[Cite as Foradis v. Marc Glassman, Inc., 2016-Ohio-5235.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 103454 

ANGELA FORADIS, ET AL.

PLAINTIFFS-APPELLANTS 

vs.

MARC GLASSMAN, INC.

DEFENDANT-APPELLEE 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-14-820396 

BEFORE: Celebrezze, J., E.A. Gallagher, P.J., and Stewart, J. 

RELEASED AND JOURNALIZED: August 4, 2016 
ATTORNEY FOR APPELLANTS

Earl F. Ghaster 

Kubyn & Ghaster 

8373 Mentor Avenue 

Mentor, Ohio 44060 

ATTORNEY FOR APPELLEE

John C. Meros 

Schulman, Schulman & Meros 

55 Public Square 

Suite 1055 

Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.: 

{¶1} Appellants, Angela and Gus Foradis, appeal the grant of summary judgment 

in favor of Marc Glassman, Inc. (“Marc’s”), disposing of the Foradises’ premises liability 

complaint. The Foradises argue that the trial court committed prejudicial procedural 

errors when ruling on the motion for summary judgment and that there are genuine issues 

of material fact regarding the cause of Angela’s slip and fall at a Marc’s store in 

Willoughby Hills, Ohio. After a thorough review of the record and law, this court 

affirms. 

I. Factual and Procedural History

{¶2} On July 5, 2010, Angela arrived at the Loehmann’s Plaza Marc’s location 

soon after opening. She was there shopping for produce and some toiletry items for her 

husband. Video surveillance cameras in the store captured a portion of her shopping trip 

that day. Angela can be seen in the video walking by the doors that separate the produce 

department from the produce warehouse. As she walks by, her right foot slides forward 

along the ground. As her right leg extends outward, her left knee comes down, striking 

the ground. Angela is helped up by a customer and a store employee. She can be seen 

walking over to a nearby line of crates and sitting while a customer talks to her. 

According to deposition testimony, Angela then leaves the store unassisted. 

{¶3} Later that day, Angela goes to a nearby hospital and is diagnosed with 

fractures of her left knee and ankle, both requiring surgery. 
{¶4} On January 17, 2014, the Foradises filed a complaint seeking to recover for 

injuries alleged to have occurred as a result of her fall. The case wound its way through 

discovery and several witnesses and store employees were deposed in this case. As a 

result of evidence produced in discovery, the Foradises sought to amend their complaint 

to add a spoliation of evidence claim. This was initially denied by the trial court, but 

later granted. When the court granted leave to file the amended complaint, it indicated 

that the pending dispositive motions were moot. After Marc’s filed its answer, it filed 

new motions for summary judgment, one addressing Counts 1 and 2 of the complaint, and 

one addressing the newly added spoliation claim in Count 3. The Foradises sought to 

have Marc’s motion regarding Counts 1 and 2 stricken for being different than the motion 

filed prior to the filing of the amended complaint. The Foradises also filed opposition to 

Marc’s motion for summary judgment, but only addressed Count 3. The court issued an 

opinion granting summary judgment in favor of Marc’s on all claims after the time for 

filing dispositive motions had passed, and one day after the court denied the motion to 

strike. 

{¶5} The Foradises then filed the instant appeal assigning four errors for review: 

I. The Trial Court erred to the prejudice of [the Foradises] by abusing its 

discretion in failing to strike the Motion for Summary Judgment on Counts 

One and Two of the Amended Complaint and in failing to provide 

Appellants the opportunity to file a brief in opposition to said motion after 

simultaneously denying the Motion to Strike. 

II. The Trial Court erred to the prejudice of [the Foradises] by granting 

[Marc’s] Motion for Summary Judgment on Count One of the Amended 

Complaint (Negligence) based upon its erroneous analysis in failing to 
accept the facts set forth by the [the Foradises] pursuant to Rule 56 of the 

Ohio Rules of Civil Procedure. 

III. The Trial Court erred to the prejudice of [the Foradises] by granting 

[Marc’s] Motion for Summary Judgment on Count One (Negligence) of the 

Amended Complaint as genuine issues of material fact existed as to whether 

the spilt [sic] water that caused the subject incident was placed there by 

employees of [Marc’s], so as to impose liability, and whether [Marc’s] had 

constructive notice thereof. 

IV. The Trial Court erred to the prejudice of [the Foradises] by granting 

[Marc’s] Motion for Summary Judgment on Count Three (Spoliation of 

Evidence) as genuine issues of material fact exist as to whether [Marc’s] 

employee engaged in intentional and wrongful conduct designed to disrupt 

[the Foradises’] case, as to impose liability. 

II. Law and Analysis 

A. Motion to Strike

{¶6} First, the Foradises claim that the court abused its discretion when it failed 

to strike Marc’s motion for summary judgment addressing negligence and loss of 

consortium because it varied from the motion previously filed by adding additional 

arguments and evidence. Citing inapplicable case law, the Foradises claim that Marc’s 

was required to file the same summary judgment motion or was prevented from adding 

new evidence or making new arguments. 

{¶7} The Foradises claim that the trial court “abused its discretion by offering 

[Marc’s] the opportunity to refine and rewrite its arguments and even add additional 

arguments and evidence, all of which were available at the time the original Reply Brief 

was filed.” Appellant’s brief at 21. The trial court did not do this. When the Foradises 

filed an amended complaint, the trial court ruled the pending dispositive motions were 
moot. This meant the parties were free to file new dispositive motions in compliance 

with the court’s new schedule. The Foradises rely on case law dealing with new 

arguments or evidence filed in a reply or supplemental motion for summary judgment. 

E.g., Lawson v. Mahoning Cty. Mental Health Bd., 7th Dist. Mahoning No. 10 MA 23, 

2010-Ohio-6389; Smith v. Ray Esser & Sons, Inc., 9th Dist. Lorain No. 10CA009798, 

2011-Ohio-1529. However, these cases are inapplicable to the present situation. 

{¶8} The reasoning supporting limiting new arguments or evidence in a reply or 

supplemental brief in support of summary judgment is that the non-moving party does not 

have an adequate opportunity to respond under the Civil Rules of Ohio. Ray Esser & 

Sons at ¶ 15. Civ.R. 56(C) does not provide for the right to a surreply, leaving a party 

ambushed by new arguments in a reply brief with no opportunity to respond. This 

rationale is not implicated in this case because the Foradises had sufficient opportunity to 

respond in a brief in opposition. There is no case law or civil rule supporting the 

proposition that a party may not file a motion for summary judgment different from one 

previously filed that was deemed to be moot because a party filed an amended complaint. 

 There is no surprise or prejudice in such a situation. 

{¶9} The trial court did not abuse its discretion when it denied the Foradises’ 

motion to strike as it was not based on any civil rule, local rule, or reasonable extension of 

a rule of law. 
{¶10} The Foradises also argue in their first assignment of error that the trial court 

did not give them a meaningful opportunity to respond to Marc’s motion for summary 

judgment. 

{¶11} At a pretrial conference held on February 23, 2015, the trial court set a 

schedule for dispositive motions after it granted the Foradises leave to file an amended 

complaint. That schedule provided the parties with the opportunity to file dispositive 

motions by April 10, 2015. On that date, Marc’s filed motions for summary judgment. 

By rule, the Foradises had 28 days to respond according to Civ.R. 56(C) and 30 days 

according to the trial court’s local rules. Loc.R. 11 of the Court of Common Pleas of 

Cuyahoga County, General Division. In response, they filed a motion to strike and a 

brief in opposition addressing the newly added claim only. The trial court did not rule on 

these motions for some time. This gave the Foradises more time to file a response to 

Marc’s motion on the other two claims. While it is only conjecture that the trial court 

would have accepted a brief in opposition outside of rule, what is not conjecture is that 

the Foradises never filed an opposition during the roughly four months that transpired 

before the trial court granted Marc’s motions on August 3, 2015. 

{¶12} The Tenth District Court of Appeals has held: 

“[w]hen a party has moved for summary judgment at a time when that 

motion may only be filed by leave of court, see Civ.R. 56(A) and (B), the 

nonmoving party must preserve his or her rights by timely filing either a 

motion to strike or a response to the summary judgment motion.” Maple 
Street Living Trust [v. Spada, 9th Dist. Summit Nos. 20736 and 20737, 

2002-Ohio-3173] ¶ 11. If the non-moving party chooses to file a timely 

motion to strike and the trial court then denies that motion, “the court must 

give the nonmoving party the opportunity to respond to the merits of the 

summary judgment motion.” Id. Under these circumstances, the court 

concluded that “[c]learly, ‘it would be unreasonable to require the 

nonmoving party to bear the expense of fully responding to an untimely 

motion for summary judgment when the court has not determined that it 

will even allow the motion.’” Id., quoting Donovan [v. Mushkat, 9th Dist. 

Summit No. 17262, 1995 Ohio App. LEXIS 5343 (Dec. 6, 1995)]. Accord 

Capital One Bank v. Toney, [7th Dist.] Jefferson No. 06 JE 28, 

2007-Ohio-1571 (reversing summary judgment where trial court granted 

judgment four days after it granted leave to file motion instanter and stating 

that the court’s action violated Civ.R. 56[C] and Hooten [v. Safe Auto Ins. 

Co., 100 Ohio St.3d 8, 2003-Ohio-4829, 795 N.E.2d 648]). 

Cheap Escape Co. v. Tri-State Constr., L.L.C., 173 Ohio App.3d 683, 2007-Ohio-6185, 

880 N.E.2d 122, ¶ 33 (10th Dist.). There are a number of cases that apply this holding to 

motions filed where leave of court is required. E.g., Baker v. Fish, 9th Dist. Summit No. 

19912, 2000 Ohio App. LEXIS 6248 (Dec. 6, 2000); Maple St. Living Trust; Union Sav. 

Bank v. Schaefer, 10th Dist Franklin No. 13AP-222, 2013-Ohio-5704. 
{¶13} In the present case, Marc’s motions were filed within the trial court’s 

deadline, meaning leave of court was not required. The reasoning supporting the 

holdings in the cases previously discussed is not applicable here. Those court decisions 

provide as the justification that a party that files a motion to strike an untimely motion for 

summary judgment should not have to bear the expense of responding where the motion 

may not be accepted by the trial court. 

{¶14} The Foradises did not respond in opposition to the motion for summary 

judgment regarding the first two counts of the complaint within four months. They were 

provided with a sufficient opportunity to respond and the failure to do so was entirely 

theirs. The first assignment of error is overruled. 

B. Summary Judgment

{¶15} In their second assignment of error, the Foradises claim the trial court 

misapplied the summary judgment standard when it ruled in favor of Marc’s. They 

further argue in their third assignment of error that there are genuine issues of material 

fact precluding summary judgment as to their negligence claim. Finally, in their fourth 

assignment of error, they assert Marc’s was not entitled to summary judgment in the 

spoliation claim. 

I. Summary Judgment Standard Applied

{¶16} Civ.R. 56(C) provides in part: 

Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, 
transcripts of evidence, and written stipulations of fact, if any, timely filed 

in the action, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to judgment as a matter of law. No 

evidence or stipulation may be considered except as stated in this rule. A 

summary judgment shall not be rendered unless it appears from the 

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

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

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

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

most strongly in the party’s favor. 

{¶17} The inquiry in summary judgment is “whether the evidence presents a 

sufficient disagreement to require submission to a jury or whether it is so one-sided that 

one party must prevail as a matter of law.” Grau v. Kleinschmidt, 31 Ohio St.3d 84, 91, 

509 N.E.2d 399 (1987). 

{¶18} Under Civ.R. 56(C), the moving party must persuade the court that no 

genuine issue of material fact exists and is entitled to judgment. Celotex Corp. v. 

Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, nonmoving 

parties may not merely rely on the pleadings, but must produce evidence permitted by 

Civ.R. 56(C) sufficient to establish a material question of fact exists that precludes 

judgment as a matter of law. Motes v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 

97090, 2012-Ohio-928, ¶ 5. 
The non-moving party must produce more than a mere scintilla of evidence 

to support his claims. [Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 

106 S.Ct. 2505, 91 L.Ed.2d 202, (1986)]. Furthermore, if the moving party 

has demonstrated that the non-moving party’s claim is factually 

implausible, then the non-moving party must produce more persuasive 

evidence to support his claim. Matsushita Elec. Indus. Co., Ltd. v. Zenith 

Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 [(1986)]. 

Paul v. Uniroyal Plastics Co., 62 Ohio App.3d 277, 282, 575 N.E.2d 484 (6th Dist.1988). 

 This court reviews decisions on summary judgment de novo, independently reviewing 

the record and arriving at our own conclusions without deference to the trial court’s 

decision. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). 

{¶19} The Foradises claim that the trial court failed to review the evidence and 

record in a light most favorable to them as required by Civ.R. 56. They point to the fact 

that Angela’s deposition established that a puddle of water existed on the floor that 

caused her to slip and fall and that the trial court discounted this testimony. However, a 

review of the record, evidence, and the trial court’s written opinion does not indicate that 

the court misapplied the summary judgment standard. 

{¶20} A review of the deposition testimony submitted to the trial court shows that 

Angela was the only person that affirmatively stated seeing a puddle of water on the floor 

near where she fell. All other deposed witnesses, including store employees and an 

independent bystander did not see this puddle. The video produced by Marc’s in 

discovery does not evidence that anyone cleaned up any moisture on the floor after the 

fall and no one else is seen having difficulty traversing the area where Angela stated a 

puddle of water existed. 
{¶21} The Foradises attempt to use Angela’s deposition testimony to establish that 

a genuine issue of material fact exists for trial, i.e. the existence of water on the floor. 

However, that is not the only factor in a successful negligence action in premises liability. 

 Such a cause of action requires a plaintiff to demonstrate more than the existence of a 

hazard. As the trial court recognized in its decision, Angela’s deposition testimony, 

although entirely unsupported and contradicted by other deposition testimony including a 

third-party bystander, created the inference that a puddle of water existed. The trial 

court’s decision states in part, 

On July 5, 2010 plaintiff Angela Foradis (Foradis) was a business invitee of 

defendant Marc Glassman Inc. (Marc’s) in Loehmann’s Plaza in 

Willoughby Hills, Ohio. While pushing her cart through the produce 

section, her right leg slipped and she hit her left knee and ankle on the floor. 

 (Foradis depo. Pps. 23, 26.) Foradis was wearing flip flops at the time 

that she slipped. (Foradis depo. Pps. 53-54.) According to Foradis, she 

did not see anything on the floor prior to slipping, but when she stood up 

she saw water on the floor. (Foradis depo. Pps. 29; 32.) Foradis did not see 

anyone from Marc’s spill the water, nor does she know how the water got 

there. In addition, Foradis does not know how long the water was on the 

floor before she fell or if anyone from Marc’s knew about the water. 

(Foradis depo. Pps. 40; 42.) Contrary testimony from a current Marc’s 

employee, Edward Kozelka, and from former employees, Alex Calarco and 

Andrea Oliver, as well as from a disinterested third party * * * is that there 

was no water on the floor in the location where Foradis slipped. (Kozelka 

depo. Pps. 37-38, 53; Calarco depo. Pps. 71-72; Oliver depo. Pps. 35-36; 

Mroz depo. Pps. 21-22; 46-47.) 

{¶22} The trial court appropriately summarized the evidence and went on to set 

forth that the existence of a puddle of water on the floor was not the issue that the 

Foradises failed to demonstrate. The trial court, in setting forth its reason for granting 

summary judgment, acted as though that was a fact in dispute: 
[Angela] Foradis has alleged but has failed to present any evidence that a 

Marc’s employee had actual or constructive knowledge of the water on the 

floor. She denied having personal knowledge of any evidence of actual or 

constructive notice by an employee of Marc’s in her deposition; and, in fact, 

there is no witness other than Foradis who saw water on the floor. 

Accordingly, Foradis cannot recover upon her cause of action for 

negligence in count one. 

{¶23} Therefore, the trial court did not improperly apply the summary judgment 

standard. The second assignment of error is overruled. 

ii. Premises Liability and Loss of Consortium 

{¶24} The parties agree in this case that Angela was a business invitee on the date 

in question. When that is the case, 

a business premises owner or occupier possesses the duty to exercise 

ordinary care in maintaining its premises in a reasonably safe condition, 

such that its business invitees will not unreasonably or unnecessarily be 

exposed to danger. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio 

St.3d 203, 203, 480 N.E.2d 474, 475. A premises owner or occupier is not, 

however, an insurer of its invitees’ safety. Id. 

Asmis v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 82932, 2003-Ohio-6499, ¶ 24. 

“They ‘must also inspect the premises to discover possible dangerous conditions of which 

[the owner or occupier] does not know, and take reasonable precautions to protect the 

invitee from dangers which are foreseeable from the arrangement or use.’” (Brackets 

sic.) Accardi v. Speedway Superamerica LLC, 8th Dist. Cuyahoga No. 87209, 
2006-Ohio-3718, ¶ 11, quoting Perry v. Eastgreen Realty Co., 53 Ohio St.2d 51, 52, 372 

N.E.2d 335 (1978). 

{¶25} In order to prevail, the Foradises must demonstrate, 

“‘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 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.’” 

Id. at ¶ 26-31, quoting 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). 

{¶26} Here, there is no evidence that Marc’s employees knew of the existence of 

any water on the floor, caused that water to be present, or failed to take corrective action 

to remedy a puddle of water within a reasonable amount of time. The Foradises attempt 

to establish a negligence claim by asserting the possibility that water dripped from one of 

the produce carts that were in the area or were used earlier to move produce from the 

warehouse to the shopping section of the store. They attempted to assert that melting ice 

from produce boxes was the likely culprit. But no such evidence exists, and it is pure 

speculation that such an event caused a puddle of water to accumulate on the floor outside 

of the produce warehouse doors. Marc’s went to great lengths to demonstrate that only a 
few types of produce, broccoli rapini and broccoli crowns, were shipped with ice. Matt 

Kellums, a Marc’s store employee, testified that the Marc’s store in question did not 

receive a shipment of rapini or crowns on July 1, 2, 3, or 4, or the day of Angela’s fall on 

July 5, 2010. While identifying the source of a puddle of water on the floor is not 

necessary in every case, there has to be some evidence, or the existence of a reasonable 

inference from which a finder of fact could derive liability. See Motes, 8th Dist. 

Cuyahoga No. 97090, 2012-Ohio-928, at ¶ 17-23. 

{¶27} As the trial court found, the Foradises have failed to come forward with 

evidence to rebut that produced by Marc’s that would establish a genuine issue of 

material fact for trial. The trial court properly applied the summary judgment standard to 

arrive at a conclusion shared by this court. That is, there are no genuine issues of 

material fact precluding judgment as a matter of law in favor of Marc’s. As the loss of 

consortium claim is dependent on the negligence claim, it necessarily fails as a result. 

The third assignment of error is overruled. 

iii. Spoliation of Evidence

{¶28} The Foradises finally claim in their fourth assignment of error that the trial 

court erred in granting summary judgment in their claim for spoliation of evidence. This 

claim rests on the fact that a Marc’s employee did not preserve video surveillance footage 

for a sufficient length of time prior to Angela’s fall. 
{¶29} A plaintiff is under a duty to preserve evidence that it knows or reasonably 

should know is relevant to an action. The elements necessary to show a breach of that 

duty in Ohio are: 

(1) pending or probable litigation involving the plaintiff, (2) knowledge on 

the part of defendant that litigation exists or is probable, (3) willful 

destruction of evidence by defendant designed to disrupt the plaintiff’s case, 

(4) disruption of the plaintiff’s case, and (5) damages proximately cause by 

the defendant’s acts. 

Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28, 29, 615 N.E.2d 1037 (1993). 

Ohio requires willful or purposeful destruction of evidence. White v. Ford Motor Co., 

142 Ohio App.3d 384, 387, 755 N.E.2d 954 (10th Dist.2001). “[W]illful necessarily 

contemplates more than mere negligence or failure to conform to standards of practice, 

but instead anticipates an intentional, wrongful act.” Id. at 388. 

{¶30} First, Marc’s asserts that at the time of the accident, litigation was not 

reasonably foreseeable. Following the incident, Angela left the store on her own, 

without assistance, and didn’t indicate she required medical attention or intended to sue. 

Despite this, video of Angela’s fall was preserved pursuant to Marc’s internal policies. 

{¶31} Marc’s has a policy in place to retrieve video surveillance footage and 

preserve it as part of their loss prevention policy. Michael Santarelli, District Loss 

Prevention Manager for Marc’s, testified that he followed this policy when he went to the 

store in question a few days after the reported fall and preserved video prior to and after 
the fall. He did this by transferring the digital video recording from the store security 

system to a disk. The footage not transferred was overwritten as is standard industry 

practice with video systems. The Foradises claim that Santarelli should have preserved 

all the video recorded by that particular camera that morning leading up to the fall. 

{¶32} The video of Angela’s fall was preserved. Further, Santarelli testified other 

than hearing that someone fell, he did not receive any information about the situation 

prior to reviewing the video. He did not review footage of the accident area prior to 

around the time of fall. He therefore, did not intentionally delete footage that showed 

Marc’s or its employees were negligent. There was no intentional, willful destruction of 

relevant evidence. Santarelli preserved the video evidence of the fall and everyone 

walking around the scene of the accident immediately after. 

{¶33} In response, the Foradises have not produced anything to rebut the 

deposition testimony and lack of awareness of pending litigation. Therefore, there is no 

genuine issue of material fact that Marc’s and its employees did not willfully destroy 

evidence. The fourth assignment of error is overruled. 

III. Conclusion

{¶34} The trial court did not err in denying the Foradises’ motion to strike. The 

trial court also correctly determined that the Foradises failed to rebut the evidence 

produced by Marc’s that demonstrated that the Foradises could not set forth a successful 

claim for negligence, loss of consortium, and spoliation of evidence. This court’s 

independent review of the record leads to the same conclusion. 
{¶35} Judgment affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

_________________________________________________________ 

FRANK D. CELEBREZZE, JR., JUDGE 

EILEEN A. GALLAGHER, P.J., and 

MELODY J. STEWART, J., CONCUR