King v. E. Worthington Village

[Cite as King v. E. Worthington Village, 2013-Ohio-4160.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Maureen King, :
Plaintiff-Appellant, :
No. 13AP-324
v. : (C.P.C. No. 12CVC-04-4854)
East Worthington Village et al., : (ACCELERATED CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on September 24, 2013
Arthur C. Graves, for appellant.
Kevin P. Foley, for appellees.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶1} Plaintiff-appellant, Maureen King ("appellant"), appeals from a judgment of
the Franklin County Court of Common Pleas granting defendants-appellees, East
Worthington Village, East Worthington Village, L.L.C., and Elite Management Holding,
L.L.C. ("East Village"), motion for summary judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶2} Appellant slipped and fell on an accumulation of ice and snow on the
concrete sidewalk in front of her apartment building, which is owned and operated by
East Village. The undisputed facts reveal that on February 1, 2011, appellant left her
apartment at approximately 9:00 a.m. to retrieve some items from her car. Appellant
exited the building and took a step or two on the concrete slab outside the exit door.
No. 13AP-324 2
Just as appellant stepped down onto the sidewalk, she slipped and fell on ice suffering a
fracture to her left wrist as well as injuries to other areas of her body.
{¶3} On April 17, 2012, appellant filed her complaint against East Village
alleging negligence. On January 22, 2013, the trial court granted summary judgment in
favor of East Village.
II. ASSIGNMENT OF ERROR
{¶4} Appellant has timely appealed to this court, asserting the following
assignment of error:
The trial court erred in sustaining the Motion for Summary
Judgment filed on behalf of the Defendant East Worthington
Village.
III. STANDARD OF REVIEW
{¶5} Appellate review of summary judgment motion is de novo. Helton v. Scioto
Cty. Bd. of Commrs., 123 Ohio App. 3d 158, 162 (4th Dist.1997). "When reviewing a trial
court's ruling on summary judgment, the court of appeals conducts an independent
review of the record and stands in the shoes of the trial court." Mergenthal v. Star Bank
Corp., 122 Ohio App. 3d 100, 103 (12th Dist.1997). We must affirm the trial court's
judgment if any of the grounds raised by the movant at the trial court are found to
support it, even if the trial court failed to consider those grounds. Coventry Twp. v.
Ecker, 101 Ohio App. 3d 38, 41-42 (9th Dist.1995).
{¶6} Summary judgment is proper only when the party moving for summary
judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving
party is entitled to judgment as a matter of law, and (3) reasonable minds could come to
but one conclusion and that conclusion is adverse to the party against whom the motion
for summary judgment is made, that party being entitled to have the evidence most
strongly construed in that party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp.
Relations Bd., 78 Ohio St. 3d 181, 183 (1997).
{¶7} When seeking summary judgment on the ground that the nonmoving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of
No. 13AP-324 3
the nonmoving party's claims. Dresher v. Burt, 75 Ohio St. 3d 280, 293 (1996). A
moving party does not discharge this initial burden under Civ.R. 56 by simply making a
conclusory allegation that the nonmoving party has no evidence to prove its case. Id.
Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims.
Id. If the moving party meets this initial burden, then the nonmoving party has a
reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is
a genuine issue for trial and, if the nonmoving party does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party. Id.
IV. SUBSTANTIVE LAW
{¶8} To establish a cause of action for negligence, plaintiff is required to show (1)
the existence of a duty, (2) a breach of that duty, and (3) an injury resulting proximately
therefrom. Menifee v. Ohio Welding Prods., Inc., 15 Ohio St. 3d 75, 77 (1984), citing Di
Gildo v. Caponi, 18 Ohio St. 2d 125 (1969); Feldman v. Howard, 10 Ohio St. 2d 189 (1967).
A trial court properly grants a motion for summary judgment "[w]hen the defendants, as
the moving parties, furnish evidence which demonstrates the plaintiff has not established
the elements necessary to maintain [a] negligence action." Feichtner v. Cleveland, 95
Ohio App. 3d 388, 394 (8th Dist.1994), citing Keister v. Park Centre Lanes, 3 Ohio App. 3d
19 (5th Dist.1981).
{¶9} "Whether a duty exists is a question of law for the court to determine."
Mussivand v. David, 45 Ohio St. 3d 314, 318 (1989). A defendant's duty of care is
determined by the relationship between the plaintiff and defendant and the foreseeability
of injury. Simmers v. Bentley Constr. Co., 64 Ohio St. 3d 642 (1992). An owner or
occupier owes an invitee the duty of ordinary care in maintaining the premises in a
reasonably safe condition so that she is not unnecessarily and unreasonably exposed to
danger. See Cordle v. Bravo Dev., Inc., 10th Dist. No. 06AP-256, 2006-Ohio-5693, ¶ 9.
{¶10} However, when injuries are caused by natural accumulations of ice and
snow, Ohio law provides that an owner or occupier owes no duty either to remove such
accumulations or warn users of the dangers associated therewith. Thatcher v. Lauffer
Ravines, L.L.C., 10th Dist. No. 11AP-851, 2012-Ohio-6193, ¶ 15. A natural accumulation
No. 13AP-324 4
of ice or snow is that which is formed solely as a result of meteorological forces such as
rain, snow, or a thawing and re-freezing cycle. Id. See also Bailey v. St. Vincent DePaul
Church, 8th Dist. No. 71629 (May 8, 1997), citing Hoenigman v. McDonald's Corp., 8th
Dist. No. 56010 (Jan. 11, 1990) ("the freeze and thaw cycle * * * remains a natural
accumulation").
{¶11} We have referred to this rule of law as the "no-duty rule." Ervin v. Case
Bowen Co., 10th Dist. No. 07AP-322, 2008-Ohio-393. "The rationale is that individuals
are assumed to appreciate the inherent risks associated with ice and snow arising during
typical Ohio winters and protect themselves against such dangers." Thatcher at ¶ 15,
citing Brinkman v. Ross, 68 Ohio St. 3d 82, 83-84 (1993). Accordingly, with respect to a
slip and fall on ice or snow, "the threshold question is whether the accumulation of ice is
natural." Lawrence v. Jiffy Print, Inc., 11th Dist. No. 2004-T-0065, 2005-Ohio-4043,
¶ 12.
{¶12} In Kaeppner v. Leading Mgt., 10th Dist. No. 05AP-1324, 2006-Ohio-3588,
¶ 11, we stated that "[t]o survive a properly supported motion for summary judgment in
this type of case, the plaintiff must produce evidence to establish either that: (1) the
natural accumulation of ice and snow was substantially more dangerous than the plaintiff
could have anticipated and that the land owner had notice of such danger; or (2) that the
land owner was actively negligent in permitting an unnatural accumulation of ice and
snow to exist." Id., citing Sasse v. Mahle, 11th Dist. No. 98-L-157 (Nov. 19, 1999); Martin
v. Hook SuperX, Inc., 10th Dist. No. 92AP-1649 (Mar. 18, 1993).
V. LEGAL ANALYSIS
{¶13} The trial court, relying on our opinion in Kaeppner, concluded that the "no-
duty rule" applied to this case inasmuch as the only reasonable conclusion to be drawn
from the evidence was that appellant slipped and fell on a natural accumulation of ice,
and that none of the recognized exceptions to the no-duty rule applied.
{¶14} When construed in appellant's favor, the evidence establishes the following:
the outside temperature was below freezing on the day in question; freezing rain had fallen
overnight; the accumulation of ice upon which appellant slipped and fell was not there the
previous day when appellant arrived at home; appellant did not see the ice before she
No. 13AP-324 5
slipped and fell; appellant observed the ice only after she lay on the concrete sidewalk after
her fall; no salt or deicing agent had been applied by East Village on the morning of
appellant's fall; and the ice was located in the vicinity of a downspout leading from the
gutters.
{¶15} Appellant relies upon the following excerpts from her deposition:
Q. So had you been looking for ice before you stepped onto it,
you would have seen it?
A. No. I didn't see it until - - I mean, my face was right down
on it. Of course, I'm going to see with my face right on it. I
was laying there on the pavement, on the sidewalk, and you
can see it.
(Appellant's deposition, 42.)
Q. Would you agree with me that it's smart before you walk
out in the winter in Columbus - - before you walk out, to make
sure that there's no ice or snow on the ground?
A. I didn't see any, but apparently it was there. But they
always salt, and they hadn't salted. Then when I went and
asked why they hadn't salted after I had been to the hospital
and all, she just told me, well, I guess we just didn't get to it.
(Appellant's deposition, 37.)
Q. So Exhibit C doesn't show where you actually fell then,
does it? It shows the area leading up to it, but not where you
fell?
A. Yeah. Because you take - - you know, the ice - - when I hit
the ice on the first step, you know, after I took that first step
down, then right out here would be about the second step, and
that's when I went down was about - - .
(Appellant's deposition, 34.)
{¶16} Appellant argues that her testimony gives rise to a factual issue whether the
hazard was open and obvious. We disagree.
{¶17} Appellant had lived in Ohio for approximately seven years prior to her fall
and she was aware of the winter weather conditions. (Appellant's deposition, 28-29.)
Appellant agreed that she needed to be cautious when she exited the building.
No. 13AP-324 6
(Appellant's deposition, 40.) Based upon appellant's deposition testimony, the only
reasonable inference to draw is that appellant slipped and fell on a natural accumulation
of ice that was both open and obvious. The fact that appellant did not see the ice before
she stepped off the stoop does not create an issue of fact. See Hall v. Circle K, 10th Dist.
No. 12AP-900, 2013-Ohio-3793, ¶ 21.
{¶18} Appellant claims, however, that an issue of fact exists whether East Village
was negligent in failing to apply salt to the sidewalk as was their custom and practice. In
other words, appellant asks us to impose a greater duty upon East Village to treat or
remove a natural accumulation of ice based upon its past practices. However, in Thatcher,
we stated that "imposing a duty on landlords to remove ice and snow through an 'implied
course of conduct' theory would discourage landlords from ever attempting to remove ice
and snow from the common areas of their premises as a courtesy to their tenants, and
would, therefore, make those areas less safe." Id. at ¶ 40, quoting Pacey v. Penn Garden
Apts., 2d Dist. No. 17370 (Feb. 19, 1999). We see no reason in this case to depart from
this sound public policy. Even appellant conceded that it was almost impossible for East
Village to salt every accumulation of ice as soon as it formed. (Appellant's deposition, 40.)
{¶19} Based upon the foregoing, the only reasonable conclusion to be drawn from
the evidence is that appellant slipped and fell on a natural accumulation of ice, and that
East Village owed appellant no duty to either remove the ice or warn her of the danger.
Nevertheless, appellant relies upon the case law which holds that an unnatural
accumulation of ice may be the result of human action which causes ice and snow to
accumulate in unexpected places and ways. See, e.g., Sleeper v. Casto Mgt. Servs., 10th
Dist. No. 12AP-566, 2013-Ohio-3336, ¶ 34 (viewing the evidence in a light most favorable
to plaintiffs, we can only find that the ice in the parking lot resulted from a leak in the
gutter, and was accordingly an unnatural accumulation of ice); Porter v. Miller, 13 Ohio
App.3d 93 (6th Dist.1983); Lawrence at ¶ 15-16; Notman v. AM/PM, Inc., 11th Dist. No.
2002-T-0144, 2004-Ohio-344, ¶ 24.
{¶20} In an effort to establish this exception to the "no-duty rule," appellant
submitted her own affidavit, wherein she avers:
It is my opinion that the snow and Ice that caused me to fall
was not a natural accumulation of snow and ice, but rather an
No. 13AP-324 7
unnatural accumulation of snow and ice created by the gutter
as shown in Defendants Exhibit B. The ice which caused me
to fall formed through the night and morning of my fall. The
ice was not there the day before I fell as I had been out of the
apartment the day before and did not see any ice.
In preparation for this affidavit I have reviewed the online
weather report for the general vicinity of my apartment which
reveals that "light freezing rain" was observed hourly from
12:30 a.m. on February 1, 2011 though 9:00 a.m. the time of
my fall (Plaintiff's Exhibit 12). It is my opinion that this " light
freezing rain" observed hourly fell on the roof of my
apartment and was directed to the area of my fall by the
downspouts and gutters shown in Defendant's Deposition
Exhibit B.
(Appellant's Affidavit, 2-3.)
{¶21} Appellant contends that her affidavit creates an issue of fact that prevents
summary judgment in East Village's favor. Specifically, appellant contends that the
building gutters and downspouts directed rain water onto an area frequented by tenants,
and that evidence permits the inference that East Village was actively negligent in creating
an unnatural accumulation of ice. East Village counters that appellant cannot use her
own affidavit to create an issue of fact inasmuch as her averments regarding the origin of
the ice are inconsistent with her sworn deposition testimony.
{¶22} Appellant testified as follows:
Q. I'm going to show you Exhibit D. It shows a downspout
next to your door.
And thereupon, King Exhibit E was marked for purposes of
identification.
Q. Exhibit E actually shows the door and the downspout. Can
you see both of those?
A. Yes.
Q. Would you agree with me you don't know if the water in
front of your door came from that downspout?
A. I don't know where it came from.
No. 13AP-324 8
Q. Okay. So is it fair to say that you don't know whether this
- - the downspout showed in Exhibit D - - actually in Exhibits
C, D and E, played any role in your slip and fall on February 1,
2011?
A. I didn't check the downspouts. I didn't even know what a
downspout was, so I did not have any idea whether it
contributed to it or not.
Q. Okay. And would you also agree with me that the
downspout next to your door shown on Exhibits C, D and E,
that you don't know if the water came from that downspout - -
the ice in front of your doorway - - I'm sorry - - is that correct?
A. That's correct.
(Appellant's deposition, 38-39.)
{¶23} "[A]n affidavit of a party opposing summary judgment that contradicts
former deposition testimony of that party may not, without sufficient explanation, create
a genuine issue of material fact to defeat a motion for summary judgment." Byrd v.
Smith, 110 Ohio St. 3d 24, 2006-Ohio-3455, ¶ 28. Appellant's averment that the ice upon
which she slipped and fell was created by the freezing of rain water directed to the area by
downspouts and gutters is inconsistent with appellant's earlier testimony that she did not
know where the ice came from. Appellant's failure to provide a sufficient explanation for
the inconsistency means that she cannot rely upon her affidavit to create a genuine issue
of material fact. Id.
{¶24} However, even if we were to consider appellant's affidavit, construction
defects do not generally fall within the expertise of laypersons. Holbrook v. Kingsgate
Condominium Assn., 12th Dist. No. CA2009-07-193, 2010-Ohio-850, ¶ 20, citing Notman
at ¶ 26. Thus, appellant's competence to offer opinion testimony regarding the design
and/or construction of a rainwater drainage system at East Village is not demonstrated in
the record. Id., citing Notman at ¶ 24 ("A contention that an unnatural accumulation of
snow or ice resulted from a construction defect must usually be accompanied by expert
testimony").
No. 13AP-324 9
{¶25} The undisputed photographic and testimonial evidence shows that the
gutters and downspouts directed rain water from the roof to various locations around the
building. Defendant's exhibit D shows that a downspout in the area where appellant fell
directs rain water onto the patch of ground between the building and the sidewalk.
Appellant presented no evidence that East Village was aware either that there was a defect
in the gutters and downspouts, that there had been a prior slip and fall incident caused by
an alleged accumulation of ice on this particular portion of the sidewalk, or that there
were any complaints of an unnatural accumulation of ice in the area on the morning that
appellant fell.
{¶26} Appellant acknowledges that light freezing rain fell throughout the early
morning hours before her fall. There being no competent evidence in the record to
support an inference that East Village poorly designed, constructed or maintained the
system of gutters and downspouts, there can be no doubt that the accumulation of ice
occurred as a natural result of the freezing and thawing process. Accordingly, appellant's
negligence claim fails as a matter of law.
{¶27} In short, the only reasonable conclusion to be drawn from the evidence is
that appellant slipped and fell on a natural accumulation of ice, and that East Village owed
appellant no duty either to remove the ice or to warn her of its existence. Accordingly,
appellant's sole assignment of error is overruled.
VI. DISPOSITION
{¶28} Having overruled appellant's assignment of error, we affirm the judgment of
the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and DORRIAN, JJ., concur.
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