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Middleton-Peed v. Dayton Food Ltd. Partnership9/21/2001
on that exists there. Paschal v. Rite Aid Pharmacy (1985), 18 Ohio St.3d 203. To discharge that duty, he must either remove the condition or warn his customers of its existence to allow them to protect themselves. However, and because the risk of harm that might befall an invitee must be foreseeable to the owner or occupier, he is liable for harm resulting from the failure to take such remedial steps only when he 1) created the condition, 2) knew of the condition (actual notice), or 3) should have known of the condition (constructive notice). Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, syllabus; Anaple v. Standard Oil Co. (1955), 162 Ohio St. 537; Detrick v. Columbia Sussex Corp., Inc. (1993), 90 Ohio App.3d 475.
"Actual notice can be established by, for example, proving that people have previously complained about the defect. . . ." Hobson v. City of Dayton (September 20, 1996), Montgomery App. No. 15497, unreported, at .
Constructive notice, on the other hand, entails a more elaborate proof. It requires the plaintiff to demonstrate that the nuisance existed in such a manner that it could or should have been discovered, that it existed for a sufficient length of time to have been discovered, and--presuming it had been discovered--it would have created a reasonable apprehension of potential danger. Id.
Middleton-Peed argues that Dayton Foods partially created the dangerous condition because by displaying the cherries loose instead of in packages, which allowed the cherry on which she slipped to fall to the floor. In addition, she argues that the placement of honeycombed "grape mats" in front of the cherry display demonstrates that Dayton Foods was aware of the potential harm, and that by removing them Dayton Foods created an increased risk that a patron could fall.
It was the cherry on the floor that presented the actual hazard, not the method by which the cherries were displayed, which created only the potential of that hazard. There is no evidence that Dayton Foods caused the cherry to be on the floor, knew that it was on the floor, or should have known that it was there before Plaintiff's fall.
Neither does removal of the grape mats constitute an act or omission chargeable to Dayton Foods as negligence. An act or omission that substantially increases the risk of an existing harm of which the owner or operator knows or should know may be chargeable as negligence. Gober v. Thomas & King, Inc. (June 27, 1997), Montgomery App. No. 16248, unreported. However, the same does not apply when the harm is not existing but only potential. As the cherries were displayed by Dayton Foods, they presented only the potential of the harm that caused Plaintiff's fall. Therefore, removing the mats was not a negligent act or omission chargeable to Dayton Foods.
Accordingly, we agree with the trial court's determination that Middleton-Peed has failed to raise a genuine issue of material fact regarding Dayton Foods' alleged creation of the condition, or their actual or constructive knowledge of it. Therefore, the assignment of error is overruled.
Conclusion
Having overruled the sole assignment of error presented, the judgment of the trial court will be affirmed.
BROGAN, J. and YOUNG, J., concur.
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