[Cite as Estate of Merrill v. Meijer Stores Ltd. Partnership, 2016-Ohio-1432.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

THE ESTATE OF JENNIFER MERRILL, : 

 Plaintiff-Appellant, : CASE NO. CA2015-10-090 

 

 : O P I N I O N 

 - vs - 4/4/2016 

 : 

MEIJER STORES LIMITED : 

PARTNERSHIP, 

 : 

 Defendant-Appellee. 

 : 

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 2014 CVC 1045 

Gary F. Franke Co., L.P.A., Gary F. Franke, Michael D. O'Neill, 120 East Fourth Street, Suite 

1040, Cincinnati, Ohio 45202, for plaintiff-appellant 

Weston Hurd LLP, W. Charles Curley, Kaitlin L. Madigan, 10 West Broad Street, Suite 2400, 

Columbus, Ohio 43215, for defendant-appellee 

 PIPER, P.J. 

{¶ 1} Plaintiff-appellant, the Estate of Jennifer Merrill, appeals a decision of the 

Clermont County Court of Common Pleas, granting summary judgment in favor of defendant-
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appellee, Meijer Stores Limited Partnership.1

{¶ 2} Merrill fractured four vertebrae in her lower back and also injured her left leg 

when she slipped and fell at a Meijer store. Merrill and her friend, Beverly Brewster, went to 

the Meijer store at approximately 7:15 a.m. in order to purchase a stroller they planned on 

using later that day at a tractor show. After picking out the stroller, Merrill and Brewster went 

to the grocery side of the store in order to purchase snacks for the day. At that time, Merrill 

had been in Meijer for approximately 15 minutes. 

{¶ 3} Merrill, who was pushing a full-sized cart, was walking near the seafood section 

when she turned the corner of an aisle, took one or two steps, and then slipped. As the cart 

went forward, Merrill's left leg went backwards, causing her to fall. While on the floor, Merrill 

felt her pants because they were wet. When she placed her hand on the floor, Merrill also 

felt a clear watery liquid on the floor. 

{¶ 4} Merrill looked around while on the floor, and observed an endcap with a 

wooden pallet holding cases of bottled water. Merrill later estimated that an amount of water 

equal to between one and two 12-ounce bottles had leaked, causing a "stream" of water, 

which had puddled where she slipped and fell. Merrill also stated that the stream was 

"coming from" under the pallet upon which the cases of water had been stacked. 

{¶ 5} Two Meijer employees, who were texting on their cellular phones, passed 

Merrill sitting on the floor after her fall. Engaged with their respective phones, the two 

employees continued to text, apparently not noticing Merrill sitting on the floor. However, an 

employee from the seafood counter came over to assist Merrill, and a store manager later 

became involved. 

{¶ 6} Merrill's injuries eventually required back surgery in order to fuse the broken 

 

1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar for purposes of 

issuing this opinion. Also, during the pendency of the case, Merrill passed away. As such, Merrill's estate was 

substituted as a party to this action. 
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vertebrae, and her medical expenses exceeded $174,000. Merrill filed suit, alleging that 

Meijer negligently maintained the condition of its store by permitting hazardous conditions to 

exist and failing to warn invitees of such conditions. After discovery occurred, during which 

several individuals were deposed, Meijer filed a motion for summary judgment. The trial 

court granted the motion, finding that Meijer was entitled to judgment as a matter of law 

because Merrill's claims regarding Meijer's negligence were based on mere speculation. 

Merrill now appeals the trial court's decision, raising the following assignment of error. 

{¶ 7} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN 

FAVOR OF DEFENDANT-APPELLEE, MEIJER STORES LIMITED, PARTNERSHIP. 

{¶ 8} Merrill argues in her sole assignment of error that the trial court erred in 

granting summary judgment to Meijer because genuine issues of material fact remain to be 

litigated. 

{¶ 9} This court's review of a trial court's ruling on a summary judgment motion is de 

novo. Lindsay P. v. Towne Properties Asset Mgt. Co., 12th Dist. Butler No. CA2012-11-215, 

2013-Ohio-4124, ¶ 16. Civ.R.56 sets forth the summary judgment standard and requires that 

there be no genuine issues of material fact to be litigated, the moving party is entitled to 

judgment as a matter of law, and reasonable minds can come to only one conclusion which 

is adverse to the nonmoving party. Slowey v. Midland Acres, Inc., 12th Dist. Fayette No. 

CA2007-08-030, 2008-Ohio-3077, ¶ 8. The moving party has the burden of demonstrating 

that there is no genuine issue of material fact. Harless v. Willis Day Warehousing Co., 54 

Ohio St.2d 64 (1978). 

{¶ 10} The nonmoving party "may not rest on the mere allegations of his pleading, but 

his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts 

showing the existence of a genuine triable issue." Mootispaw v. Eckstein, 76 Ohio St.3d 383, 

385 (1996). A dispute of fact can be considered "material" if it affects the outcome of the 
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litigation. Myers v. Jamar Enterprises, 12th Dist. Clermont No. CA2001-06-056, 2001 WL 

1567352, *2 (Dec. 10, 2001). A dispute of fact can be considered "genuine" if it is supported 

by substantial evidence that exceeds the allegations in the complaint. Id.

{¶ 11} In a negligence action, the plaintiff must demonstrate that the defendant owed a 

duty of care, breached the duty of care, and as a direct and proximate result of the breach, 

the plaintiff suffered injury. Smith v. Kroger Co., 12th Dist. Butler No. CA2010-09-233, 2011-

Ohio-1871, ¶ 11. A shopkeeper owes its business invitees a duty of ordinary care to 

maintain the premises in a reasonably safe condition so that the invitees are not 

unreasonably or unnecessarily exposed to danger. Paschal v. Rite Aid Pharmacy, Inc., 18 

Ohio St.3d 203 (1985). However, the shopkeeper is not an insurer of an invitee's safety and, 

further, owes no duty to warn invitees of open and obvious dangers on the property. 

Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, syllabus. 

{¶ 12} A danger that is open and obvious "is in itself, a warning." Uhl v. Thomas, 12th 

Dist. Butler No. CA2008-06-131, 2009-Ohio-196, ¶ 15. Where a hazard is not hidden from 

view or concealed and is discoverable by ordinary inspection, the court may properly sustain 

a summary judgment against the claimant. Smith, 2011-Ohio-1871 at ¶ 14. 

{¶ 13} Regarding the breach of a duty owed an invitee in a slip and fall case, we have 

previously indicated, 

Specific to the breach element in a slip-and-fall case, in order to 

avoid summary judgment * * * an appellant must present 

evidence showing one of the following: (1) that one or more of 

the appellees was responsible for placing the hazard in her path; 

(2) that one or more of the appellees had actual notice of the 

hazard and failed to give appellant 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 

one or more of the appellees. 

Tholen v. Wal-Mart, 12th Dist. Butler No. CA2009-03-090, 2010-Ohio-3256, ¶ 13. As stated 
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by the Ohio Supreme Court, there is a breach when the "defendant or his employees had or 

should, in the exercise of ordinary care, have had notice of the hazard for a sufficient time to 

enable them in the exercise of ordinary care to remove it." Anaple v. Standard Oil Co., 162 

Ohio St. 537, 541 (1955).

{¶ 14} After reviewing the record, we find that genuine issues of material fact remain to 

be litigated. The record is undisputed that Meijer employees had sole control over the 

placement of the cases of water, and that the employees placed the cases of water on an 

endcap near where customers would be walking. The record also demonstrates that the 

plastic water bottles were stacked on wooden pallets that often contained nails and hard 

edges. In fact, Meijer employees stacked the wooden pallets on top of plastic pallets in order 

to keep the nails and wood from "tearing up" the store's flooring. The fact that such 

precautions were taken in regard to the destructive nature of the wooden pallets creates a 

genuine issue of material fact regarding whether similar damage occurred to the cases of 

water and whether such leakage of the water bottles resulted in a dangerous condition for 

Merrill. 

{¶ 15} The deposition testimony of a former Meijer employee demonstrates that Meijer 

was completely aware of an ongoing problem with leaking cases of water. The former 

employee, who had extensive knowledge of the movement and storage of water pallets, was 

deposed during discovery. When asked whether Meijer had any knowledge of "water leaking 

from pallets of water," the former employee answered "Sure. I mean, that was an ongoing 

issue. You would get – as pallets are pulled on and off these trucks, you'd get a leaker in 

one of the pallets and it would drip. I mean, you try to find it and get it out of there." When 

asked to confirm that the leaking bottles were referred to by Meijer employees as "leakers," 

the former employee responded, "yeah. Bottles get pinched or whatever * * *." This 

testimony indicates that Meijer was aware that the movement of cases of water caused 
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leakage on an "ongoing" basis. The only action the store took to alleviate any possible 

danger was to try to take the leaking bottles out before the pallet was moved from storage 

and transported into the store for purchase. 

{¶ 16} There was no indication in the deposition testimony that Meijer took any other 

steps once the pallets were moved into the store, such as place a receptacle or barrier to 

catch water that leaked, display a warning sign that water could be present on the floor, or 

have an employee actually check the pallet of stacked water after it had been moved into the 

main store area. In fact, a Meijer manager who was also deposed testified that no policy was 

in place to ensure that the pallet of stacked water went undamaged, and that there was 

nothing in place to prevent water from leaking through the pallet onto the aisle floor. Despite 

Meijer's knowledge there was an "ongoing issue" with water leaking from crushed or pinched 

bottles, Meijer took no action to ensure that any damaged plastic bottles, once transported 

into the front of the store, did not result in wet floors.2 

{¶ 17} As previously stated, the trial court determined that Merrill's belief that she 

slipped in water coming from the pallet was solely speculation, as she had no proof that the 

liquid on which she slipped was water or that it came from a particular bottle within the cases 

of water stacked on the pallet. The trial court supported its conclusion by comparing the 

circumstances surrounding Merrill's fall to those that occurred in Louderback v. Big Bear 

Stores Co./Big Bear Bakeries, 4th Dist. Pike No. 96CA569, 1996 WL 571407 (Oct. 2, 1996). 

However, we find Louderback significantly distinguishable from the case at bar. 

{¶ 18} In Louderback, a woman slipped on water in the produce section of the grocery 

store. The woman concluded that she slipped on water from a sprayer in the produce 

 

2. Specific to whether a premise owner owes a duty to "prevent, remove, or warn against a particular hazard," 

the Ohio Supreme Court has determined that the question depends on factors such as "the potential hazard 

involved, the opportunity which such an invitee apparently would or would not have to avoid that potential hazard 

by the exercise of ordinary care, and the practicability of preventing, removing or warning against such hazard." 

Anaple v. Standard Oil Co., 162 Ohio St. 537, 541-542 (1955). 
Clermont CA2015-10-090 

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section that intermittently misted fruits and vegetables. However, the produce manager 

testified that no water went directly onto the floor from the sprayer. Further, the produce 

manager testified he had checked approximately 35 minutes before the woman fell and there 

was no water on the floor. He also stated that there were other actual circumstances wherein 

water reached the floor, such as customers intervening by transferring wet produce to their 

carts or water bouncing off items after being picked up and replaced incorrectly by 

customers. The Louderback court concluded that there was no evidence that water was 

sprayed directly on the floor, and that the store was not on notice of the water on the floor 

from other sources. The Louderback court determined that the plaintiff made improper 

inferences based upon speculation or conjecture when claiming she fell from water sprayed 

onto the floor from the produce misters. We find the facts of the case sub judice 

distinguishable from Louderback, especially when required to construe the facts in a light 

most favorable to Merrill. 

{¶ 19} The record demonstrates that Merrill slipped on a clear liquid that she described 

as "watery," and that Merrill saw the liquid coming from beneath the pallet containing cases 

of water. Brewster also testified in her deposition that the liquid upon which Merrill slipped 

was water and that she saw that the water had "leaked out of the pallet." While Brewster did 

not see the water dripping from any particular bottle of water, she testified that she personally 

observed water coming "out from underneath the pallet," and that one end of the water 

puddle was under the pallet. Significant is Meijer's knowledge that after being moved, bottles 

of water could be caused to leak and such was "an ongoing issue." Unlike Louderback, our 

record does not reveal any viable cause for the water being on the floor other than the cases 

of water stacked on the pallet recently transported and deposited at the endcap. 

{¶ 20} Meijer asserts that Merrill expressly stated she was "speculating" as to what the 

substance was and where it came from. However, upon reviewing Merrill's deposition, she 
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simply agreed to a leading question proposed by counsel. Nothing indicates Merrill was 

aware of the legal implication and difference between "speculation" and a reasonable 

inference based upon factual observations. Prior to agreeing with counsel's phraseology, 

Merrill had described facts she observed firsthand that support a reasonable inference that 

the substance was water and that it came from the pallet containing bottles of water. 

{¶ 21} Also distinguishable from the situation in Louderback, there remain genuine 

issues of material fact regarding whether Meijer had constructive knowledge because it could 

have or should have known that the water was on the floor at the time Merrill fell. As 

previously stated, Meijer employees testified that the cases of water sat on top of a wooden 

pallet, and that the pallet had to be placed on a plastic pallet so that its nails and hard edges 

would not damage the floor. Store employees were also aware that water bottles from the 

cases would leak because the cases were moved by forklifts that would crush and pinch the 

plastic bottles. The former employee testified that the employees were aware that leaking 

bottles referred to as "leakers" were an "ongoing issue" at the store. This testimony is 

therefore distinct from Louderback where store employees never testified that water on the 

floor from the misting system was an ongoing problem. 

{¶ 22} Moreover, testimony from the Meijer manager and a past employee indicated 

that all employees were expected to locate obstacles, including spills, on the floor and 

remove or clean them up. The former employee testified that while no one person was 

tasked with keeping the floors clean, "that's part of everybody's job description, to make sure 

that you keep things – if you see a mess, identify it, call it in, you know, get the signs out, and 

get it cleaned up." The Meijer manager also testified that his "team members were also 

responsible for ensuring that there were no issues or situations on the floor * * *" and that the 

employees were told to walk the store aisles, and regularly check for hazards on the floors. 

The store manager also testified that sometime between 5 a.m. and 7 a.m., an employee 
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goes "up and down every single aisle to scan" for areas that need restocking. Despite the 

fact that Meijer employees understood their responsibilities to include scanning the floors for 

possible dangers and messes, the record does not indicate such was done on the day in 

question. Additionally, the record reveals at least two employees who were not scanning the 

floors for issues that needed attention, those being the two that walked past Merrill while 

texting on their phones while she was on the floor. The record indicates that the water was 

on the floor long enough to empty from one or two bottles and form a puddle and "stream" 

into the aisle without it being cleaned up by Meijer employees. 

{¶ 23} We find the facts of the case sub judice more similar to Jordan v. Simon 

Properties Group, L.P., 11th Dist. Lake No. 2004-L-060, 2005-Ohio-4480. In Jordan, the 

plaintiff slipped and fell on a puddle of water that formed on the floor from a leaking skylight. 

Jordan was at first unaware of what caused her fall, but then observed water leaking from the 

overhead skylight. Another mall patron explained that the water was coming from a leaky 

skylight, and the mall's operations manager later testified in his deposition that leaking 

skylights were an "ongoing problem" at the mall. Id. at ¶ 5. Although there was no evidence 

this particular skylight was known by the mall to be actually leaking on the day in question, 

the mall had knowledge of the "ongoing problem." Id. Even so, "no standard procedures 

existed for inspecting the safety of the mall premises prior to opening," and employees were 

merely instructed to report leaking water and wait for maintenance to clean it up. Id. at ¶ 6. 

{¶ 24} Despite the trial court granting summary judgment because Jordan produced 

no evidence proving that the mall had actual or constructive notice of the puddle that caused 

her fall, the Eleventh District reversed the decision of the trial court, finding instead that 

Jordan's presentation of evidence that the mall knew of the ongoing problem of leaking 

skylights created a genuine issue of material fact as to whether the mall had constructive 
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notice.3 The court concluded that the mall's knowledge of the potential problem should have 

made it aware that puddles were "likely to form underneath skylights regardless of which 

particular skylight was leaking at the time." Id. at ¶ 23. The court also noted that it was 

raining on the day Jordan fell, which should have made it more pressing for the mall to make 

sure there were no hazards around the leaking skylights. 

{¶ 25} Similarly, the record in the case at bar indicates that all stocking was done 

overnight and into the early-morning hours because there was less customer congestion. 

The former Meijer employee testified that the water endcap was one of the last items to be 

stocked, and that such stocking occurred at the end of the night shift, usually around 7:00 

a.m., but as early as 6:00 a.m. Taken in conjunction with the fact that Meijer employees 

knew of the ongoing problem of leaking water bottles, the stocking and moving of the water 

pallets onto the storeroom floor made Meijer aware that any leaking bottles of water would 

leak onto the floor where customers would be walking. As such, and regardless of Merrill not 

being able to point to the exact water bottle that leaked, we find that there are genuine issues 

of fact regarding whether Meijer had constructive knowledge of the water that caused Merrill's 

slip and fall. 

{¶ 26} While there is no indication in the record that a huge amount of water was on 

the floor on the morning that Merrill fell, there are several facts in the record that require 

further litigation in regard to whether Meijer knew or should have known about the water's 

existence on the floor that morning. 

{¶ 27} As to whether the water was open and obvious, we find that Meijer is not 

entitled to judgment as a matter of law on this issue. Instead, the record demonstrates that 

 

3. Judge O'Neill (now Justice O'Neill) quoted Palsgraf v. Long Island RR Co., 248 N.Y. 339, 344 (1928), stating 

"[t]he risk reasonably to be perceived defines the duty to be obeyed." He noted that the knowledge of skylights 

leaking in the past created a reasonable risk wherein it could be anticipated that skylights could leak in the future, 

thereby creating the hazard on the floor. Jordan v. Simon Properties Group, L.P., 11th Dist. Lake No. 2004-L060, 2005-Ohio-4480, ¶ 26. 
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the water originated from underneath the pallet and was located in such a position that 

customers turning the corner of an aisle, such as Merrill, may not have been able to observe 

the water. The record demonstrates that neither Merrill nor Brewster saw the water before 

Merrill fell. While Merrill estimated between 12 and 24 ounces of water was coming from 

beneath the pallet, Brewster testified that the amount may have been just a few ounces. 

Either way, both women testified that the water was not observable as they walked around 

the endcap. Thus, whether the water was discoverable by ordinary inspection is a genuine 

issue of material fact that must be determined at trial. 

{¶ 28} After reviewing the record, and mindful of our obligation to construe the factual 

significance of evidence in favor of the nonmoving party, we find that there exist genuine 

issues of material fact that require further litigation. As such, the trial court erred in granting 

summary judgment, and Merrill's sole assignment of error is sustained. 

{¶ 29} Judgment reversed, and the cause is remanded for further proceedings 

consistent with this opinion. 

 

RINGLAND and HENDRICKSON, JJ., concur.