[Cite as Carlo v. Kohl's Dept. Stores, Inc., 2017-Ohio-8173.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 105725 

MARY ANN CARLO, ET AL.

PLAINTIFFS-APPELLANTS 

vs. 

KOHL’S DEPARTMENT STORES, INC. 

DEFENDANT-APPELLEE 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-16-862410 

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

RELEASED AND JOURNALIZED: October 12, 2017 
ATTORNEY FOR APPELLANT

Mark S. Fishman 

526 Superior Avenue, Suite 210 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEES 

FOR KOHL’S DEPARTMENT STORES INC. 

Bradley A. Wright 

Nicholas Pavel Resetar 

Roetzel & Andress Co. L.P.A. 

222 S. Main Street, Suite 400 

Akron, Ohio 44308 

FOR KELLERMEYER BERGENSONS SERVICES, L.L.C. 

Tracey S. McGurk 

Mansour Gavin L.P.A. 

North Point Tower 

1001 Lakeside Avenue, Suite 1400 

Cleveland, Ohio 44114 
EILEEN A. GALLAGHER, P.J.: 

{¶1} Plaintiffs-appellants Mary Ann Carlo and David Carlo appeal from the 

judgment of the Cuyahoga County Court of Common Pleas granting summary judgment 

in favor of defendants-appellees Kohl’s Department Stores, Inc. (“Kohl’s”) and 

Kellermeyer Bergensons Services, L.L.C. (“KBS”). For the following reasons, we 

affirm. 

Facts and Procedural Background 

{¶2} On June 1, 2013, Mary Ann Carlo, her husband David Carlo and their 

granddaughter Chelsea Kosinar entered the Kohl’s department store in Strongsville and 

separated once inside the store. After completing her shopping, Mary Ann was walking 

down the main aisle toward David and Chelsea when she slipped and fell, injuring her left 

knee. David, Chelsea and store employees converged on the spot of Mary Ann’s fall 

and noted the presence of brightly colored candy similar to M&Ms on the tile floor of the 

main aisle. Witnesses could not agree as to whether it was a single piece of candy or 

several spread across the aisle. 

{¶3} Appellants filed a complaint alleging negligence and loss of consortium 

against Kohl’s and KBS, the company that was responsible for the cleaning and 

maintenance of the Kohl’s store. Kohl’s and KBS answered and later filed motions for 

summary judgment asserting that Mary Ann’s injury resulted from an open and obvious 

condition. Kohl’s and KBS further argued that there was no evidence that Kohl’s or 

KBS had actual or constructive knowledge of the hazard. 
{¶4} The trial court granted appellees’ motions for summary judgment finding that 

(1) the spilled candy was an open and obvious hazard that was reasonably and easily 

observable and (2) appellants were unable to establish that Kohl’s or KBS employees 

knew of or should have known of the hazard. 

Law and Analysis

{¶5} In their sole assignment of error, appellants argue that the trial court erred in 

granting summary judgment in favor of Kohl’s and KBS. 

{¶6} Our review of a trial court’s grant of summary judgment is de novo. Grafton 

v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Pursuant 

to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine issue of 

material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) 

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

nonmoving party, said party being entitled to have the evidence construed most strongly 

in his favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, 653 

N.E.2d 1196, paragraph three of the syllabus; Zivich v. Mentor Soccer Club, 82 Ohio 

St.3d 367, 1998-Ohio-389, 696 N.E.2d 201. The party moving for summary judgment 

bears the burden of showing that there is no genuine issue of material fact and that it is 

entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 

1996-Ohio-107, 662 N.E.2d 264. 

{¶7} To defeat a motion for summary judgment on a negligence claim, the 

nonmoving party must establish that a genuine issue of material fact remains as to 
whether (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached 

that duty; and (3) the breach of duty proximately caused the plaintiff’s injury. Texler v. 

D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 1998-Ohio-602, 

693 N.E.2d 271. 

{¶8} There is no dispute that Carlo was a business invitee. An owner or occupier 

of the premises owes its business invitees a duty of ordinary care in maintaining the 

premises in a reasonably safe condition and has the duty to warn its invitees of latent or 

hidden dangers. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 

(1985). A premises owner is obligated to warn invitees of latent or concealed dangers if 

the owner knows, or has reason to know, of hidden dangers. Rogers v. Sears, Roebuck & 

Co., 1st Dist. Hamilton No. C-010717, 2002-Ohio-3304. Where a hazard is not hidden 

from view or concealed and is discoverable by ordinary inspection, a trial court may 

properly sustain a motion for summary judgment made against the claimant. Parsons v. 

Lawson Co., 57 Ohio App.3d 49, 566 N.E.2d 698 (5th Dist.1989). 

{¶9} A business owner is not an insurer of its invitee’s safety. Paschal v. Rite Aid 

Pharmacy, Inc., 18 Ohio St.3d 203, 203, 480 N.E.2d 474, 475 (1985). In order for a 

plaintiff to recover damages from a slip and fall accident as a business invitee, one of the 

following must be established: 

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.” 

Asmis v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 82932, 2003-Ohio-6499, ¶ 27-30, 

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

669 (8th Dist.1995), citing Johnson v. Wagner Provision Co., 141 Ohio St. 584, 589, 49 

N.E.2d 925 (1943). 

{¶10} We need not reach the question of whether the candy in this instance 

constituted an open and obvious hazard because appellants are unable to demonstrate 

actual or constructive knowledge on the part of either Kohl’s or KBS regarding the 

hazard. 

{¶11} In this matter, appellees’ motions for summary judgment demonstrated that 

there were no genuine issues of material fact, and that appellants could not establish any 

of the foregoing elements from which to infer a want of ordinary care. There is no 

evidence in the record to establish that an employee of either Kohl’s or KBS caused the 

candy hazard in this instance. Nor is there any evidence that a Kohl’s or KBS employee 

had notice of the hazard and failed to remove it or provide notice of it. Finally, Mary 

Ann conceded in her deposition testimony that she had no knowledge of how long the 

candy had been on the floor. Therefore, she is unable to demonstrate that the hazard 

existed for a sufficient length of time to establish constructive knowledge on the part of 

Kohl’s or KBS. 
{¶12} Appellant argues that the location of the candy, on the floor of the store’s 

main aisle, creates a question of material fact as to constructive knowledge. However, 

where a plaintiff relies on constructive notice of the existence of a foreign substance on 

the floor, the plaintiff must come forward with some evidence concerning how long the 

substance existed on the floor. Burke v. Giant Eagle, Inc., 8th Dist. Cuyahoga No. 

105058, 2017-Ohio-4305, ¶ 13, citing Corrado v. First Natl. Supermarkets, 8th Dist. 

Cuyahoga No. 69362, 1996 Ohio App. LEXIS 1797, 8 (May 2, 1996), citing Combs, 105 

Ohio App.3d at 30, 663 N.E.2d 669. “[A]n injured party may not rely on mere speculation 

and conjecture to attempt to demonstrate that a foreign substance had been present for a 

sufficient period of time to give a shopkeeper or his employees constructive notice of it.” 

Calabrese v. Romano’s Macaroni Grill, 8th Dist. Cuyahoga No. 94385, 2011-Ohio-451, ¶ 

19, quoting Barnes v. Univ. Hosp. of Cleveland, 8th Dist. Cuyahoga No. 66799, 1994 

Ohio App. LEXIS 3231 (July 21, 1994). With absolutely no evidence of how long the 

candy had been on the floor, appellants’ argument is impermissibly speculative. 

{¶13} Because appellants cannot establish any of the foregoing elements from 

which to infer a want of ordinary care, the trial court did not err in granting summary 

judgment on appellants’ claims. Asmis, 8th Dist. Cuyahoga No. 82932, 

2003-Ohio-6499, at ¶ 31. 

{¶14} Appellants’ sole assignment of error is overruled. 

{¶15} Judgment affirmed. 

It is ordered that appellees recover from appellants the costs herein taxed. 
The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to Cuyahoga County Court of Common 

Pleas 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. 

_______________________________________________ 

EILEEN A. GALLAGHER, PRESIDING JUDGE 

TIM McCORMACK, J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR