635 N.E.2d 1268 | Ohio Ct. App. | 1993
Lead Opinion
This is an appeal from a summary judgment of the Court of Common Pleas of Stark County, Ohio, entered in favor of defendant-appellee Forest City Enter-prises, Inc. ("appellee") and against plaintiff-appellant Anna Mae Myers ("appellant") on her complaint for personal injuries that she allegedly sustained in a fall at the entrance to Canton Centre Mall which is owned and operated by appellee.
Appellant alleged that she fell on December 26, 1990. There had been no snowfall for several days, no precipitation of any kind that day, and the parking lot was only slightly damp. Appellant offered photographs of the sidewalk on which she had fallen, showing that there was an accumulation of ice on the sidewalk.
Appellee admitted that it had exclusive control over the premises and that it had undertaken to clean snow and ice from the premises on a daily basis throughout the winter.
Appellant assigns two errors to the trial court:
"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."
In its recent case of Wing v. Anchor Media, Ltd. of Texas
(1991),
"A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. (Celotex v. Catrett [1986],
Appellant's Loc.App.R. 4(D) statement asserts that the granting of summary judgment was inappropriate because there were material facts in dispute, namely, whether appellee, after affirmatively undertaking to remove snow and ice, did so negligently and thereby aggravated an existing hazard, and whether the ice accumulation was a natural or unnatural accumulation.
Although a land owner or occupier has no duty to its business invitees to remove natural accumulation of snow and ice from exterior walkways, if it undertakes to do so, it may not create a dangerous or unnatural accumulation of snow or ice, or be actively negligent in permitting one to exist on its property,Lopatkovich v. Tiffin (1986),
Appellant urges that if appellee undertook to clean the sidewalks, and no new precipitation fell, then certainly the ice on which she fell must have been an unnatural or man-made condition. In cases involving an unnatural accumulation of ice and snow, a plaintiff must show that the defendant created or aggravated the hazard, that the defendant knew or should have known of the hazard, and that the hazardous condition was substantially more dangerous than it would *354
have been in the natural state, Porter v. Miller (1983),
While we agree with the appellant that the record does demonstrate an issue of fact regarding the source of the accumulation of ice, and whether it was natural or unnatural, nevertheless appellant has failed to present any evidence that appellee was negligent, or that it had notice of this hazard. In fact, the evidence shows the contrary, namely, that appellee could not constantly police the area and that the ice could have built up even though appellee was not negligent in its attempt to maintain the property.
We have reviewed the record, and find that appellant did not meet her burden of production of evidence pursuant to Wing v.Anchor Media, supra. Accordingly, we must conclude that the trial court did not err in granting summary judgment in favor of appellee.
The first assignment of error is overruled.
Once appellant had secured the depositions and the additional evidence, she moved for a reconsideration of the summary judgment. The trial court overruled that motion for reconsideration.
First of all, we have reviewed the depositions of the employees, and find that they do not present sufficient evidence for appellant to survive the motion for summary judgment. See Part I, supra.
Further, the Ohio Rules of Civil Procedure do not prescribe motions for reconsideration after final judgment in a trial court, see Pitts v. Dept. of Transp. (1981),
The second assignment of error is overruled.
For the foregoing reasons, the judgment of the Court of Common Pleas of Stark County is affirmed.
Judgment affirmed.
READER, J., concurs.
HOFFMAN, J., concurs in part and dissents in part.
Dissenting Opinion
I concur in the majority's disposition of appellant's second assignment of error. However, I respectfully dissent from the majority's decision on the first assignment of error.
As expressly found by the majority, the record evidence relative to the motion for summary judgment, when considered using the required standard, creates a disputed issue of fact regarding the source of the accumulation of ice and whether that accumulation was natural or unnatural. Furthermore, I believe there exists a disputed fact as to whether appellee knew or should have known of this hazard and, if so known, whether appellee was negligent in not remedying the hazard or warning appellant of its existence. Though appellant may have an uphill battle demonstrating the same based on the preliminary evidence before us at summary judgment stage, it nevertheless was sufficient to withstand appellee's motion for summary judgment.
I would reverse the trial court and remand the matter for further proceedings according to law. *356