[Cite as Spitzer v. Frisch's Restaurants, Inc.,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

DARLENE SPITZER, :

Appellant, : CASE NO. CA2020-12-128

: OPINION - vs - 6/7/2021 :

FRISCH'S RESTAURANTS, INC., et al., :

Appellees. :

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2020-03-0589

Richard P. Gabelman, 6071 Montgomery Road, Cincinnati, Ohio 45213, for appellant

Markesbery & Richardson Co., L.P.A., Samuel A. Gradwohl, 2368 Victory Parkway, Suite 200, Cincinnati, Ohio 45206, for appellees, Frisch's Restaurants, Inc. and Frisch Hamilton West, Inc.

S. POWELL, J.

{¶ 1} Appellant, Darlene Spitzer, appeals the decision of the Butler County Court of

Common Pleas granting the motion for summary judgment filed by appellees, Frisch's

Restaurants, Inc. and Frisch Hamilton West, Inc. (collectively, "Frisch's"), in this case arising

from a slip and fall accident at a local Frisch's restaurant. For the reasons outlined below, Butler CA2020-12-128

we affirm.1

{¶ 2} On March 18, 2020, Spitzer filed a complaint alleging Frisch's was responsible

for the injuries she sustained after she slipped and fell inside a Frisch's restaurant located

in Hamilton, Butler County, Ohio. Frisch's filed its answer denying Spitzer's allegations on

May 7, 2020. Spitzer's deposition was taken on July 21, 2020. As part of her deposition

testimony, Spitzer, who was 68 years old at the time of her fall, testified that the pavement

outside the restaurant where she fell was still wet from rain earlier in the day. Spitzer also

testified that she "would assume" that the soles of her shoes were wet when she entered

the restaurant, but that she did not wipe her feet and instead just "walked right in" and

proceeded towards the cashier immediately before she slipped and fell on the floor.

{¶ 3} On September 22, 2020, Frisch's moved for summary judgment. Spitzer filed

a memorandum in opposition to Frisch's motion on November 3, 2020. After taking the

matter under advisement, the trial court issued a decision granting Frisch's motion for

summary judgment on December 8, 2020. In so holding, the trial court determined that

Spitzer had not "presented evidence sufficient to create a genuine issue of material fact as

to the cause of her fall or, if it was because of an unusually slippery floor, as to Frisch's

notice or knowledge of that condition prior to her fall." In reaching this decision, the trial

court specifically noted Spitzer's testimony that "when asked during her deposition what

caused her to fall, Spitzer testified that her shoes were wet." Spitzer now appeals the trial

court's decision, raising the following single assignment of error for review.

{¶ 4} THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT.

{¶ 5} Spitzer argues the trial court erred by granting Frisch's motion for summary

1. Pursuant to Loc.R. (6)(A), we sua sponte remove this appeal from the accelerated calendar for the purpose of issuing this opinion. -2- Butler CA2020-12-128

judgment. To support this claim, Spitzer argues that, at a minimum, she provided sufficient

circumstantial evidence to create a genuine issue of fact whether Frisch's can be held

responsible for the injuries she sustained after she slipped and fell inside Frisch's

restaurant, thereby making it improper for the trial court to grant Frisch's motion for

summary judgment. We disagree.

{¶ 6} "Summary judgment is a procedural device used to terminate litigation when

there are no issues in a case requiring a formal trial." Franchas Holdings, LLC v. Dameron,

12th Dist. Clermont No. CA2015-09-073,

, citing Roberts v. RMB Ents.,

Inc.,

,

, ¶ 6 (12th Dist.). "Civ.R. 56 sets forth the

summary judgment standard." State ex rel. Becker v. Faris, 12th Dist. Clermont No.

CA2020-10-058,

. Pursuant to that rule, a court may grant summary

judgment only when (1) there is no genuine issue of any material fact, (2) the moving party

is entitled to judgment as a matter of law, and (3) the evidence submitted can only lead

reasonable minds to a conclusion that is adverse to the nonmoving party. BAC Home Loans

Servicing, L.P. v. Kolenich,

,

, ¶ 17 (12th Dist.). The

party moving for summary judgment bears the initial burden of demonstrating that no

genuine issue of material fact exists. Touhey v. Ed's Tree & Turf, LLC,

,

, ¶ 7 (12th Dist.), citing Dresher v. Burt,

(1996). Once this burden is met, the nonmoving party must then present evidence to show

that there is some issue of material fact yet remaining to be resolved. Smedley v. Discount

Drug Mart, Inc.,

,

, ¶ 11 (12th Dist.). "In determining

whether a genuine issue of material fact exists, the evidence must be construed in favor of

the nonmoving party." Assured Admin., LLC v. Young, 12th Dist. Warren No. CA2019-04-

039,

, citing Vanderbilt v. Pier 27, L.L.C., 12th Dist. Butler No.

CA2013-02-029,

.

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{¶ 7} This court recently reiterated the long-standing, well-established principle that

"'[t]o establish negligence in a slip and fall case, it is incumbent upon the plaintiff to identify

or explain the reason for the fall.'" Matthews v. Tex. Roadhouse Mgmt. Corp., 12th Dist.

Butler No. CA2020-03-037,

, ¶ 8, quoting Stamper v. Middletown Hosp.

Assn.,

(12th Dist. 1989). In this case, just as the trial court found,

Spitzer did not present sufficient evidence to identify what caused her to slip and fall, either

personally or by any outside witnesses. "Where the plaintiff, either personally or by outside

witnesses, cannot identify what caused her slip and fall, a finding of negligence on the part

of the defendant is precluded." Koop v. Speedway SuperAmerica, LLC, 12th Dist. Warren

No. CA2008-09-110,

, citing O'Brien v. Bob Evans Farms, Inc., 11th

Dist. Trumbull No. 2003-T-106,

; and Smith v. Reschs Bakery, 10th

Dist. Franklin No. 87AP-897,

, *5-*6 (Dec. 10, 1987) (appellant

could not maintain a cause of action in negligence in a slip and fall case where "appellant

really had no idea why she fell" and could not "identify the cause of her fall"). Therefore,

because Spitzer cannot specifically identify what caused her to fall – other than assuming

that the soles of her shoes were wet due to her having just walked over wet pavement to

get inside the restaurant prior to her fall – a finding of negligence on the part of Frisch's

simply cannot be had. Spitzer's claim otherwise lacks merit.

{¶ 8} In so holding, we note that, based solely on the fact that she slipped and fell

in a Frisch's restaurant, Spitzer alleges that there must have been "some form of a slippery

condition" caused by a foreign "substance," possibly grease, on the restaurant's floor. This,

according to Spitzer, creates a genuine issue of material fact as to whether Frisch's can be

held responsible for her injuries. However, contrary to Spitzer's claim, "[n]o presumption or

inference of negligence arises from the mere happening of an accident or from the mere

fact that an injury occurred." Titenok v. Wal-Mart Stores East, Inc., 10th Dist. Franklin No.

-4- Butler CA2020-12-128

12AP-799,

, ¶ 8. In other words, "[t]he fact that a business invitee," in this

case Spitzer, "is injured in an accident does not give rise to a presumption of negligence by

the owner or occupier of the premises." Brooks v. Jo Ann Stores, Inc., 12th Dist. Butler No.

CA2001-05-107,

, *3 (Nov. 13, 2001), citing Parras v. Standard

Oil Co.,

, 319 (1953) ("[t]he mere happening of an accident gives rise to

no presumption of negligence"). Therefore, while it may be true that Spitzer was injured

after she slipped and fell in a Frisch's restaurant, that fact, standing alone, does not mean

Frisch's must be held liable for Spitzer's injuries resulting from that slip and fall.

{¶ 9} Regardless, even assuming Spitzer was correct in her assertions that there

was a foreign "substance" on the restaurant's floor, and that the foreign "substance" was,

in fact, grease, Spitzer failed to provide any evidence indicating how the grease was spilled

onto the restaurant's floor, who spilled the grease on the floor, and for how long the grease

may have been on the floor. Just as it is incumbent upon the plaintiff in a slip and fall case

to identify or explain the reason for his or her fall, Matthews,

at ¶ 8, it is

also incumbent upon the plaintiff in a slip and fall case to introduce evidence demonstrating

that: "(1) the defendant was responsible for placing or creating the hazard, (2) the defendant

had actual notice of the hazard and failed to give the plaintiff adequate notice of its presence

or remove it promptly, or (3) that the hazard had existed for a sufficient length of time as to

warrant the imposition of constructive notice, i.e., the hazard should have been found by

the defendant." Anderson v. Jancoa Janitorial Servs., 12th Dist. Butler No. CA2019-01-

018,

, citing Baker v. Meijer Stores L.P., 12th Dist. Warren No.

CA2008-11-136,

, ¶ 27. Spitzer failed to do this on all fronts. Therefore,

even assuming Spitzer was correct in her assertions, because Spitzer failed to provide any

evidence as it relates to any of these three elements, a finding of negligence on the part of

Frisch's is precluded. Spitzer's claim otherwise again lacks merit.

-5- Butler CA2020-12-128

{¶ 10} In light of the foregoing, having found no merit to any of Spitzer's claims raised

herein, Spitzer's single assignment of error challenging the trial court's decision to grant

Frisch's motion for summary judgment lacks merit and is overruled.

{¶ 11} Judgment affirmed.

PIPER, P.J., and HENDRICKSON, J., concur.

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