Daley v. FryerDaley v. Fryer
Aрpeal from Allen County Common Pleas Court Trial Court No. CV2014 0144
Judgment Affirmed
Date of Decision: March 16, 2015
APPEARANCES:
Gordon D. Evans, II and Curtis M. Fifner for Appellants
Robert B. Fitzgerald for Appellee Fryer
Stephen F. Korhn for Appellee Y & B Drug, Inc.
{¶1} Plaintiffs-Appellants, Charles (“Charles“) and Shirley (“Shirley“) Daley (collectively “the Daleys“), appeal the judgment of the Court of Common Pleas of Allen County, granting summary judgment in favor of Defendants-Appellees, Eileen Fryer (“Fryer“), and Y&B Drug, Inc., dba Canal Pharmacy, dba Canal Health Mart Pharmacy, and Health Mart Systems (“Canal Pharmacy“). On appeal, the Daleys argue that the trial court erred by: (1) finding that Charlеs slipped and fell on a natural accumulation of snow and ice; (2) determining that Canal Pharmacy did not breach or owe a duty of care to Charles; and (3) determining that Fryer did not breach or owe a duty of care to Charles. For the reasons that follow, we affirm the trial court‘s decision.
{¶2} On March 6, 2014, the Daleys filed a complaint against Fryer and Canal Pharmacy seeking recovery for damages stemming from injuries Charles suffered when he slipped and fell on the sidewalk abutting Canal Pharmacy. As a result of his injuries, Charles is now paralyzed from the chest down. The Daleys’ complaint asserted four claims: (1) premises liability: negligence; (2) respondeat superior; (3) negligent maintenance; and (4) loss of consortium. (Docket No. 1, p. 5-9).
{¶3} On April 7, 2014, Canal Pharmacy filed an answer wherein it denied the allegations set forth in the Daleys’ complaint and asserted numerous
{¶4} On April 23, 2014, Fryer filed her answer to the Daleys’ complaint. In her answer, Fryer denied the Daleys’ allegations and asserted numerous affirmative defenses.
{¶5} On May 9, 2014, Canal Pharmacy filed a motion for summary judgment. Canal Pharmacy argued that Charles fell on a public sidewalk, owned by the Village of Spencerville. Since the law of premises liability only applies to property owned or occupied by the tortfeasor, Canal Pharmacy claimed it was entitled to summary judgment. Canal Pharmacy also argued that it did not breach a duty to Charles because the sidewalk contained a natural accumulation of snow and ice.
{¶6} On June 10, 2014, Fryer filed her motion for summary judgment as to the Daleys’ claims. In her motion for summary judgment, Fryer argued that she had no duty to protect a business invitee from the dangers resulting from the natural accumulation of snow and ice. Specifically, she argued that such accumulation is obvious and apparent, and as such, an invitee is reasonably expected to discover and protect against such dangers. Fryer also contended that she was not negligent in her management of the sidewalk. Next, Fryer argued that
{¶7} On September 30, 2014, the Daleys filed memorandum contra to Canal Pharmacy‘s motion for summary judgment and memorandum contra to Fryer‘s motion for summary judgment. In their memoranda, the Daleys argued that both defendants were negligent per se, breached contractual duties in their lease, and were actively negligent in causing the unnatural accumulation of ice and snow. The Dalеys argued that the ice on the sidewalk was unnatural because it was caused by a “defective gutter system.” However, they did not explain how the gutter was defective.
{¶8} The Daleys attached two affidavits to the memoranda contra to defendants’ motions for summary judgment. One was of Lee Martin, who provides analysis and reports on matters involving professional design services, construction defects, and premises safety. Martin stated that the icy patch on the
{¶9} The Daleys also attached an affidavit of Timothy Dickson, a licensed professional engineer. Dickson stated that the fall could have been prevented by installing electric heat cables in the gutters and the downspouts. (Docket No. 30, Exhibit B, p. 2).
{¶10} On October 1, 2014, the trial court issued its judgment entry granting Fryer‘s and Canal Pharmacy‘s motions for summary judgment. In its judgment entry, the trial court found that it was undisputed that Charles slipped and fell on a public sidewalk, and thus, the defendants owed no duty to Charles to keep the sidewalks free of ice and snow. The trial court also found that the ice on the sidewalk was a result of a natural accumulation and was not man-made. Specifically, the trial court stated that the Daleys presented no evidence of any defect on the defendants’ premises that caused an unnatural accumulation of ice.
{¶11} The Daleys timely appealed this judgment, presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED BY DETERMINING THAT APPELLANT CHARLES SLIPPED AND FELL ON A NATURAL ACCUMULATION OF SNOW AND ICE.
Assignment of Error No. II
THE TRIAL COURT ERRED BY DETERMINING THAT APPELLEE CANAL DID NOT BREACH OR OWE A DUTY OF CARE TO APPELLANT CHARLES TO REMOVE ANY NATURAL OR UNNATURAL ACCUMULATION OF SNOW AND ICE.
Assignment of Error No. III
THE TRIAL COURT ERRED BY DETERMINING THAT APPELLEE FRYER DID NOT BREACH OR OWE A DUTY OF CARE TO APPELLANT CHARLES TO PREVENT THE UNNATURAL ACCUMULATION OF ICE.
Assignment of Error No. I
{¶13} In their first assignment оf error, the Daleys argue that the trial court erred in determining that Charles slipped and fell on a natural accumulation of snow and ice. Specifically, the Daleys argue that the accumulation of snow and ice was unnatural because there was a “defective roof drainage system” on the Canal Pharmacy building, which created a genuine issue of material fact as to whether the ice the caused Charles to slip wаs unnatural. We disagree.
{¶14} An appellate court reviews a summary judgment order de novo. Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.1999). Accordingly, a reviewing court will not reverse an otherwise correct judgment merely because the lower court utilized different or erroneous reasons as the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distrib. Co., Inc., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 222 (1994). Summary judgment is appropriate when, looking at the evidence as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving party is entitled to judgment as a matter оf law.
{¶15} The party moving for summary judgment has the initial burden of producing some evidence which demonstrates the lack of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the moving party is not required to produce any affirmative evidence, but must identify those portions of the record which affirmatively support his argument. Id. at 292. The nonmoving party must then rebut with specific facts showing the existence of a genuine triable issue; he may not rest on the mere allegations or denials of his pleadings. Id.;
{¶16} Bearing these standards in mind, wе turn our attention to the Daleys’ negligence claim. To establish a cause of action for negligence, a plaintiff must show the existence of a duty, breach of that duty, and an injury proximately caused by the breach. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680 (1998). To defeat a properly supported motion for summary judgment in a negligence action, the plaintiff must first demonstrate a duty owed
{¶17} First, we note that on appeal, the Daleys do not challenge the trial court‘s finding that Charles’ fall occurred on a public sidewalk. “[T]he general rule governing natural accumulations of snow and ice on public sidewalks is that the owner owes no such duty and is not subject to civil liability even where an ordinance requires the оwner or occupier to keep abutting sidewalks free from snow and ice.” Lopatkovich v. City of Tiffin, 28 Ohio St.3d 204, 206 (1986). Thus, snow removal ordinances do “not raise a duty on owners and occupiers to the public at large, and such statutes should not, as a matter of public policy, be used to impose potential liability on owners and occupiers who have abutting public sidewalks.” Id. at p. 207. However, when an abutting owner or occupier is actively negligent in permitting or сreating an unnatural accumulation of snow and ice, he or she could be subject to liability. Id.
{¶18} The Daleys contend that there is a genuine issue of material fact as to whether the ice that caused Charles to fall was natural or unnatural. We disagree as a reasonable trier of fact, viewing the evidence in the light most favorable to the
{¶19} “[A] natural accumulation of ice and snow is one which accumulates as a result of an act of nature, whereas an unnatural accumulation is one that results from an act of a person.” Coletta v. Univ. of Akron, 49 Ohio App.3d 35, 37 (10th Dist.1988). ” ‘Unnatural’ accumulation must refer to causes and factors other than the inclement weather conditions of low temperatures, strong winds and drifting snow, i.e., to causes other than the meteorological forces of nature. By definition, then, the ‘unnatural’ is the man-made, the man-caused * * *.” Porter v. Miller, 13 Ohio App.3d 93, 95 (6th Dist.1983).
{¶20} Cases where courts have found genuine issues of material fact regarding whether an accumulation of ice and snow was natural or unnatural generally involve records containing evidence of an unnatural cause or source of the accumulation. See Sherwood v. Mentor Corners Ltd. Partnership, 11th Dist. Lake No. 2006-L-020, 2006-Ohio-6865, ¶ 18 (valley between gable and edge of roof); Nawal v. Clearview Inn, Inc., 8th Dist. Cuyahoga No. 65796, 1994 WL 407998 *4 (Aug. 4, 1994) (improperly maintained downspouts and gutters); Tyrrell v. Invest. Assocs., Inc., 16 Ohio App.3d 47, 49 (8th Dist.1984) (defect in canopy extending over sidewalk). Courts have also denied summary judgment where therе is evidence that an accumulation of ice results from some source other
{¶21} Here, the evidence reveals that the weather was cold and snowy on the days leading up to Charles’ accident. Charles admitted that he was aware there was snow on the ground and possibly ice on the sidewalks. Being fully aware of the condition of the sidewalks, Charles decided to walk, instead of drive, to Canal Pharmacy. It is undisputed that the ice dam, which the Daleys claim caused the icy spot on the sidewalk to form, was created by natural weather conditions. In their brief, the Daleys admit, “The weather conditions the week prior to the incident caused an unnatural ice dam to build up in the gutters * * *.” (Boldface deleted.) (Appellant‘s Br., p. 3). The Daleys apparently admit that the ice dam was caused by the weather, but still maintain that it was “unnatural.” Martin, the Daleys’ expert witness, also admitted that the “[c]onditions in the days prior to the Daley slip and fall were favorable for the development of ice dams * * *.” (Docket No. 30, Exhibit A, p. 3).
{¶22} There is no evidence that the construction of the gutters resulted in an unnatural accumulation of ice. While one of the Daleys’ experts stated in his affidavit that “[t]here was an icy patch on the sidewalk from a defective roof drainage system on the pharmacy building that caused an icе dam in the gutter and
{¶23} Even if there was some sort of “unnatural” accumulation of ice and snow on the sidewalk, the Daleys have failed to present any evidence that Fryer or Canal Pharmacy was negligent in permitting and creating such accumulation. The Daleys presеnted no evidence that Fryer or Canal Pharmacy had notice that there was an ice dam on their roof, that they somehow knew their drainage system was “defective,” or that they improperly heated or ventilated the building. All of Canal Pharmacy‘s employees testified at their depositions that they did not know of any building defects and did not know of any problems with the roofs or gutters. See (Klausing Depo., p. 32-33); (Noah Burkholder Depo., p. 32, 46); (Reynolds Depo., p. 31, 35-36); (Kathy Burkholder Depo., 77, 83-84). Nor do the Daleys point to any evidence in the record that shows Fryer or Canal Pharmacy had knowledge of
{¶24} In light of the foregoing, we find that the trial court did not err in finding that Charles slipped on a natural accumulation of snow and ice. Accordingly, we overrule the Daleys’ first assignment of error.
Assignments of Error No. II & III
{¶25} In their second and third assignments of error, the Daleys argue that both Canal Pharmacy and Fryer breached their contractual duties to keep the sidewalks clear of ice and snow and failed at implementing an effective waterproofing and weather protection system for the roof and exterior walls of the building. We disagree.
a landlord who benevolently undertakes to clear natural accumulations of snow and ice to the best of his ability exposes himself to potential lawsuits by tеnants who slip and fall on any patches of snow or ice that may remain. By contrast, a landlord who sits idly by and refrains from clearing natural accumulations of snow and ice to avoid assuming a duty can remain insulated from liability. Such an interpretation discourages landlords from voluntarily assisting their tenants in wintry conditions.
Sanfilippo v. Village Green Mgt. Co., 12th Dist. Clermont No. CA2010-04-027, 2010-Ohio-4211, ¶ 20.
{¶27} Instead, many courts have chosen not to follow such an interpretation of Oswald and some have even questioned its validity. See Thatcher v. Lauffer Ravines, L.L.C., 10th Dist. Franklin No. 11AP-851, 2012-Ohio-6193, ¶ 40 (stating that it has previously called into question an impliеd assumption of duty based on a previous course of conduct); Hosler v. Shah, 6th Dist. Lucas No. L-12-1066, 2012-Ohio-5553, ¶ 14 (“With respect to [the] assertion that there may be created an implied duty of a landlord to remove accumulations of ice and snow, it does not appear that this holding has survived Brinkman [v. Ross, 68 Ohio St.3d 82 (1993)].“); Brooks v. Lee, 12th Dist. Butler CA95-05-091, 1995 WL 708227, *1
{¶28} However, we do not need to determine whether Oswald is still good law or whether it has been abrogated by subsequent cases of the Supreme Court of Ohio. This is because Oswald‘s holding was only applicable to cases that involve a landlord-tenant situation. “Each paragraph of the syllabus of the Oswald case is either limited to an action by the tenant against the landlord or to the duty owed by the landlord to the tenant.” Sidle v. Humphrey, 13 Ohio St.2d 45, 49 (1968). It follows that Oswald does not apply to an action by a third party against the tenant or to the duty owed by the landlord to some third party. Thus, the Daleys’ reliance on Oswald and other cases that apply Oswald is misplaced.
{¶29} The Daleys also cite to the contractual language of the lease between Fryer and Canal Pharmacy to support their argument that Fryer and Canal Pharmacy breached a duty to keep the sidewalks clear оf ice and snow. The Daleys claim that Charles is a third-party beneficiary because Kathleen
{¶30} To enforce a contract, a party must be an intended beneficiary and not a mere incidental beneficiary. Bierl v. BGZ Assocs. II, L.L.C., 3d Dist. Marion No. 9-12-42, 2013-Ohio-648, ¶ 46, aff‘d 138 Ohio St.3d 357, 2014-Ohio-1172, citing Hill v. Sonitrol of Southwestern Ohio, Inc., 36 Ohio St.3d 36 (1988). In Hill, the Supreme Court of Ohio adopted the Second Restatement‘s definitions of intended and incidental beneficiaries. The definitions are as follows:
- * * * [A] beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either:
- the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
- the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
- An incidental beneficiary is a beneficiary who is not an intended beneficiary.
2 Restatement of the Law 2d, Contracts, Section 302 (1981).
{¶31} The Court also adopted the “intent to benefit” test to delineate between intended and incidental beneficiaries. The test is as follows:
“[I]f the promise * * * intends that a third party should benefit from the contract, then the third party is an ‘intended beneficiary’ who has enforceable rights under the contract. If the promise has no intent to benefit a third party, then any third party beneficiary to the contract
is merely an ‘incidental beneficiary,’ who has no enforceable rights under the contract.”
Hill at 40, quoting Norfolk & W. Co. v. United States, 641 F.2d 1201, 1208 (6th Cir.1980). The Hill test remains viable in Ohio courts. E.g., Huff v. FirstEnergy Corp., 130 Ohio St.3d 196, 2011-Ohio-5083, ¶ 10-11 (applying Hill test).
{¶32} The Supreme Court has provided the following guidance for the application of the Hill test:
Courts generally presume that a contract‘s intent resides in the language the parties chоose to use in the agreement. * * * “Only when the language of a contract is unclear or ambiguous, or where the circumstances surrounding the agreement invest the language of a contract with a special meaning will extrinsic evidence be considered in an effort to give effect to the parties’ intentions.” [Shifrin v. Forest City Ents., Inc., 64 Ohio St.3d 635, 638 (1992).] Ohio law thus requires that for a third party to be an intended beneficiary under the contract, there must be evidence that the contract was intended to directly benefit that third party. Generally, the parties’ intention to benefit a third party will be found in the language of the agreement.
Huff at ¶ 12.
{¶33} Further, courts have noted that for a person to claim intended third party beneficiary status, the contracting parties must have entered into the contract for the primary purpose of that person. E.g., Caruso v. Natl. City Mtge. Co., 187 Ohio App.3d 329, 2010-Ohio-1878, ¶ 23 (1st Dist.). Nevertheless, there is no requirement that the contract explicitly identify the third party beneficiary. First Fed. Bank v. Angelini, 3d Dist. Crawford No. 3-07-04, 2007-Ohio-6153, ¶ 11.
{¶35} In sum, we find that the majority of the cases the Daleys cite are inapplicable to the facts of this case. We also find that Charles was an incidental beneficiary of Canal Pharmacy‘s lease agreement with Fryer. As such, the trial court did not err in finding that neither Canal Pharmacy nor Fryer owed a duty to Charles under the lease and the trial court was correct in granting summary judgment in favor of Fryer and Canal Pharmacy.
{¶36} Accordingly, we overrule the Daleys’ second and third assignments of error.
Judgment Affirmed
ROGERS, P.J. and PRESTON, J., concur.
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