2023 Ohio 313
Ohio Ct. App.2023Background
- On December 18, 2019, Grimberg slipped on ice covered by fresh snow in the Blackbird Baking Company parking lot in Lakewood and sued for negligence and negligence per se.
- She alleged the parking lot (owned/managed by Sweet Cheeks) had not been plowed by 9:00 a.m., violating Lakewood Codified Ordinance (L.C.O.) 521.06, and thus constituted negligence per se.
- Discovery revealed Forni Landscaping plowed the lot; its corporate rep initially said the lot was plowed at 5:30 a.m., but police surveillance indicated plowing occurred around 9:30 a.m.; text messages and deposition inconsistencies followed.
- Grimberg moved to amend her complaint to add Forni, Forni Landscaping, the insurer Cincinnati, and adjusters, asserting fraud and conspiracy to deny coverage. The trial court denied leave to amend.
- Both sides filed motions for summary judgment; the trial court denied Grimberg’s motion and granted defendants’ motion, dismissing negligence and negligence-per-se claims. Grimberg appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to amend to add fraud/conspiracy claims and parties | Forni’s inconsistent statements, surveillance, and texts show false statements and a conspiracy to deny coverage; amendment timely and could state claims | Forni’s testimony showed uncertainty not intentional falsity; no evidence of concerted misconduct; Grimberg lacks standing against insurer/adjuster | Denied — plaintiff failed to make prima facie showing of fraud/conspiracy; no standing to sue insurer/adjuster |
| Negligence per se under L.C.O. 521.06 | L.C.O. 521.06 requires removal of snow in business districts by 9:00 a.m.; lot wasn’t plowed by 9:00 so violation and negligence per se | Ordinance governs sidewalks, not private parking lots; it does not impose a 9:00 a.m. parking-lot plowing duty | Denied — ordinance applies to sidewalks; no negligence-per-se proven |
| Ordinary negligence / duty to maintain parking lot | Sweet Cheeks owed invitees ordinary care; alleged pavement depressions and drainage defects created hazardous, unnatural ice accumulation | Any surface irregularities were minor, typical parking-lot conditions; no substantial hidden defect shown; plaintiff knew of general imperfections | Denied relief — plaintiff failed to show a substantial, unusual defect that caused the fall; no actionable breach proven |
| Open-and-obvious / no-duty winter rule and exceptions | The ice was caused by defects/unusual drainage (unnatural accumulation) so exceptions to no-duty-winter rule apply | Natural accumulations of ice/snow are open and obvious; no evidence of a man-made, substantially more dangerous condition | Defendants entitled to judgment — no exception shown; the no-duty winter rule bars recovery absent proof of a substantial hidden or unnatural hazard |
Key Cases Cited
- Wilmington Steel Prods. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120, 573 N.E.2d 622 (trial court may deny amendment when plaintiff fails to make a prima facie showing for new matters)
- Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (ice and snow natural accumulations are ordinarily open and obvious)
- Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (premises owner not insurer of invitees; open-and-obvious doctrine)
- Mikula v. Tailors, 24 Ohio St.2d 48, 263 N.E.2d 316 (significant concealed defects can preclude application of no-duty-winter rule)
- Brinkman v. Ross, 68 Ohio St.3d 82, 623 N.E.2d 1175 (everyone is charged with appreciating risks of natural accumulations of snow/ice)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 671 N.E.2d 241 (de novo appellate review of summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (summary judgment burden-shifting framework)
- Wallace v. Ohio Dept. of Rehab. & Corr., 96 Ohio St.3d 266, 773 N.E.2d 1018 (elements of negligence claim)