Opinion
CASE NO. 15 MA 49
12-22-2015
MELISSA STANTON, et al., PLAINTIFFS-APPELLANTS, v. MARC'S STORE, et al., DEFENDANTS-APPELLEES.
APPEARANCES: For Plaintiffs-Appellants: Atty. Justin A. Markota Betras, Kopp & Harshman, LLC 6630 Seville Drive Canfield, Ohio 44406 For Defendants-Appellees: Atty. Marshall D. Buck Comstock, Springer & Wilson Co., LPA 100 Federal Plaza East, Suite 926 Youngstown, Ohio 44503
OPINION CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 13CV2924 JUDGMENT: Affirmed. APPEARANCES: For Plaintiffs-Appellants: Atty. Justin A. Markota
Betras, Kopp & Harshman, LLC
6630 Seville Drive
Canfield, Ohio 44406 For Defendants-Appellees: Atty. Marshall D. Buck
Comstock, Springer & Wilson Co.,
LPA
100 Federal Plaza East, Suite 926
Youngstown, Ohio 44503 JUDGES: Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro ROBB, J.
{¶1} Plaintiffs-Appellants Melissa and Mark Stanton appeal the decision of the Mahoning County Common Pleas Court granting summary judgment in favor of Defendants-Appellees Marc's Store. The issue is whether there is evidence from which a reasonable juror could find the store was negligent by failing to remove or warn about a spill in the pop aisle. Specifically, we must determine whether the store should be charged with constructive notice of the spill. For the following reasons, the trial court's judgment is affirmed.
STATEMENT OF THE CASE
{¶2} On July 3, 2009 at approximately 3:30 p.m., Appellants were grocery shopping at Marc's Store in Austintown, Ohio. Mr. Stanton went to the pop aisle while Mrs. Stanton went to the produce section. When Mrs. Stanton turned the corner into the pop aisle, she spotted her husband further down the aisle and called his name. At that point, she slipped on a wet spot and fell to her knee. Her husband summoned an employee, and they assisted Mrs. Stanton to her feet. She completed an incident report and was provided ice for her knee before she went home. A physician, who performed surgery on her knee, concluded that the fall caused her to suffer a torn anterior cruciate ligament and a torn lateral meniscus.
{¶3} Appellants originally filed suit against the store on July 1, 2011. That case was voluntarily dismissed under Civ.R. 41(A) on October 19, 2012. Appellants refiled the action on October 15, 2013, alleging that the store failed to use ordinary care in keeping the premises safe which caused Mrs. Stanton's injury and Mr. Stanton's derivative claim for loss of consortium. Appellants' depositions were filed with the court. The deposition of the store's assistant manager, who assisted Mrs. Stanton after her fall, was also submitted.
{¶4} The assistant manager worked there for ten years. (Depo. 6-7). He stated the store did not have a written risk management policy. He explained that employees inspect the store throughout the day, walking up and down the aisles, to check for spills and other issues. (Depo. 8). If an employee spots a spill, they are to notify him and remain with the spill until a "wet" sign is placed and the area is cleaned. (Depo. 10, 23-24, 27). New employees are instructed of this policy and informed that it is their number one priority. (Depo. 27).
{¶5} The assistant manager stated that he arrived at noon on the day of the injury, explaining that the procedure is for him to inspect the floor at the beginning of his shift. (Depo. 14-15). He thereafter continually walks the floor, going down every aisle, throughout his shift. (Depo. 12). He testified that a complete inspection takes him 20 to 30 minutes if the store is not busy. (Depo. 17). If the store is busy and/or many people ask for his assistance, it could take one to 1.5 hours. (Depo. 17, 21-22). At the time of the injury, he estimated that 30 people were working with 20 people walking the floors who are instructed to look for spills as they proceed through the aisles. (Depo. 9, 23). He believed the pop aisle would have been inspected every 15 minutes. (Depo. 23). The assistant manager described the floor as a whitish-yellow color and believed the liquid causing Mrs. Stanton's fall was clear. (Depo. 18).
{¶6} Mrs. Stanton testified that she is familiar with the store and it is clean, well-kept, and well-lit. (Depo. 20-22). She explained that she slipped on liquid soon after turning into the pop aisle. (Depo. 23, 25). After she fell, she noticed the liquid was yellow, like the color of Mountain Dew. (Depo. 26-27). Her husband also stated that the substance appeared yellowish, like Mountain Dew or Mello Yello. (Depo. 14). He noted that it could have been clear with the floor color making it appear yellow. (Depo. 7, 14). He did not notice the spill while he was in the pop aisle before the fall. Neither Appellant could say how long the substance had been on the floor, who caused it to be there, or whether an employee knew about it prior to the fall.
{¶7} Marc's filed a motion for summary judgment, urging that because there was no indication an employee created the hazard or had actual knowledge of the hazard, the plaintiff must show the hazard existed for a sufficient length of time to justify an inference that the failure to warn of or remove the hazard was attributable to a want of ordinary care. The motion concluded that negligence could not be demonstrated where there was no evidence of how long the substance was on the floor.
{¶8} Appellants agreed that they must demonstrate the defect existed for enough time that the defendant, through the exercise of reasonable care, could and should have discovered the defect and had a reasonable amount of time to remedy or guard against it. (Opp. To S.J. Mot. At 9). They argued that the lack of a written policy for inspecting the store during periods of heavy congestion resulted in constructive notice of the latent defect. They noted that the injury occurred on the day before Independence Day, which is known to be a busy time for grocery stores. Appellants pointed to the assistant manager's statement that his store inspections can take 20 minutes or they can take as long as 1.5 hours if the store is busy.
Appellants' opposition memorandum also argued that the spill was not open and obvious. However, as Marc's reply pointed out, the motion for summary judgment did not argue the spill was open and obvious.
{¶9} On February 27, 2015, the trial court granted summary judgment in favor of Marc's. Appellants filed the within appeal setting forth the following assignment of error: "The trial court erred in granting summary judgment as there exists a genuine issue of material fact as to whether Defendants-Appellees has or needed constructive notice of the hazard reasonable to justify the inference that the failure to remove the hazard or warn against it was attributable to negligence." Appellants divide their argument into two sections: (1) whether Marc's had constructive notice considering the alleged lack of policy for routinely inspecting the store during heavy congestion; and (2) whether Ohio should adopt a burden-shifting "mode of operation" theory.
GENERAL LAW
{¶10} Summary judgment can be granted when there remains no genuine issue of material fact and when reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). In determining whether there exists a genuine issue of material fact to be resolved at trial, the court is to consider the evidence and all reasonable inferences to be drawn from that evidence in the light most favorable to the non-movant. Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 11. Doubts are to be resolved in favor of the non-movant. Leibreich v. A.J. Refrig., Inc., 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993). A court "may not weigh the proof or choose among reasonable inferences." Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 121, 18 O.O.3d 354, 413 N.E.2d 1187 (1980).
{¶11} Civ.R. 56 must be construed in a manner that balances the right of the non-movant to have a jury try claims and defenses that are adequately based in fact with the right of the movant to demonstrate, prior to trial, that the claims and defenses have no factual basis and no evidence to support them. Byrd v. Smith, 110 Ohio St.3d 24, 26-27, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 11, citing Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant has the initial burden to show that no genuine issue of material fact exists. Byrd, 110 Ohio St.3d 24 at ¶ 10, citing Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). The non-moving party then has a reciprocal burden. Id. The non-movant's response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine issue for trial and may not rest upon mere allegations or denials in the pleadings. Civ.R. 56(E).
{¶12} We consider the propriety of granting summary judgment under a de novo standard of review. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Byrd, 110 Ohio St.3d 24 at ¶ 12, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "The material issues of each case are identified by substantive law." Byrd, 110 Ohio St.3d 24 at ¶ 12.
{¶13} The general substantive law in Ohio regarding a business invitee provides that a store owner owes a duty to exercise ordinary care to prevent injury to its patrons, but the store owner is not an insurer against all injuries to patrons occurring in the store. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 203-204, 480 N.E.2d 474 (1985), citing S.S. Kresge Co. v. Fader, 116 Ohio St. 718, 723-724, 158 N.E. 174 (1927) (stating: "Thousands of accidents occur every day for which no one is liable in damages * * *" and "It is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several very good reasons, all so obvious that it is wholly unnecessary to mention them here in detail."); Johnson v. Wagner Provision Co., 141 Ohio St. 584, 589, 49 N.E.2d 925 (1943). The mere injury to a patron on store premises does not give rise to a presumption of negligence. Parras v. Standard Oil Co., 160 Ohio St. 315, 319, 116 N.E.2d 300 (1953).
{¶14} In a slip and fall case, the plaintiff must show one of three items: (1) a store employee negligently created the hazard; (2) a store employee had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly; or (3) the danger existed for a sufficient length of time to reasonably justify an inference that the failure to warn against it or remove it was attributable to a want of ordinary care. Anaple v. Standard Oil Co., 162 Ohio St. 537, 541, 124 N.E.2d 128 (1955); Johnson, 141 Ohio St. at 589. Only the third option is at issue in this case.
CONSTRUCTIVE NOTICE
{¶15} Appellants argue the store should be charged with constructive notice of the hazard due to its alleged "lack of policy for conducting routine inspections particularly during periods of heavy congestion." They urge that lacking procedure for regular inspections during busy periods constitutes circumstantial evidence that the store should have known about the spill. They conclude that increased store congestion is not an adequate reason for fewer inspections, noting the testimony that the assistant manager's full inspection can take between 20 to 30 minutes on a less busy day and one to 1.5 hours on a busy day.
{¶16} The store responds by reviewing the evidence concerning its risk management policy on inspection and spills. The assistant manager provided evidence of the policy regarding the required inspection at the beginning of his shift at noon (the fall occurred at 3:30 p.m.). He also explained that continual inspections are performed thereafter by himself and the twenty other employees walking the store. Although the assistant manager's full store inspection could take one to 1.5 hours during a busy period, he estimated that an employee would have traversed the pop aisle every 15 minutes. The assistant manager emphasized that Marc's impresses upon the employees that spotting spills is their number one priority. When an employee becomes aware of a spill, the policy is for the employee to notify him of the spill and remain with the spill until a sign is transported to the scene and the area is cleaned. The store concludes that liability for a spill is not predicated upon the store's policy for inspections or spill removals and a written policy is not required in any event.
{¶17} The store emphasizes that constructive notice of a spill requires evidence of the length of time the spill was on the floor and urges there was no such evidence in this case. Citing, e.g., Brymer v. Giant Eagle, Inc., 11th Dist. No. 2010-L-134, 2011-Ohio-4022, ¶ 21 (because the plaintiff could not present evidence as to how long the wax paper had been on the floor before the incident or evidence as to the condition of the wax paper from which one could infer the paper had been on the floor for some time, she failed to show the store had constructive notice of the hazard); Day v. Finast Supermarkets, 11th Dist. No. 97-T-0229 (May 14, 1999) ("A slip and fall caused by a substance on the floor is not actionable unless the passage of an unreasonable length of time before discovery establishes a lack of ordinary care.") The store urges that Appellants' claim of constructive notice here is akin to making the store the insurer of the patrons' safety, which is contrary to Ohio premises liability law.
{¶18} Appellants provide no support for their position on an inspection policy or for the existence of an exception where a written policy does not exist or where a different inspection policy is not instituted during busy periods. Whether the store should have discovered the spill entails consideration of "the time on the floor," i.e. how long the substance was on the floor before the fall. "[E]vidence as to the length of time the hazard had existed is necessary to support an inference that defendant had constructive notice." Presley v. City of Norwood, 36 Ohio St.2d 29, 32, 303 N.E.2d 81 (1973) (to support such an inference, there must be evidence sufficient to indicate that a dangerous condition existed for a sufficient time to justify the inference that the continued existence is due to a lack of ordinary care). Presentation of evidence regarding the time the substance was on the floor is the plaintiff's burden. See Anaple, 162 Ohio St. at 541; Johnson, 141 Ohio St. at 589.
{¶19} Accordingly, in ascertaining whether a store should be charged with constructive notice, the plaintiff must produce evidence of how long a substance was on the floor. See Doyle v. Phoenix Supermarket, Inc., 7th Dist. No. 94CA187 (Mar. 20, 1996) (the alleged lack of a scheduled inspection program was immaterial where there was no evidence as to the length of time the salt had been on the floor). See also Balcar v. Wal-Mart Store No. 2726, 10th Dist. No. 12AP-344, 2012-Ohio-6027, ¶ 16, 23 (despite the plaintiff's contention that a triable issue remained as to whether the store conducted "reasonable inspections," the plaintiff was required to demonstrate a triable issue as to how long the spill of clear liquid had existed); Titenok v. Wal-Mart Stores E., Inc., 10th Dist. No. 12AP-799, 2013-Ohio-2745, ¶ 15 (summary judgment affirmed where the plaintiff presented no evidence as to how long the wet spot existed in the aisle), citing Sweet v. Big Bear Stores Co., 158 Ohio St. 256, 108 N.E.2d 737 (1952) (directed verdict for the defendant was upheld where there was no evidence how long the spinach leaf was on the floor before the fall). The concern is that, without this requirement, a store owner could be held to have notice of a spill that occurred a mere minute before the plaintiff stepped in it.
{¶20} Appellants provide some example cases regarding constructive notice of a spill. For instance, the Eighth District found sufficient evidence to allow an inference that the store had constructive notice of the spill where a disinterested witness asserted that the clear liquid was on the floor fifteen to twenty minutes before the plaintiff's fall. Combs v. First Natl. Supermarkets, Inc., 105 Ohio App.3d 27, 30, 663 N.E.2d 669 (8th Dist.1995) (store was inspected for spills every hour and employee believed he inspected store fifteen minutes prior to the fall).
{¶21} Notably, that district later upheld summary judgment against a plaintiff who slipped in a large puddle of dish detergent and who speculated that the puddle could have been there ten minutes due to how far the puddle had reached. Deditch v. Silverman Bros., 8th Dist. No. 73215 (July 30, 1998). The court recited: "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." Id., citing Parras v. Standard Oil Co., 160 Ohio St. 315, 116 N.E.2d 300 (1953), paragraph two of the syllabus. See also Corrado v. First Nat. Supermarkets, 8th Dist. No. 69362 (May 2, 1996) (rejecting the plaintiff's claim that periodic inspections of the aisles were inadequate after reinforcing that the plaintiff must present evidence concerning how long the spill existed to establish constructive notice).
{¶22} In a case out of this court, the plaintiff was in the produce section for ten to fifteen minutes prior to slipping on grapes. The store was not busy, and the floor was said to have been swept 1.75 hours prior to the fall. The floor of the produce section was messy with "old, dried up" and "dirty" lettuce leaves on the floor. In addition to "squashed and curled up" grapes, there were also wet spots on the floor. This court reversed the trial court's entry of directed verdict as there was evidence the store owner knew or should have known that there were hazards on the floor. Schon v. National Tea Co., 28 Ohio App.2d 49, 274 N.E.2d 578 (7th Dist. 1971).
{¶23} The Ninth District found summary judgment inappropriate due to evidence that the facial cream upon which the plaintiff slipped was dried and hard, the floor was not cleaned since the store opened, and the fall occurred between 2:00 and 4:00 p.m. Averiette v. Krist, 9th Dist. No. 10886 (Feb. 23, 1983). Notably, the latter two cases relied on evidence of describing the condition of the floor and/or the condition of substances on the floor which allowed a person to reasonably infer that the substances had been there for some time and thus the store should have discovered and removed the hazard.
{¶24} Here, there was no similar evidence about the nature or appearance of the substance or the condition of the floor to support an inference that the substance had been there for some time. In addition, Mrs. Stanton said the store was clean and well-kept. There was no witness attesting to the substance on the floor at some specified point prior to the spill in order to suggest that the spill "had existed for a sufficient length of time reasonably to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care." See Johnson, 141 Ohio St. at 589. Rather, the assistant manager estimated that one of the twenty floor-walking employees passed through the pop aisle every fifteen minutes and explained the policy for continual spill inspection and proper spill reporting. The inspection procedure did not provide circumstantial evidence of the substance's "time on the floor." There was no evidence from which a jury could infer how long the substance was on the floor and thus no evidence supporting the store's constructive notice of the spill.
ALTERNATIVE THEORY
{¶25} Appellants set forth an alternative argument asking this court to adopt a "mode of operation" or "burden-shifting" theory established in other states. Appellants ask that we alter or eliminate the Ohio requirement that the plaintiff establish constructive notice in cases involving a slip and fall in what they call a "self-service" store. They reason that a grocery store owner should have a burden to show a reasonable inspection policy because the owner is in the best position to inspect and discover spills that are likely to occur in a self-service store.
{¶26} Appellants note that our 1971 Shon case, reviewed supra, mentioned that the store owner should do what is necessary to protect against the risk caused by the mode of operation (in the self-service produce department). Schon, 28 Ohio App.2d at 53, citing Elrod v. Walls, 205 Kan. 808, 473 P.2d 12 (1970). However, both Schon and the Elrod case cited therein applied the traditional test regarding the length of time the product was on the floor and evaluated circumstances such as the condition of items on the floor. In any event, Appellants state the present case is one of first impression in this court.
{¶27} The store responds that the alternative theories are contrary to established and longstanding Supreme Court precedent in Ohio. The store warns that adoption of the theory as proposed by Appellants would end up encompassing much of the negligence field as most businesses run the risk of customer interference with products. The store additionally counters that it would be entitled to summary judgment even if this case took place in a mode of operation state as its policy is reasonable and there is no indication that spilled pop is a regularly occurring or anticipated risk of a pop aisle (as opposed to a fill-your-own-cup-with-pop station within a store, for instance).
{¶28} The traditional premises liability approach, discussed above, is utilized in many states, including Ohio. Still, other states have adopted approaches that depart from traditional premises liability. These approaches include a mode of operation theory, a burden-shifting theory, or a combination of theories.
{¶29} The Massachusetts Supreme Court explained that some modern merchandising techniques invite patrons to engage in "self-service" activities, which carry a foreseeable risk that a patron will spill or break something and endanger another patron. Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 784-786, 863 N.E.2d 1276 (2007). That court reasoned: "the owner of such a self-service establishment has actual notice that his mode of operation creates certain risks of harm to his customers. Since a self-service operation involves the reasonable probability that these risks will occur, these risks are foreseeable." Id. at 786.
{¶30} The Massachusetts court believed it was unfair to place the burden on the plaintiff to isolate the precise failures that caused the injury where there was a foreseeable risk of harm stemming from an owner's mode of operation. Id. at 788-789 (noting the owner occupies a superior position from which to investigate). That court adopted the mode of operation approach, holding that the plaintiff satisfies the notice requirement if he establishes that an injury (occurring within "the zone of risk") was attributable to a reasonably foreseeable dangerous condition on the owner's premises related to the owner's self-service mode of operation and the defendant failed to take reasonable measures commensurate with the risks involved with a self-service mode of operation to prevent injury. Id. at 786, 788.
{¶31} The Sheenan court stated that the plaintiff's burden to prove notice is not eliminated under the mode of operation approach, but then stated that the plaintiff's proof of a particular mode-of-operation is a substitute for the traditional element regarding notice of a dangerous condition. Id. at 786, 790 (stating that the plaintiff is still required to present evidence supporting her case and to bear the burden of persuasion), citing Chiara v. Fry's Food Stores of Ariz., Inc., 152 Ariz. 398, 400-401, 733 P.2d 283 (1987) (mode of operation approach removes the burden on the victim of a slip and fall to prove the owner had actual or constructive notice of the dangerous condition or to prove the exact failure that caused the accident). See also Kelly v. Stop & Shop, Inc., 281 Conn. 768, 787, 918 A.2d 249, 261 (2007) (when the operating methods of a store result in continuous or easily foreseeable dangerous conditions, the plaintiff need not prove actual or constructive notice of the specific condition). It has been observed, however, that the patron's mere need to place a displayed item in a shopping basket does not make every aisle a place of foreseeable danger or a "zone of risk" within a self-service store. See, e.g., Fisher v. Big Y Foods, Inc., 298 Conn. 414, 428, 3 A.3d 919 (2010).
{¶32} Some courts have adopted a burden-shifting (or mode of operation with burden-shifting) approach which eliminates the plaintiff's traditional burden of establishing actual or constructive notice of the hazard which caused the injury and places a burden on the defendant in certain cases. Under this approach, if the plaintiff proves an injury was the result of a hazard on the premises or a transitory foreign substance in a self-service store, a rebuttable presumption of negligence arises. At that point, the burden shifts to the defendant to show by the greater weight of evidence that it exercised reasonable care to maintain the premises under the circumstances. See Sheehan, 448 Mass. at 787, citing Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 331 (Fla.2001) (but holding was partially superseded by Florida Statute Section 768.0710 in 2002, wherein the legislature returned the burden to the plaintiff); Safeway Stores, Inc. v. Smith, 658 P.2d 255 (Colo.1983); Davis v. Bruno's Supermarkets, Inc., 263 Ga.App. 147, 148-149, 587 S.E.2d 279 (2003); Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 436 (Ky.2003); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-430, 221 A.2d 513 (1966).
{¶33} These approaches have been criticized as a move toward treating the store owner as the insurer of its patrons' safety. Additionally, it has been observed:
Doing away with the requirement that the invitee must prove how long the dangerous condition existed pre-injury is the functional equivalent of doing away with the requirement that the plaintiff prove that the defendant's negligence was the proximate cause of the plaintiff's injury. This case illustrates that point. Without "time on the floor" evidence, the storekeeper would be potentially liable even though there is no way of telling whether there was anything Giant could have done that would have avoided the injury.Maans v. Giant of Maryland, L.L.C., 161 Md.App. 620, 640, 871 A.2d 627 (2005) (rejecting the proposition that a jury can infer constructive notice from an alleged failure to conduct reasonable inspections).
{¶34} As Appellants acknowledge, Ohio follows the traditional premises liability approach. In a slip and fall case, the plaintiff must show one of three items: (1) a store employee negligently created the hazard; (2) a store employee had actual knowledge of the hazard and neglected to give adequate notice of its presence or remove it promptly; or (3) the danger existed for a sufficient length of time to reasonably justify an inference that the failure to warn against it or remove it was attributable to a want of ordinary care. Anaple, 162 Ohio St. at 541; Johnson, 141 Ohio St. at 589. This is the well-established precedent set forth and followed by the Ohio Supreme Court and therefore by the lower courts in Ohio. As an appellate court, we cannot decide to eliminate this law and follow a new approach.
{¶35} Moreover, Appellants' arguments under this section are raised for the first time on appeal. They cited the trial court to traditional Ohio premises liability law below. They did not mention the mode of operation or burden-shifting approaches or ask for the adoption of these different approaches in their opposition to the store's request for summary judgment. As a result, Appellants' arguments under this section have been waived for purposes of appeal. See, e.g., Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001 (1982) ("the fundamental rule is that an appellate court will not consider any error which could have been brought to the trial court's attention").
{¶36} The Second District was asked to alter Ohio law in this same manner, and that court refused the request. Miranda v. Meijer Stores, L.P., 2d Dist. No. 23334, 2009-Ohio-6695. After holding there was no evidence the store should have known about dry dog food spilled in an aisle, the Second District stated:
The Mirandas urge us to abandon well-settled Ohio law in the area of premises liability in favor of applying the doctrines of "mode of operation" and "burden-shifting" in the instant case. "A party * * * contesting the opposing party's motion for summary judgment must inform the trial court and the other party of the basis of his motion, so
that the court and other party are on notice of all potential issues." Crandall v. City of Fairborn, Greene App. No. 2002-CA-55, 2003-Ohio-3765. It is undisputed that the Mirandas did not raise these alternate theories of liability in their response to Meijer's motion for summary judgment. Therefore, we shall not address them on appeal. More importantly, the law in Ohio regarding the duty of care of a business owner to its business invitees is clear and well-established. In the absence of a directive from the Ohio Supreme Court abandoning its prior decisions, we must uphold the law as it presently exists.Id. at ¶ 15, appeal not accepted, 125 Ohio St.3d 1414, 2010-Ohio-1893, 925 N.E.2d 1002.
{¶37} Similarly, this court concludes: (1) these alternate theories of liability were waived as they were not raised in the opposition to the store's request for summary judgment; and (2) we uphold the law as it presently exists in Ohio until directed otherwise by the Ohio Supreme Court. For the foregoing reasons, the trial court's judgment is affirmed. Waite, J., concurs. DeGenaro, J., concur in judgment only in part with concurring in judgment only in part opinion. DeGenaro, J., concurring in judgment only in part:
{¶38} I cannot join the majority's analysis regarding the alternative theory of liability presented by Appellants because they failed to raise it in the trial court. As the majority acknowledges at ¶35, this failure results in a waiver of the issue to be considered by this court, but nonetheless discusses the issue. By doing so, the majority has enabled Appellants to circumvent the Appellate Rules, and advance a new theory of recovery for us to review without the benefit of a complete record and consideration by the trial court first.
{¶39} Consistent with the principle that the function of a trial court is that of the initial arbiter of disputed matters, our sister districts, as do we, routinely exercise judicial restraint and remand cases to the trial court to consider a matter in the first instance. See Bahen v. Diocese of Steubenville, 7th Dist. No. 11JE 34, 2013-Ohio-2168, ¶25; Adlaka v. N.Y. Life Ins. & Annuity Corp., 2015-Ohio-605, 27 N.E.3d 871 ¶9-10 (7th Dist.) and cases cited therein.
{¶40} Moreover, the majority has created dictum that rejects the alternative theory, thereby providing Appellants with a springboard into the Ohio Supreme Court and an opportunity to have the merits addressed, despite the acknowledged failure to preserve the issue. We recently addressed the dangers of relying on dictum:
[I]t is not controlling and can create confusion, as the instant appeal readily demonstrates. Obiter dictum, dictum and dicta are interchangeable terms defined by the Ohio Supreme Court as " 'an incidental and collateral opinion uttered by a judge, and therefore (as not material to his decision or judgment) not binding.' " State ex rel. Gordon v. Barthalow, 150 Ohio St. 499, 505-506, 83 N.E.2d 393 (1948), quoting Webster's New International Dictionary (2d Ed.). Stated differently, dicta or dictum is an observation or statement in an opinion by the writing judge—which may or may not be joined by the majority of the panel—which is unnecessary to resolution of the issues in the case and therefore lacks precedential value. Black's Law Dictionary 1102 (8th Ed.2004) ("a judicial comment made while delivering a judicial
opinion, but one that is unnecessary to the decision in the case and therefore not precedential."); see also Duck v. Cantoni, 4th Dist. No. 11CA20, 2012-Ohio-351, ¶ 25.Peters v. Tipton, 7th Dist. No. 13 HA 10, 2015-Ohio-3307, ¶ 6.
{¶41} Were it properly before us, I would not hesitate to consider the merits of Appellants' argument. However, a new legal theory, whether adopted or rejected by this Court, should not be addressed until it has properly worked its way through the trial and intermediate appellate court. That is the proper procedural path to the Ohio Supreme Court when a party urges a change to Ohio's jurisprudence in a substantive area of the law.