Roberts v. Kauffman 4 Dayton, Ltd. , 2022 Ohio 3164 ( 2022 )

[Cite as Roberts v. Kauffman 4 Dayton, Ltd., 2022-Ohio-3164.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
ALLEN KEITH ROBERTS :
:
Plaintiff-Appellant : Appellate Case No. 29412
:
v. : Trial Court Case No. 2021-CV-130
:
KAUFFMAN 4 DAYTON, LTD, et al. : (Civil Appeal from
: Common Pleas Court)
Defendants-Appellees :
:
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OPINION
Rendered on the 9th day of September, 2022.
...........
ALLEN KEITH ROBERTS, 4916 Oaks Court, Middletown, Ohio 45044
Plaintiff-Appellant, Pro Se
MOLLY G. VANCE, Atty. Reg. No. 0076494, P.O. Box 6835, Scranton, Pennsylvania
18505
Attorney for Defendant-Appellee, Kauffman 4 Dayton, Ltd.
BRIAN L. WILDERMUTH, Atty. Reg. No. 0066303, 50 Chestnut Street, Suite 230,
Dayton, Ohio 45440
Attorney for Defendant-Appellee, Central Miami Property Maintenance
.............
TUCKER, P.J.
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{¶ 1} Plaintiff-appellant Allen Keith Roberts appeals from a judgment of the
Montgomery County Court of Common Pleas, which rendered summary judgment in favor
of defendants-appellees Kauffman 4 Dayton, Ltd. (“Kauffman”) and Central Miami
Property Maintenance (“Central Miami”) on Roberts’s “slip and fall” negligence claim
against them. For the following reasons, the trial court's judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} This appeal stems from injuries sustained by Roberts on January 14, 2019.
On that date, Roberts arrived at the facility of his employer, Freight Rite, at his usual time
of approximately 6:30 a.m. Roberts was aware that it had snowed two days prior with
approximately eight inches of snow accumulation. After exiting his vehicle, Roberts
walked across the parking lot toward the facility entrance ramp located at the end of the
building. Roberts was a few feet from the ramp when he slipped on ice and fell to the
ground. Roberts sustained multiple breaks to his right leg, which required surgery. He
also tore three ligaments and sustained nerve damage.
{¶ 3} Kauffman owns the commercial office building and parking lot leased by
Freight Rite. Central Miami is an independent contractor who provided snowplowing
services to Kauffman for the Freight Rite facility following the snow event.
{¶ 4} On January 12, 2021, Roberts filed an action against Kauffman and Central
Miami alleging that they had negligently failed to provide a safe means of ingress; had
created or maintained an unreasonably dangerous and hazardous condition as a result
of the plowing activities, which in turn had caused the naturally accumulated snow and
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ice to be more dangerous than would normally be encountered; and had failed to
reasonably inspect, remove, or warn him of the existence of this dangerous condition.
{¶ 5} After taking Roberts’s deposition, Kauffman and Central Miami filed motions
for summary judgment on Roberts’s claims. Both defendants argued they had not
created an unnatural accumulation of snow and ice on the property and that the danger
posed by the snow and ice had been open and obvious. Roberts opposed the motion,
arguing that the plowed snow was pushed to the edge of the fence line which, based upon
the slope of the terrain, allowed thawed snow to seep to the parking lot area where he
ultimately fell, and then the accumulated water refroze. Roberts argued that the ice
patch so created had been an unnatural and negligently created ice accumulation.
Roberts also asserted that the icy patch had not been open and obvious.
{¶ 6} The trial court entered summary judgment in favor of Kauffman and Central
Miami. In its decision, the trial court concluded that Roberts’s claims were precluded by
the “no-duty winter rule” and the open and obvious doctrine.
{¶ 7} Roberts appeals.
II. Late Filing of Reply Memorandum
{¶ 8} As written, Roberts’s first assignment of error states the following:
TRAIL COURT FIRST ASSIGNMENT OF ERROR ABUSE OF
DISCRETION ALLOWING FAILURE TO FILE IN TIMELY MANNER INTO
THE RECORD
{¶ 9} Roberts contends that the trial court erred by permitting Central Miami to file
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a reply memorandum outside of the time allowed by the trial court’s final pretrial order.
That order required all motions for summary judgment be filed by November 22, 2021.
The order also made responses due 28 days after the movant’s filing and replies due
seven days after the filing of any responses.
{¶ 10} Central Miami filed its motion for summary judgment on November 12,
2021. Roberts filed his response on December 10, 2021. Prior to the expiration of the
7 day deadline for its reply, Central Miami filed a motion for an extension of time to file its
reply. Although no decision was entered regarding the motion for an extension, Central
Miami filed its reply on December 28, 2021. Thus, there is no dispute that the reply was
not filed in the time permitted by the pretrial order.
{¶ 11} “Trial courts have inherent power to manage their own dockets and the
progress of the proceedings before them.” Pond v. Pond, 10th Dist. Franklin No. 20AP-
262, 2021-Ohio-1708, ¶ 9, quoting U.S. Bank Natl. Assn. v. Lewis, 10th Dist. Franklin No.
18AP-550, 2019-Ohio-3014, ¶ 10, citing Canady v. Rekau & Rekau, Inc., 10th Dist.
Franklin No. 09AP-32, 2009-Ohio-4974, ¶ 16. In reviewing whether a court erred in the
implementation of its own scheduling order, we generally apply the abuse of discretion
standard. Id., citing America's Floor Source, LLC v. Homes, 191 Ohio App.3d 493, 2010-
Ohio-6296, 946 N.E.2d 799, ¶ 46 (10th Dist.). We have reviewed the record and note
that Roberts, who was represented by counsel at the time, did not object to the late filing
of the reply.1 Thus, he has waived all but plain error.
1
Central Miami attempts to demonstrate that counsel for Roberts agreed to the requested
extension by attaching e-mails exchanged between counsel. However, these e-mails
are not a part of the record before us and will not be considered.
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{¶ 12} “The plain error doctrine is not favored in civil appeals.” Daniel v. Walder,
2d Dist. Montgomery No. 27558, 2017-Ohio-8914, ¶ 12, citing Care Risk Retention Group
v. Martin, 191 Ohio App.3d 797, 2010-Ohio-6091, 947 N.E.2d 1214, ¶ 80 (2d Dist.).
“Plain error in civil cases is defined as error that ‘seriously affects the basic fairness,
integrity, or public reputation of the judicial process, thereby challenging the legitimacy of
the underlying judicial process itself.’ ” Id., quoting Goldfuss v. Davidson, 79 Ohio St.3d
116, 679 N.E.2d 1099 (1997), syllabus. “Civil plain error is applied ‘only in the extremely
rare case.’ ” Id.{¶ 13} The record does not contain any evidence that Roberts filed a written or oral
objection to the reply during the month-long period of time between the date the reply was
filed and the entry of the trial court’s decision on February 2, 2022. More importantly,
Roberts does not allege any prejudice stemming from the late filing. From our review,
we cannot say Roberts has demonstrated an abuse of discretion, let alone plain error.
Thus, we find no merit in this argument.
{¶ 14} The first assignment of error is overruled.
III. No Duty Winter Rule/Open and Obvious Doctrine
{¶ 15} Roberts’s second and third assignments of error, as written, state:
TRAIL COURT SECOND ASSIGNMENT OF ERROR IN
GRANTING SUMMARY JUDGEMENT IN FAVOR OF THE DEFENDANT
ON THE BASIS OF OHIO OPEN AND OBIVIOUS RULE WHERE
MULTIPIE ISSUES OF FACT EXIST AND WHERE REASONABLE MINDS
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COULD DIFFER ON WHETHER THAT THE HAZARD WAS OPEN AND
OBIVIOUS
TRIAL COURT THIRD ASSIGNMENT OF ERROR CLAIMING
THERE WAS NO NEGLIGENCE ON DEFENDANT PART TO KEEP
BUILDING REASONABLE SAFE CONDITION AND HAD NO DUTY TO
WARN DUE TO WINTER RULE AND THAT ATTENDANT
CIRCUMSTANCES AND LATENT DEFECTS DID NOT APPLY
{¶ 16} In these assignments of error, Roberts challenges the trial court’s decision
to render summary judgment against him.
{¶ 17} Civ.R. 56(C) provides summary judgment may be granted when the moving
party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party
is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in
favor of the nonmoving party, 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. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201(1998). Our review of the trial court's decision to grant summary judgment against
Roberts is de novo. Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162,
703 N.E.2d 841 (4th Dist.1997).
{¶ 18} With this standard in mind, we turn to the question of negligence as raised
by Roberts. “[I]n order to establish actionable negligence, one seeking recovery must
show the existence of a duty, the breach of the duty, and injury resulting proximately
therefrom.” Perko v. Healthcare Servs. Group, Inc., 8th Dist. Cuyahoga No. 110267,
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2021-Ohio-4216, ¶ 7, quoting Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d
467 (1981). The status of a person who enters the land of another defines the scope of
the legal duty owed to that person. Gladon v. Greater Cleveland Reg. Transit Auth., 75
Ohio St.3d 312, 315, 662 N.E.2d 287 (1996). It is undisputed in this case that Roberts
was a business invitee on the property. With respect to business invitees, an owner's
duty is to keep the premises in reasonably safe condition and to warn of dangers that are
known to the owner. Hill v. Mullins, 2017-Ohio-1302, 88 N.E.3d 575, ¶ 14 (2d Dist.).
{¶ 19} However, a business owner's duty to business invitees does not extend to
hazards from natural accumulations of ice and snow. Tyrrell v. Invest. Assocs., Inc., 16
Ohio App.3d 47, 49, 474 N.E.2d 621 (8th Dist.1984). Further, business owners generally
owe no duty to a business invitee to remove natural accumulations of ice and snow or to
warn invitees of the dangers associated with such natural accumulation. Brinkman v.
Ross, 68 Ohio St.3d 82, 83, 623 N.E.2d 1175 (1993). There is no such duty because
“[t]he 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, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph two of the syllabus.
{¶ 20} There are two exceptions to this “no-duty” winter rule. One exists when the
landowner is shown to have superior knowledge that the natural accumulation of snow
and ice on the premises has created a condition substantially more dangerous to
business invitees than they should have anticipated by reason of their knowledge of
conditions prevailing generally in the area. Debie v. Cochran Pharmacy-Berwick, Inc.,
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11 Ohio St.2d 38, 227 N.E.2d 603 (1967), paragraph one of the syllabus; LaCourse v.
Fleitz, 28 Ohio St.3d 209, 210, 503 N.E.2d 159 (1986). For example, a natural
accumulation of snow which fills or covers a known deep hole in a parking lot is a condition
substantially more dangerous than that normally associated with snow. Mikula v. Tailors,
24 Ohio St.2d 48, 57, 263 N.E.2d 316 (1970). The second exception exists where the
landowner is actively negligent in permitting or causing an unnatural accumulation of ice
or snow. Lopatkovich v. Tiffin, 28 Ohio St.3d 204, 207, 503 N.E.2d 154 (1986).
{¶ 21} Here, there is nothing in the record before us to demonstrate that the
accumulation of snow or ice created a condition that was substantially more dangerous
than that which is normally associated with snow or ice. In any event, Roberts relies on
the second exception and argues the ice on which he slipped was an unnatural
accumulation which was negligently created because Central Miami plowed snow from
the parking lot and left it in piles on a slope at the property fence line. Roberts claims
the snow piles melted and the water then ran down the slope, where it froze into a three-
to four-foot patch of snow in front of the entrance ramp.
{¶ 22} “The term ‘unnatural accumulation’ refers to causes and factors other than
such inclement weather conditions as low temperature, strong winds and drifting snow.”
Corson v. N. Am. Truck Platform, 2d Dist. Montgomery No. 19399, 2002-Ohio-6777, ¶ 12,
citing Porter v. Miller, 13 Ohio App.3d 93, 95, 468 N.E.2d 134 (6th Dist.1983). In other
words, “[u]nnatural accumulations are man-made or man-caused.” Id. Roberts
contends that by plowing the parking lot and moving the natural accumulation into piles
on a sloped area, Central Miami created an unnatural accumulation. This court has
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rejected Roberts’s argument.
{¶ 23} Specifically, we have noted that “[w]hen snow is removed, it has to be
placed somewhere, and ‘a certain natural run-off of water is to be expected.’ ” McDonald
v. Koger, 150 Ohio App.3d 191, 2002-Ohio-6195, 779 N.E.2d 1083, ¶ 9 (2d Dist.), quoting
Hoenigman v. McDonald's Corp., 8th Dist. Cuyahoga No. 56010, 1990 WL 1334, * 3 (Jan.
11, 1990). Thus, when a parking lot is plowed but some of the snow melts and forms an
icy patch, the formed ice is considered a natural accumulation. Id. We have also stated
that “snow placed on elevated islands causing a natural runoff of water that later froze
into ice was not rendered an unnatural accumulation.” Koger at ¶ 11.
{¶ 24} Roberts’s deposition indicates he did not actually have information to
indicate that the ice on which he slipped had not occurred naturally. Indeed, it is obvious
that his claim that the snow piles at the fence line must have melted, causing water to run
toward the ramp, and then the water refroze was nothing more than speculation.
Roberts did not present any evidence to demonstrate that the temperature following the
snow event was sufficiently warm to permit thawing of the snow piles, nor was there any
evidence to demonstrate the ice had not formed prior to the plowing.
{¶ 25} We also note that Central Miami presented evidence, in the form of
affidavits, that the snow on the parking lot was plowed in accordance with accepted
practice and that it was properly placed at the property line. Roberts did not submit any
evidence to refute this claim.
{¶ 26} Roberts next argues the trial court erred in rendering summary judgment
because the ice patch was not open and obvious due to attendant circumstances. First,
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he contends the patch consisted of black ice, thereby rendering it invisible upon normal
inspection. He further argues that the lighting at the facility was insufficient to properly
illuminate the parking lot, because the trucks parked at the building’s loading docks
created shadows on the parking lot. Thus, he contends Kauffman had been required to
warn him of the danger.
{¶ 27} “If a danger is open and obvious, a property owner owes no duty of care to
individuals lawfully on the premises.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79,
2003-Ohio-2573, 788 N.E.2d 1088, ¶ 14. To be open and obvious, a hazard must not
be concealed and must be discoverable by ordinary inspection. Larrick v. J.B.T., Ltd., 2d
Dist. Montgomery No. 21692, 2007-Ohio-1509, ¶ 11. The relevant issue is not whether
an individual observes the condition, but whether the condition is capable of being
observed. Id., citing Lydic v. Lowe's Cos., Inc., 10th Dist. Franklin No. 01AP-1432, 2002-
Ohio-5001, ¶ 10.
{¶ 28} “Attendant circumstances” may affect the applicability of the open and
obvious doctrine. An attendant circumstance is a factor that contributes to the fall and is
beyond the control of the injured party. Backus v. Giant Eagle, Inc., 115 Ohio App.3d
155, 158, 684 N.E.2d 1273 (7th Dist.1996). It has been defined to include any distraction
that would come to the attention of a person in the same circumstances and reduce the
degree of care an ordinary person would exercise at the time. Long v. Speedway, LLC,
2d Dist. Montgomery No. 26851, 2016-Ohio-3358, ¶ 10. “The attendant circumstances
must, taken together, divert the attention of the person, significantly enhance the danger
of the defect, and contribute to the injury.” Id.-11-
{¶ 29} This court has noted that the inability to see due to a truck blocking the light
is an open and obvious danger. Gibbs v. Speedway, LLC, 2014-Ohio-3055, 15 N.E.3d
444, ¶ 29 (2d Dist.) Indeed, darkness itself is considered an open and obvious warning
of danger. McCoy v. Kroger Co., 10th Dist. Franklin No. 05AP-7, 2005-Ohio-6965, ¶ 14;
Johnson v. Regal Cinemas, Inc., 8th Dist. Cuyahoga No. 93775, 2010-Ohio-1761, ¶ 21.
Further, we have held that black ice is a common condition associated with accumulations
of snow and ice which does not present a risk that is substantially more dangerous than
the risk of snow and ice. Simpson v. Concord United Methodist Church, 2d Dist.
Montgomery No. 20382, 2005-Ohio-4534, ¶ 27.
{¶ 30} The evidence in the record indicated that Roberts regularly arrived at the
facility prior to sunrise. There was no evidence that the lighting level was abnormal or
different on the day of the fall from that to which Roberts was accustomed. Roberts was
aware of both the snowy conditions and the low lighting in the parking lot. On the day of
his fall, it was the middle of winter, and there had been substantial snowfall two days prior.
Roberts was able to observe that the lot had been plowed and that the snow had been
piled at the fence line at the perimeter of the property. Thus, although Roberts testified
that it was still dark outside when he fell and that he did not see the ice prior to falling,
whether he saw the ice was not controlling. He should have reasonably anticipated the
presence of ice near the snow piles, and there was no evidence that Kauffman or Central
Miami did anything to conceal the danger from him. See Murphy v. McDonald's
Restaurants of Ohio, Inc., 2d Dist. Clark No. 2010-CA-4, 2010-Ohio-4761, ¶ 28. Thus,
we reject Roberts’s attendant circumstances argument.
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{¶ 31} Based upon our review of the record before us, we agree with the trial court
that Roberts failed to demonstrate a genuine issue of material fact. Therefore, the trial
court did not err in rendering judgment against him. Accordingly, the second and third
assignments of error are overruled.
IV. Nondelegable Duty Doctrine
{¶ 32} Roberts’s fourth assignment of error of error states:
TRIAL COURT FOURTH ASSIGNMENT OF ERROR NOT
CONSIDERING NON-DELEGABLE DUTIES DOCTRINE
{¶ 33} Roberts asserts the trial court erred by failing to consider the nondelegable
duties doctrine.
{¶ 34} “It is well settled that a principal generally is not responsible for the
negligence of an independent contractor over whom it retained no right to control the
manner or mode of doing the contracted-for work.” Trotwood v. S. Cent. Constr., L.L.C.,
192 Ohio App.3d 69, 2011-Ohio-237, 947 N.E.2d 1291, ¶ 28 (2d Dist.), citing Clark v.
Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 438, 628 N.E.2d 46 (1994).
“There are, however, exceptions to this general rule, several of which stem from the
nondelegable duty doctrine. Nondelegable duties arise in various situations that
generally fall into two categories: (1) affirmative duties that are imposed on the employer
by statute, contract, franchise, charter, or common law and (2) duties imposed on the
employer that arise out of the work itself because its performance creates dangers to
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others, i.e., inherently dangerous work.” Pusey v. Bator, 94 Ohio St.3d 275, 279, 762
N.E.2d 968 (2002), citing Prosser & Keeton, The Law of Torts (5 Ed.1984) 511-512,
Section 71; Albain v. Flower Hosp., 50 Ohio St.3d 251, 260-261, 553 N.E.2d 1038 (1990).
“If the work to be performed fits into one of these two categories, the employer may
delegate the work to an independent contractor, but he cannot delegate the duty. In
other words, the employer is not insulated from liability if the independent contractor's
negligence results in a breach of the duty.” Id.{¶ 35} We first note that Roberts did not raise any arguments regarding the
nondelegable duties doctrine in the trial court. As a general rule, “arguments raised for
the first time on appeal” are barred. Cawley JV, L.L.C. v. Wall St. Recycling, L.L.C.,
2015-Ohio-1846, 35 N.E.3d 30, ¶ 17 (8th Dist.). An issue not asserted in the trial court
is “deemed to have been waived or forfeited” on appeal. (Citations omitted.). Deutsche
Bank Natl. Tr. Co. v. Stone, 2021-Ohio-3007, 176 N.E.3d 854, ¶ 12 (10th Dist.). A party
cannot argue an issue “which the trial court had no opportunity to address.” (Citation
omitted.) Nolan v. City Wide Dev. Corp., 2d Dist. Montgomery No. 22675, 2009-Ohio-
65, ¶ 15.
{¶ 36} More importantly, we have not found, and Roberts has not cited, any
statutory or case law suggesting that the nondelegable duty doctrine is applicable to this
case.
{¶ 37} The fourth assignment of error is overruled.
V. Conclusion
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{¶ 38} All of Roberts’s assignments of error being overruled, the judgment of the
trial court is affirmed.
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DONOVAN, J. and LEWIS, J., concur.
Copies sent to:
Allen Keith Roberts
Molly G. Vance
Brian L. Wildermuth
Chad M. Sizemore
Hon. Robert G. Hanseman
Hon. William H. Wolff, Jr., Visiting Judge