[Cite as Motes v. Cleveland Clinic Found.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97090

DAVID G. MOTES, SR. PLAINTIFF-APPELLANT

vs.

CLEVELAND CLINIC FOUNDATION, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-737876

BEFORE: Keough, J., Cooney, P.J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: March 8, 2012 ATTORNEYS FOR APPELLANT

Paul W. Flowers Paul W. Flowers Co., LPA Terminal Tower, 35th Floor 50 Public Square Cleveland, OH 44113

W. Craig Bashein Anthony N. Palombo Bashein & Bashein Co., LPA Terminal Tower, 35th Floor 50 Public Square Cleveland, OH 44113

ATTORNEYS FOR APPELLEES

Bret C. Perry Jennifer R. Becker Jason A. Paskan Bonezzi Switzer Murphy Polito & Hupp Co., LPA 1300 East Ninth Street Suite 1950 Cleveland, OH 44114 KATHLEEN ANN KEOUGH, J.:

{¶1} Plaintiff-appellant, David G. Motes, Sr. (“Motes”), appeals the trial court’s

decision granting summary judgment in favor of defendants-appellees, the Cleveland

Clinic Foundation and the Cleveland Clinic (collectively “the Clinic”). For the reasons

that follow, we affirm.

{¶2} In 2008, Motes and his girlfriend, Laura Knight, went to the Cleveland Clinic

to pick up some medications. After obtaining the prescriptions, they walked through the

M-2 hallway towards the parking garage. As Motes was walking, his leg suddenly

slipped out from under him and he fell to the floor. After falling, Motes could see

puddles of clear liquid, presumably water, on the white linoleum floor. As a result of the

fall, Motes suffered a fractured hip. In 2010, Motes filed suit against the Clinic, alleging

that it was negligent in failing to maintain its premises in a reasonably safe condition.

{¶3} The Clinic moved for summary judgment, which the trial court granted with a

written opinion. Motes now appeals, raising as his sole assignment of error that the trial

court erred in granting the Clinic’s motion.

{¶4} We review an appeal from summary judgment under a de novo standard of

review. Grafton v. Ohio Edison Co.,

,

(1996).

Accordingly, we afford no deference to the trial court’s decision and independently

review the record to determine whether summary judgment is appropriate. Hollins v.

Shaffer,

,

,

(8th Dist.). Under Civ.R. 56, summary judgment is appropriate when, (1) no genuine issue as to any

material fact exists, (2) the party moving for summary judgment is entitled to judgment as

a matter of law, and (3) after viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can reach only one conclusion that is adverse to the

nonmoving party. Id. at ¶ 13, citing Civ.R. 56; Horton v. Harwick Chem. Corp.,

,

(1995).

{¶5} The moving party carries an initial burden of demonstrating an absence of

genuine issues of material fact concerning a material element of the nonmoving party’s

claim. Dresher v. Burt,

,

,

. If the

movant fails to meet this burden, summary judgment is not appropriate; if the movant

satisfies this burden, summary judgment will be appropriate only if the nonmovant fails to

establish the existence of a genuine issue of material fact.

.

{¶6} In order to defeat a motion for summary judgment on a negligence claim, the

plaintiff must establish that a genuine issue of material fact remains as to whether (1) the

defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; and

(3) the breach of duty proximately caused the plaintiff’s injury. Frankmann v. Skyline

Mgt., L.L.C., 8th Dist. No. 88807,

,

, ¶ 5, citing Texler

v. D.O. Summers Cleaners & Shirt Laundry Co.,

, 680,

,

. Whether a duty exists is a question of law for the court to determine.

citing Mussivand v. David,

,

(1989). {¶7} In this case, Motes was an invitee at all times he was present at the Clinic.

See Stinson v. Cleveland Clinic Found.,

,

(8th

Dist. 1987), syllabus (hospital visitor is an invitee). An owner of a premises owes an

invitee a duty of ordinary care; the premises must be maintained in a reasonably safe

condition so that patrons are not “unnecessarily and unreasonably exposed to danger.”

Paschal v. Rite Aid Pharmacy, Inc.,

,

(1985). See also

Barnes v. Univ. Hosps. of Cleveland, 8th Dist. No. 66799,

(July 21,

1994). This duty is predicated on the notion that a business owner has superior

knowledge of dangerous conditions that may cause injury to those on the premises.

McGuire v. Sears, Roebuck & Co.,

,

(1st

Dist. 1996), citing Debie v. Cochran Pharmacy-Berwick, Inc.,

,

(1967). An owner is not, however, an insurer of the patron’s safety.

, citing Sidle v. Humphrey,

,

(1968), paragraph

one of the syllabus.

{¶8} In order to prove the breach-of-duty element in a slip-and-fall case, Motes

must establish that (1) the Clinic, through its officers or employees, was responsible for

the hazard complained of; (2) at least one of such persons had actual knowledge of the

hazard and neglected to give adequate notice of its presence or remove it promptly; or (3)

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 negligent, commonly referred to as

constructive notice or constructive knowledge. Johnson v. Wagner Provision Co.,

,

(1943); Hunter v. Wal-Mart Stores, Inc., 12th Dist. No.

CA2001-10-035,

,

, ¶ 18.

{¶9} Therefore, in the absence of proof that the owner or its agents created the

hazard, or that the owner or its agents possessed actual or constructive knowledge of the

hazard, no liability may attach. Presley v. Norwood,

,

(1973).

{¶10} In its motion for summary judgment, the Clinic argued that it did not breach

any duty of care owed to Motes because it did not create or have actual or constructive

notice of any alleged dangerous conditions that caused Motes to fall. Moreover, it

argued that it did not have a duty to protect Motes from an open and obvious condition.

{¶11} Motes first contends that the Clinic failed to satisfy its initial burden under

Civ.R. 56 by failing to attach any affidavits confirming that reasonable efforts had been

undertaken to comply with the duty it owed to him. However, the Ohio Supreme Court

has clearly stated:

Our reading of Celotex [v. Catrett,

,

,

(1986)] and of Civ.R. 56 is that there is simply no requirement that a party who moves for summary judgment must support the motion with affidavits negating the opponent’s claims. Indeed, there is no requirement in Civ.R. 56 that the moving party support its motion for summary judgment with any affirmative evidence, i.e. affidavits or similar materials produced by the movant. (Internal citations omitted and emphasis in original.) Dresher, 75 Ohio St.3d at 291-292,

,

.

{¶12} We find that the Clinic’s motion was supported with evidentiary materials

contained in the record, as required by Celotex, Dresher, and Civ.R. 56. Furthermore, from our independent review of the record, we find that the Clinic sustained its initial

burden of demonstrating the absence of a genuine issue of fact on a material element of

Motes’s claims for relief. The Clinic set forth that no testimony, facts, or evidence was

presented demonstrating that it created the alleged hazard, or that it had actual or

constructive notice of the alleged hazard prior to Motes’s fall. Therefore, the fact that

the Clinic did not provide any affidavits negating Motes’s claims was not fatal to the

Clinic’s motion for summary judgment.

{¶13} What is fatal to Motes’s complaint, however, are his hypothetical assertions

without any factual support, which we find are insufficient to establish a genuine issue of

material fact. The mere fact that Motes fell does not establish any negligence on the part

of the Clinic. Green v. Catronova,

,

(7th

Dist. 1996). When a motion for summary judgment is made and supported as provided in

this rule, an adverse party may not rest upon the mere allegations or denials of the party’s

pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must

set forth facts showing there is a genuine issue for trial. Civ.R. 56; Mootispaw v.

Eckstein,

,

(1996).

{¶14} First, Motes contends there is a genuine issue of material fact whether the

Clinic was responsible or created the hazard because the only plausible explanation for

the amount of water on the floor would be that it came from a Clinic employee. In

support of his argument, Motes cites Baudo v. Cleveland Clinic Found.,

,

(8th Dist. 1996), and Webb v. Bahama Breeze, 8th Dist. No. 96839,

,

.

{¶15} In Baudo, testimony was given that a bucket of water was in the vicinity of

the area of where the plaintiff fell. Moreover, an employee of the defendant testified that

buckets of water were often transported from a nearby utility room on utility carts. Thus,

this testimony was sufficient to create a genuine issue of material fact whether the

defendant caused the hazard. Similarly in Webb, deposition testimony was presented that

on prior occasions, ice water pitchers were found on the counter of the serving station and

water was observed on the floor in the same location where the fall occurred. This court

concluded that the testimony about these prior occasions created a genuine issue of

material fact as to whether the liquid on the floor was created by the defendant’s

employees and not from another source, and whether the defendant was on constructive

notice of the hazard.

{¶16} However, in this case, there was no testimony even hinting at how the liquid

got on the floor where Motes fell or how long the water was on the floor. The fact that

the amount of water may have been approximately one-half of a pitcher does not create an

issue of material fact regarding whether the Clinic was responsible or created the hazard.

In Allen v. C.G.S. Invests., Inc., 8th Dist. No. 62947,

, *3 (June 11,

1992), this court held that

speculation or conjecture on the plaintiff’s part as to the culpable party who caused the fall and what caused the fall is not sufficient to submit the case to a jury, as a matter of law, since the issue of proximate cause is not open to speculation on the jury’s part and plaintiff can point to no wrong or negligent act committed by the defendant.

The burden is on Motes to prove the existence of a genuine issue of material fact

regarding whether the Clinic placed the substance on the floor. His unsubstantiated

arguments are merely speculative and lack the requisite factual support required by Civ.R.

56. Accordingly, Motes failed to establish that the Clinic, through its officers or

employees, was responsible for the substance causing the fall.

{¶17} Additionally, Motes failed to present any evidence to prove that the Clinic

had actual knowledge of the hazard and failed to promptly remove it or adequately warn

its patrons. Tawana Johnson, the Clinic’s housekeeping supervisor, testified at

deposition that all of the Clinic’s employees are trained to notify housekeeping of any

spills on the floor. She further testified that once any spills or hazards are discovered,

housekeeping is notified; they then go directly to the area and take precautions to protect

individuals, including mopping floors and displaying “wet floor” signs.

{¶18} In their deposition testimony, both Motes and Knight specifically testified

that they had no knowledge as to whether the hospital or any of its employees had notice

of the water on the floor prior to Motes’s fall. After Motes fell, housekeeping was called

to the scene and they cleaned up the water and put up caution cones to indicate that the

floor was wet. Consequently, the record is devoid of any evidence showing that the

Clinic was aware of the hazard prior to the fall.

{¶19} Motes also contends that summary judgment was improper because there are

genuine issues of material fact whether the Clinic had constructive notice or knowledge of the water in the hallway, suggesting that the Clinic should have inspected its hallways

to locate spills. In support of his argument, he relies on the following two cases.

{¶20} In Shetina v. Ohio Univ.,

,

(10th

Dist. 1983), the facts established that a dormitory window, which was within the exclusive

control of the university, had a latent defect and had not been inspected for nearly ten

years. These facts and circumstances warranted summary judgment survival because “it

was reasonable for the trier of facts to infer that defendant was negligent with respect to

inspection and that a reasonable inspection would have revealed a defective dangerous

condition.”

. Unlike Shetina, the facts here do not create a genuine issue of

fact with regard to inspection because nothing in the record suggests that the Clinic did

not inspect the premises of a common-area hallway on a regular basis or that it failed to

maintain the hallway in a reasonably safe condition. Moreover, water on a floor is not a

latent defect.

{¶21} In Lopez v. Cleveland Mun. School Dist., 8th Dist. No. 82438,

,

, the evidence established that the plaintiff’s son

saw water dripping from the ceiling to the floor four to five months prior to the accident,

and the plaintiff had seen maintenance workers place buckets in these areas prior to her

son falling. Unlike the facts in Lopez, this case contains no evidence that the Clinic had

any knowledge of the water on the floor prior to Motes’s fall. The deposition testimony

established that no drinking fountains, restrooms, mops, or buckets were in the area. In fact, Mary Harrison, an independent eyewitness, testified at deposition that after she saw

Motes fall, she “remember[ed] being puzzled where this water could come from.”

{¶22} In this case, no testimony or evidence was set forth indicating that the Clinic

did not regularly check its hallways or that water had pooled in that area before, which

would have created an issue of fact as to whether the Clinic should have known about the

water prior to Motes falling. The only evidence presented establishes that the Clinic was

notified of the water after Motes fell.

{¶23} Accordingly, we find that summary judgment was properly granted on the

basis that no genuine issue of material fact exists whether the Clinic breached its duty to

Motes; therefore, we need not address whether the liquid was an open and obvious

condition. Motes’s assignment of error is overruled.

{¶24} Judgment affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court 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.

KATHLEEN ANN KEOUGH, JUDGE

COLLEEN CONWAY COONEY, P.J., and EILEEN A. GALLAGHER, J., CONCUR