Duell v. City of Cincinnati , 122 N.E.3d 640 ( 2018 )

[Cite as Duell v. Cincinnati, 2018-Ohio-4400.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MARY K. DUELL, : APPEAL NO. C-180062
TRIAL NO. A-1700393
Plaintiff-Appellant, :
O P I N I O N.
vs. :
CITY OF CINCINNATI, :
GLOBAL SPECTRUM, LP, :
HART PRODUCTIONS, INC., :
CIM GROUP, :
UPP CINCINNATI ELM, LLC, :
UPP CINCINNATI PLUM, LLC, :
CENTRAL PARKING SYSTEMS, INC., :
STANDARD PARKING SYSTEMS, :
INC.,
SP PLUS CORPORATION, :
and :
LAZ PARKING MIDWEST, LLC, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 31, 2018
Loeb, Vollman & Friedmann and Mark C. Vollman, for Plaintiff-Appellant,
Seeley, Savidge, Ebert & Gourash Co., LPA, Jeffrey M. Elzeer, Paula Boggs
Muething, City Solicitor, Emily W. Woerner, Assistant City Solicitor, Molly Vance,
Reminger Co., LPA, Robert W. Hojnoski, Rendigs, Frye, Kiely & Dennis, LLP, John
OHIO FIRST DISTRICT COURT OF APPEALS
F. McLaughlin, W. Jonathan Sweeten, JANIK, LLP, Steven Janik, and Audrey K.
Bentz for Defendants-Appellees.
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OHIO FIRST DISTRICT COURT OF APPEALS
M ILLER , Judge.
{¶1} Plaintiff-appellant Mary Duell slipped and fell on a slushy staircase
after exiting from the second floor of the Duke Energy Convention Center on a wintry
afternoon. Duell filed a complaint alleging that defendants-appellees negligently
maintained the staircase and are therefore liable for her injuries. After completing
discovery, defendants-appellees filed a joint motion for summary judgment, which
was granted.
{¶2} In a single assignment of error, Duell argues that the trial court erred
in granting summary judgment in favor of defendants-appellees. Specifically, Duell
complains that there is a genuine issue of material fact regarding whether
defendants-appellees were contractually obligated, via a lease agreement between
the owners of the convention center and an adjoining parking garage, to maintain the
staircase where Duell slipped and fell, and if so, whether the contract created an
actionable claim for her. We hold that it did not, and affirm.
{¶3} The grant of summary judgment is reviewed de novo. Daniels v. Verai
Ent., Inc., 1st Dist. Hamilton No. C-110440, 2012-Ohio-2264, ¶ 9. “Summary
judgment is appropriate for the defendants if (1) there is no genuine issue of material
fact; (2) reasonable minds can come to but one conclusion and that conclusion is
adverse to the plaintiff; and 3) the defendants are entitled to judgment as a matter of
law.” Id.; see Civ.R. 56(C).
{¶4} Duell alleges negligence. In order to prevail, she must show that (1)
defendants-appellees owed her a duty of care; (2) they breached that duty; and (3)
the breach proximately caused her injury. Lang v. Holly Hill Motel, Inc., 122 Ohio
St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 10. Duell argues that a tort duty was
imposed upon defendants-appellees via a provision of their lease agreement.
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OHIO FIRST DISTRICT COURT OF APPEALS
Defendants-appellees argue that Duell cannot proceed on this argument because she
did not plead a breach-of-contract or third-party beneficiary claim in her complaint.
However, she advanced this argument in her memorandum in opposition to the
motion for summary judgment. Defendants-appellees did not argue below that Duell
was advancing an unasserted claim. Accordingly, this issue is properly before us.
{¶5} Duell’s negligence action involves the law of premises liability, which
means “the applicable duty is determined by the relationship between the premises
owner or occupier and the injured party.” (Internal citations omitted.) Daniels at ¶
10. It is undisputed that Duell was a business invitee and defendants-appellees were
owners of the premises. Accordingly, defendants-appellees owed Duell a duty of
ordinary care to maintain the premises in a reasonably safe condition and to warn
her of latent or hidden dangers. See Armstrong v. Best Buy Co., 99 Ohio St. 3d 79,
2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5. “The duty of care owed by a business owner
includes providing a reasonably safe ingress and egress for business invitees.”
Schirmann v. Arena Mgt. Holdings, LLC, 1st Dist. Hamilton No. C-170574, 2018-
Ohio-3349, ¶ 17. This duty does not extend to dangers that “ ‘are known to such
invitee or are so obvious and apparent to such invitee that he may reasonably be
expected to discover them and protect himself against them.’ ” Id. at ¶ 18, quoting
Sidle v. Humphrey, 13 Ohio St. 2d 45, 233 N.E.2d 589 (1968), paragraph one of the
syllabus.
{¶6} A business owner has no duty to remove natural accumulations of ice
and snow from private walkways on the premises, or to warn of the dangers
associated with such natural accumulations—a duty often referred to as the “no-duty
winter rule.” Id., citing Brinkman v. Ross, 68 Ohio St. 3d 82, 83, 623 N.E.2d 1175
(1993), and Bowen v. Columbus Airport Ltd. Partnership, 10th Dist. Franklin No.
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OHIO FIRST DISTRICT COURT OF APPEALS
07AP-108, 2008-Ohio-763, ¶ 10. This rule is well-established in Ohio. See id. The
no-duty winter rule does not apply where the business owner is negligent in
permitting or creating an unnatural accumulation of ice or snow, or where the
business owner has actual or implied notice that the accumulation on the property
created a condition substantially more dangerous than the business invitee should
have anticipated. Id. at ¶ 20; Bowen at ¶ 12-13.
{¶7} Duell alleges, without citations to any authority, that the lease
agreement between defendants-appellees—requiring them to maintain the steps
where Duell fell and to comply with all local laws and ordinances, including sections
of the Cincinnati Municipal Code regarding the removal of snow and ice—imposed a
greater duty to her than that imposed by Ohio premises-liability law. Duell asserts
that the accumulation of slush on the staircase demonstrates that the steps were not
maintained and the Cincinnati Municipal Code was not followed. Thus, she contends
that the lease created a tort duty even where not imposed by law. We disagree.
{¶8} A lease that contractually allocates maintenance responsibilities
between business owners and requires general compliance with municipal
ordinances does not create a duty to a business invitee greater than that established
under the common law for actionable negligence due to the natural accumulation of
ice and snow. Duell’s attempt to distinguish her case from the Ohio Supreme Court’s
holding in Lopatkovich v. City of Tiffin, 28 Ohio St. 3d 204, 503 N.E.2d 154 (1986), is
unpersuasive. In Lopatkovich, the plaintiff slipped and fell on an icy sidewalk and
brought a negligence action against the city and the business adjacent to where she
fell. The plaintiff alleged, in part, that the business owner and the city failed to
maintain the sidewalk in accordance with an ordinance requiring sidewalks to be
kept free of snow and ice. Id. The Ohio Supreme Court disagreed, explaining that
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OHIO FIRST DISTRICT COURT OF APPEALS
“the duty imposed by [municipal snow and ice removal] statutes is most likely a duty
to assist the city in its responsibility to remove snow and ice from public sidewalks.”
Id. at 207. “This, however, does 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.; see Brinkman, 68 Ohio St. 3d at 85, 623 N.E.2d 1175.
{¶9} While the facts of Duell’s case are somewhat different in that there is a
lease agreement between the business owners regarding the premises, the lease
agreement does not relieve Duell’s case from the underlying holding of Lopatkovich:
that municipal codes requiring business owners to keep abutting sidewalks free from
snow and ice do not create a duty to the public at large. The defendants-appellees’
lease agreement merely allocates among business owners the legal responsibility for
the maintenance and repair of pedestrian walkways and compliance with the
municipal code. It does not affirmatively create a duty to the pedestrian public
greater than that established under the municipal code or common law. Therefore,
there was no genuine issue of material fact with regard to whether defendants-
appellees contractually owed Duell a duty of care, and summary judgment in favor of
defendants-appellees was proper. Accordingly, we need not address defendants-
appellees’ cross-assignment of error. We overrule Duell’s single assignment of error
and affirm the trial court’s judgment.
Judgment affirmed.
C UNNINGHAM , P.J., and Z AYAS , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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