McLean v. McHugh, Inc.

[Cite as McLean v. McHugh, Inc., 2011-Ohio-2478.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SHANE MCLEAN, ET AL. : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiffs-Appellants : Hon. Julie A. Edwards, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
MCHUGH, INC., ET AL. : Case No. CT2011-007
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. CC2010-0387
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 20, 2011
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
BRIAN W. BENBOW RONALD GREGORY
605 Market Street 5005 Rockside Road
Zanesville, OH 43701 Suite 600
Independence, OH 44131
Muskingum County, Case No. CT2011-007 2
Farmer, P.J.
{¶1} On February 19, 2010, appellant, Shane McLean, suffered injuries when
he slipped on ice and fell while shopping for a vehicle at McHugh, Inc., dba McHugh
Jeep, appellee herein.
{¶2} On June 16, 2010, appellant, together with his wife, Angela McLean, filed
a complaint against appellee and others, alleging negligence in maintaining its
walkways and pathways free from ice and snow.
{¶3} On November 10, 2010, appellee filed a motion for summary judgment. A
hearing was held on February 18, 2011. By judgment entry filed same date, the trial
court granted the motion.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT COMMITTED PREJUDICAL (SIC) ERROR BY
GRANTING APPELEE'S (SIC) MOTION FOR SUMMARY JUDGMENT BY NOT
CONSIDERING APPELLANT'S PROPERLY FORMATTED AFFIDAVIT AND
AMENDED AFFIDAVIT AND BY CONSTRUING THE EVIDENCE IN A LIGHT MOST
FAVORABLE TO THE MOVING PARTY --- NOT THE NON-MOVING PARTY."
I
{¶6} Appellant claims the trial court erred in granting summary judgment to
appellee. We disagree.
Muskingum County, Case No. CT2011-007 3
{¶7} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
{¶8} "Civ.R. 56(C) 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 nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is made. State
ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,
citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,
364 N.E.2d 267, 274."
{¶9} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30
Ohio St.3d 35.
{¶10} As stated by our brethren from the Ninth District in Austin v. Peterson
(1999), Medina App. No. 2735-M:
{¶11} "The party that moves for summary judgment bears the initial burden of
identifying evidence that demonstrates that there is no genuine issue of material fact
regarding an essential element of the nonmoving party's claim. Vahila v. Hall (1997), 77
Ohio St.3d 421, 429, 674 N.E.2d 1164, citing Dresher v. Burt (1996), 75 Ohio St.3d 280,
293, 662 N.E.2d 264. Once the moving party has satisfied its burden, the nonmoving
Muskingum County, Case No. CT2011-007 4
party bears a reciprocal burden to set forth facts demonstrating that there is a genuine
issue for trial. Vahila v. Hall, 77 Ohio St.3d at 429, 674 N.E.2d 1164, citing Dresher v.
Burt, 75 Ohio St.3d at 293, 662 N.E.2d 264. When the nonmoving party fails to meet
this burden, summary judgment may be appropriately granted in favor of the moving
party. Dresher v. Burt, 75 Ohio St.3d at 293, 662 N.E.2d 264."
{¶12} Appellee filed its motion for summary judgment with discovery documents
attached on November 10, 2010. Appellant filed his memorandum contra, along with
his own affidavit, on December 1, 2010. Appellee filed a reply on December 10, 2010.
{¶13} A hearing was held on February 18, 2011. On same date at 1:37 p.m., the
trial court filed its judgment entry granting appellee's motion for summary judgment. At
1:50 p.m., appellant filed a motion to amend his affidavit, to include the omitted word
"not" from ¶9. By judgment entry filed February 23, 2011, the trial court granted
appellant's motion to amend his affidavit. Appellant filed his notice of appeal on the
February 18, 2011 judgment entry on February 28, 2011.
{¶14} Appellant now argues the trial court erred by not considering his properly
formatted affidavit and amended affidavit in rendering its decision. The omission of the
word "not" was brought to the trial court's attention and discussed during the hearing. T.
at 28-29, 40-41. At the conclusion of the hearing, the trial court permitted appellant to
file a motion to amend. T. at 41-42. The trial court was clearly aware of the omission
prior to rendering its decision.
{¶15} Appellant's argument is three-fold: 1) appellee created an unnatural
accumulation of ice by shoveling snow through an area of the parking lot which was not
a sidewalk, thus creating black ice; 2) appellee's salesman warned appellant's wife and
Muskingum County, Case No. CT2011-007 5
mother-in-law of the slippery pathway which evidences that appellee had superior
knowledge that the path was slippery; and 3) the salesman failed to warn appellant and
motioned for him to come inside using the same pathway without giving him the
opportunity to inspect the pathway. Appellant's Brief at 7-8.
{¶16} In order to establish a claim for negligence, one must show the existence
of a duty, a breach of the duty, and an injury resulting proximately from the breach.
Feldman v. Howard (1967), 10 Ohio St.2d 189.
{¶17} Appellee owed appellant, as a business invitee, the duty "of ordinary care
in maintaining the premises in a reasonably safe condition so that its customers are not
unnecessarily and unreasonably exposed to danger." Paschal v. Rite Aid Pharmacy,
Inc. (1985), 18 Ohio St.3d 203, 203. "Where a danger is open and obvious, a
landowner owes no duty of care to individuals lawfully on the premises." Armstrong v.
Best Buy Company, Inc., 99 Ohio St.3d 79, 2003–Ohio–2573, syllabus. The dangers
from natural accumulations of ice and snow are ordinarily open and obvious:
{¶18} "The dangers from natural accumulations of ice and snow are ordinarily so
obvious and apparent that an occupier of premises may reasonably expect that a
business invitee on his premises will discover those dangers and protect himself against
them." Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraph two of the syllabus.
{¶19} However, there are two exceptions to the general rule that landowners do
not owe a duty to business invitees regarding natural accumulations of ice and snow.
The first is when "an owner or occupier of property is shown to have had actual or
implied notice that a natural accumulation of ice or snow on his or her property has
created a condition substantially more dangerous than a business invitee should have
Muskingum County, Case No. CT2011-007 6
anticipated by reason of knowledge of conditions prevailing generally in the area,
negligence may be established." Kaeppner v. Leading Management, Inc. Franklin App.
No. 05AP–1324, 2006–Ohio–3588, ¶11. In order to be liable under this exception, the
landowner must have had superior knowledge of the existing danger. Moore v. Kroger
Company, Franklin App. No. 10AP–431, 2010–Ohio–5721, ¶8.
{¶20} Appellant argues that the "warning" by appellee's salesman to his wife and
mother-in-law to be careful while traversing the slippery pathway shows that appellee
had superior knowledge of the dangerous condition. Appellant's Brief at 8. In support
of his memorandum contra filed December 1, 2010, appellant attached his affidavit
wherein he stated at ¶1 that he had "firsthand personal knowledge of the matters
affirmed to herein." At ¶6, appellant attested to the following:
{¶21} "Defendant had actual notice that ice had created a condition substantially
more dangerous than Plaintiff could have anticipated. This is evidenced by the fact that
Defendant's employee, the salesman, warned Plaintiff's wife and mother-in-law about
the slippery walkway. Defendant had superior knowledge that an accumulation of ice
had occurred, which is evidenced by the warning given to two members of Plaintiff's
group."
{¶22} If appellant had firsthand personal knowledge that the salesman warned
his wife and mother-in-law, then he overheard and had knowledge that the walkway was
slippery. The salesman displaying common courtesy does not equate to superior
knowledge of a condition "substantially more dangerous," especially given the fact that
the salesman and the two women traversed the same pathway without incident. The
first exception to the open and obvious rule does not apply in this case.
Muskingum County, Case No. CT2011-007 7
{¶23} The second exception to the open and obvious rule is that a landowner
has a duty to exercise reasonable care to protect business invitees from unnatural
accumulation of ice and snow. Kaeppner, supra. "[S]ince the build-up of snow and ice
during winter is regarded as a natural phenomenon, the law requires, at the very least,
some evidence of an intervening act by the landlord (or a property owner) that
perpetuates or aggravates the pre-existing, hazardous presence of ice and snow."
Porter v. Miller (1983), 13 Ohio App.3d 93, 95.
{¶24} In his affidavit at ¶4, appellant averred that appellee "created an unnatural
accumulation of ice by shoveling snow through the parking lot on an area that was not a
sidewalk and has never been used as a sidewalk per Plaintiff's knowledge." Appellant
further averred the following at ¶5:
{¶25} "Defendant created an unnatural accumulation of ice by failing to salt the
underlying ice after clearing snow through an area of the parking lot that was not a
sidewalk thus creating black ice that was not visible to Plaintiff. The pathway had
melted overnight and had re-frozen creating a slippery, icy walkway, due to it being
cleared the day before and not being re-salted."
{¶26} As explained by our brethren from the Sixth District in Jackson v. J-F
Enterprises, Inc., Lucas App. No. L-10-1285, 2011-Ohio-1543, ¶28:
{¶27} "Even if this court accepts that appellees did actively place the snow
between the parking bumper and the sidewalk, this second exception to the open and
obvious rule does not apply because any resulting accumulation of black ice from
typical melted run-off is still not unnatural. Flint v. Cleveland Clinic Found. [Cuyahoga
App. Nos. 80177 & 80478, 2002–Ohio–2747], supra, concluding, '[s]imply piling snow
Muskingum County, Case No. CT2011-007 8
on either side of the sidewalk, without more, does not constitute an "unnatural"
accumulation of ice.***[Where] run-off from the melting snow pile created the icy patch,
several courts, including this one, have concluded that this does not constitute an
"unnatural" accumulation of ice. When snow is removed, it has to be placed
somewhere, and "a certain natural run-off of water is to be expected." ' "
{¶28} See also the analysis in Hoenigman v. McDonald's Corporation (1990),
Cuyahoga App. No. 56010, wherein our brethren from the Eighth District explained the
following:
{¶29} "After snow is removed from the surface of the parking lot, it must be
disposed of. Snow must be placed somewhere. In this case, that place was the
elevated island in the parking lot. This court has stated:
{¶30} "The accumulation of ice and snow is a condition created by the elements,
a natural hazard faced by anyone who would venture about the streets while such
conditions exist.... Snow cannot be removed from the sidewalks without being put
somewhere. A certain natural run-off of water is to be expected. Water freezes if the
temperature drops too low. The removal of snow is not an act of negligence, per se, but
an act of consideration for the safety of the public, generally, and of one's customers, in
particular.... To create liability it must appear that negligence intervened, that the snow
was disposed of in a negligent manner, or that the removal was negligently done, but it
also must appear that the resulting risk of injury was substantially increased or a
violation of the duty of due care, if not proximate cause, is not established.
{¶31} "Ramsdorfer v. Standard Oil Co. (March 22, 1973), Cuyahoga App. No.
31751, unreported, slip op. at 2 (emphasis added)."
Muskingum County, Case No. CT2011-007 9
{¶32} There is no evidence that the shoveling of the snow was negligent and
created an "unnatural" accumulation of ice. The second exception to the open and
obvious rule does not apply in this case.
{¶33} Upon review, in construing all the evidence most strongly in favor of
appellant, we find no evidence that creates a genuine issue of material fact and
therefore, the trial court did not err in granting summary judgment to appellee.
{¶34} The sole assignment of error is denied.
{¶35} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By Farmer, P.J.
Edwards, J. and
Delaney, J. concur.
_s/ Sheila G. Farmer__________________
_s/ Julie A. Edwards__________________
_s/ Patricia A. Delaney________________
JUDGES
SGF/sg 425
Muskingum County, Case No. CT2011-007 10
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SHANE MCLEAN, ET AL. :
:
Plaintiffs-Appellants :
:
-vs- : JUDGMENT ENTRY
:
MCHUGH, INC., ET AL. :
:
Defendants-Appellees : CASE NO. CT2011-007
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Muskingum County, Ohio is affirmed. Costs
to appellant.
_s/ Sheila G. Farmer__________________
_s/ Julie A. Edwards__________________
_s/ Patricia A. Delaney________________
JUDGES