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Johnson v. Duncan10/27/2005
to give adequate notice of its presence or remove it promptly; or "3. That such danger had existed for a sufficient length of time reasonably to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care."
Johnson v. Wagner Provision Co. (1943), 141 Ohio St.3d 584, 589.
{ } Specifically, appellant argues that appellee had either actual or constructive knowledge that birds would be roosting in her attic during the cold months because, prior to appellant viewing the home, appellee knew that the attic window needed repairing. However, appellant offers no evidence that appellee had knowledge about the condition of the stairs as it related to her fall. In other words, appellant offers no connection between the small object that rolled from under her foot and the pigeons, nor does she establish a connection between the object and appellee. In fact, appellant stated that she did not see anything on the stairs on her way up. It is unclear what the small object that appellant tripped on was, where it came from, or how it got on appellee's attic stairs. Appellant would have us infer that appellee must have been negligent because appellant tripped on this object. However, the Ohio Supreme Court stated "in order for an inference to arise as to negligence of a party, there must be direct proof of a fact from which the inference can reasonably be drawn. A probative inference for submission to a jury can never arise from guess, speculation or wishful thinking. The mere happening of an accident gives rise to no presumption of negligence." Parras v. Standard Oil Co. (1953), 160 Ohio St. 315, 319. See, also, Deditch v. Silverman Bros. (July 30, 1998), Cuyahoga App. No. 73215 (holding that an invitee did not create an issue of material fact regarding liquid dishwashing detergent spilled on a store's sales floor, when she could not establish that the store caused the spill or had actual or constructive knowledge of the spill).
{ } Accordingly, the court did not err when it ruled that appellee did not have notice of the condition of her attic stairs, and appellant's third assignment of error is overruled.
{ } In conclusion, although appellant may have sufficiently identified the cause of her fall, she cannot establish a nexus between the small object and appellee, nor can she establish that appellee had notice of the object. As such, there is no genuine issue of material fact that remains to be litigated, and appellee is entitled to judgment as a matter of law.
Judgment affirmed.
It is ordered that appellee recover of appellant her costs herein taxed.
The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANTHONY O. CALABRESE, JR. JUDGE
MARY EILEEN KILBANE, J., CONCURS.
CONCURRING OPINION
COLLEEN CONWAY COONEY, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE CONCURRING OPINION.
{ } I concur in judgment only because I disagree with the majority's finding that appellant sufficiently identified what caused her fall. I would affirm the trial court's judgment because the failure to specify the cause of the fall is fatal to appellant's case.
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