favorable to Appellant, the facts, coupled with Appellant's deposition testimony and Mr. James' affidavit indicate that at least a genuine issue of material fact remains regarding whether the pallet caused Appellant to fall. Therefore, I respectfully dissent from the majority's finding that Appellant does not know what caused her to fall. I would reverse and remand.