2013 Ohio 4629
Ohio Ct. App.2013Background
- Mary Harden, a 76‑year‑old tenant at Villas of Cortland Creek, slipped on black ice in a painted pedestrian crossway between two handicapped parking spaces and fractured her hip on January 1, 2009.
- The crossway contained a shallow trough channeling water from an adjacent field to a parking‑lot drain; Harden felt water and black ice beneath her when she fell.
- Harden sued the community owners/developers/contractors and others for premises liability asserting the trough created an unnatural accumulation of ice (a construction/maintenance defect).
- The defendants moved for summary judgment arguing the hazard was open and obvious and that natural accumulations of ice create no duty.
- The trial court granted summary judgment to all defendants; Harden appealed, arguing disputes of fact existed as to whether the ice was an ‘‘unnatural accumulation’’ caused by defendants’ conduct.
- The appellate court affirmed, holding darkness and the open‑and‑obvious doctrine defeated any duty despite an architect’s affidavit claiming code violations and an alleged construction defect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a genuine issue exists that the ice was an "unnatural accumulation" caused by a construction defect | Zimmerman affidavit: trough violated code/guidelines and created an unnatural ice accumulation | Ice was natural accumulation; even if trough existed, darkness and open‑and‑obvious nature negate duty | Court: Zimmerman raised factual dispute on unnatural accumulation, but disposition rests on open‑and‑obvious/no duty due to darkness; plaintiff's assignment of error fails |
| Whether the open‑and‑obvious doctrine precludes defendants’ duty | Harden: code violations/defect could except the hazard from being open and obvious | Defendants: hazard (and darkness) were open and obvious; landowner owes no duty for natural accumulations | Court: open‑and‑obvious doctrine applies; darkness itself is open and obvious and relieves defendants of duty |
| Whether violations of building code establish negligence per se or defeat open‑and‑obvious defense | Harden: code violations are strong evidence of negligence and support claim | Defendants: Lang holds code violations do not preclude open‑and‑obvious defense; violations are not negligence per se | Court: Lang controls — code violations are strong evidence but do not prevent assertion of open‑and‑obvious defense; plaintiff’s theory fails to create duty |
| Whether summary judgment was appropriate | Harden: factual issues remain so summary judgment is improper | Defendants: record supports no duty as a matter of law; summary judgment proper | Court: Affirmed summary judgment for defendants |
Key Cases Cited
- Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120 (Ohio 2009) (building‑code violations do not preclude the open‑and‑obvious defense; violations are strong evidence of negligence)
- Marshall v. Plainville IGA, 98 Ohio App.3d 473 (Ohio Ct. App.) (landowner ordinarily owes no duty to remove natural accumulations of ice and snow)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (standard for appellate review of summary judgment)
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (Ohio 1978) (elements for granting summary judgment under Civ.R. 56)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (burden shifting framework for summary judgment)
- Keeton v. Telemedia Co. of S. Ohio, 98 Ohio App.3d 405 (Ohio Ct. App.) (procedural note on continuation of appeal after appellant’s death)