Allen v. USA Parking Sys., Inc. , 2011 Ohio 6642 ( 2011 )

[Cite as Allen v. USA Parking Sys., Inc., 2011-Ohio-6642.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ANDREW ALLEN, )
) CASE NO. 10 MA 175
PLAINTIFF-APPELLANT, )
)
- VS - ) OPINION
)
USA PARKING SYSTEMS, INC. )
)
DEFENDANT-APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas
Court, Case No. 09 CV 1853.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellant: Attorney Mark Verkhlin
839 Southwestern Run
Youngstown, OH 44514
For Defendant-Appellee: Attorney Justin Dublikar
Attorney William M. Shackelford
50 South Main Street, Suite 615
Akron, OH 44308
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Dated: December 15, 2011
[Cite as Allen v. USA Parking Sys., Inc., 2011-Ohio-6642.]
DeGenaro, J.
{¶1} Plaintiff-Appellant, Andrew Allen, appeals the decision of the Mahoning
County Court of Common Pleas granting summary judgment in favor of USA Parking
Systems, Inc. in a slip and fall negligence action. Allen contends that summary judgment
was improper because material questions of fact existed as to whether he fell on a natural
accumulation of snow or ice, whether loose concrete or a poorly maintained parking lot
caused his fall, and whether USA Parking had superior knowledge of the dangerous
condition of the lot. Allen's arguments are meritless.
{¶2} Allen fell on a natural accumulation of ice caused by the freeze and thaw
cycle due to temperature change. The record contains no evidence that USA Parking did
anything to cause an unnatural accumulation of ice to form. Further, there is no evidence
in the record that Allen fell on loose concrete; this argument is mere speculation. Finally,
Allen knew that the lot was sloped and that snow can melt and refreeze into ice in
wintertime. The condition of the lot was an open and obvious danger such that USA
Parking owed no duty to warn Allen of it. Accordingly, the judgment of the trial court is
affirmed.
Facts and Procedural History
{¶3} On May 19, 2009, Allen filed a complaint alleging that on December 15,
2005, he parked his vehicle in a parking lot owned by USA Parking, and while walking
through the lot, he fell on loose concrete, snow, and/or ice; and as a result, he broke his
left wrist. Allen further alleged USA Parking was negligent in failing to maintain the
concrete in a safe manner or to properly maintain snow in the lot and negligent in failing
to warn him that the lot was in an unsafe condition. USA Parking filed an answer setting
forth affirmative defenses, inter alia, that Allen's claims are barred because the danger
was open and obvious and because he slipped and fell on a natural accumulation of ice
and/or snow.
{¶4} On January 14, 2010, USA Parking filed a motion for summary judgment,
contending that Allen was a business invitee, and that it had no duty to protect him from
open and obvious dangers. USA Parking supported its motion with Allen’s deposition.
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{¶5} Allen testified that he has lived in Youngstown for 48 years. On December
15, 2005 at approximately 10 a.m., he parked at a USA Parking lot, and that he had
parked in that lot approximately five times before.
{¶6} Allen described the condition of the parking lot on that date as "gray and ice
[sic]." He explained that the lot is sloped; and that overnight, not only had snow melted
and frozen, a "couple inches" of snow had also fallen and covered that ice. He further
explained, "Well, quite naturally it was slippery. And there was no salt. There was no
salt, no balance, or no step that had come down off of the hill." He stated that he thought
it was "somewhere around about 40, 50" degrees that day. However, he later explained
that the snow had not melted so "it would have had to have been beyond 33 degrees so
the snow couldn't melt."
{¶7} Allen testified that that there was no salt on the lot nor had the lot been
plowed or shoveled. When asked if there had been any large piles or drifts of snow
pushed by a shovel or plow, Allen responded, "As far as I can see, unless it was some
along the side of the building where the wind drifted it up." He also did not notice any
maintenance people plowing or shoveling the lot while he was there.
{¶8} Allen explained that he parked on the hill and walked down towards the
street. He slipped, caught himself, and then tried to be cautious. However, he was
walking on the ice and he slipped again; his feet slid out from under him and he fell. He
testified that the entire parking lot was covered with snow and there were not any areas
where the snow melted and he could see the pavement. He also explained that he knew
there was ice under the snow because where his feet slid, he could see the ice. The
following exchange then occurred regarding the cause of Allen's fall:
{¶9} "Q. Now, Reverend, are you saying that the exact cause of your fall was the
snow and ice that you slipped on?
{¶10} "A. And the downhill grade.
{¶11} "Q. Okay. In your Complaint you also stated that there was loose concrete?
{¶12} "A. There was some loose concrete piled up in the back of the parking lot,
up on the – up in the upper end.
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{¶13} "Q. Was there any loose concrete in the exact area –
{¶14} "A. No.
{¶15} "Q. – where you slipped and fell?
{¶16} "A. Huh-uh, I didn't see any."
{¶17} USA Parking argued that there was no evidence that the snow or ice Allen
slipped on was not a natural accumulation. Further, because Allen testified in his
deposition that he did not see loose concrete in the area that he fell, there was no
evidence that loose concrete caused Allen's fall. Finally, USA Parking argued that it did
not have a duty to warn Allen of the condition of the parking lot because the snow and ice
was an open and obvious danger and it did not have superior knowledge of the danger. It
thus urged the court to grant summary judgment in its favor because Allen had failed to
establish a claim for negligence.
{¶18} On April 3, 2010, Allen filed a response to USA Parking's motion for
summary judgment, arguing that there was a question of material fact whether he fell on a
natural or unnatural accumulation of snow and ice. He contended that "the accumulation
was man-caused since the water causing the ice came from a natural source, namely,
snow and ice, but it was unnaturally impeded" on USA Parking's lot. He noted that the lot
was plowed on the date he fell, as evidenced by USA Parking's interrogatory answer and
deposition testimony which revealed that the lot was usually plowed between 6 and 7
a.m. He also noted that the lot was on a slope, which caused the water to run to the
bottom of the hill and freeze where Allen fell. Further, Allen argued that there was a
question of material fact whether he fell on loose concrete, pointing to his deposition
testimony that he could not see the lot beneath the snow and that loose concrete was
piled in the lot, as well as USA Parking's interrogatory answer that portions of the lot were
uneven. Finally, Allen contended that USA Parking had superior knowledge of the danger
of snow and ice because it owned the lot and knew of its design and that water would run
down the slope and freeze at the bottom. Moreover, USA Parking did not have any
warning about these conditions posted on the lot.
{¶19} Allen attached several exhibits to his response to USA Parking's motion for
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summary judgment, including his deposition and the deposition of Jeffrey Hamm, the
regional operations manager for USA Parking. Hamm testified in his deposition that a
contractor called Complete Lot Maintenance plowed USA Parking's lots, and he provided
statements from Complete Lot Maintenance, which were also attached as Exhibit 2. He
explained that his signature appeared on Exhibit 2, and he had written "okay to pay,"
which meant that the jobs listed on the invoice were completed. He further testified that
Complete Lot Maintenance and USA Parking had agreed that the plowing would be done
between 6 and 7 a.m. so that it was completed before people start parking in the lot.
When asked if he recalled if they plowed between 6 and 7 a.m. on December 15, 2005,
Hamm responded that he could not answer that. He also explained that the lot in
question is known as "Ralph's Lot." Finally, he testified that he did not know of any
warning signs posted on the lot on December 15, 2005, and that it was not regular
practice to put up signs when there is potential for snow and ice on a parking lot.
{¶20} Allen also attached USA Parking's response to his first request for
admissions as Exhibit C and USA Parking's responses to his first set of interrogatories as
Exhibit D. In Exhibit C, USA Parking admitted that no warning signs regarding the
condition of the parking lot were present in the lot on the date of Allen's fall. In Exhibit D,
in response to a question about the condition of the parking lot on December 15, 2005,
USA Parking objected and stated that it "cannot remember the exact condition of the lot
on December 15, 2005 other than it may have been snow covered and icy pursuant to the
weather conditions in Northeast Ohio. Defendant does believe that some parts of the
paved lot may have been uneven, however, Defendant also believes that the entire
surface of the lot was open and obvious to any observation of any individual entering,
exiting, or traversing said lot and that any defects, which are denied, were readily
observable and open and obvious." USA Parking also stated that the lot was plowed on
December 15, 2005.
{¶21} On August 23, 2010, the magistrate issued a decision granting USA
Parking's motion for summary judgment, finding in pertinent part:
{¶22} "Plaintiff had experienced over forty Youngstown winters prior to traversing
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the snow covered parking lot adjacent to his attorney's office. Plt's Depo. at 9. The
parking lot was snow covered. Id. at 26. As Plaintiff stated: '[q]uite naturally it was
slippery.' Id. at 17. He had parked in the lot several times before the day he fell. The
slope of the lot was evident. While the wisdom of a public policy that fails to encourage
parking lot owners to effectively salt sloped parking lots is debatable, under Ohio law,
Defendant is not liable to Plaintiff under the circumstances evidenced in this case. The
peril of slipping on ice and snow in the parking lot was a foreseeable hazard common to
Youngstown, Ohio in the winter."
{¶23} On September 3, 2010, Allen filed objections to the magistrate's decision,
arguing that the magistrate erred in granting summary judgment, advancing essentially
the same arguments raised in his opposition to USA Parking's motion for summary
judgment.
{¶24} On November 1, 2010, the trial court issued a judgment entry overruling
Allen's objections and adopting the magistrate's decision granting summary judgment in
favor of USA Parking.
Summary Judgment
{¶25} Allen asserts in his sole assignment of error:
{¶26} "The Trial Court erred when it overruled the Objections to the Magistrate's
Decision and adopting the decision of the magistrate when questions of material fact
existed as to whether Plaintiff's fall was caused by a natural accumulation of snow and
ice, whether it was actually ice that caused Plaintiff's fall or whether sufficient warnings
existed as to the condition of the lot, as Defendant failed to show that summary judgment
was proper pursuant to Civ.R. 56."
{¶27} Allen raises three issues which are interrelated and will be discussed
together:
{¶28} "If Plaintiff's fall was caused by an accumulation of snow and ice, then
questions of material fact existed as to whether that accumulation was natural or
unnatural and granting summary judgment was improper as questions of material fact
were present pursuant to Civ.R. 56."
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{¶29} "A question of material fact was present as to whether Appellant's fall was
even caused by snow and/or ice and the Trial Court was in error when it granted
Summary Judgment to Appellee, as summary judgment is improper when questions of
material fact are present pursuant to Civ.R. 56."
{¶30} "A question of material fact was present as to whether Appellee's fall was
even caused by the condition of the lot, a condition which Appellee has superior
knowledge of, and the Trial Court was in error when it granted Summary Judgment to
Appellee, as summary judgment is improper when questions of material fact are present
pursuant to Civ.R. 56."
{¶31} When reviewing a trial court's decision to grant summary judgment, an
appellate court applies the same standard used by the trial court and, therefore, engages
in de novo review. Parenti v. Goodyear Tire & Rubber Co. (1990), 66 Ohio App. 3d 826,
829, 586 N.E.2d 1121. Under Civ.R. 56, summary judgment is only proper when the
movant demonstrates that, viewing the evidence most strongly in favor of the nonmovant,
reasonable minds must conclude no genuine issue as to any material fact remains to be
litigated and the moving party is entitled to judgment as a matter of law. Doe v. Shaffer
(2000), 90 Ohio St. 3d 388, 390, 738 N.E.2d 1243. A fact is material when it affects the
outcome of the suit under the applicable substantive law. Russell v. Interim Personnel,
Inc. (1999), 135 Ohio App. 3d 301, 304, 733 N.E.2d 1186.
{¶32} When moving for summary judgment, a party must produce some facts that
suggest a reasonable fact-finder could rule in her favor. Brewer v. Cleveland Bd. of Edn.
(1997), 122 Ohio App. 3d 378, 386, 701 N.E.2d 1023. "[T]he moving party bears the initial
responsibility of informing the trial court of the basis for the motion, and identifying those
portions of the record which demonstrate the absence of a genuine issue of fact on a
material element of the nonmoving party's claim." Dresher v. Burt (1996), 75 Ohio St. 3d
280, 296, 662 N.E.2d 264. The trial court's decision must be based upon "the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action." Id., citing
Civ.R. 56(C). The nonmoving party has the reciprocal burden of specificity and cannot
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rest on the mere allegations or denials in the pleadings. Id. at 293.
{¶33} To sustain a claim of negligence, a plaintiff must show a duty owed by
defendant to a plaintiff, a breach of that duty, injury or damages, and the existence of
proximate cause between the breach and the injury or damages. Menifee v. Ohio
Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 472 N.E.2d 707. The trial court
granted USA Parking summary judgment because the snow and ice on the lot was an
open and obvious danger which negated the duty element. The existence of a duty is a
question of law. Mussivand v. David (1989), 45 Ohio St. 3d 314, 318, 544 N.E.2d 265.
{¶34} First, Allen contends that the evidence creates an issue of material fact as
to whether he fell on a natural accumulation of snow or ice on USA Parking's lot. The
parties do not contest that Allen was at USA Parking's parking lot as a business invitee.
Light v. Ohio University (1986), 28 Ohio St. 3d 66, 68, 502 N.E.2d 611. This Court has
previously discussed the duty a property owner owes to a business invitee in regards to
snow and ice:
{¶35} "In Ohio, an owner of a business owes a duty to exercise reasonable care in
maintaining the premises in a safe condition for the use of business invitees. Perry v.
Eastgreen Realty Co. (1978), 53 Ohio St. 2d 51. The Ohio Supreme Court has repeatedly
held that an owner of property is not liable for injuries to business invitees who slip and
fall on natural accumulations of ice. LaCourse v. Fleitz (1986), 28 Ohio St. 3d 209, 210,
citing Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St. 2d 38. ’The common
thread running through these cases is the principle that the owner or occupier has a right
to assume that his visitors will appreciate the risk and take action to protect themselves
accordingly.’ LaCourse v. Fleitz, 210. Liability will only be found to attach under
circumstances where the individual may not reasonably be expected to discover or fully
appreciate the risk before him. Id. The Ohio Supreme Court has long recognized that the
inclement weather in Ohio makes it difficult for a property owner to continually patrol the
area and remedy the conditions. Norwalk v. Tuttle (1906), 73 Ohio St. 242, 245.
{¶36} "Ohio courts have differentiated between what is considered a natural
accumulation as compared to an unnatural accumulation. A natural accumulation of ice
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and/or snow has been determined to be that which accumulates as a result of an act of
nature. Porter v. Miller (1983), 13 Ohio App. 3d 93, 95, quoting Perazzo v. Dayton Hasty-
Tasty, Inc. (1962), 119 Ohio App. 453, 458. In comparison, an unnatural accumulation is
one that has been created by causes and factors other than the inclement weather
conditions of low temperature, strong winds and drifting snow. Porter v. Miller, 95.
Therefore, for an accumulation to be labeled as unnatural, causes other than
meteorological forces of nature must be responsible. DeSalvo v. DeBartolo (Dec. 16,
1998), Mahoning App. No. 96 CA 229, unreported, *3. Snow which melts and later re-
freezes into ice is considered a natural accumulation of ice caused by forces of nature.
Id. citing Kinkey v. Jewish Hospital Assn. of Cincinnati (1968), 16 Ohio App. 2d 93, 96.
{¶37} “If a property owner voluntarily removes a natural accumulation of ice or
snow, he may not create a dangerous or unnatural accumulation or be actively negligent
in permitting one to exist. Lopatkovich v. Tiffin (1986), 28 Ohio St. 3d 204, 207. In cases
involving an unnatural accumulation of ice as the cause of a fall, a plaintiff must show
that: (1) the defendant created or aggravated the hazard; (2) the defendant knew or
should have known of the hazard; and (3) the hazardous condition was substantially more
dangerous than it would have been in the natural state. DeSalvo v. DeBartolo, *3 citing
Porter v. Miller, supra, 95." Nemit v. St. Elizabeth Hosp. Medical Center (June 26, 2001),
7th Dist. No. 99-CA-202.
{¶38} Allen argues that he fell on an unnatural accumulation of ice, claiming that
this ice was "man-caused" because the water causing the ice was unnaturally impeded
on USA Parking's property; the parking lot was plowed on the date of his fall, and the
slope of the parking lot caused the water to run to the bottom of the hill and freeze in the
area where he fell. Although Allen does not specify how USA Parking's act of plowing the
lot caused an unnatural accumulation of ice, Allen is arguing that the plowing caused the
snow to be piled on the top of the hill in such a way that when the temperature rose, the
snow melted and ran down the slope of the hill, subsequently refreezing at the bottom.
This argument is meritless based upon the evidence in the record.
{¶39} In Stinson v. Cleveland Clinic Foundation (1987), 37 Ohio App. 3d 146, 524
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N.E.2d 898, the defendant plowed snow onto the top of an incline; subsequently,
temperature changes caused the snow to melt and run down to later refreeze on the
adjacent sidewalk. The Eighth District found a genuine issue of material fact existed as to
whether the ice was a natural accumulation. Id. at 149.
{¶40} Here, there is no evidence in the record that USA Parking did anything to
create an unnatural accumulation of ice. The record contains conflicting evidence
regarding whether the lot was even plowed at the time when Allen fell. USA Parking
admitted that the lot was plowed on the date, and Hamm testified that Complete Lot
Maintenance plowed the lot between 6 and 7 a.m. per their agreement. However, he
could not verify when it plowed the lot on December 15, 2005. Conversely, Allen testified
that it did not appear that the lot had been plowed. Even assuming that the lot had been
plowed the morning before Allen fell, there is no evidence that the plowing was done
improperly in a manner that would cause an unnatural ice accumulation. In fact, when
asked if he saw any large piles of snow that had been created by a plow, Allen replied
that he did not see any unless there were some caused naturally by wind drifts along the
side of the building.
{¶41} Although Allen argues the design of the parking lot caused an unnatural
accumulation of ice to form, the slope of a parking lot alone cannot be the cause of an
unnatural accumulation. See Mayes v. Boymel, 12th Dist. No. CA2002-03-051, 2002-
Ohio-4993, at ¶18, citing Jeswald v. Hutt (1968), 15 Ohio St. 2d 224, 239, 239 N.E.2d 37
("[T]he fact that the parking lot is sloped does not make the natural condition of ice and
snow unnatural."); Purgert v. Lodge Keeper Group, Inc. (May 30, 1997), 3d Dist. No. 9-
97-15 ("We do not find the presence of a slope in a parking lot in and of itself creates a
question of fact regarding a hazardous condition or an unnatural accumulation of snow
and ice in the winter."). Thus, the ice Allen fell upon was a natural accumulation and his
argument is meritless.
{¶42} Next, Allen asserts that a question of material fact exists as to whether USA
Parking had superior knowledge of the cause of his injuries. Specifically, he asserts that
USA Parking knew of the parking lot's design and had superior knowledge as to the
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freeze-thaw cycle causing water to run down the slope and freeze at the bottom. Further,
he notes that no warning signs were posted on the parking lot regarding its condition.
{¶43} If a property owner is shown to have either actual or implied notice that a
natural accumulation of snow or ice on the property 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," there is proof of
negligence. Debie, supra, at paragraph one of the syllabus. See also LaCourse, supra,
at 210.
{¶44} Allen does not offer any evidence of USA Parking's superior knowledge of
the danger beyond arguing that it knew its parking lot was sloped and knew of the
possibility that water runoff could refreeze at the bottom of the lot. However, Allen could
also view the parking lot and see that it was sloped. He testified that he had parked in
this lot several times before. As the trial court noted, he had lived through many Ohio
winters, and he would be aware of the possibility of snow melting and refreezing due to
rising and falling temperatures. See Burckholter v. Dentistry For You, 3d Dist. No. 10-08-
21, 2009-Ohio-1654, at ¶21.
{¶45} Moreover, Allen's deposition testimony reveals that he was aware of the
danger of the slippery lot. He testified that the lot was "quite naturally [] slippery" and
stated that prior to falling, he had already slipped once and was being cautious. This
testimony supports the conclusion that the danger was open and obvious. Thus, USA
Parking had no duty to post a warning regarding the condition of the parking lot.
Armstrong v. Best Buy Co., Inc. (2003), 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E.2d
1088, at ¶14. Accordingly, since USA Parking did not have superior knowledge of the
danger and the ice was open and obvious, this argument is meritless.
{¶46} Finally, Allen argues an alternate theory of liability based upon loose
concrete in the parking lot or a poorly maintained lot. However, Allen is relying on mere
speculation to argue that questions of material fact exist regarding whether the condition
of the parking lot caused his fall. As this Court has held, "[m]ere speculation or possibility
is not enough to defeat a summary judgment motion." Allstate Ins. Co. v. Sears, 7th Dist.
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No. 06 BE 10, 2007-Ohio-4977, at ¶74. Allen asserts that he testified that he could not
see the pavement beneath the layer of snow and that he saw loose concrete in the lot.
However, Allen testified that he saw the loose concrete in the back of the parking lot, not
in the area he fell. He further testified that the snow, ice, and downhill grade were the
cause of his fall. Although he could not see the pavement beneath the snow, his
argument on appeal that he could have fallen on loose concrete is based on the
possibility of concrete beneath the snow rather than any evidence of its presence.
{¶47} Allen further points to USA Parking's answer to his interrogatory in Exhibit D
where USA Parking admitted that portions of its lot were uneven. Allen then asserts that
"the presence of loose concrete in the parking lot is admitted" and later states that there
is evidence that the poorly maintained lot could be the cause of his fall. However, USA
Parking did not admit that there was loose concrete in the lot; rather, it stated in Exhibit D
that "some parts of the paved lot may have been uneven." Even viewing this evidence in
favor of Allen, it does not create a question of material fact whether a poorly maintained
lot caused Allen's fall. There is no evidence in the record that the area where Allen fell
was uneven. Moreover, the Ohio Supreme Court has held that, "[g]enerally, no liability
exists for minor imperfections in the surface of such a parking area-those slight
irregularities reasonably to be anticipated in any traveled surface." Jeswald at paragraph
two of the syllabus. See also Forste v. Oakview Constr., Inc., 12th Dist. No. CA2009-05-
054, 2009-Ohio-5516, at ¶14. Thus, absent further evidence that Allen actually fell on
loose concrete or that the lot was poorly maintained or contained more than minor
imperfections, this argument is meritless.
{¶48} In sum, Allen fell on a natural accumulation of ice caused by thawing and
refreezing of snow. The record contains no evidence that USA Parking did any act to
cause an unnatural accumulation to form, and the slope of the parking lot alone cannot
cause an unnatural accumulation. Allen relies on mere speculation rather than evidence
to argue that he fell on loose concrete or that poor maintenance of the lot caused his fall.
Finally, USA Parking did not have superior knowledge of the danger because Allen was
also aware of the slope of the lot and the thaw-freeze cycle, and the danger was open
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and obvious so USA Parking had no duty to warn Allen. Accordingly, the judgment of the
trial court is affirmed.
Waite, P.J., concurs.
Donofrio, J., concurs.