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Middleton-Peed v. Dayton Food Ltd. Partnership9/21/2001
Rendered on the 21st day of September, 2001.
Plaintiff, Bobbie Sue Middleton-Peed, appeals from a summary judgment entered in favor of Defendant, Dayton Foods Limited Partnership, on Plaintiff's claims for personal injury .
At approximately 10:00 p.m. on June 27, 1998, Middleton-Peed was shopping at the Cub Foods store on Springboro Pike in Miamisburg. The store is owned and operated by Dayton Foods Limited Partnership ("Dayton Foods"). While Middleton-Peed walked through the produce department, she stepped on a cherry, slipped, and fell to the ground. Middleton-Peed claims that she suffered injuries to her back, knee, and ankle as a result of the fall.
The cherries at the store were displayed in a loose or unpackaged fashion. Honeycombed "grape mats" placed in front of the cherry display had been removed to permit an overnight cleaning crew to clean the floors. The store manager conducted a "floor sweep" of the produce section shortly before 10:00 p.m., and found that the mats had been removed and the area where Middleton-Peed fell was clean, without debris.
On June 22, 2000, Middleton-Peed commenced this action against Dayton Foods, alleging that Dayton Foods negligently caused the cherry to fall or allowed the cherry to remain on the floor, resulting in her injuries. On December 14, 2000, Dayton Foods filed a motion for summary judgment. On March 13, 2001, the trial court granted the motion for summary judgment, finding that Middleton-Peed had failed to preserve a genuine issue of material fact and that Dayton Foods was entitled to judgment as a matter of law.
Middleton-Peed filed timely notice of appeal, presenting one assignment of error.
THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN THAT APPELLEE'S GENERAL KNOWLEDGE OF A HAZARDOUS CONDITION CREATED BY ITS OWN METHOD OF OPERATION AND THE AFFIRMATIVE REMOVAL OF THE ONLY SAFEGUARD PRESENT TO PROTECT INVITEES AGAINST THAT HAZARDOUS CONDITION IS SUFFICIENT EVIDENCE FOR A JURY TO CONCLUDE THAT APPELLEE HAD CONSTRUCTIVE KNOWLEDGE OF ITS EXISTENCE AND WAS, THEREFORE, NEGLIGENT.
Summary judgment may not be granted unless the entire record demonstrates that there is no genuine issue of material fact and that the moving party is, on that record, entitled to judgment as a matter of law. Civ.R. 56. The burden of showing that no genuine issue of material fact exists is on the moving party. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64.
In ruling on a motion for summary judgment the court must consider the "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations, if any, timely filed in the action." Civ.R. 56(C). All such evidence submitted in connection with a motion for summary judgment must be construed most strongly in favor of the party against whom the motion is made. Morris v. First National Bank & Trust Co. (1970), 21 Ohio St.2d 25.
In reviewing a trial court's grant of summary judgment, an appellate court must view the facts in a light most favorable to the party who opposed the motion. Osborne v. Lyles (1992), 63 Ohio St.3d 326. "Because a trial court's determination of summary judgment concerns a question of law, we apply the same standard as the trial court in our review of its disposition of the motion; in other words, our review is de novo." Am. States Ins. Co. v. Guillermin (1996), 108 Ohio App.3d 547, 552.
An owner or operator of a business premises owes a duty to exercise ordinary care to protect those whom he invites into his business as customers from harm arising from a hazardous conditi
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