SHANE MCLEAN, ET AL. v. MCHUGH, INC., ET AL.
Case No. CT2011-007
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 20, 2011
2011-Ohio-2478
Hоn. Sheila G. Farmer, P.J., Hon. Julie A. Edwards, J., Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CC2010-0387; JUDGMENT: Affirmed
For Plaintiffs-Appellants: BRIAN W. BENBOW, 605 Market Street, Zanesville, OH 43701
For Defendants-Appellees: RONALD GREGORY, 5005 Rockside Road, Suite 600, Indеpendence, OH 44131
{¶1} On February 19, 2010, appellant, Shane McLean, suffered injuries when he slipped on ice and fell while shopping for a vehicle at McHugh, Inc., dba McHugh Jeep, appellee herein.
{¶2} On June 16, 2010, apрellant, together with his wife, Angela McLean, filed a complaint against appellee and others, alleging negligence in maintaining its walkways and pathways free from ice and snow.
{¶3} On November 10, 2010, appellee filed a motion for summary judgment. A hearing was held on February 18, 2011. By judgment entry filed same date, the trial court granted the motion.
{¶4} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
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{¶5} “THE TRIAL COURT COMMITTED PREJUDICAL (SIC) ERROR BY GRANTING APPELEE‘S (SIC) MOTION FOR SUMMARY JUDGMENT BY NOT CONSIDERING APPELLANT‘S PROPERLY FORMATTED AFFIDAVIT AND AMENDED AFFIDAVIT AND BY CONSTRUING THE EVIDENCE IN A LIGHT MOST FAVORABLE TO THE MOVING PARTY --- NOT THE NON-MOVING PARTY.”
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{¶6} Appellant claims the trial court erred in granting summary judgment to appellee. We disagree.
{¶8} ”
Civ.R. 56(C) provides that before summary judgment may be grantеd, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can cоme to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.”
{¶9} As an appellate court rеviewing summary judgment motions, we must stand in the shoes 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.
{¶10} As stated by our brethren from the Ninth District in Austin v. Peterson (1999), Medina App. No. 2735-M:
{¶11} “The party that moves for summary judgment bears the initial burden of identifying evidence that demоnstrates that there is no genuine issue of material fact regarding an essential element of the nonmoving party‘s claim. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, citing Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. Once the moving party has satisfied its burden, the nonmoving
{¶12} Appellee filed its motion for summary judgment with discovery documents attached on November 10, 2010. Appellant filed his memorandum contra, along with his own affidavit, on December 1, 2010. Appellee filed a reply on December 10, 2010.
{¶13} A hearing was held on February 18, 2011. On same date at 1:37 p.m., the trial court filed its judgment entry granting appellee‘s motion for summary judgment. At 1:50 p.m., appellant filed a motion to amend his affidavit, to include the omitted word “not” from ¶9. By judgment entry filed February 23, 2011, the trial court granted appellant‘s motion to amend his affidavit. Appellant filed his notice of appeal on the February 18, 2011 judgment entry on February 28, 2011.
{¶14} Appellant now argues the trial court erred by not considering his properly formatted affidavit and аmended affidavit in rendering its decision. The omission of the word “not” was brought to the trial court‘s attention and discussed during the hearing. T. at 28-29, 40-41. At the conclusion of the hearing, the trial court permitted appellant to file a motiоn to amend. T. at 41-42. The trial court was clearly aware of the omission prior to rendering its decision.
{¶15} Appellant‘s argument is three-fold: 1) appellee created an unnatural accumulation of ice by shoveling snow through an area of the parking lot which was not a sidewalk, thus creating black ice; 2) appellee‘s salesman warned appellant‘s wife and
{¶16} In order to establish a claim for negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately from the breach. Feldman v. Howard (1967), 10 Ohio St.2d 189.
{¶17} Appellee оwed appellant, as a business invitee, the duty “of ordinary care in maintaining the premises in a reasonably safe condition so that its customers are not unnecessarily and unreasonably exposed to danger.” Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 203. “Whеre a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises.” Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 2003–Ohio–2573, syllabus. The dangers from natural accumulations of ice and snow are ordinarily open and obvious:
{¶18} “The dangers frоm natural accumulations of ice and snow are ordinarily so obvious and apparent that an occupier of premises may reasonably expect that a business invitee on his premises will discover those dangers and protect himself against them.” Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraph two of the syllabus.
{¶19} However, there are two exceptions to the general rule that landowners do not owe a duty to business invitees regarding natural accumulations of ice and snow. The first is whеn “an owner or occupier of property is shown to have had actual or implied notice that a natural accumulation of ice or snow on his or her property has created a condition substаntially more dangerous than a business invitee should have
{¶20} Appellant argues that the “warning” by appellee‘s salesman to his wife and mother-in-law to be careful while traversing the slippery pathway shows that appellee had superior knowledge of the dangerous condition. Appellant‘s Brief at 8. In support of his memorandum contra filed December 1, 2010, appellant attached his affidavit wherein he stаted at ¶1 that he had “firsthand personal knowledge of the matters affirmed to herein.” At ¶6, appellant attested to the following:
{¶21} “Defendant had actual notice that ice had created a condition substantially more dangerous than Plaintiff could have anticipated. This is evidenced by the fact that Defendant‘s employee, the salesman, warned Plaintiff‘s wife and mother-in-law about the slippery walkway. Defendant had superior knowledge that an accumulation of ice had occurred, which is evidenced by the warning given to two members of Plaintiff‘s group.”
{¶22} If appellant had firsthand personal knowledge that the salesman warned his wife and mother-in-law, then he overheard and had knowledge that the walkway was slippery. The salesman displaying common courtesy does not equate to superior knowledge of a condition “substantially more dangerous,” especially given the fact that the salesman and the two women traversed the same pathway without incident. The first exception to the open and obvious rule does not apply in this case.
{¶24} In his affidavit at ¶4, appellant averred that appellee “created an unnatural accumulation of ice by shoveling snow through the parking lot on an area that was not a sidewalk and has never been used as a sidewalk per Plaintiff‘s knowledge.” Appellant further averred the following at ¶5:
{¶25} “Defendant created an unnatural accumulation of ice by failing to salt the underlying ice after clearing snow through an area of the parking lot that was not a sidewalk thus creating black ice that was not visible to Plaintiff. The pathway had melted overnight and had re-frozen creating a slippery, iсy walkway, due to it being cleared the day before and not being re-salted.”
{¶26} As explained by our brethren from the Sixth District in Jackson v. J-F Enterprises, Inc., Lucas App. No. L-10-1285, 2011-Ohio-1543, ¶28:
{¶27} “Even if this court accepts that appellees did actively place the snow between the parking bumper and the sidewalk, this second exception to the open and obvious rule does not apply because any resulting accumulation of black ice from typical melted run-off is still not unnatural. Flint v. Cleveland Clinic Found. [Cuyahoga App. Nos. 80177 & 80478, 2002–Ohio–2747], supra, concluding, ‘[s]imply piling snow
on eithеr side of the sidewalk, without more, does not constitute an “unnatural” accumulation of ice.***[Where] run-off from the melting snow pile created the icy patch, several courts, including this one, have concluded that this does not constitute an “unnatural” accumulation of ice. When snow is removed, it has to be placed somewhere, and “a certain natural run-off of water is to be expected.” ’ ”
{¶28} See also the analysis in Hoenigman v. McDonald‘s Corporation (1990), Cuyahoga App. No. 56010, wherein our brethren from the Eighth District еxplained the following:
{¶29} “After snow is removed from the surface of the parking lot, it must be disposed of. Snow must be placed somewhere. In this case, that place was the elevated island in the parking lot. This court has stated:
{¶30} “The accumulation of ice and snow is a condition created by the elements, a natural hazard faced by anyone who would venture about the streets while such conditions exist.... Snow cannot be removed from the sidewalks without being put somewhere. A certain natural run-off of water is to be expected. Water freezes if the temperature drops too low. The removal of snow is not an act of negligence, per se, but an act of consideration for the safety of the public, generally, and of one‘s customers, in particular.... To create liability it must appear that negligence intervened, that the snow was disposed оf in a negligent manner, or that the removal was negligently done, but it also must appear that the resulting risk of injury was substantially increased or a violation of the duty of due care, if not proximate cause, is not established.
{¶31} ”Ramsdorfer v. Standard Oil Co. (March 22, 1973), Cuyahoga App. No. 31751, unreported, slip op. at 2 (emphasis added).”
{¶33} Upon review, in construing all the evidence most strongly in favor of appellant, we find no evidence that creates a genuine issue of material fact and therefore, the trial court did not err in granting summary judgment to appellee.
{¶34} The sole assignment of error is denied.
{¶35} The judgment of the Court of Common Pleas of Muskingum County, Ohio is hereby affirmed.
By Farmer, P.J.
Edwards, J. and
Delaney, J. concur.
_s/ Sheila G. Farmer__________________
_s/ Julie A. Edwards__________________
_s/ Patricia A. Delaney________________
JUDGES
SGF/sg 425
SHANE MCLEAN, ET AL. v. MCHUGH, INC., ET AL.
CASE NO. CT2011-007
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Muskingum County, Ohio is affirmed. Costs to appellant.
_s/ Sheila G. Farmer__________________
_s/ Julie A. Edwards__________________
_s/ Patricia A. Delaney________________
JUDGES