ANDY BOUSHACK v. GRISEZ INVESTMENT, L.P., et al.
Case No. 2015 CA 00186
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
February 1, 2016
2016-Ohio-355
Hоn. W. Scott Gwin, P. J.; Hon. Sheila G. Farmer, J.; Hon. John W. Wise, J.
CHARACTER OF PROCEEDING:
APPEARANCES:
For Plaintiff-Appellant: BRETT M. MANCINO, MANCINO CO., LPA, 75 Public Square, Suite 1016, Cleveland, Ohio 44113
For Defendants-Appellees: MARK S. HURA, STAFF COUNSEL FOR CIN. INS. CO., 50 South Main Street, Suite 615, Akron, Ohio 44308
O P I N I O N
Wise, J.
{¶1} Plaintiff-Appellant Andy Boushack appeals the decision of the Court of Common Pleas, Stark County, which granted summary judgment in favor of Defendants-Appellees Grisez Investment, L.P. and Westgate Management in a slip and fall action brought by appellant. The relevant facts leading to this appeal are as follows.
{¶2} On Februаry 18, 2014, appellant was living in an apartment unit in the Lincoln Place Apartments on Beechwood Avenue in North Canton, Ohio. This apartment complex is owned by Appellee Grisеz Investment, L.P. and managed by Appellee Westgate Management. At about 8:00 PM on the date in question, appellant left his building through the rear common entrance and exit door, on his way to his car. This building door exited onto a concrete landing at the top of several outdoor concrete steps. The landing itself was covered by a portico-style overhanging roof structure. It was dark outside, and several inches of snow had recently fallen. Appellant thereupon allegedly slipped on the landing on “black ice” and struck his upper back on the steps, causing injury to his T3 vertebra.
{¶3} On December 30, 2014, appellant filed a civil complaint in the Stark County Court of Common Pleas against appellees. Appellees filed an answer on January 29, 2015.
{¶4} On August 3, 2015, appellees filed a motion for summary judgment. Appellant filed a memorandum in opposition on August 24, 2015. Appellees filеd a reply on September 8, 2015.
{¶5} On September 15, 2015, the trial court issued a judgment entry granting summary judgment in favor of appellees. {¶6} On October 13, 2015, appellant filed a notice of appeal. He herein raises the following sole Assignment of Error:
{¶7} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE LANDLORD WHEN THERE WAS A GENUINE ISSUE OF MATERIAL FACT WHETHER THE LANDLORD HAD CONSTRUCTIVE NOTICE OF THE UNSAFE CONDITION IN ITS COMMON AREA, AS PROVED BY THE LACK OF LIGHTING AND THE LACK OF A GUTTER SYSTEM OVER THE COMMON AREA CONCRETE STEPS, ALLOWING BLACK ICE TO ACCUMULATE, AND FAILING TO REMOVE THE BLACK ICE THAT CAUSED THE APPELLANT TO SLIP AND FALL ON, FRACTURING HIS VERTEBRAE (SIC).”
{¶8} In his sole Assignment of Error, appellant contends the trial court erred in granting summary judgment in favor of appellees, thе owner and landlord of the premises in question. We disagree.
{¶9}
{¶10} As an appellate court reviewing summary judgment motions, we must stand in the shoеs of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 506 N.E.2d 212. To establish a claim of negligence in Ohio, a plaintiff must show the existence of a duty, a breach of that duty, and injury directly and proximately resulting from a breach of this duty. Godwin v. Erb, 167 Ohio App.3d 645, 856 N.E.2d 321, 2006-Ohio-3638, ¶ 17, citing Menifee v. Ohio Welding Prods., Inc. (1984), 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (additional citations omitted). To defeat a motion for summary judgment filed by a defendant in a negligence action, the plaintiff must identify a duty, or duties, owed him by the defendant, and the evidence must be sufficient, considered most favorably to the plaintiff, to allow reasonable minds to infer that a specific duty was breached, that the breach of duty was the proximate cause of plaintiff‘s injury, and that plaintiff was injured. Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19, syllabus.
{¶11} Appellant herein, who was undisputedly a tеnant in appellees’ apartment building at the time of his fall, first directs us to
{¶13} “A landlord who is a party to a rental agreement shall do all of thе following:
{¶14} “(1) Comply with the requirements of all applicable building, housing, health, and safety codes that materially affect health and safety;
{¶15} “(2) Make all repairs and do whatevеr is reasonably necessary to put and keep the premises in a fit and habitable condition;
{¶16} “(3) Keep all common areas of the premises in a safe and sanitary condition;
{¶17} “***“.
{¶18} In the case sub judice, as indicated in our recitation of the facts, the apartment
{¶19} However, we emphasize that negligence per se does not mean the same thing as liability per se; a plaintiff still must prove the other elements of a negligеnce claim, i.e., proximate causation and damages. See Wallace v. Golden Comb, Inc., 8th Dist. No. 99910, 2013-Ohio-5320, 4 N.E.3d 445, 450, ¶ 30, citing Sikora v. Wenzel, 88 Ohio St.3d 493, 496, 727 N.E.2d 1277, 2000–Ohio–406, ¶ 28. In considering these additional negligence claim elements in regard to the specifics of the present case, we first note the axiom that snow and ice are part of wintertime life in Ohio. See Mt. Vernon v. Young, 5th Dist. Knox No. 09 CA 30, 2010-Ohio-2501, ¶ 17, citing Lopatcovich v. Tiffen (1986), 28 Ohio St.3d 204, 503 N.E.2d 154. Nonetheless, a landlord has a duty “to refrain from creating or allowing the creation of an unnatural accumulation of ice or snow, if that accumulation results in a condition that is substantially more dangerous than would have resulted naturally.” Saunders v. Greenwood Colony, Union App. No. 14–2000–40, 2001–Ohio–2099, citing Myers v. Forest City Ent., Inc. (1993), 92 Ohio App.3d 351, 353–354, 635 N.E.2d 1268; See, also, Mitchell v. Parkridge Apts., Ltd., Cuyahoga App. No. 81046, 2002–Ohio–5357, ¶ 13. An “unnatural” accumulation of ice and snow refers to accumulation made by man, rather than by nature. Porter v. Miller (1983), 13 Ohio App.3d 93, 95, 468 N.E.2d 134.
{¶20} We note appellant testified in part as follows:
{¶21} “Q. That evening could you see where you were going?
{¶22} “A. I could see where I was going.
{¶23} “Q. And when you slipped was it because of packed down snow? Was it becаuse of ice? Do you know?
{¶24} “A. It was because of basically what we call black ice. I couldn‘t see any glare. With the lighting conditions I couldn‘t see exactly if there was anything that wаs accumulated on the steps.
{¶25} “Q. So, you did not step out onto a snow-covered piece of cement? {¶26} “A. Correct.
{¶27} “Q. Okay. Was that the part that is covered by the cаnopy that we talked about earlier?
{¶28} “A. The very top part, yes.”
{¶29} Boushack Deposition at 39.
{¶30} Thus, appellant maintained that he could see where he was going on the evening of February 18, 2014, but that he slipped on the concrеte steps due to “black ice” (notably, not snow) that he could not see in the lighting conditions at the time.1 For purposes of summary judgment,
steps at the time in question, even if exacerbated by the level of lighting. In the alternative, to the extent that appellant would rely on a “natural” accumulation theory, the record demonstrates neither the specifics of a сontractual agreement for landlord removal of ice and snow, nor superior knowledge by appellees of the presence of black ice at the time in quеstion. See McLean v. McHugh, Inc., 5th Dist. Muskingum No. CT2011-007, 2011-Ohio-2478, ¶ 19.
{¶31} We therefore hold summary judgment in favor of appellees was properly granted by the trial court. Appellant‘s sole Assignment of Error is overruled.
{¶32} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
JWW/d 0118