2023 Ohio 1551
Ohio Ct. App.2023Background
- On January 1, 2018, Gregory Oliver slipped and fell on an icy sidewalk adjacent to Blocks Bagels (operated by Fox’s Food) after snow the prior day and single-digit temperatures.
- Oliver sustained head, hip, and left-knee injuries and sued Fox’s Food for negligence in October 2019.
- Fox’s Food moved for summary judgment arguing it owed no duty to remove natural snow/ice accumulations (the no-duty winter rule).
- In opposition to summary judgment, Oliver for the first time claimed he was an intended third-party beneficiary of the lease between Fox’s Food and the property owner and argued a contractual duty to clear the sidewalk.
- The trial court granted summary judgment in December 2021, finding no duty under premises-liability law and declining to consider the breach-of-contract theory as it was raised for the first time in opposition.
- Oliver appealed; the Tenth District affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fox’s Food owed a duty to remove/mitigate snow and ice (no-duty winter rule) | Oliver: duty existed because either the accumulation was substantially more dangerous/unnatural or a contractual duty existed | Fox’s Food: no duty for natural accumulations; no evidence of unnatural or substantially more dangerous conditions | Held: No duty; record contains no evidence of an unnatural or unusually dangerous accumulation, so the no-duty winter rule applies |
| Whether Oliver could pursue a breach-of-contract claim as an intended third-party beneficiary of the lease | Oliver: lease created an express contractual duty to keep sidewalk clear and he was an intended third-party beneficiary | Fox’s Food: plaintiff never pleaded a contract claim; theory raised first in response to summary judgment is untimely | Held: Trial court properly declined to consider the contract claim because it was not pleaded and was raised for the first time in opposition to summary judgment |
| Whether the hazardous condition was open and obvious | Oliver: condition was not open and obvious | Fox’s Food: open-and-obvious analysis unnecessary where no duty under the no-duty winter rule | Held: Court did not need to address open-and-obvious because no evidence of an unnatural accumulation; challenge is moot |
Key Cases Cited
- Paschal v. Rite Aid Pharmacy, 18 Ohio St.3d 203 (Ohio 1985) (owner/occupier owes invitees ordinary care but generally no duty to remove natural snow/ice)
- Brinkman v. Ross, 68 Ohio St.3d 82 (Ohio 1993) (reiterating the no-duty winter rule for natural accumulations)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (summary-judgment burden-shifting framework)
- Vahila v. Hall, 77 Ohio St.3d 421 (Ohio 1997) (clarifying nonmoving party’s response requirements to summary judgment)
- State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181 (Ohio 1997) (standard for reviewing Civ.R. 56 motions)
- Mussivand v. David, 45 Ohio St.3d 314 (Ohio 1989) (duty is a question of law for the court)
- Porter v. Miller, 13 Ohio App.3d 93 (6th Dist. 1983) (definition and examples of "unnatural" accumulations)
- Chatelain v. Portage View Condominiums, 151 Ohio App.3d 98 (9th Dist. 2002) (duty to remove natural accumulations can arise by express contract)