Ray v. Wal-Mart Stores, Inc.

• Decision Date: 20 June 2013
• Docket Number: No. 12CA21.,12CA21.
• Parties: Marianne RAY, et al., Plaintiffs–Appellants, v. WAL–MART STORES, INC., et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

993 N.E.2d 808

Marianne RAY, et al., Plaintiffs–Appellants,

v.WAL–MART STORES, INC., et al., Defendants–Appellees.

No. 12CA21.

Court of Appeals of Ohio, Fourth District, Washington County.

June 20, 2013.

John E. Triplett, Jr., and Daniel P. Corcoran, Theisen Brock, Marietta, OH, for appellants.

D. Patrick Kasson, Reminger Co., LPA, Columbus, OH, for appellees.

ABELE, J.

{¶ 1} This is an appeal from a Washington County Common Pleas Court summary judgment in favor of Wal–Mart Stores, Inc. and Wal–Mart Real Estate Trust, defendants below and appellees herein.

{¶ 2} Marianne and John D. Ray, plaintiffs below and appellants herein, assign the following error for review:

“THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS–APPELLEES BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT REGARDING LIABILITY.”

{¶ 3} The present appeal arises out of a trip and fall that occurred at a Wal–Mart store in Marietta, Ohio. Mrs. Ray fell when she tripped on a produce crate that partially protruded from beneath a produce display table.

{¶ 4} After appellants filed a negligence complaint against appellees, appellees requested summary judgment. The trial court subsequently entered summary judgment in appellees' favor and appellants appealed. We reversed the trial court's decision to grant appellees summary judgment and we concluded that genuine issues of material fact remained regarding whether the produce crate hazard was open and obvious. Ray v. Wal–Mart Stores, Inc., 4th Dist. No. 08CA41, 2009-Ohio-4542, 2009 WL 2783231.

{¶ 5} On remand, appellees again requested summary judgment and asserted that appellants possessed no evidence to show that appellees breached any duty of care that it owed to Mrs. Ray. Appellees argued that the evidence fails to show that appellees breached the standard of care by creating the hazard, or by failing to warn of the hazard. Appellees asserted that appellants presented no evidence to show how the crate ended up beneath the produce display table in a partially protruding position and, thus, could not show that appellees created the hazard. Appellees further contended that appellants failed to present evidence to demonstrate that appellees had actual or constructive knowledge of the hazard, thus giving rise to a duty to warn Mrs. Ray of the hazard. Appellees observed that Mrs. Ray stated in her deposition that she did not know (1) how the black crates came to be beneath the display, (2) how long they had been positioned there before she fell, and (3) whether any of appellees' employees knew that the crates had been placed under the display. Appellees thus asserted that Mrs. Ray's deposition demonstrated that no genuine issues of material fact remained as to whether it breached the standard of care.

{¶ 6} Appellants countered that the record contained sufficient genuine issues of material fact concerning whether the appellees created the hazard and as to whether they possessed actual or constructive knowledge of the hazard. Appellants asserted that the following facts and inferences demonstrate that genuine and material factual issues remained: (1) appellees' owned the crate; (2) only appellees' employees had access to the crate; (3) appellees had exclusive control of the crate from the time of delivery until it was returned to the storeroom; and (4) at all times, at least one employee monitored the produce area. Appellants asserted that the foregoing facts led to a reasonable inference that appellees created the hazard by not returning the crate to the storeroom and, instead, leaving it on the produce floor. They argued that appellees failed to present evidence to show that someone other than one of appellees' employees carried the crate to the produce area and left it under the produce display in a hazardous position. Appellants further asserted that because at least one employee monitored the produce section at all times, then at least one employee must have observed the crate partially protruding from beneath the produce display. They additionally contended that if an employee did not actually observe the hazard, then the employee should have observed the hazard. Appellants inferred that had an employee conducted a reasonable inspection of the produce area, the employee would have discovered the hazard.

{¶ 7} On August 17, 2010, the trial court entered summary judgment in appellees' favor and concluded that appellants failed to demonstrate that any genuine issues of material fact remained as to whether appellees breached the standard of care. The court found that appellants did not produce any evidence to show how the crate “ended up in a ‘hazardous location’ ” and, thus, that appellants failed to demonstrate any genuine issues of material fact as to whether appellees created the hazard. The court agreed with appellants that they produced evidence showing that (1) appellees use the crates to ship produce to the store and to transport produce to the sales floor, (2) one of appellees' employees initially brought the crate to the produce area, and (3) appellees' policy states that employees should not leave the crates in the produce area on the floor beneath produce displays. The court, however, did not agree with the inferences appellants derived from the evidence. Appellants claimed that the evidence led to a reasonable inference that no one other than one of appellees' employees could have placed the crate in such a position that it partially protruded from beneath the produce display. The court, however, determined that appellants' assertion that only appellees had access to the crate is akin to an argument that appellees had exclusive control of the crate. The court concluded that an argument regarding “exclusive” control had relevance when the res ipsa loquitor doctrine applied. It further concluded, however, that the res ipsa loquitor doctrine “had no application in a public area of a busy retail store.” The court thus determined that appellants failed to present evidence showing that a genuine issue of material fact remained regarding whether appellees created the hazard.

{¶ 8} The trial court further found that appellants failed to produce any evidence to demonstrate that genuine issues of material fact remained regarding whether appellees had actual or constructive knowledge of the hazard. The court observed that appellants failed to produce any affirmative evidence to show that one of appellees' employees actually knew that the crate partially protruded from beneath the produce display. It rejected appellants' argument that the presence of at least one employee in the produce area led to a reasonable inference that at least one employee must have seen the hazard. The court found that this argument related to whether appellees possessed constructive, not actual, knowledge.

{¶ 9} The trial court additionally determined that appellants failed to show that appellees possessed constructive knowledge of the hazard. The court noted that appellants did not present any evidence to show when the hazard was created or when the crate initially was brought to the produce area. The court concluded that without such evidence, appellants could not show that the hazard existed for a sufficientlength of time so that appellees should have discovered the hazard.

{¶ 10} Appellants appealed the trial court's decision. We, however, dismissed that appeal for lack of a final appealable order. Ray v. Wal–Mart Stores, Inc., 4th Dist. No. 10CA27, 2011-Ohio-5142, 2011 WL 4597521. We observed that the trial court's summary judgment did not dispose of appellants' spoilation of evidence claim. Appellants then amended their complaint to remove the spoilation of evidence claim. This appeal followed.

{¶ 11} In their sole assignment of error, appellants assert that the trial court improperly entered summary judgment in appellees' favor. In particular, they assert that the trial court wrongly determined that no genuine issues of material fact remained regarding whether appellees breached the standard of care. Appellants contend that genuine issues of material fact remain as to whether appellees breached the standard of care either (1) by creating the hazard, or (2) by failing to warn of the hazard when appellees knew or should have known that the hazard existed. Appellants additionally argue that the trial court improperly determined that the doctrine of res ipsa loquitor did not apply. They assert that the evidence shows that the produce crate was within appellees' exclusive management and control.

ASUMMARY JUDGMENT STANDARD OF REVIEW

{¶ 12} Initially, we note that when reviewing a trial court's decision regarding a summary judgment motion, an appellate court conducts a de novo review. E.g., Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 6;Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate court must independently review the record to determine if summary judgment was appropriate and need not defer to the trial court's decision. Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (1993); Morehead v. Conley, 75 Ohio App.3d 409, 411–12, 599 N.E.2d 786 (1991). Thus, in determining whether a trial court properly granted a summary judgment motion, an appellate court must review the Civ.R. 56 summary judgment standard, as well as the applicable law.

{¶ 13} Civ.R. 56(C) provides, in relevant part, as follows:

* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be...