[Cite as Stokes v. Lake Property Mgt., L.L.C. , 2020-Ohio-65.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

DIANE STOKES, : O P I N I O N Plaintiff-Appellant, : CASE NO. 2018-L-073 - vs - : LAKE PROPERTY MANAGEMENT, LLC, : Defendant-Appellee. :

Civil Appeal from the Lake Count y Court of Common Pleas, Case No. 2017 CV 001439.

Jud g ment: Affirmed.

Mark D. McGraw , 820 West Superior Avenue, Suite 800, Cleveland, OH 44113 (For Plaintiff-Appellant )

. Gary L. Nicholson and Mark A. Greer , Gallagher Sharp LLP, Sixth Floor, Bulkley Buildin g , 1501 Euclid Avenue, Cleveland, OH 44115-2108 ( For Defendant-Appellee )

.

TIMOTHY P. CANNON, P.J. {¶1} Appellant, Diane Stokes (“Stokes”), appeals from the summary ju dgment ruling in favor of appellee, Lake Property Management, LLC (“La ke Property”), on all claims in her complaint. The judgment was entered by the Lake County Court of Common Pleas on May 10, 2018. For the following reasons, the trial co urt’s judgment is affirmed. {¶2} Lake Property owns a commercial building, in which the company’ s office is

located. Several commercial tenants are also located in the bu ilding, including Marino’s2 Hair Design (“Marino’s”). Marino’s has been a tenant for more than seventeen years, since before Lake Property purchased the building in 2012. {¶3} Before 2013, most of Marino’s clients entered the building thro ugh a front door, facing the roadway. During that year, Lake Property’s ma naging partner, Mark Cain, paid for the installation of a back door. Marino’s custo mers were able to use the rear parking lot and enter the building through this back door. The back door opens to a common hallway; an entrance to Marino’s is located in that hall way. {¶4} The incident involving Stokes occurred in December 2014. At th at time, Stokes had been a client of Marino’s for five years, where she had an appointment approximately once a week. Stokes is elderly and uses a walker . Although there is a handicap accessible parking area and entrance near Marino’s fro nt door, Stokes consistently used the rear parking lot and entrance after the r ear door was installed. {¶5} On the day at issue, Stokes parked in the rear lot and, using h er walker, entered the building through the rear door without incident. F ollowing her appointment, Stokes exited Marino’s through the common hallway to the rear d oor. After opening the door with her right hand, Stokes used her left hand to push her walker through the doorway. According to Stokes, the door closed quickly and hit her backside, which caused her to fall over the walker and land on the parking lot asphalt. Stokes suffered injuries to multiple parts of her body, including her face, nec k, and shoulder. {¶6} Stokes filed a three-count complaint against Lake Property, all eging (1) negligent installation and maintenance of the rear door, (2) ne gligent failure to warn, and (3) creating and maintaining a nuisance. In part, Stokes alleg es Lake Property was aware3 that the rear door was difficult to open and closed too quickly but did nothing to remedy the problem. {¶7} Lake Property moved for summary judgment, advancing three argum ents. First, Lake Property argued that, as a commercial landlord, it only owed Stokes a duty to refrain from willful and wanton misconduct, and Stokes had not produced any evidence meeting this high standard. Second, Lake Property argued Stoke s failed to produce any evidence that it had notice of any allegedly hazardous conditio n on the property. Finally, Lake Property argued that, to the extent Stokes alleges the doo r was defective, she admittedly knew of the alleged danger and continued to use the door at her own peril. {¶8} In response, Stokes argued that Lake Property owed her a duty o f ordinary care because she was its “business invitee by implied invitatio n” and because she was a “frequenter” of the building. She maintained that Lake Propert y had breached its duty of ordinary care. Further, in relation to her prior knowledge of the danger posed by the door, Stokes referenced her deposition, in which she testified the do or had closed much quicker when she exited the building that day than it ever had in the p ast. {¶9} The trial court granted summary judgment in favor of Lake Prope rty. The court held that Stokes was a licensee, but not a “frequenter”; there was no evidence that Lake Property had engaged in willful and wanton misconduct; and , even if Stokes was a business invitee, she had prior knowledge of the door’s alleged condition. {¶10} Stokes noticed an appeal from this judgment and raises nine ass ignments

of error for our review: [1.] The trial court committed reversible error in determining that [Lake Property] was a commercial landlord out of possession and control of the place of injury.4 [2.] The court committed reversible error in determining that t here was no evidence before the court that [Lake Property] was in possession and control of the area of the injury. [3.] The trial court committed reversible error in determining that [Stokes] was not a business invitee of [Lake Property] by impli ed invitation. [4.] The trial court committed reversible error in finding that [Stokes] was not a frequenter of the building * * *. [5.] The trial court committed reversible error in finding that [Lake Property’s] only duty of care was to refrain from willfully and wantonly injuring plaintiff. [6.] The trial court committed reversible error in finding ther e was no evidence [Lake Proper ty] behaved in a willful and/or wanton man ner. [7.] The trial court committed reversible error in finding that [Stokes’] claims fail because she had prior knowledge of the door. [8.] The trial court committed reversible error in failing to r ule on [Stokes’] third cause of action for nuisance in its Judgment En try granting summary judgment to the defendant. [9.] The trial court committed reversible error in not ruling o n [Stokes’] claim that [Lake Property] failed to warn [Stokes] of the probl ems with the rear door in its Judgment Entry granting summary judgment. {¶11} An appellate court reviews a trial court’s decision to grant su mmary judgment under a de novo standard of review, i.e., “independent ly and without deference

to the trial court’s determination.” Brown v. Cty. Commrs. of Scioto Cty. , 87 Ohio App.3d 704, 711 (4th Dist.1993) (citation omitted); see also Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105 (1996). {¶12} “Civ.R. 56(C) specifically provides that before summary judgmen t may be granted, it must be determined that: (1) [n]o genuine issue as to any material fact remains to be li tigated; (2) the moving party is entitled to judgment as a matter of law ; and (3) it appears from the evidence that reasonable minds can come to5 but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is ma de, that conclusion is adverse to that party. Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327 (1977); see also Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 359 (1992) (“Doubts must be resolved in favo r of the non-moving party.”). {¶13} We collectively address Stokes’ first, second, third, fifth, an d sixth assignments of error, all of which pertain to the duty she was owed by Lake Property at the time of her injuries. {¶14} “It is fundamental that in order to establish a cause of action for negligence, the plaintiff must show (1) the existence of a duty, (2) a brea ch of duty, and (3) an injury proximately resulting therefrom.” Armstrong v. Best Buy Co., Inc. , 99 Ohio St.3d 79, 2003-Ohio-2573, ¶8, citing Menifee v. Ohio Welding Prod., Inc. , 15 Ohio St.3d 75, 77 (1984); Gingrich v. D’Ambrozio , 11th Dist. Trumbull No. 2008-T-0103, 2009-Ohio-2956, ¶18. {¶15} Duty is the threshold determination in every negligence case. Martin v.

Lambert , 4th Dist. Meigs No. 12CA7, 2014-Ohio-715, ¶16, citing Armstrong , supra , at ¶13. “‘Duty, as used in Ohio tort law, refers to the relations hip between the plaintiff and the defendant from which arises an obligation on the part of th e defendant to exercise due care toward the plaintiff.’” Wallace v. Ohio Dept. of Commerce , 96 Ohio St.3d 266, 2002-Ohio-4210, ¶23, quoting Commerce & Industry Ins. Co. v. Toledo , 45 Ohio St.3d 96, 98 (1989). “The existence of a duty is a question of law f or a court to decide, even if resolving that question requires the court to consider the fact s or evidence.” Martin , supra , at ¶17, citing Grover v. Eli Lilly & Co. , 63 Ohio St.3d 756, 762 (1992); Mussivand6 v. David , 45 Ohio St.3d 314, 318 (1989); Ruta v. Breckenridge-Remy Co. , 69 Ohio St.2d 66, 68 (1982); and O’Day v. Webb , 29 Ohio St.2d 215, 219 (1972). {¶16} “It is axiomatic that, under the common law of premises liabili ty, the status of the person who enters upon the land of another ( i.e. , trespasser, licensee, or invitee) defines the scope of the legal duty that the responsible party owes the entrant.” Shump

v. First Continental-Robinwood Assoc. , 71 Ohio St.3d 414, 417 (1994). “Business invitees are persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner.” Light v. Ohio Univ. , 28 Ohio St.3d 66, 68 (1986) (citation omitted). Business invitees are owed a duty of ordinary care: the owner or occupier is to “maintain its premises in a reasona bly safe condition” and “warn invitees of known latent or hidden dangers.” Martin , supra , at ¶18, citing Armstrong , supra , at ¶5. {¶17} When the premises are owned by a landlord and rented by a busin ess owner, the issue of who owes the duty to a business invitee dep ends on who is in possession and control of a given area. See Wireman v. Keneco Distribs., Inc. , 75 Ohio St.3d 103, 108 (1996); Simpson v. Big Bear Stores Co. , 73 Ohio St.3d 130, 132 (1995); Wills v. Frank Hoover Supply , 26 Ohio St.3d 186, 188 (1986) {¶18} When a commercial landlord retains possession and control over common areas of the premises, that landlord owes business invitees of its tenants a duty to exercise ordinary care in those common areas. Sidle v. Humphrey , 13 Ohio St.2d 45 (1968), paragraph four of the syllabus. “In determining the is sue of control between a landlord and tenant, the logical starting point is the lease.” Carrozza v. Olympia Mgt.,

Ltd. , 12th Dist. Butler Nos. CA96-11-228 & CA96-11-234, 1997 WL 538 952, *2 (Sept. 2,7 1997) and McCullion v. Ohio Valley Mall Co. , 7th Dist. Mahoning No. 97 C.A. 175, 2000 WL 179368, *7 (Feb. 10, 2000), both citing Beaney v. Carlson , 174 Ohio St. 409, 412 (1963). {¶19} Article 10.1 of the lease between Lake Property and Marino’s pr ovides: All parking areas, driveways, entrances and exits thereto , sidewalks, ramps, landscaped areas, exterior stairways, and all other Comm on Areas and facilities provided by Landlord for the common use of tenants of the Shopping Center and their officers, agents, empl oyees and customers, shall at all times be subject to the exclusive c ontrol and management of Landlord * * *. Landlord shall have the righ t to operate and maintain the same in such manner as Landlord, in it s sole discretion, shall determine from time to time, including, without limitation, the right to employ all personnel and to make all r ules and regulations pertaining to and necessary for the operation and maintenance of said Common Areas and facilities. [Emphasis added.] {¶20} Construing the lease in a light most favorable to Stokes, Lake Property controlled the rear door. Further, the affidavits and depositi on testimony provide that Lake Property installed the rear door and maintained the entrances a nd exits to the building. Accordingly, Lake Property owed Stokes, as the business invitee of Marino’s, a duty of ordinary care in maintaining the rear door and accompanying com mon area. {¶21} The trial court erred in concluding (1) that Lake Property did not retain possession and control of the place of Stokes’ injury; (2) that Stokes was a licensee of Lake Property at the time she was injured; and (3) that Lake Pr operty owed Stokes no duty except to refrain from willful and wanton misconduct. As a result of this latter holding,

the trial court’s conclusion that there was no evidence Stokes was injured as a result of willful and wanton misconduct is of no consequence. {¶22} Stokes’ first, second, third, fifth, and sixth assignments of e rror have merit.8 {¶23} Under her fourth assignment of error, Stokes challenges the tri al court’s determination that she was not a “frequenter” of the premises, as provided in R.C.

4101.11: Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequente rs thereof, shall furnish and use safety devices and safeguards, s hall adopt and use methods and processes, follow and obey orders, an d prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, s afety, and welfare of such employees and frequenters. A “frequenter” is defined as “every person, other than an emplo yee, who may go in or be in a place of employment under circumstances which render the p erson other than a trespasser.” R.C. 4121.01(A)(5). An “employer” is defined as “every person, firm, corporation, agent, manager, representative, or other person ha ving control or custody of any employment, place of employm ent, or employee.” R.C. 4121.0 1(A)(3). {¶24} “R.C. 4101.11 and 4101.12 are commonly referred to as ‘frequent er’ statutes. The ‘frequenter’ statutes were enacted to benefit em ployees. The subsequent passage of the Ohio Workers’ Compensation Act, however, rendere d these statutes largely obsolete.” Gillotti v. Rimedio , 11th Dist. Trumbull No. 2002-T-0106, 2003-Ohio5708, ¶20, citing Kucharski v. Natl. Eng. Contracting Co. , 69 Ohio St.3d 430, 434 (1994). “Today the ‘frequenter’ statutes are most commonly used by subc ontractors who seek damages from property owners or contractors in privity with the ir employers, who fail to keep their property safe from hazards for ‘frequenters.’” Id. “The Supreme Court of Ohio has clarified that an employer’s duty under the ‘frequenter’ st atutes ‘is no more than a codification of the common-law duty owed by an owner or occupie r of premises to9 invitees, requiring that the premises be kept in a reasonably s afe condition, and that warning be given of dangers of which he has knowledge.’” Id. , quoting Eicher v. United States Steel Corp. , 32 Ohio St.3d 248, 249 (1987). {¶25} Thus, the duty imposed under R.C. 4101.11 is identical to the d uty owed to a business invitee. In light of our disposition above, we conc lude that the issue of whether R.C. 4101.11 applies to the situation at hand is moot. {¶26} Stokes’ fourth assignment of error is moot. {¶27} The trial court’s error with regard to the duty owed to Stokes by Lake Property is not, however, reversible error. As outlined below, Stokes has not demonstrated a genuine issue of material fact with regard to th e alleged breach of duty. {¶28} In her seventh and ninth assignments of error, Stokes argues th e trial court erred in finding she had prior knowledge of the door’s conditio n and in not ruling on her claim that Lake Property failed to warn her of problems with th e rear door. {¶29} The scope of the duty owed by Lake Property depends upon the foreseeability of the resulting harm. “The test for foreseeabi lity is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. The foreseeability of harm usually depends on the defendant’s knowledge.” Menifee , supra , at 77 (internal citations omitted). “Until specific conduct involving an unreasonable risk is made manifes t by the evidence presented, there is no issue to submit to the jury.” Id. (citations omitted). {¶30} In other words, if the cause of Stokes’ injury could not have b een anticipated and avoided or warned against by Lake Property, Stokes cannot s ucceed on her negligence claims. Thus, in determining whether a question of fact exists as to the10 foreseeability of Stokes’ injur y, we should only consider the c ircumstances that Lake Property perceived or should have perceived at the time it acte d or failed to act. See id

. We must also consider the circumstances that Stokes perceived o r should have perceived at the time of her injury. See Sidle , supra , at 48, quoting Prosser, Law of Torts , 403 (3 Ed.1964) (“‘In the usual case, there is no obligation to protec t the invitee against dangers which are known to him * * *. Against such conditions it may n ormally be expected that the visitor will protect himself.’”). {¶31} Stokes alleges she was injured because Lake Property negligentl y installed and maintained the rear door. The only evidentiary materials S tokes offered in this regard are (1) averments from other individuals that the door was heav y and/or closed quickly since its installation and (2) Stokes’ deposition testimony tha t as she exited the building on the day she was injured, the door closed faster than it ever had before. {¶32} There is no doubt Stokes had prior knowledge of her allegations that the door had always been heavy and closed quickly. Stokes had used that door twice a day, once a week, for nearly one year. She testified as to conversa tions with employees and patrons of Marino’s complaining of its heft. Despite its alleg ed unwieldiness, Stokes continued to use the rear door rather than the handicap accessi ble main entrance at the front of the building. Stokes, therefore, cannot succeed on he r negligence claim if she alleges the condition of the door remained unchanged from the d ay it was installed. {¶33} Hence, Stokes relies on her deposition testimony that the condi tion of the door was different on the day of her injury. More specifically , she contends the door performed differently when she used it to exit the building tha n when she had used it to enter the building that same day. She contends, therefore, tha t she did not have prior11 knowledge the door would close as fast as it did on the day of her injury. However, summary judgment cannot be precluded on this basis. Even if St okes did not have prior knowledge, she must still demonstrate a question of fact as to one of the following: ‘1. That the defendant through its officers or employees was responsible for the hazard complained of; or ‘2. That at least one of such persons had actual knowledge of t he hazard and neglected to give adequate notice of its presence or remove it promptly; or ‘3. That such danger had existed for a sufficient length of tim e reasonably to justify the inference that the failure to warn ag ainst it or remove it was attributable to a want of ordinary care.’ Kokinos v. Ohio Greyhound, Inc. , 153 Ohio St. 435, 436-37 (1950), quoting Johnson v. Wagner Provision Co. , 141 Ohio St. 584, 589 (1943). See also Debie v. Cochran Pharmacy-Berwick, Inc. , 11 Ohio St.2d 38, 40 (1967), quoting Englehardt v. Philipps , 136 Ohio St. 73, 78 (1939) (“‘it is the defendant’s superior knowle dge of existing dangers or perils to persons going upon the property which is the basis of liability’”). {¶34} Stokes has not demonstrated her injury was foreseeable such tha t it could have been avoided by an act of, or a warning from, Lake Propert y. Stokes did not provide any evidence that Lake Property caused the door to close faster than it ever had before, or that Lake Property knew or should have known it was going to do so. Stokes herself

testified the door had not closed that fast when she entered th e building that day or on any other day she had used the door. {¶35} Maria Carlone, the owner of Marino’s, testified that “probably about two” of her customers had previously said the door “was a little heavy to open.” When asked if she had any difficulty coming in or going out the rear door, Ms . Carlone testified she had not. When asked if any of her employees ever remarked that the door was difficult to12 operate, Ms. Carlone testified she did not remember any of them doing so. This contradicts the affidavit signed by Jessica Brown, an employee of Marino’s, in which Ms.

Brown averred she told Ms. Carlone two or three times that the weight of the door needed to be adjusted. Even if it is true, however, that the owner an d employees of Marino’s received complaints about the door, this does not qualify as no tice to Lake Property. Stokes has not directed us to any case law that suggests notice to a tenant can be imputed to the landlord. In fact, Ms. Carlone testified that s he had refused to sign a statement prepared by Stokes’ counsel because it suggested she told Mark Cain of Lake Property to fix the door. Ms. Carlone has no recollection of e ver speaking to Mr. Cain

about the rear door. {¶36} Stokes’ complaint alleges, including within the third cause of action relating to nuisance, that Lake Property was negligent and/or created a dangerous condition as a result of its “installation and maintenance” of the door in que stion. Mr. White, a maintenance person for Lake Property, testified he was familiar with the door both before and after Stokes’ injury and that there was nothing wrong with or unusual about the way the door opened and closed. In Mr. White’s experience with the door, he felt that if anything, the door closed too slowly. This testimony was suffi cient to shift the burden to Stokes to establish a question of fact regarding what it was ab out the door that was defective. Even if Stokes’ version of events is accurate, she presented no evidence whatsoever as to the alleged deficiencies in either installatio n or maintenance of the door. The fact the door may have closed more quickly on that occasion , without more, does not

demonstrate an issue of fact as to defective installation or ma intenance.13 {¶37} Stokes has not provided evidence that demonstrates an issue of fact regarding Lake Property’s alleged breach of its duty of care. {¶38} Stokes’ seventh and ninth assignments of error are without meri t. {¶39} Finally, under her eighth assignment of error, Stokes argues th e trial court erred by failing to rule on her nuisance cause of action, which alleged that Lake Property, “in its installation and maintenance of the rear door, created and allowed to exist a dangerous condition that constituted a nuisance.” {¶40} Lake Property moved for summary judgment in its favor “as to al l of the plaintiff’s claims against it.” Lake Property maintained that Stokes “has not even produced evidence that the door constituted a dangerous conditi on.” The trial court granted summary judgment on Stokes’ complaint in favor of Lake Property. Thus, the

assertion that the trial court did not rule on Stokes’ nuisance claim is inaccurate. {¶41} Further, Stokes could only succeed on her nuisance claim if she was successful on her negligence claims. Stokes alleged facts that , if true, would amount to a “qualified nuisance,” which is “premised upon negligence and is ‘essentially a tort of negligent maintenance of a condition that creates an unreasonab le risk of harm.’” Davis

v. Widman , 184 Ohio App.3d 705, 2009-Ohio-5430, ¶23 (3d Dist.), quoting Kramer v. Angel’s Path, L.L.C. , 174 Ohio App.3d 359, 2007-Ohio-7099, ¶21 (6th Dist.), citing State ex rel. R.T.G., Inc. , v. State , 98 Ohio St.3d 1, 2002-Ohio-6716, ¶59. “A qualified nuisance is a lawful act ‘so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another. ’” Kramer , supra , at ¶21, quoting Metzger v. Pennsylvania, Ohio & Detroit RR. Co. , 146 Ohio St. 406 (1946), paragraph two of the syllabus. “Under such circumstances, the nuisance arises from a14 failure to exercise due care.” Id. , citing Taylor v. City of Cincinnati , 143 Ohio St. 426, 436 (1944). “‘[T]he allegations of nuisance and negligence therefo re merge, as the nuisance claims rely upon a finding of negligence.’” Davis , supra , at ¶23, quoting Allen Freight Lines, Inc. v. Consol. Rail Corp. , 64 Ohio St.3d 274, 276 (1992). {¶42} Based on our conclusion that Stokes cannot succeed on her negli gence claims, it was not error for the trial court to grant summary j udgment on her nuisance claim, as well. {¶43} Stokes’ eighth assignment of error is not well taken. {¶44} The judgment of the Lake County Court of Common Pleas is affirm ed, albeit on different grounds.

CYNTHIA WESTCOTT RICE, J., concurs, THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion.

____________________ THOMAS R. WRIGHT, J., dissents with a Dissenting Opinion. {¶45} I dissent on the seventh and ninth assignments. I would revers e and

remand. {¶46} “[W]e must be mindful that ‘“[s]ummary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary ma terial that reasonable15 minds can reach only an adverse conclusion as to the party oppo sing the motion.”’” (Citations omitted.) Osborne v. Lyles , 63 Ohio St.3d 326, 333, 587 N.E.2d 825 (1992). {¶47} Regarding the seventh assignment, prior knowledge of an injury- causing defect can defeat a negligence claim. Virde v. Stalnaker , 9th Dist. Summit No. 21729, 2004-Ohio-2671, ¶ 16. The trial court concluded that since Sto kes used the door once a week for more than a year, she was fully aware that it was heav y and hard to open. In her deposition, however, Stokes testified that the back door cl osed faster when she was exiting than it ever had in the past and that the force was so great that it bruised her backside. While she acknowledges knowing the door was heavy, s he denies prior knowledge that this door occasionally closed faster than normal . This issue remains for the jury to decide because upon viewing Stokes’ testimony in he r favor, a factual dispute exists regarding her knowledge. {¶48} As to the ninth assignment, I similarly conclude that Stokes ra ises a factual dispute regarding whether Lake Property had constructive notice of the difficulties

associated with the door. {¶49} “‘“Constructive notice requires proof by direct or circumstanti al evidence that the store in the exercise of ordinary care had or should h ave had notice of the condition * * * because of the length of time of its presence * * *.” To demonstrate * * * constructive notice, plaintiff must show that the “danger had e xisted for a sufficient length of time reasonable to justify the inference that the failure to warn against it or remove it was attributable to a want of ordinary care.”’” (Emphasis adde d.) (Citations omitted.) Allen v. 5125 Peno, LLC , 11th Dist. Trumbull No. 2016-T-0120, 2017-Ohio-8941,101 N.E.3d 484, ¶ 60.16 {¶50} Constructive knowledge can be found even if the length of the h azard’s existence has not been significant. Schon v. National Tea Co. , 28 Ohio App.2d 49, 53- 54, 274 N.E.2d 578 (7th Dist.1971); Kokinos v. Ohio Greyhound, Inc. , 153 Ohio St. 435, 92 N.E.2d 386 (1950) (holding evidence that dried vomit with a footprint through it remained on staircase for more than thirty minutes sufficient f or inference of constructive notice); Rist v. Big Bear Stores, Inc. , 10th Dist. Franklin No. 89AP-533, 1989 WL 119970, *2-3 (Oct. 12, 1989) (issue of fact where customer fell on a le ttuce leaf and it was undisputed that the floor was swept every one and one-half hour s); Stillberger v. Great Scot, Inc. , 3d Dist. Hancock No. 5-86-1 (Jan. 13, 1987) (finding issue of fact for jury where employee who mopped denied seeing a red pool of liquid, but who said he mopped “very fast,” and customer fell minutes later). {¶51} Jessica Brown, a former Marino employee, avers in her affidavit that when on break she would sometimes hold the door open “for the beer d elivery man so the door

wouldn’t slam shut on his cart.” Brown states that on more tha n one occasion, she saw the door slam shut on this deliveryman as he tried to push a ca rt through the doorway. Brown also told the salon owner at least twice that “something needed to happen with

that door * * *.” {¶52} Reasonable minds could infer that Lake Property’s lack of knowl edge was attributable to the failure to exercise ordinary care. Thus, s ummary judgment is improper.