[Cite as Hill v. At Home Stores, L.L.C.,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Geraldine Hill, et al. Court of Appeals No. L-22-1282

Appellants Trial Court No. CI0202003750

v.

At Home Stores, LLC, et al. DECISION AND JUDGMENT

Appellee Decided: August 11, 2023

*****

Jeffrey W. Swiech and Andrew J. Nash, for appellant, Geraldine Hill.

Maia E. Jerin, Chloe C. Deangelis, and Sheila A. McKeon, for appellee.

*****

OSOWIK, J.

{¶ 1} In this premises liability action, the plaintiff-appellant, Geraldine Hill,

appeals a November 1, 2022 judgment of the Lucas County Court of Common Pleas,

which granted summary judgment in favor of the defendant-appellee, At Home Stores.

As set forth below, we affirm. 1. Background and Facts

{¶ 2} This case arises from an injury sustained by Hill on March 17, 2020 while

shopping at At Home, a home furnishing store, located on Reynolds Road, in Toledo.

{¶ 3} According to the complaint, Hill was injured while “looking at the price of

corner shelving units that were positioned on a rack.” Hill claims that the corner shelving

units (“corner stands”) were “improperly positioned and unsecured on a rack, making

them susceptible to falling over and/or the shelves falling off, onto and/or into the

surrounding area.” Hill claims that, while “inspecting” a corner stand to determine its

price, it “suddenly and unexpectedly gave way, falling onto [her], and causing [her] to

fall * * * on her face.” And, as a result of the unit falling, “some or all” of the other units

also fell, “striking [Hill] as she landed.” Hill alleges “severe and permanent injuries” to

her “head, back, neck, and spine.”

{¶ 4} In the complaint, Hill claimed that At Home violated its duty to exercise

reasonable care (Count 1) and to “avoid active negligence” (Count 2). In Count 3, Teran

Hill, Hill’s husband who is also a party to this case, raised a loss of consortium claim.

{¶ 5} The record includes deposition testimony from Hill and from Richard King,

the store manager. A summary of their testimony is set forth below.

{¶ 6} Hill testified that, although she was not a regular customer of At Home, she

visited the store the day before her injury and purchased two pedestals and some glass

shelving. She returned the next day, March 17, 2020, around noon, for a corner stand and

2. another pedestal. Hill found the corner stands “[i]n the back of the store” by “just

brows[ing] around.”

{¶ 7} As the name suggests, corner stands are designed to fit into a corner.

According to Hill, the corner stands she was shopping for are made of metal and is about

four feet high and weighs less than 30 pounds. The stands were displayed on a store shelf

that was raised about four inches from the floor.

{¶ 8} Hill testified that the injury occurred when she “lean[ed] in” and “reached

around to try to see the price of [the stand and] they collapsed, and [she] collapsed with

them.” In all, about six stands fell. After the incident, Hill “got up, stretched [and] [sat]

the stands back up.” Hill put two stands in her cart for purchase and proceeded to the

check-out counter. Along the way, she added a piece of glass for her pedestal table. At

check out, Hill told the cashier what had occurred and asked for assistance getting the

items in her car “because [she] fell.” The cashier called for assistance, and a person,

whom Hill later learned was the store manager, helped Hill carry the items out and place

them in her car. Hill does not recall whether she told the manager about the incident.

{¶ 9} Once home, Hill texted her husband, Taren, who was at work. Later that

day, about 3 p.m., Hill and Taren returned to the store. Their purpose in returning was

two-fold. In her words, Hill wanted “to exchange the pedestal [that she had purchased

the day before] and [to] speak to a manager about [her] fall.” Hill met with the manager,

Richard King, who prepared a “Customer Incident” report as the two spoke. After their

3. conversation, Hill returned to the area where she had fallen and took some pictures of the

corner stands. According to the deposition transcript, some or all of the pictures were

made available to defense counsel during Hill’s deposition, but they were not marked for

identification. And, with the exception of one picture that was pasted into At Home’s

motion for summary judgment, none were made a part of the record. Likewise, the

Customer Incident report is not part of the record.

{¶ 10} Two days after her fall, Hill saw her doctor, complaining of knee and back

pain. Following an MRI, Hill underwent a spinal fusion, which Hill alleges was

necessitated as a result of injuries she sustained when she fell.

{¶ 11} During his deposition, Store Manager Richard King referred to the items at

issue as “baker’s racks.” King said that the metal racks vary in size, between two to six

feet and weigh “less than ten pounds” and “absolutely” less than 25 or 30 pounds. He

added that the baker’s racks are “foldable,” which allow them to lay flat, for ease when

packaging and transporting them. When the baker’s racks arrive at the store, they are

packaged, in a collapsed state, with the shelves “folded in,” and an employee is tasked

with unpacking them, opening them up and placing them in the display area. According

to King, the baker’s racks were displayed that way for as long as he has worked at that

store, since 2018. King testified that there are no instructions regarding how to display

them.

4. {¶ 12} According to King, when Hill returned to the store to report the incident,

she told him that “she was looking at * * * bakers’ racks, and they had fallen over. She

fell on top of them, hurting her knees and her back.” But, Hill did not describe how the

baker’s racks “came to f[a]ll.” Later, King inspected the area where the racks were

displayed. He testified that he “found nothing. Everything was in a place where [he]

would assume it’s supposed to be. * * * [The baker’s racks] were all folded out [and in]

proper position.”

{¶ 13} At Home moved for summary judgment as to all claims asserted against it.

It argued that there was no evidence that “the display” was defective or hazardous and

that, even if there was, the display was open and obvious, obviating any duty by At Home

to warn Hill. And, because Teran’s loss of consortium claim was derivative of Hill’s

negligence claims, At Home argued that it was entitled to judgment as to that claim as

well. Hill opposed the motion. She argued that the hazardous condition was the

“unstable nature and improper construction of the shelves which caused them to fall

when [she] looked at the price tag.” She claimed that she presented evidence establishing

an issue of fact regarding whether the hazardous condition was open and obvious and

whether At Home breached its duty to warn her. After At Home filed a reply, Hill filed a

motion for leave, seeking permission to file a surreply and an affidavit in support.

{¶ 14} By judgment dated November 1, 2022, the trial court denied Hill’s motion

for leave to file a surreply. It further granted At Home’s motion for summary judgment,

5. dismissing all claims against the company. Hill appealed and assigns two errors for our

review1:

I. The trial court erred when it denied Appellant’s Motion for Leave

to File Surreply.

II. The trial court erred where it granted summary judgment in favor

of Appellee At Home Stores, LLC.

2. Hill’s motion for leave to file a surreply.

{¶ 15} In her first assignment of error, Hill argues that the trial court erred in

denying her request to file a surreply.

{¶ 16} The Ohio Rules of Civil Procedure contain no provision for filing a

surreply to a motion for summary judgment. Perlmutter v. People’s Jewelry Co., 6th

Dist. Lucas No. L-04-1271,

. Accordingly, it is within the

discretion of the trial court as to whether to grant such a motion. First Fin. Servs., Inc. v.

Cross Tabernacle Deliverance Church, Inc., 10th Dist. Franklin No. 06AP-404, 2007-

Ohio-4274, ¶ 38-39 citing Perlmutter. An abuse of discretion implies that the trial

court’s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶ 17} To determine whether the trial court abused its discretion in denying Hill

leave to file a surreply, we first consider the filings that preceded it.

1 Teran Hill did not appeal the dismissal of his loss of consortium claim.

6. {¶ 18} In its motion for summary judgment, At Home argued that Hill failed to

present evidence that “there was anything wrong with or defective with the display” and,

even if there was, the “shelving unit display” was “readily observable” and therefore

“open and obvious,” obviating any duty by At Home to warn Hill.

{¶ 19} In her objection, Hill argued that At Home had “misidentified” the

hazardous condition. She defined the hazardous condition as “unstable and improperly

constructed corner stands.” Specifically, Hill claimed that the corner stands “were not

properly assembled as they were not locked into place.” (Hill’s Memo in Opp. At 4;

emphasis added).

{¶ 20} In its reply, At Home queried, “[l]ocked in place to what? To the shelving

unit on which they were displayed? Plaintiff seems to be arguing * * * that the shelves

should have been locked to or somehow secured to the [display shelf].”

{¶ 21} In her motion for leave, Hill complained that At Home had “distorted and

misunderstood” the factual basis for her claim. She insisted that she was not claiming

that “the corner stand” was hazardous because it was not secured to the four-inch shelf on

which it was displayed but rather because it “was not correctly assembled.” Hill

requested “the opportunity to clarify the record.” Attached to her motion was the

proffered reply and pictures of corner stands. Separately, Hill also filed an affidavit (her

own).

7. {¶ 22} In denying leave, the trial court found that Hill’s proffered motion was

“improper” (because it contained “additional evidence and additional arguments”) and

unnecessary (because At Home “did not bring forward new arguments or evidence in

their reply”). On appeal, Hill challenges the trial court’s finding that Home did not raise

a “new argument” in its reply.

{¶ 23} Based upon our review of the reply brief, we agree with the trial court that

At Home did not raise new arguments. Rather, it reiterated its summary judgment

arguments and responded to the arguments Hill made in her opposition to summary

judgment. We also reviewed Hill’s motion for leave and supporting materials. We find

that the trial court could have reasonably concluded that the proposed filings did not add

anything new, nor did they include matters that could not have been raised in its initial

response to the motion for summary judgment. Importantly, while At Home may not

have understood the gist of Hill’s claim, it is clear that the trial court did. That is, the trial

court credited Hill as having alleged that the corner shelves were “not ‘properly locked

in’ or secured and [that] they were not properly constructed,” which is exactly how Hill

described the hazard. (J.E. at 7; emphasis added.) In other words, any misstatement by

At Home in its description of Hill’s claim had no bearing on the trial court and therefore

is irrelevant.

{¶ 24} It was within the discretion of the trial court whether to grant Hill’s motion

for leave to file a surreply. First Fin. Servs., Inc. 10th Dist. Franklin No. 06AP-404,

8.

, at ¶ 38-39 citing Morris-Walden v. Moore, 8th Dist. Cuyahoga No.

87989,

. Having found no evidence that the trial court abused its

discretion in denying the motion for leave, we find Hill’s first assignment of error not

well-taken.

3. At Home’s motion for summary judgment

{¶ 25} Appellate review of a trial court’s decision to grant summary judgment is

de novo. Chalmers v. HCR ManorCare, Inc., 6th Dist. Lucas No. L-16-1143, 2017-

Ohio-5678, ¶ 21; Hudson v. Petrosurance, Inc.,

,

,

. Pursuant to Civ.R. 56(C),

Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, 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 rendered unless it appears from the

evidence or stipulation, and only from the evidence or stipulation, that

reasonable minds can come to but one conclusion and that conclusion is

adverse to the party against whom the motion for summary judgment is

9. made, that party being entitled to have the evidence or stipulation construed

most strongly in the party’s favor.

Id.; See also Harless v. Willis Day Warehousing Co.,

,

(1978).

{¶ 26} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought and identify those portions of the record that

affirmatively demonstrate the absence of a genuine issue of material fact—not the

reliance on conclusory assertions that non-movant has no evidence to prove its case—

regarding an essential element of the non-movant’s case. Beckloff v. Amcor Rigid

Plastics USA, LLC, 6th Dist. Sandusky No. S-16-041,

. When a

properly supported motion for summary judgment is made, an adverse party may not rest

on mere allegations or denials in the pleadings, but must respond with specific facts

showing that there is a genuine issue of material fact for trial in accordance with Civ.R.

56(E).

A “material” fact is one which would affect the outcome of the suit under the

applicable substantive law.

A. The evidence in this case.

{¶ 27} Before addressing the propriety of summary judgment, we first discuss the

evidence that was properly before the trial court.

{¶ 28} In her brief, Hill refers to her affidavit and to pictures, both of which were

filed in support of her motion for leave to file a surreply. However, in its final judgment,

10. the trial court specified that “no information or argument” proffered by Hill in her

surreply would be “considered.” Having affirmed that decision today, we too must

disregard any allegations of fact, or arguments derived therefrom, set forth in Hill’s

affidavit, as well as the pictures filed at that time. See, e.g., Caravella v. West-WHI

Columbus Northwest Partners, 10th Dist. Franklin No. 05AP-499,

.

(“Because we apply the same standard as the trial court, we may consider only the

evidence before the trial court, pursuant to Civ.R. 56(C).”).

{¶ 29} Likewise, multiple versions of Hill’s appellate brief—which had to be

amended, twice—refer to “video surveillance footage of the incident.” Hill characterizes

the surveillance video as “evidence presented.” In response, At Home moved this court

to strike any reference to the video, asserting that it was never filed in the trial court and

therefore could not be considered on appeal. We remanded the issue back to the trial

court, and pursuant to our order, the trial court found that “[t]he video was not considered

by this Court when rendering its decision on summary judgment and was not part of the

record.” (See April 5, 2023 Decision and Judgment Entry Regarding Remand).

Accordingly, we granted At Home’s motion to strike and indicated that we would

“disregard any reference to the video surveillance and [that] it [would] not be considered

by the court in reaching any decision.” (April 18, 2023 Decision and Judgment). Hill’s

continual reference to the surveillance video and description of it as “evidence

11. presented,” as recently as May 10, 2023, is improper. See, e.g., Appellant’s May 10,

2023 Second Amended Brief at 2.

{¶ 30} In sum, because we apply the same standard as the trial court, we may

consider only the evidence properly before it. Here, that evidence includes the pleadings

and the deposition transcripts of Hill and King. It does not include Hill’s affidavit,

photographs attached to her motion for leave, or video surveillance footage.

B. Negligence

{¶ 31} A successful negligence action requires a plaintiff to establish all of the

following: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached

the duty of care; and (3) as a direct and proximate result of the defendant’s breach, the

plaintiff suffered injury. Menifee v. Ohio Welding Products, Inc.,

,

(1984). If a defendant points to evidence illustrating that the plaintiff will be

unable to prove any one of the foregoing elements and if the plaintiff fails to respond as

Civ.R. 56 provides, the defendant is entitled to judgment as a matter of law. Ray v. Wal-

Mart Stores, Inc., 4th Dist. Washington No. 12CA21,

.

i. Duty

{¶ 32} In a premises liability case, the duty that an owner or occupier of premises

owes to one who is injured on those premises is governed by the relationship between the

parties. Light v. Ohio University,

,

(1986). “That

relationship will fall into one of three categories: invitee, licensee, or trespasser.” Turner

12. v. Cathedral Ministries, 6th Dist. Sandusky No. S-14-020,

, ¶ 10 (6th

Dist.). A business invitee is an individual who is “rightfully on the premises of another

for purposes in which the possessor of the premises has a beneficial interest.” (Citation

omitted.) Clark v. BP Oil, 6th Dist. Lucas No. L-04-1218,

. “A

business owner ordinarily owes its invitees a duty of ordinary care in maintaining the

premises in a reasonably safe condition and has the duty to warn its invitees of latent or

hidden dangers.”

In this case, the parties agree that Hill was a business invitee of At

Home’s.

{¶ 33} A premises owner is not an insurer of a business invitee’s safety and is

under no duty to protect a business invitee from dangers known to the invitee “‘or are so

obvious and apparent to such invitee that [she] may reasonably be expected to discover

[the dangers] and protect [herself] against them.’” Paschal v. Rite Aid Pharmacy, Inc.,

,

(1985), quoting Sidle v. Humphrey,

,

(1968), paragraph one of the syllabus.

{¶ 34} The open-and-obvious doctrine concerns the first element of a negligence

claim, namely, whether a duty exists. Armstrong v. Best Buy Co.,

,

,

. If the doctrine applies, it “obviates the duty to

warn and acts as a complete bar to any negligence claims.”

“A hazard is considered

to be open and obvious when it is in plain view and readily discoverable upon ordinary

13. inspection.” Miller v. First Internatl. Fid. & Trust Bldg., Ltd., 6th Dist. Lucas No. L-08-

1187,

, ¶ 68.

{¶ 35} Whether or not a duty exists is a question of law for the court.

There is

no formula for whether a duty exists as a matter of law.

Appellate review of a

question of law is de novo. Sanborn v. Hamilton Cty. Budget Comm.,

,

,

.

{¶ 36} Here, Hill describes the hazardous condition as “improperly and

negligently constructed corner shelves,” specifically shelves that were not locked “into

place, i.e. with the corresponding pins placed into holes.” Hill further argues that, while

the corner stands and the attached shelves may have been open and obvious, the fact that

the shelves were unlocked (and therefore hazardous) was not. Hill insists that she “had

no reason to believe that the corner stands were not properly constructed when she

encountered them [and fell].”

{¶ 37} We first review the evidence regarding the purported hazard and the precise

allegations in this case. During her deposition, the following exchange took place,

Q. So what did you do when you went down the aisle and saw the *

* * corner stands on the bottom shelf?

A. I reached around to try to see the price of it, and they collapsed,

and I collapsed with them. * * *

14. Q. Okay. So you said you reached * * * reached in to do what, to

turn the shelving unit around so you could see the price tag?

A No, I reached in there * * * to grab the price tag, to see the price,

and it collapsed.

Q. Okay. What collapsed?

A. The stand.

Q. The whole shelving unit?

A. The stands, all of the stands fell that was on that shelf.

Q. How did they fall?

A. They fell—when I leaned in—they just fell. They wasn’t

correctly – I don’t guess they was correctly locked in. They was just

standing there. It wasn’t secure.

Q. * * * Did you knock them over?

A. No.

Q. Well how did they collapse?

A. When I * * * reached in and touched the stand [and] grabbed the

tag, it fell.

Q. The unit fell?

A. Yeah, the stand fell.

Q. Okay. And did it knock the rest of the stands off the shelf?

15. A. Knocked them over.

***

Q. Did you by any chance take a picture of this?

A. Yes, I got a picture of it.

Q. * * * So did some of these corner units fall into the aisle where

you were standing? * * *

A. No, they fell forward. I was behind it.

***

Q. * * * How did you get hurt, then?

A. Because when they fell, I collapsed with them, and I fell on top of

them. * * * I fell over on top of the stands.

***

Q. Ms. Hill, I looked at two photographs your lawyer sent. You took

those photos?

A. Yes. * * * When I went back to the store that same day.

***

Q. I certainly have a better understanding now of what this looked

like. So you were bending over and leaning in to look at the price tag?

A. I wasn’t bending over. I was leaning in.

***

16. Q. What did you do then, after you fell?

A. I got up, stretched, and I * * * [sat] the stands back up.

Q. How many stands did you have to pick up and stand up straight?

A. It was about six. (Emphasis added; Hill Depo. at 32- 45).

{¶ 38} About three hours later, Hill returned to the store and reported the incident

to Manager King who prepared the Incident Report. During her deposition, Hill could

not recall anything specific about that discussion. When their conversation ended, Hill

returned to the area of the store where the corner stands were located and took the

pictures that were referenced during her deposition. One of those pictures was pasted

into At Home’s motion for summary judgment. It shows five or six corner stands,

assembled and displayed on the four-inch shelf.

{¶ 39} Upon review, it is unclear to this court whether Hill is alleging that the

shelves from one stand—the one that she leaned into to check its price—were unlocked

or whether she is alleging that the shelves from multiple stands or even all six of the

stands were unlocked. The picture included in At Home’s motion for summary

judgment—which shows a number of stands—lacks any details from which one could

conclude that any of the shelves, on any particular corner stand, were locked or unlocked.

Likewise, Hill’s testimony does not provide any clarity. She testified that, “[t]hey wasn’t

correctly—I don’t guess they was correctly locked in. They was just standing there. It

wasn’t secure.” Setting aside the uncertainly of her testimony—for the moment—we

17. also question the underlying premise of her statement, i.e., that the shelves were not

“correctly locked in.” Indeed, we found no evidence to substantiate Hill’s claim that

shelves were unlocked. Certainly, there is no testimony by Hill to that effect. That is,

there is no testimony of Hill claiming to have observed any shelf, on any corner stand, as

being unlocked. Again, after Hill fell, she “got up, stretched, and * * * [sat] the stands

back up.” But, she gave no indication as to whether any, or all, of the shelves from the

fallen stands were locked, or unlocked. Likewise, in standing them back up, she gave no

indication that she locked the shelves into place or conversely, that she left them

unlocked. Finally, when she returned to the store later that day, she photographed the

corner stands but offered no testimony as to whether she observed that the stands were

locked or unlocked. Thus, even if we credit Hill as having more firmly testified, for

example, that “the shelves were not correctly locked in,” we would still question the

foundation for such an assertion, given the total absence of any evidence on this point. In

the absence of any evidence to support her claim that “the shelves” were not correctly

“locked in,” it would appear that she has failed to offer any facts establishing a hazardous

condition.

{¶ 40} However, in light of our findings below, we need not decide whether Hill

proffered evidence of a hazardous condition, let alone whether that condition was, or was

not, open and obvious. That is, even assuming At Home had a duty to exercise ordinary

18. care, the company was still entitled to summary judgment because the evidence in this

case does noes not establish that it violated that duty.

ii. Breach

{¶ 41} To establish that a premises owner failed to exercise ordinary care, the

plaintiff must demonstrate one of the following three conditions: (1) the premises owner,

through its officers or employees, created the hazard; (2) the premises owner possessed

actual knowledge of the hazard and failed to give adequate notice of its existence or to

remove it promptly; or (3) the hazard existed for a sufficient length of time to justify the

inference that the failure to warn against it or remove it was attributable to a lack of

ordinary care. Hefler v. Remke Markets, Inc, 1st Dist. Hamilton No. C-200364, 2021-

Ohio-2694, ¶ 10 citing Ray, 4th Dist. Washington No. 12CA21,

, at ¶ 14-

15.

{¶ 42} A business invitee bears the burden to prove that the premises owner

breached the standard of care. Perry v. Evergreen Realty Co.,

, 52–53,

(1978) (“The burden of producing sufficient proof that an owner has

failed to take safeguards that a reasonable person would take under the same or similar

circumstances falls upon the invitee.”). Whether a premises owner breached the standard

of care ordinarily is a factual question left to the jury.

. “However, where

there is no genuine issue of fact for the jury to decide, a court may grant summary

19. judgment if the moving party is otherwise entitled to judgment as a matter of law.”

(Quotation omitted.)

{¶ 43} In this case, Hill alleges liability under the first prong, i.e. that At Home,

through its employees, created the hazard. Specifically, she alleges that, “[o]n this

occasion, * * * At Home[] employees had not properly locked the corner shelves into

place while constructing them for display.” Hill does not attribute her claim—that At

Home employees improperly assembled the products—to any record evidence nor does

she identify “this occasion.” Instead, Hill reasons that because it is “undisputed,” that

company employees “assembled” the corner stands and “set up the display,” then it must

follow that it was the employees who “fail[ed] to properly construct them.” Hill’s

argument amounts to supposition, not evidence.

{¶ 44} “An inference of negligence does not arise from mere guess, speculation, or

wishful thinking, but rather can arise only upon proof of some fact from which such

inference can reasonably be drawn.” Parras v. Std. Oil Co.,

, 319,

(1953). Additionally, “Ohio courts have held that a defendant does not have

exclusive control over a display of merchandise where members of the public frequent an

area and have access to the display.”

, citing Carr v. May Dept. Stores Co. 8th

Dist. Cuyahoga No. 77290,

(Sept. 21, 2000), (Department store did

not have exclusive control over a mannequin at the time it fell on the plaintiff where the

evidence showed that various third-party vendors as well as members of the public had

20. access to it); Kemper v. Builder’s Square, Inc.,

,

(2d Dist. 1996) (Home improvement store did not have exclusive control over posts

displayed on a self-service shelving unit absent evidence that “no other customers or third

parties could have had control over or rearranged the posts from the time the posts left the

control of [the defendant] until [the plaintiff] was injured.”). See also Dorsey v. Lowe’s

Home Centers, LLC, N.D. Ohio Case No. 1:20-cv-2774,

(Mar. 10,

2023) (Summary judgment properly granted where plaintiff could point to no evidence

“indicating that it was store personnel, rather than another customer, who opened the tile

box and left it atop the arranged pallet.”).

{¶ 45} In this case, evidence that At Home employees are responsible for

unpacking, assembling, and displaying the corner stands does not lead to a reasonable

inference that it was an employee, and not some third party, who created the hazardous

condition. Hill’s own conduct and testimony illustrate how it is just as likely that a

previous customer—rather than a store employee—could have unlocked shelves while

examining a corner stand for a potential purchase. With no evidence on this point, we

find that Hill failed to put forth evidence to create a genuine issue of material fact as to

whether At Home employees created the hazard she describes in this case.

{¶ 46} With regard to the second method of demonstrating a beach, Hill does not

argue that At Home, or any particular employee, had “actual knowledge of the hazard.”

But, she does claim that At Home had constructive knowledge of the condition because

21. its employees perform “sweeps” of the store to assure that it is “free and clear” of hazards

and/or because it periodically adds products to the display shelves as items are sold.

Therefore, Hill maintains that the company either knew or should have known that the

hazard existed.

{¶ 47} To show that a premises owner possessed constructive knowledge of the

hazard, “evidence of how long the condition existed is mandatory.” Harrison v. The

Andersons, Inc., 6th Dist. No. L-99-1368,

(June 23, 2000); accord

Presley v. City of Norwood,

,

(1973) (Evidence

regarding the length of time the hazard existed “is necessary to support an inference” that

the premises owner had constructive knowledge). Without such evidence, it is

impossible to determine whether a premises owner should have discovered the hazard

upon a reasonable inspection.

Thus, if a plaintiff fails to present evidence showing

how long the alleged hazard existed, then the plaintiff cannot show that the defendant

breached the standard of care. Sharp v. The Andersons, Inc., 10th Dist. Franklin No.

06AP-81,

.

{¶ 48} In this case, there is simply no evidence to indicate how long the alleged

hazard existed. Indeed, there is no evidence of a prior incident involving falling corner

shelves, and King testified that the shelves have been assembled by employees, without

incident, since his arrival at the store in 2018. Under these facts, we find that it is not

reasonable to conclude that the hazard existed for a sufficient length of time to justify an

22. inference that the failure to warn against it or to correct it was attributable to a lack of

ordinary car. Therefore, Hill cannot show that the At Home breached its duty to warn her

under the third method.

{¶ 49} We find that no genuine issue of material fact remains and that, when

construing the evidence in a light most favorable to Hill, reasonable minds could only

conclude that At Home was entitled to judgment as a matter of law. In particular, we

conclude that Hill failed to produce evidence that At Home negligently constructed the

corner stands; that one of its employees had actual knowledge of the presence of the

hazardous condition and neglected to give adequate notice of it or correct it promptly; or

that the danger presented by the unlocked stands had existed for a reasonably sufficient

time to justify the inference that the failure to warn against it/them or to remove it/them

was attributable to a lack of ordinary care. Accordingly, we find that the trial court did

not err in granting At Home summary judgment, and Hill’s second assignment of error is

not well-taken.

4. Conclusion

{¶ 50} Hill’s first and second assignments of error are found not well-taken, and

the judgment of the Lucas County Court of Common Pleas is affirmed. Hill is ordered to

pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

23. Geraldine Hill, et al. v. At Home Stores, LLC, et al. L-22-1282

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Charles E. Sulek, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

24.