[Cite as Venneri v. Glassman, 2013-Ohio-560.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

ELAINE VENNERI, ET AL., 

 PLAINTIFFS-APPELLANTS. 

V. 

MARC GLASSMAN, INC. 

 DEFENDANT-APPELLEE. 

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 CASE NO. 12 MA 73 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 11CV1037 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiffs-Appellants Atty. Robert J. Rohrbaugh II 

4800 Market St., Suite A 

Boardman, Ohio 44512 

For Defendant-Appellee Atty. Marshall D. Buck 

100 Federal Plaza E., Suite 926 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

 

 

 Dated: February 14, 2013 
[Cite as Venneri v. Glassman, 2013-Ohio-560.]

DONOFRIO, J. 

{¶1} Plaintiff-appellant, Elaine Venneri, appeals from a Mahoning County 

Common Pleas Court judgment granting summary judgment in favor of defendantappellee, Marc Glassman, Inc., on her slip-and-fall complaint. 

{¶2} On April 17, 2009, appellant entered Marc’s, a retail store owned by 

appellee. She carried a small plant from outside with her. Appellant was in the 

process of retrieving a shopping cart when she slipped and fell. Appellant stated that 

she slipped and fell on a green plant stem. Appellant claimed that she was injured as 

a result of the fall. 

{¶3} Appellant subsequently filed a negligence complaint against appellee 

alleging appellee breached the duty of care owed to her as a business invitee to 

provide a reasonably safe condition in the store. The complaint also contained a loss 

of consortium claim by appellant’s husband, Louis Venneri. 

{¶4} After taking appellant’s deposition, appellee filed a motion for summary 

judgment alleging no genuine issue of material fact existed and it was entitled to 

judgment as a matter of law. It asserted that any dangerous condition on the floor 

was open and obvious and there was no evidence as to who caused the plant stem 

to be on the floor, how long it was there, or that any employee knew of it. 

{¶5} The trial court granted appellee’s motion. It found that the evidence 

was that appellant did not know who caused the plant stem to be on the floor, did not 

know how long the plant stem was on the floor prior to her fall, and was not aware 

that any store employee knew of the plant stem and failed to clean it up. 

{¶6} Appellant filed a timely notice of appeal on April 11, 2012. 

{¶7} Appellant raises a single assignment of error, which states: 

 THE TRIAL COURT COMMITTED ERROR IN SUSTAINING 

APPELLEE’S MOTION FOR SUMMARY JUDGMENT. 

{¶8} Appellant argues that the trial court should not have granted summary 

judgment to appellee because a factual dispute existed as to whether she slipped 

over a stem from her own plant or whether she slipped on debris already present on 
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the floor. She contends that had the trial court viewed the evidence in the light most 

favorable to her, as it was required to do, it should have found that summary 

judgment was not appropriate in this case. 

{¶9} In reviewing a trial court's decision on a summary judgment motion, 

appellate courts apply a de novo standard of review. Cole v. Am. Industries & 

Resources Corp., 128 Ohio App.3d 546, 552, 715 N.E.2d 1179 (7th Dist.1998). 

Thus, we shall apply the same test as the trial court in determining whether summary 

judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary 

judgment if no genuine issue of material fact exists and when construing the 

evidence most strongly in favor of the nonmoving party, reasonable minds can only 

conclude that the moving party is entitled to judgment as a matter of law. State ex 

rel. Parsons v. Flemming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994). A 

“material fact” depends on the substantive law of the claim being litigated. Hoyt, Inc. 

v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th 

Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 

2505, 91 L.Ed.2d 202 (1986). 

{¶10} A negligence claim requires the plaintiff to prove: (1) duty; (2) breach of 

duty; (3) causation; and (4) damages. Anderson v. St. Francis-St. George Hosp., 

Inc., 77 Ohio St.3d 82, 84, 671 N.E.2d 225 (1996). 

{¶11} In this case, appellant was appellee’s business invitee. Generally, a 

premises owner owes a business invitee a duty to exercise ordinary care and to 

protect the invitee by maintaining the premises in a safe condition. Presley v. 

Norwood, 36 Ohio St.2d 29, 31, 202 N.E.2d 81 (1973); Light v. Ohio University, 28 

Ohio St.3d 66, 67, 502 N.E.2d 611 (1986). In order for a business invitee to show 

that a premises owner breached its duty of care in a case involving a slip and fall 

accident, the invitee must show 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 the 
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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 time 

reasonably to justify the inference that the failure to warn against it or 

remove it was attributable to a want of ordinary care. 

Combs v. First Natl. Supermarkets, Inc., 105 Ohio App.3d 27, 29, 663 N.E.2d 669 

(8th Dist.1995), quoting Johnson v. Wagner Provision Co., 141 Ohio St. 584, 589, 49 

N.E.2d 925 (1943). Additionally, if a plaintiff proves that the defendant or its 

employees created the dangerous condition, the plaintiff does not have to show that 

the defendant had knowledge of the dangerous condition. Baudo v. Cleveland Clinic 

Found., 113 Ohio App.3d 245, 247-248, 680 N.E.2d 733 (8th Dist.1996). 

{¶12} However, a business owner does not owe invitees a duty to warn of 

dangers that are open and obvious. Armstrong v. Best Buy Co. Inc., 99 Ohio St.3d 

79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶5. “Where a danger is open and obvious, a 

landowner owes no duty of care to individuals lawfully on the premises.” Id. at the 

syllabus. That is because the owner may reasonably expect those entering the 

property to discover the dangers and take appropriate measures to protect 

themselves. Simmers v. Bentley Constr. Co., 64 Ohio St.2d 642, 644, 597 N.E.2d 

504 (1992). 

{¶13} In light of the above law, we must consider the evidence in this case. 

The only evidence comes from appellant’s deposition. 

{¶14} Appellant stated that she shops at Marc’s at least once a week. (Dep. 

10). She stated that the lighting in the store is okay and she has never had any 

trouble seeing where she was going in the store. (Dep. 12). On the day she fell, 

appellant stated that the lighting was good and adequate for her to see. (Dep. 17). 

Additionally, the floor was cream-colored and appeared clean. (Dep. 17). 

{¶15} Appellant stated that she walked into the store and went to get a 

“buggy.” (Dep. 19). When she pulled the buggy out, she slipped and “went down 

with the buggy.” (Dep. 19). Appellant stated that a green leaf from a flower caused 
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her to fall. (Dep. 20). Although she did not remember it at her deposition, in the 

incident report that she filled out the day of her fall, appellant stated that she was 

carrying a small plant from outside. (Dep. 21-23; Ex. A). Also in the incident report, 

appellant stated that she slipped on a “stem green from plant.” (Ex. A). Appellant 

stated that the stem was ten to twelve inches long. (Dep. 25). As appellant walked 

into the store, she did not see any green stems on the floor. (Dep. 25). Appellant 

stated that if there was something twelve inches long on the floor, chances are, she 

would have seen it. (Dep. 29). Appellant did not know how long the stem had been 

on the floor and did not know if any store employee was aware that the stem was on 

the floor. (Dep. 29). 

{¶16} The trial court granted appellee summary judgment because it found 

appellant did not know who caused the plant stem to be on the floor, did not know 

how long the plant stem was on the floor prior to her fall, and was not aware that any 

store employee knew of the presence of the plant stem on the floor and failed to 

clean it up. There is no evidence to contest these findings. 

{¶17} Summary judgment was proper in this case, both for the reasons given 

by the trial court and because the plant stem was an open and obvious danger. 

{¶18} Construing the evidence in the light most favorable to appellant, as we 

are required to do, does not create a genuine issue of material fact as to whether the 

plant stem was an open and obvious danger. Appellant stated that she shops at 

Marc’s at least once a week. Thus, she is familiar with the store. According to 

appellant, on the day in question the store was well lit and adequate for her to see. 

Marc’s floor is cream-colored and was clean on the day of her fall. The plant stem 

that appellant allegedly slipped and fell on was green and was ten to twelve inches 

long. A ten-to-twelve-inch-long, green plant stem lying on a clean, cream-colored 

floor in a well-lit store would be open and obvious for anyone to see. 

{¶19} It is important to note that the plaintiff need not actually observe the 

alleged dangerous condition in order for it to be an open and obvious condition under 

the law. Lydic v. Lowe’s Companies, Inc., 10th Dist. No. 01AP-1432, 2002-Ohio-
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5001, ¶10. Instead, “the determinative issue is whether the condition is observable.” 

Id. In this case, the evidence can only be construed in such a way that the condition 

was observable. 

{¶20} Appellant claims a genuine issue of material fact exists as to whether 

the plant stem fell from the plant she was carrying or whether it was already on the 

floor. But while this may be an issue of fact, it is not a genuine issue of material fact 

so as to preclude summary judgment. If the stem fell from the plant appellant carried 

with her, then appellee would not have had a duty to warn appellant of any danger 

because the dangerous stem would have fallen from appellant’s plant just seconds 

before she fell and appellant would be the first to have knowledge of this. And if the 

stem was on the floor prior to appellant approaching the shopping cart area, then, as 

discussed above, it would have been an open and obvious danger. Thus, whether 

the plant stem fell from appellant’s plant or was already on the floor does not create a 

genuine issue of material fact. Summary judgment was proper under either factual 

scenario. 

{¶21} Accordingly, appellant’s sole assignment of error is without merit. 

{¶22} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

Vukovich, J., 

DeGenaro, P.J., 

APPROVED: 

 

Gene Donofrio, Judge