Moore v. Kroger Co.Moore v. Kroger Co.
Rendered on November 23, 2010
Michael D. Christensen Law Offices, LLC, and Chandra L. Higgins, for appellants.
Weston Hurd LLP, Kevin R. Bush, and Steven G. Carlino, for appellee The Kroger Company.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1} Theodora Moore (referred to individually as “appellant“) and James Moore, plaintiffs-appellants, appeal from a judgment of the Franklin County Court of Common Pleas, in which the court granted the motion for summary judgment filed by Kroger Co. and Kroger Store 315 (collectively referred to as “Kroger“), defendants-appellees.
{¶2} On February 7, 2007, at approximately 7:30 p.m., appellant visited the Kroger grocery store located at 2000 East Main Street, Columbus, Ohio. As she
{¶3} On February 6, 2009, appellants filed an action against Kroger, alleging negligence. On June 3, 2009, Kroger filed a motion for summary judgment, in which it argued that it had no duty to protect appellant from the natural accumulation of ice and snow. On October 21, 2009, appellants filed a motion to compel discovery after Kroger failed to provide a copy of the incident report pursuant to a discovery request. Without ruling on the motion to compel discovery, on April 8, 2010, the trial court issued a judgment granting Kroger‘s motion for summary judgment. Appellants appeal the judgment of the trial court, asserting the following assignments of error:
I. The trial court erred by granting summary judgment in favor of Defendants when the record presents genuine issues of material fact that demand resolution by the trier of fact.
II. The trial court erred when it impliedly denied Plaintiff‘s Motion to Compel the Incident Report.
{¶4} Appellants argue in their first assignment of error that the trial court erred in granting summary judgment to Kroger. Pursuant to
{¶5} In an action for negligence, a plaintiff must prove (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached that duty of care; and (3) as a direct and proximate result of the defendant‘s breach, the plaintiff suffered injury. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. The status of the person who enters upon the land of another defines the scope of legal duty that the owner owes the entrant. Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 1996-Ohio-137.
{¶6} Here, the parties agree that appellant was a business invitee. A business invitee is one who enters another‘s land by invitation for a purpose that is beneficial to the owner. Id. With respect to business invitees, an owner‘s duty is to keep the premises in reasonably safe condition and warn of dangers that are known to the owner. Eicher v. U.S. Steel Corp. (1987), 32 Ohio St.3d 248. Liability only attaches when an owner has superior knowledge of the particular danger which caused the injury, as an invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate. LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 210.
{¶7} Furthermore, a business owner‘s duty to business invitees does not extend to hazards from natural accumulations of ice and snow. Tyrrell v. Investment Assoc., Inc. (1984), 16 Ohio App.3d 47, 49. “[I]t is well established that an owner or occupier of land ordinarily owes no duty to business invitees to remove natural accumulations of ice and snow from the private sidewalks on the premises, or to warn the invitee of the dangers associated with such natural accumulations of ice and snow.” Brinkman v. Ross, 68 Ohio St.3d 82, 83, 1993-Ohio-72. Thus, a premises owner who maintains a private motor vehicle parking area, for the accommodation of those he serves in a professional or business way, is under no legal obligation to remove a natural accumulation of snow and ice. Jeswald v. Hutt (1968), 15 Ohio St.2d 224, paragraph one of the syllabus.
{¶8} However, there are two exceptions to the general “no-duty” snow rule. The first exception is when the land owner or occupier is shown to have actual or implied notice that the natural accumulation of snow and ice on his premises has created a condition substantially more dangerous to his business invitees than they should have anticipated by reason of their knowledge of conditions prevailing generally in the area. Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, paragraph one of the syllabus. In order to be liable, the land owner or occupier must have superior knowledge of the existing danger. LaCourse at 210.
{¶10} We must first determine the threshold issue of whether the ice and snow upon which appellant slipped was a natural or unnatural accumulation thereof. A natural accumulation of ice and snow is one that accumulates as a result of an act of nature or meteorological forces of nature. Coletta v. Univ. of Akron (1988), 49 Ohio App.3d 35, 37 (act of nature); Porter at 95 (meteorological forces of nature). An “unnatural accumulation” refers to causes and factors other than winter weather‘s low temperatures, strong winds, drifting snow, and natural thaw and freeze cycles. Mubarak v. Giant Eagle, Inc., 8th Dist. No. 84179, 2004-Ohio-6011, ¶18-19. Thus, an unnatural accumulation is caused by some human intervention or some condition that caused the ice to accumulate improperly. Community Ins. Co. v. McDonald‘s Restaurants of Ohio, Inc. (Dec. 11, 1998), 2d Dist. No. 17051. Furthermore, salting, shoveling or plowing does not in and of itself transform a natural accumulation to an unnatural one without some negligence on the part of the owner or his or her agents. Id. Thus, an “accumulation of ice and snow is not rendered ‘unnatural’ by the landowner‘s removal of the top layer of snow by plowing,
{¶11} In the present case, appellants present arguments premised upon both that the snow and ice were natural accumulations and that they were unnatural accumulations. The trial court found the accumulations were natural, and Kroger argues the same. Kroger asserts that appellant‘s own testimony established that the snow and ice were natural accumulations caused by typical winter weather in Ohio. Appellant counters that the snow and ice were unnatural accumulations based upon the affidavit of her expert, Dr. Oname Scott-Emaukpor, who opined that (1) the arc and length of the speed bump created an angular slope with the level ground, causing a dangerous condition when snow and ice accumulated on it; (2) the yellow paint on the speed bump acted as a sealant against the usual absorption of ice and snow by the asphalt, causing the ice and snow to accumulate much faster and melt much slower; and (3) excess snow and ice accumulated on the speed bump due to the impact between the tires of the oncoming vehicles and the speed bump, causing snow and ice built up on the undercarriage of vehicles to dislodge.
{¶12} The pertinent evidence in the record was as follows. Appellant testified in her deposition that it was dark outside at the time of the incident. Appellant said it had snowed earlier in the day. She said she had stepped about four feet from her husband‘s vehicle near the front entrance of the store, when she slipped and fell. She fell “right next
{¶13} Paul Walker, the manager at the Kroger store in question, testified in his deposition that there was nothing unusual or unnatural about how snow collected in the area of the speed bump. He said when he arrived at the store after appellant‘s fall, he did not see any snow or ice chunks around or on the speed bump. He further testified that the size of the speed bump was “pretty flat.” He did not remember there being a problem that snow or ice accumulated around the edges of the speed bump. He also said that he had never witnessed snow falling off the undercarriages of cars as they drove over the speed bump, and Kroger did not go out and shovel snow off cars in the parking lot or prevent cars with snow on them from driving in the parking lot.
{¶14} Appellant and her husband also submitted affidavits in which they averred that the speed bumps in front of the store had a buildup of snow and ice around the edges that surrounded and concealed the speed bump.
{¶15} After reviewing the above testimony of appellant and Walker, as well as the affidavits of Scott-Emaukpor and the other evidence in the record, we find there exists no
It is equally true that life continues after a snow fall. The normal and usual activities of man causes foot prints and since the automobile, creates tracks and ruts of ice in accumulated snow. Such activities do not increase the depth of the snow nor heap or pile it up in an unnatural manner. With the frequency of travel experienced today, it is not practical or necessary to exclude footprints or ruts caused by vehicles from the law applicable to the effects of a natural accumulation of snow. They are the natural, foreseeable, and visible result of the presence of snow and in no sense may be construed as an unnatural accumulation as against one who had no part in its creation or normal change.
Prints, tracks and ruts in the snow are as natural as the change of white crystals into water and ice. Neither change is unnatural or an accumulation within the meaning of the rule of non-liability for the gifts of nature.
{¶16} Furthermore, that the natural accumulation of snow displaced by common foot and vehicular traffic was then deposited in another area bearing no uncommon or extraordinary characteristics does not transmute the snow into an unnatural
{¶17} Clearly, not only virgin snow is considered a natural accumulation by the law. Snow and ice move and accumulate regularly and without any human intent or negligent human intervention. Snow that is stepped on or driven upon is displaced and must move somewhere else. The law must draw a line somewhere as to what degree of human interaction with snow is normal so as not to render all snow that has been touched or altered by a person an unnatural accumulation. Furthermore, many man-made objects and man-placed objects may alter the landscape and how the snow accumulates thereon.
{¶18} Appellant argues that, if the snow is deemed a natural accumulation, Kroger had actual and implied notice that the natural accumulation over and around the speed bump created a condition substantially more dangerous than she should have anticipated. In support, appellant relies on two cases, Mikula v. Tailors (1970), 24 Ohio St.2d 48, and Koss v. Cleveland Holding Corp. (July 10, 1975), 8th Dist. No. 34111. In Mikula, a woman fell when she stepped into a seven-inch hole covered in snow while traversing a snow covered parking lot. The Supreme Court of Ohio found that “a natural accumulation of snow which fills or covers [a deep] hole [in a parking lot] is a condition substantially more dangerous than that normally associated with snow.” Id. at 57. Moreover, the court held that an invitee is not bound to anticipate a covered hole as an ordinary hazard resulting from the snow. Id. The Supreme Court held that “[w]here an
{¶19} In Koss, a woman was walking through a parking lot toward a sporting venue and observed a pile of snow, but was unaware that it covered concrete parking bumpers. The woman stepped into the snow and fell when her foot struck the parking bumper. The snow covering the bumper might have been placed there by plowing or might have been a natural accumulation. The appellate court reversed the trial court‘s directed verdict in favor of the defendant and remanded the matter for trial, finding that reasonable minds could find either (1) the accumulation was not natural, but was the result of the parking area having been plowed, and the landowner was actively negligent in concealing the bumpers; or (2) the accumulation was natural, but was an improper accumulation, thereby creating a condition substantially more dangerous than that normally associated with snow.
{¶20} Appellant argues the facts in Mikula and Koss are analogous to those in the present case. We disagree and find they each involve different facts that distinguish them from the present circumstances. In Mikula, the court found that the plaintiff could not anticipate a hole as an “ordinary” hazard resulting from the snow. To the contrary, an invitee should anticipate a speed bump may be in a parking lot near a store entrance. A speed bump buried by a natural accumulation of snow is an “ordinary” condition, while a deep hole in a parking lot is not “ordinary.” Also, a speed bump is not a “hazard” or
{¶21} With regard to Koss, we also find it distinguishable. As the trial court found here, there was no evidence in Koss that the plaintiff had any prior knowledge of the snow covered parking bumpers she tripped on. To the contrary, in the present case, appellant knew there were speed bumps in front of the store and had been shopping at the same store since she was a child. Appellant argues that this is not a valid distinction because her prior knowledge of the speed bumps does not mean she had a photographic memory of the layout of the parking lot or the exact location of the speed bumps. However, having a photographic memory of the parking lot and exact location of the speed bumps is not the proper standard. What is relevant is whether the natural accumulation of snow on Kroger‘s premises created a condition substantially more dangerous to appellant than she should have anticipated by reason of her knowledge of conditions prevailing generally in the area. See Debie at paragraph one of the syllabus. Appellant‘s prior knowledge of the general location of the speed bumps is relevant to this determination. See, e.g., Murphy v. McDonald‘s Restaurants of Ohio, Inc., 2d Dist. No. 2010 CA 4, 2010-Ohio-4761 (noting prior to his fall on snow and ice, the plaintiff had been to the restaurant many times before, approximately three times per week). Appellant should have anticipated any
{¶22} Appellants argue in their second assignment of error that the trial court erred when it impliedly denied their motion to compel discovery with regard to the Kroger incident report by not ruling on it before granting Kroger summary judgment. Appellants contend that they requested the incident report in its discovery request, but Kroger refused to produce it based upon claims that it was work product and subject to attorney-client privilege.
Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party‘s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.
{¶23} The remedy for a party that must respond to a motion for summary judgment prior to completion of adequate discovery is to file a motion, pursuant to
{¶24} Accordingly, appellants’ first and second assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
KLATT and CONNOR, JJ., concur.
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