Donna Nixon v. K. Mart Corp., 87-LW-0286
| Decision Date | 06 February 1987 |
| Docket Number | CA 9827,87-LW-0286 |
| Parties | Donna NIXON, Plaintiff-Appellant, v. K MART CORPORATION, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Frederick E. Davis, Jr., Dayton, for plaintiff-appellant.
Steven O. Dean, Dayton, for defendant-appellee.
Plaintiff-appellant Donna Nixon, a resident of Chicago, was in Dayton on May 29, 1983, to attend the wedding of a friend's son. (Tr., p. 45, 52, 86-87.) Shortly before the wedding, Nixon and a friend who had accompanied her from Chicago, Wilhelmina Levy, were shopping at the defendant-appellee's store in Huber Heights when Nixon suddenly slipped and fell. (Tr., p. 28-29, 37, 47, 55-57 87-89.)
The assistant manager on duty at the time, Maria Thompson, called for paramedics after Nixon complained of pain in her left knee. (Tr., p. 13-14, 20-23, 48, 50-51, 88-90, 106, 108-109; see also, deposition of Maria Thompson, p. 5-6.) The paramedics gave no treatment at that time, but advised Nixon to seek further medical attention when she returned home should the pain in the knee increase or the swelling become more pronounced. (Tr., p. 51-52, 120-121; see also, Emergency Medical Services Report, plaintiff's Exhibit 5.) Nixon left the K-Mart store soon afterward.
Thompson testified at the proceeding below that she did not prepare a report on the incident as K-Mart policy required accident reports only after management personnel had made an initial determination that K-Mart might be liable as a result of a particular accident. (Tr., p. 12-18; see also, Deposition of Maria Thompson, p. 12-13.)
A witness to the incident, Donald Killett, testified below that after helping Nixon to her feet, he inspected the floor in the area where she had fallen and found a thick, sticky liquid which he described as resembling liquid floor wax. (Tr., p. 30-32, 38-39; see also, Killett's statement, Plaintiff's Exhibit 8.) None of the other witnesses, including Nixon, could recall seeing any foreign substance on the floor. (Tr., p. 22-25, 49, 52-53, 91, 103-106; see also, deposition of Maria Thompson, p. 9, 16-17.) Killett said that after he told Thompson about the liquid, he heard her direct other K-Mart employees to mop up the area where Nixon had fallen. (Tr., p. 30-32.) Levy stated that she also overheard Thompson tell other employees to mop the floor. (Tr., p. 49.) Thompson denied giving any such orders. (Tr., p. 26; see also, deposition of Maria Thompson, p. 19-20.)
Nixon stated that upon returning to Chicago, she immediately sought medical treatment for severe pain in her left knee. (Tr., p. 91-92.) According to Nixon, other conditions she suffered as a result of the accident, including pain in her left shoulder, pain in her right ankle and a temporary cessation of her menstrual flow, caused her to seek additional treatment. (Tr., p. 93-94, 100-101, 111-113; see also, plaintiff's Exhibit 11; deposition of Dr. Arthur E. Savitt and attached exhibits, Item 24 of the Summary of the Docket, Journal Entries and all Original Papers.) Nixon stated that due to the loss of strength and mobility she had suffered as a consequence of the accident, she was limited in her ability to care for her invalid mother and was unable to participate in activities which she had enjoyed prior to the accident. (Tr., p. 94-95, 98-102, 111-112.)
Nixon consulted with an attorney in Chicago, Raymond C. Cooke, who contacted K-Mart. K-Mart in turn referred the matter to its claims adjuster for the Dayton area, the Underwriters Adjusting Company (hereinafter UAC). In a letter dated June 29, 1983, UAC stated that its investigation had revealed no record of such an accident and that none of the K-Mart employees interviewed had any recollection of the described incident. (See plaintiff's Exhibit 1.) According to Ralph Lucas, the UAC employee responsible for investigating Nixon's claim, he was initially unable to find information on the accident because Cooke had misidentified the K-Mart store in question as the Dayton Mall store rather than the Huber Heights store. (Tr., p. 63-65.)
Lucas stated that after additional correspondence, he eventually determined that Cooke was referring to the Huber Heights store. (Tr., p. 65.) In a letter to Cooke dated August 9, 1983, Lucas stated that the manager of the Huber Heights location had told him that there was no record of the accident described by Cooke and that none of the employees interviewed remembered the event. The letter went on to say that this was unusual as K-Mart's operating policy required reports on even the most insignificant accidents happening in its stores. (See plaintiff's Exhibit 3.)
On December 20, 1983, Lucas sent a letter to Nixon's counsel stating that UAC had been able to confirm the occurrence of the accident at the Huber Heights store. The letter went on to say that there was some uncertainty as to the details of the incident and suggested that perhaps Nixon was confused as to where she had actually sustained her injuries. According to the letter, as K-Mart had no knowledge of the claimed hazard and as it was unclear whether such a hazard had actually existed in the first place, K-Mart would defend against any future lawsuits. (See, plaintiff's Exhibit 10.)
On May 28, 1985, Nixon filed a complaint in the Montgomery County Court of Common Pleas, requesting damages for injuries suffered as a consequence of K-Mart's negligence in allowing a hazardous condition to exist when it knew or should have known of the condition. (See plaintiff's complaint, Item 1 of the Summary of the Docket, Journal Entries and all Original Papers.)
In an entry dated August 15, 1985, the trial court referred the matter to a referee. (See Item 7 of the Summary of the Docket, Journal Entries and all Original Papers.)
A hearing before the referee was held on January 7, 1986. At the close of Nixon's case, counsel for K-Mart made a motion pursuant to Civ.R. 41(B)(2) that Nixon's claim be dismissed. (Tr., p. 126-127.) The referee stated that he would treat the motion as a motion for a directed verdict and would recommend that it be sustained. (Tr., p. 135-136.) In his report to the court, the referee concluded that weighing the evidence in the light most favorable to Nixon, reasonable minds could come to but one conclusion and that conclusion was adverse to Nixon. The referee therefore recommended that Nixon's complaint be dismissed under Civ.R. 50. (See referee's report, Item 27 of the Summary of the Docket, Journal Entries and all Original Papers.) From the trial court's entry ordering judgment in favor of K-Mart, Nixon hereby appeals to this court presenting the following assignments of error:
I.Where a business invitee slips and falls on a foreign substance which is positively identified as resembling liquid floor wax, it is error for the trial court to refuse to allow an inference of causation or culpable knowledge fromm [sic] evidence that establishes that the defendant storekeeper engaged in activities to cover up and deny existence of the accident and hazard, including a violation of its own reporting policies.
II.Where a business invitee slips and falls on a foreign substance on a storeroom floor, the appellee should not be allowed to deny causation or knowledge, when the evidence establishes that said defendant engaged in activities to cover up and deny the event (slip and fall) and the existence of the hazard, including evidence that said defendant violated its own reporting policies.
III.It was error for the trial court to deny appellent [sic] the opportunity to present additional evidence of defendant's cover up and denial of the event which gave rise to appellant's claim.
IV.It was error for the trial court to deny appellant the opportunity to present additional evidence of defendant's violation of its own policies regarding incident reports.
It is well-established in Ohio that a shopkeeper does not insure his patrons against all accidents and injuries while in his store. S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, paragraph one of the syllabus; Boles v. Montgomery Ward Co. (1953), 153 Ohio St. 381, paragraph one of the syllabus. However, a business proprietor does owe his invitees an obligation to exercise ordinary care on their behalf and to insure that his premises are reasonably safe. S.S. Kresge Co. v. Fader, supra; Boles v. Montgomery Ward Co., supra; Presley v. Norwood (1973), 36 Ohio St.2d 29, 31; Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203; Busse v. Grand Finale, Inc. (1981), 3 Ohio App.3d 65, 68; Yahn v. Mahoning Natl. Bank (1982), 4 Ohio App.3d 172, 173; Tyrrell v. Investment Assoc., Inc. (1984), 16 Ohio App.3d 47, 49; Lawson v. Columbia Gas of Ohio, Inc. (1984), 20 Ohio App.3d 208, 209; Sellman v. Kroger Co. (Aug. 28, 1985), Medina App. No. CA 1416, unreported; Haraway v. Youngstown Orthopedic Assoc., Inc. (June 24, 1986), Mahoning App. No. 85 CA 97, unreported. In order for a business invitee to recover for injuries suffered as a result of a slip and fall on a foreign substance on the floor of a commercial establishment, it must be shown either that the operator of the business knew of the condition and failed to promptly correct it or that the hazard was in existence for a sufficient length of time to support an inference that the shopkeeper should have discovered and removed the hazard in the exercise of reasonable care. Johnson v. The Wagner Provision Co. (1943), 141 Ohio St. 584, paragraph three of the syllabus; Anaple v. The Standard Oil Co. (1955), 162 Ohio St. 537, paragraph two of the syllabus; Schon v. National Tea Co. (1971), 28 Ohio App.2d 49, 54.
Nixon's theory of the present case does not want for novelty. In her first two assignments of error, Nixon essentially...
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