Miller v. Grewal Bros. Corp. , 2012 Ohio 1279 ( 2012 )

[Cite as Miller v. Grewal Bros. Corp., 2012-Ohio-1279.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
JAMES D. MILLER,
PLAINTIFF-APPELLANT, CASE NO. 7-11-12
v.
GREWAL BROS. CORP., dba OPINION
BEST WESTERN NAPOLEON INN,
DEFENDANT-APPELLEE.
Appeal from Henry County Common Pleas Court
Trial Court No. 10 CIV 0145
Judgment Affirmed
Date of Decision: March 26, 2012
APPEARANCES:
George C. Rogers for Appellant
Edward T. Mohler for Appellee
Case No. 7-11-12
ROGERS, J.
{¶1} Plaintiff-Appellant, James Miller, appeals the judgment of the Court
of Common Pleas of Henry County granting Defendant-Appellee, Grewal
Brothers Corporation (“Grewal”), summary judgment. On appeal, Miller contends
that the trial court erred in granting Grewal summary judgment based on the
assumption that a non-obvious patch of ice underneath a canopy was a natural
accumulation, and that the trial court erred in failing to grant him summary
judgment on the issue of liability. Based on the following, we affirm the judgment
of the trial court.
{¶2} On January 30, 2009, Miller and three friends, Matthew Morris,
Jeffrey Darstein, and Robert Fromm, drove to Napoleon, Ohio for a billiards
tournament. Miller Depo. Tr., pp. 8-9. The weather that day was cold with
intermittent flurries. Id. at pp. 14-15; Darstein Depo. Tr., pp. 16-17. After the
billiards tournament ended for the day, Morris drove Miller, Darstein, and Fromm
to the Best Western Napoleon Inn (“Hotel”), where they had reserved rooms for
the night. Morris Affidavit, p. 1. Darstein testified that it snowed during the drive
to the Hotel. Darstein Depo. Tr., p. 17. Miller and his friends arrived at the Hotel
at approximately 10:16 p.m. Upon arriving at the Hotel, Morris testified that there
was ice and snow on the ground. Morris Affidavit, p. 1. As a result, Morris
parked his vehicle underneath the Hotel’s canopy, which was attached to the
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Hotel’s main entrance. Id. Morris, Miller, and Darstein each testified that the
area underneath the canopy appeared to be clear of ice and snow. Id.; Miller
Depo. Tr., p. 14; Darstein Affidavit, p. 2. Upon arrival, Miller, without issue,
entered the Hotel’s lobby to check-in. Miller Depo. Tr., p. 16. After checking in,
Miller returned to the rear of Morris’ vehicle, which remained parked underneath
the Hotel’s canopy, to collect his luggage. Id. As Miller collected his luggage he
slipped and fell to the ground, fracturing his left fibula. Id. at pp. 12, 16. Morris
testified that as Miller lay on the ground he observed ice “all around.” Morris
Depo. Tr., p. 20. Miller’s friends brought him into the Hotel’s lobby. Miller
Depo. Tr., p. 17. At that time, the Hotel’s front desk clerk, Angie Carroll, called
the night manager, Balraj Grewal (“Balraj”), and informed him of the accident.
Balraj Depo. Tr., p. 7. Carroll then checked the area underneath the canopy but
did not find any ice. Carroll Affidavit, p. 2. As Miller waited to be transported to
the hospital, he had a conversation with Carroll. Miller Depo. Tr., p. 18.
According to Miller, Carroll mentioned that “it was slick out there and that
somebody should put salt down but nobody had got to it at that point.” Id.
Similarly, Morris testified that Carroll mentioned that she “previously told her
boss that it was icy and the entry needed to be salted but they [had not] gotten to
it.” Morris Affidavit, p. 2; see also Darstein Affidavit, p. 1. Shortly after Miller
was taken to the hospital, Balraj arrived at the Hotel. Balraj Depo. Tr., p. 10.
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Balraj testified that he did not find any ice underneath the canopy and, at
approximately 11:00 p.m., took several pictures of the area underneath the canopy.
Id.; Defendant’s Exhibits A-D. As Balraj was taking pictures the president of
Grewal, Jagdev Grewal (“Jagdev”), arrived at the Hotel. Jagdev Depo. Tr., p. 15.
Upon arrival, Jagdev inspected the area underneath the canopy but did not observe
any ice or snow. Id.
{¶3} In July 2010, Miller filed a complaint against Grewal, because it
operated the Hotel. In his complaint, Miller alleged that Grewal negligently failed
to correct a known hazard, i.e. a patch of ice, which caused him to fall and suffer
damages.1
{¶4} In August 2010, Grewal answered Miller’s complaint, denying the
allegations therein and asserting, among other defenses, that he assumed the risk
and/or was contributorily negligent, and that any accumulation of ice or snow on
the Hotel’s premises was natural.
{¶5} In June 2011, Grewal moved for summary judgment. Grewal argued
that it owed no duty to Miller, and thus cannot be liable for his damages, since any
ice or snow underneath the canopy on the night of his accident accumulated
naturally, and it did not have superior knowledge of any ice or snow underneath
the canopy.
1
We note that Miller’s complaint also names his wife, Sherry Miller, as a plaintiff. We, however, will not
consider any claims as they relate to Sherry, because she did not file a separate notice of appeal, nor was
she included in Miller’s notice of appeal.
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{¶6} On July 8, 2011, Miller filed a memorandum in opposition to
Grewal’s motion for summary judgment and moved for partial summary judgment
on the issue of Grewal’s liability. In response to Grewal’s motion for summary
judgment, Miller argued that genuine issues of material fact existed as to whether
the ice that caused his fall was an unnatural accumulation; whether the ice was an
open and obvious hazard; and, whether Grewal had superior knowledge of the ice.
{¶7} On July 15, 2011, Grewal filed a memorandum in response to Miller’s
memorandum in opposition.
{¶8} Later that month, the trial court granted summary judgment in favor of
Grewal. In doing so, the trial court found that nothing in the record indicates that
Miller slipped on anything other than a natural accumulation of ice; and, that
Miller was aware of the prevailing wintry conditions, thus placing him on notice
of the possibility of ice near the Hotel’s main entrance. Accordingly, the trial
court held that Grewal owed no duty to Miller and, thus, could not be liable as a
matter of law.
{¶9} It is from this judgment Miller appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED IN GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT, BASED UPON THE
ASSUMPTION THAT THE NON-OBVIOUS PATCH OF ICE
THAT WAS CREATED IN THE ENTRY AREA
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UNDERNEATH THE PORTICO CONSTRUCTED BY THE
DEFENDANT, WAS A NATURAL ACCUMULATION OF ICE
AND SNOW.
Assignment of Error No. II
THE TRIAL COURT ERRED IN FAILING TO SUA SPONTE
ENTER SUMMARY JUDGMENT ON THE ISSUE OF
LIABILITY AS REQUESTED BY PLAINTIFF.
Assignment of Error No. I
{¶10} In his first assignment of error, Miller contends that the trial court
erred in determining that the ice that caused his fall was a natural accumulation.
Specifically, Miller contends that there is a genuine issue of material fact as to
whether the ice that caused his fall was a natural or unnatural accumulation. In the
alternative, Miller contends that even if the ice that caused his fall was a natural
accumulation there is a genuine issue of material fact as to whether Grewal had
superior knowledge of the ice, thus imputing upon Grewal a duty to remove the
ice or warn him of the same. Based on the following, we disagree.
{¶11} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.
1999). Accordingly, a reviewing court will not reverse an otherwise correct
judgment merely because the lower court utilized different or erroneous reasons as
the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton
Heidelberg Distr. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),
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citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d
217, 222 (1994). Summary judgment is appropriate when, looking at the evidence
as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving
party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this
analysis the court must determine “that reasonable minds can come to but one
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made, [the nonmoving] party being entitled to have the
evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”
Id. If any doubts exist, the issue must be resolved in favor of the nonmoving
party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).
{¶12} The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of
material fact on a material element of the nonmoving party’s claim. Dresher v.
Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the moving party is not required
to produce any affirmative evidence, but must identify those portions of the record
which affirmatively support his or her argument. Id. The nonmoving party must
then rebut with specific facts showing the existence of a genuine triable issue; he
or she may not rest on the mere allegations or denials of his or her pleadings. Id.
at 293; Civ.R. 56(E).
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{¶13} Bearing these standards in mind, we turn our attention to Miller’s
negligence claim. To establish a cause of action for negligence, a plaintiff must
show the existence of a duty, breach of that duty, and an injury proximately caused
by the breach. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio
St.3d 677, 680 (1998). To defeat a properly supported motion for summary
judgment in a negligence action, the plaintiff must first demonstrate a duty owed
him by the defendant. Kaeppner v. Leading Mgt., Inc., 10th Dist. No. 05AP-1324,
2006-Ohio-3588, ¶ 9. The plaintiff must then present evidence from which
reasonable minds could conclude that the defendant breached that duty and that
the breach was the proximate cause of the plaintiff’s injuries. Id.{¶14} An owner or occupier of land owes business invitees, such as Miller,
a duty of ordinary care in maintaining the property in a reasonably safe condition
so that invitees are not unnecessarily and unreasonably exposed to danger.
Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203 (1985). However, the
Supreme Court of Ohio has consistently held that an owner or occupier’s duty of
ordinary care does not extend to natural accumulations of ice and snow. Debie v.
Cochran Pharmacy-Berwick, Inc., 11 Ohio St.2d 38 (1967); Sidle v. Humphrey, 13
Ohio St.2d 45 (1968); Brinkman v. Ross, 68 Ohio St.3d 82 (1993). “[I]t is well
established that an owner or occupier of land ordinarily owes no duty to business
invitees to remove natural accumulations of ice and snow from the private
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sidewalks on the premises, or to warn the invitee of the dangers associated with
such natural accumulations of ice and snow.” Brinkman at 83. In so holding, the
Supreme Court explained that, “everyone is assumed to appreciate the risks
associated with natural accumulations of ice and snow and, therefore, everyone is
responsible to protect himself or herself against the inherent risks presented by
natural accumulations of ice and snow.” Brinkman at 84.
{¶15} Ohio courts have recognized two exceptions to the general rule that
an owner or occupier of land owes no duty to business invitees regarding natural
accumulations of ice and snow, both of which Miller contends are applicable here.
First, a plaintiff may establish negligence where an owner or occupier is actively
negligent in permitting or creating an unnatural accumulation of ice and snow.
Lapatkovich v. City of Tiffin, 28 Ohio St.3d 204, 207 (1986). Second, a plaintiff
may establish negligence where an owner or occupier of property is shown to have
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 anticipated by reason of knowledge of conditions generally
prevailing in the area. Debie at paragraph one of the syllabus. To survive a
properly supported motion for summary judgment in this type of case, the plaintiff
must produce evidence to establish either that: (1) the landowner was actively
negligent in permitting an unnatural accumulation of ice and snow to exist upon
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their land; or (2) the natural accumulation of ice was substantially more dangerous
than the plaintiff could have anticipated and that the landowner had notice of such
danger. Cooper v. Valvoline Instant Oil Change, 10th Dist. No. 07AP-392, 2007-
Ohio-5930, ¶ 17.
{¶16} With respect to the first exception, Miller contends that there is a
genuine issue of material fact as to whether the ice which caused his fall was a
natural or unnatural accumulation. We disagree as a reasonable trier of fact,
viewing the evidence in the light most favorable to Miller, could not conclude that
the accumulation of ice upon which Miller fell was unnatural.
{¶17} “[A] natural accumulation of ice and snow is one which accumulates
as a result of an act of nature, whereas an unnatural accumulation is one that
results from an act of a person.” Coletta v. Univ. of Akron, 49 Ohio App.3d 35, 37
(10th Dist. 1988). “‘Unnatural’ accumulation must refer to causes and factors
other than the inclement weather conditions of low temperature, strong winds and
drifting snow, i.e., to causes other than the meteorological forces of nature. By
definition, then, the ‘unnatural’ is the man-made, the man-caused * * *.” Porter v.
Miller, 13 Ohio App.3d 93, 95 (6th Dist. 1983).
{¶18} Cases where courts have found genuine issues of material fact
regarding whether an accumulation of ice and snow was natural or unnatural
generally involve records containing evidence of an unnatural cause or source of
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the accumulation. See Tyrrell v. Invest. Assoc., Inc., 16 Ohio App.3d 47 (8th Dist.
1984) (defect in canopy extending over sidewalk); Sherwood v. Mentor Corners
Ltd. Partnership, 11th Dist. No. 2006-L-020, 2006-Ohio-6865 (valley between
gable and edge of roof); Nawal v. Clearview Inn, Inc., 8th Dist. No. 65796 (Aug.
4, 1994) (improperly maintained downspouts and gutters). Courts have also
denied summary judgment where there is evidence that an accumulation of ice
results from some source other than precipitation or meteorological conditions.
See Notman v. AM/PM, Inc., 11th Dist. No. 2002-T-0144, 2004-Ohio-344 (ice
resulted from water from carwash hoses).
{¶19} Here, the evidence reveals that the weather was cold and snowy on
the day of Miller’s accident; that it snowed during the drive from the billiards
tournament to the Hotel; and, that the area underneath the canopy was open to the
elements on three of its four sides. Likewise, there is no evidence that the
construction of the canopy resulted in an unnatural accumulation of ice; that there
was a defect in the canopy that caused an unnatural accumulation of ice; or, that
ice resulted from something other than precipitation or the prevailing
meteorological conditions. Despite the lack of such evidence, Miller,
nevertheless, contends there is a genuine issue of material fact based on the fact
that reasonable minds could infer that the ice that caused his fall was an unnatural
accumulation because canopies are intended to protect the area underneath them
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from the natural accumulation of ice and snow. While the nonmoving party to a
summary judgment motion is entitled to all reasonable inferences, an inference can
only be made and relied on if it is drawn from evidence in the record. Hurt v.
Charles J. Rogers Transp. Co., 164 Ohio St. 329, 332-33 (1955). Here, Miller
cites nothing in the record that supports his inference or otherwise demonstrates
that the ice at issue was an unnatural accumulation. Absent such evidence, we
find that Miller’s asserted inference does not create a genuine issue of material
fact as to whether the ice at issue was a natural or unnatural accumulation. See
Norton v. Marion Gen. Hosp., 3d Dist. No. 9-06-04, 2006-Ohio-3535, ¶ 11 (a
potential inference is not enough to withstand a motion for summary judgment).
{¶20} With respect to the second exception, Miller contends that there is a
genuine issue of material fact as to whether Grewal had superior knowledge that
the ice at issue was substantially more dangerous than he should have anticipated.
We disagree as a reasonable trier of fact, viewing the evidence in the light most
favorable to Miller, could not conclude that Grewal had superior knowledge of the
ice that caused his fall.
{¶21} In order to be liable under this exception, the owner or occupier must
have some superior knowledge of the existing danger. LaCourse v. Fleitz, 28
Ohio St.3d 209, 210 (1986). Here, Miller relies on Carroll’s statement concerning
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the icy nature of the entry area and the fact that the Hotel had salt available for its
premises as evidence of Grewal’s superior knowledge of the ice at issue.
{¶22} First, the fact that the Hotel had salt available does not demonstrate
that Grewal had any knowledge of the ice that caused Miller’s fall. Miller simply
assumes, without support, that since the Hotel had salt available for its premises
Grewal had superior knowledge of the ice at issue. At most, evidence that a
business has salt available for its premises demonstrates that it is generally aware
of the hazards associated with the accumulation of ice and snow, as opposed to
specific knowledge of a particular icy condition. Accordingly, the fact that the
Hotel had salt available for its premises has no relevance in determining whether
there is a genuine issue of material fact as to whether Grewal had superior
knowledge of the ice at issue.
{¶23} As for Carroll’s statement concerning her awareness of the ice in the
entry area, we find that her statement does not create a genuine issue of material
fact as to whether Grewal had superior knowledge of the ice at issue.2 “To the
extent that a business invitee and the owner of the premises have equal knowledge
of the usual dangers resulting solely from natural accumulations of ice and snow,
the latter cannot be charged with actionable negligence with regard to such
dangers.” Mikula v. Slavin Tailors, 24 Ohio St.2d 48, 56 (1970). While the area
2
Though there is no evidence that Carroll stated that the area beneath the canopy was icy, we will construe
her statement that the entry area was icy as encompassing the area beneath the canopy since the Hotel’s
canopy is attached to the Hotel’s main entrance.
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underneath the canopy appeared clear of ice and snow, Miller was, based on his
awareness of the prevailing wintry conditions, charged with knowledge of the
dangers presented by natural accumulations of ice and snow as a matter of law.
As the Second District Court of Appeals explained:
[I]t is assumed that reasonable individuals will understand that
winter conditions can create dangers from ice and snow, and
individuals will take the necessary precautions. It is not that patches
of ice and snow are obvious. Many are not. It is that, as a general
matter, the potential for dangerous conditions in winter is obvious.
Dangers from natural accumulations of ice and snow are, therefore,
generically treated by the law as open and obvious.
Community Ins. Co. v. McDonald’s Restaurants of Ohio, Inc., 2d Dist. Nos.
17051, 17053 (Dec. 11, 1998). Therefore, even though Grewal, via Carroll, knew
of the hazardous condition created by the natural accumulation of ice underneath
its canopy, so, too, as a matter of law, did Miller. See Id. Moreover, Miller’s
imputed knowledge of the hazardous conditions associated with winter is not
reduced or superseded by the fact that his fall occurred underneath the Hotel’s
canopy. The canopy was open to the elements on three sides, thus plainly
rendering the area underneath the canopy susceptible to the prevailing wintry
conditions and the hazards associated with such conditions. Consequently, the
evidence demonstrates that the parties had equal knowledge of the dangers
resulting from the natural accumulation of ice and snow. As such, Grewal owed
Miller no duty to remove the ice or warn him of the same.
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{¶24} In light of the foregoing, we find that the trial court did not err in
granting Grewal summary judgment. Accordingly, we overrule Miller’s first
assignment of error.
Assignment of Error No. II
{¶25} In his second assignment of error, Miller contends that the trial court
erred in denying him partial summary judgment on the issue of Grewal’s liability.
In light of our finding that Grewal was entitled to summary judgment, Miller’s
second assignment of error is moot and we decline to address it. App.R.
12(A)(1)(c).
{¶26} Having found no error prejudicial to Miller herein, in the particulars
assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
/jlr
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