Hunter v. Lehigh Gas-Ohio

[Cite as Hunter v. Lehigh Gas-Ohio, 2012-Ohio-2392.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97546
KATRINA HUNTER
PLAINTIFF-APPELLANT
vs.
LEHIGH GAS-OHIO, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-746351
BEFORE: Celebrezze, J., Blackmon, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: May 31, 2012
ATTORNEYS FOR APPELLANT
Paul W. Flowers
Paul W. Flowers Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113
Thomas J. Zaffiro
4577 Mayfield Road
South Euclid, Ohio 44121
ATTORNEYS FOR APPELLEE
BP PRODUCTS NORTH AMERICA, INC.
Alexandra V. Dattilo
Joseph T. Dattilo
Michael P. O’Donnell
Charles D. Price
Brouse McDowell
600 Superior Avenue East
Suite 1600
Cleveland, Ohio 44114
FOR APPELLEE LEHIGH GAS-OHIO, L.L.C.
Lehigh Gas Ohio, L.L.C., pro se
c/o Capitol Corporate Services, Inc.
Statutory Agent
4568 Mayfield Road
Suite 204
Cleveland, Ohio 44121
FRANK D. CELEBREZZE, JR., J.:
{¶1} Appellant, Katrina Hunter, brings this appeal challenging the grant of
summary judgment in favor of appellee, BP Products of North America, Inc. (“BP”), in
her personal injury action based on premises liability. After a thorough review of the
record and law, we affirm the grant of summary judgment.
I. Factual and Procedural History
{¶2} Katrina Hunter, a home health aid, stopped at a BP gas station in Cleveland
Heights, Ohio, at approximately 6:50 a.m. on January 23, 2009, to get a cappuccino
before heading to a client’s home. She frequently visited this gas station to get coffee.
She parked her car in the same location she had on many occasions and walked into the
gas station to get her coffee. The weather was inclement that morning. It was raining
and temperatures were low, but evidence is lacking as to how low. Hunter stated that the
low that day was 24 degrees, but did not estimate the temperature at the time of her
accident.
{¶3} As Hunter exited the store, she slipped and fell on a patch of ice submerged
in a puddle of water. She said she could not see the ice because of the water covering it
and the glare off the water from the overhead lights in the area. After falling, Hunter
saw salt commonly used to melt snow and ice on her hands. She also noticed water
running off the building and overhead structure pooling by the entrance of the
convenience store. She did not notice a drain or other means to prevent pooling water
from accumulating where she fell. Hunter was helped off the ground by a gas station
employee and more salt was added to the entrance area.
{¶4} Hunter brought suit against Lehigh Gas-Ohio, L.L.C. (“Lehigh”), BP, and BP
America Inc. (“BP America”), to recover for injuries allegedly sustained from the fall.
Lehigh and BP America were dismissed from the suit, leaving BP as the remaining
defendant. BP filed for summary judgment on June 24, 2011, which Hunter opposed.
The trial court found in favor of BP and granted its motion. Hunter then appealed.
II. Law and Analysis
{¶5} Hunter assigns one error for review — “[t]he trial judge erred as a matter of
law, by granting summary judgment upon [her] premises liability claim against [BP].”
A. Premises Liability
i. Standard of Review
Civ.R. 56(C) specifically provides that before summary judgment may be
granted, 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 come to but one conclusion, and viewing such evidence most strongly
in favor of the party against whom the motion for summary judgment is
made, that conclusion is adverse to that party. Temple v. Wean United,
Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
{¶6} It is well established that the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mitseff v. Wheeler, 38
Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). In Dresher v. Burt, 75 Ohio St.3d 280, 662
N.E.2d 264 (1996), the Ohio Supreme Court modified and/or clarified the summary
judgment standard as applied in Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108,
570 N.E.2d 1095 (1991). Under Dresher, the 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.” (Emphasis sic.) Id. at 296. The
nonmoving party has a reciprocal burden of specificity and cannot rest on mere
allegations or denials in the pleadings. Id. at 293. The nonmoving party must set forth
“specific facts” by the means listed in Civ.R. 56(C) showing a genuine issue for trial
exists. Id.
{¶7} This court reviews the lower court’s granting of summary judgment de novo.
Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 622 N.E.2d 1153 (4th
Dist.1993). An appellate court reviewing the grant of summary judgment must follow
the standards set forth in Civ.R. 56(C). “The reviewing court evaluates the record * * *
in a light most favorable to the nonmoving party. * * * [T]he motion must be overruled
if reasonable minds could find for the party opposing the motion.” Saunders v. McFaul,
71 Ohio App.3d 46, 50, 593 N.E.2d 24 (8th Dist.1990).
ii. Duty Owed to Business Invitee For Accumulation of Ice
{¶8} In Ohio, there is no duty owed to an invitee to remove natural accumulations
of ice and snow that typically result from “freeze and thaw cycles which commonly cause
ice formations * * *.” Mubarak v. Giant Eagle, Inc., 8th Dist. No. 84179,
2004-Ohio-6011, ¶ 18, citing Hoenigman v. McDonald’s Corp., 8th Dist. No. 56010,
1990 WL 1334 (Jan. 11, 1990), citing Lopatkovich v. Tiffin, 28 Ohio St.3d 204, 206-207,
503 N.E.2d 154 (1986). Generally, ice formations “are considered to be natural
accumulations absent a showing of negligence on the part of the landowner or occupier.”
Id.It is well-settled that there is no general duty upon an occupier of land to
warn invitees on the property against dangers which 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.
Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 233 N.E.2d 589, syllabus;
Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 18 Ohio B.
267, 480 N.E.2d 474. “The dangers from natural accumulations of ice and
snow are ordinarily so obvious and apparent that an occupier of [the]
premises may reasonably expect that a business invitee on the premises will
discover those dangers and protect himself against them.” Id., syllabus at
two. The rationale is that an open and obvious danger itself serves as a
warning, and that “the owner or occupier may reasonably expect that
persons entering the premises will discover those dangers and take the
appropriate measures to protect themselves.” Simmers v. Bentley Constr.
Co., 64 Ohio St.3d 642, 644, 1992-Ohio-42, 597 N.E.2d 504. Therefore,
an owner and occupier has no duty to remove natural accumulations of ice
and snow from private walks and steps on the premises. Id., syllabus at
three. Bailey v. St. Vincent DePaul Church, 8th Dist. No. 71629, 1997 WL
232685 (May 8, 1997).
{¶9} As noted in Bailey, there are two exceptions to the open and obvious
doctrine:
If an occupier is shown to have had notice, actual or implied, that a natural
accumulation of snow and ice on his or her premises has created a condition
substantially more dangerous than a business invitee should have
anticipated by reason of the knowledge of conditions prevailing generally in
the area, negligence may be proven. * * * A second exception to the
no-duty rule exists where the owner is actively negligent in permitting or
creating an unnatural accumulation of ice and snow. Id., citing
Lopatkovich, supra.
{¶10} In Bailey, an invitee slipped and fell on an icy walkway leading into a
church. Bailey alleged that the ice was not open and obvious because of particular
conditions that the church knew about. According to her, ice falling from the church
roof onto the walkway leading to the church entrance would thaw and then refreeze,
creating a substantially more dangerous condition than she could reasonably anticipate.
On appeal, this court determined that “the freeze and thaw cycle accompanying the winter
climate in northeastern Ohio” created a “natural accumulation of snow and ice.” There
was no evidence that defendant did anything to transform it into an unnatural
accumulation.
{¶11} Similar to an argument advanced in the present case, Bailey specifically
argued that placement of the sidewalk under a known drainage area created an unnatural
accumulation of ice and snow. This court rejected that argument where no evidence of
negligence was presented. Id. at *2. Accord Flint v. Cleveland Clinic Found., 8th Dist.
Nos. 80177 and 80478, 2002-Ohio-2747, ¶ 18 (“An unnatural accumulation of snow and
ice is one that has been created by causes and factors other than meteorological forces of
nature such as the inclement weather conditions of low temperature, strong winds and
drifting snow.”).
{¶12} In another similar case, this court reversed the grant of a directed verdict
dismissing a corporate drug store owner from a premises liability action where evidence
was presented that a canopy over the entrance of the store leaked and where drug store
employees knew of the leak and the tendency of water to accumulate under the canopy.
Tyrrell v. Invest. Assoc., Inc., 16 Ohio App.3d 47, 474 N.E.2d 621 (8th Dist.1984). This
court relied on the evidence presented that employees of the drug store admitted that they
were aware of the faulty canopy to hold that there was an issue of fact regarding the drug
store’s negligence in creating a more dangerous condition. Id. at 49.
{¶13} The Tyrrell case is distinguishable from Hunter’s claim because we have no
evidence of a defective canopy or that BP employees knew about any defective condition
or had superior knowledge of any condition that would create a hazard to the business
invitees frequenting the store.
{¶14} Hunter would have knowledge imputed to BP based on her discovery of salt
on the sidewalk in front of the store. However, that is a leap unsupported by evidence in
the record. Hunter claims that BP could have supplied an affidavit stating that salting
occurred as a routine procedure when temperatures were below freezing, but its failure to
do so means that this was not a routine procedure, and knowledge of the ice should be
imputed. However, there is no evidence in the record implying knowledge of a
dangerous condition as there was in Tyrrell. Appellant could have deposed employees
present at the store that morning, but chose not to. An incident report was generated by
BP as a result of Hunter’s fall. It listed the witnesses to the fall including at least one BP
employee. No one deposed these witnesses, leaving this court with nothing but
speculation on Hunter’s part that the employees of BP knew of the icy condition at the
entrance to the convenience store. Unsupported conclusions do not create a question of
fact. Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264.
{¶15} “Moreover, ‘prior shoveling or salting does not render subsequent
accumulations of ice to be unnatural.’” Lehman v. Cracker Barrel Old Country, 5th
Dist. No. 2004-CV-0048, 2005-Ohio-370, ¶ 30, quoting Klein v. Ryan’s Family Steak
House, 9th Dist. No. 200683, 2002-Ohio-2323. In Klein, the Ninth District reaffirmed
that “‘the spreading of de-icing materials on certain portions of a parking lot will, as a
matter of law, neither create a hidden danger nor impute superior knowledge thereof to a
property owner.’ (citation omitted.)” Id. at ¶ 19, quoting Goodwill Indus. of Akron v.
Sutcliffe, 9th Dist. No. 19972, 2000 WL 1288057, *2 (Sep. 13, 2000). Accordingly, this
claim is without merit. Knowledge of a dangerous condition should not be imputed
simply because salt was found in the area of the accident.
{¶16} BP has asserted that the ice Hunter slipped on was a natural accumulation.
Hunter’s allegations that water was accumulating by running off the sides of the building
and the small canopy over the length of the sidewalk does not change the nature of the
accumulation of ice to anything other than the expected conditions one encounters as a
resident of northeast Ohio in times of inclement weather. Hunter has failed to offer any
evidence that BP had superior knowledge of the danger presented or that its actions
substantially changed the condition of the entrance to be more hazardous than
surrounding areas.
{¶17} There is also no evidence of negligence on BP’s part as there was in Tyrrell
where the canopy was defective. Hunter has not alleged that the structure partially
covering the entrance and sidewalk was defective or dilapidated and caused the entrance
to be substantially more dangerous than surrounding areas. Therefore, Hunter has failed
to show that she slipped on anything other than a natural accumulation of ice, and BP is
not liable for her injuries.
III. Conclusion
{¶18} Hunter offers only conclusory statements that the ice she slipped on was an
unnatural accumulation. This is not sufficient to survive a motion for summary
judgment. Therefore, the trial court did not err in granting BP’s motion.
{¶19} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA ANN BLACKMON, A.J., and
MARY J. BOYLE, J., CONCUR