[Cite as Tanio v. Ultimate Wash, 2013-Ohio-939.]




                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98826


                                        SONIA TANIO
                                                   PLAINTIFF-APPELLANT

                                                    vs.

                            ULTIMATE WASH, ET AL.
                                                   DEFENDANTS-APPELLEES



                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-744491

             BEFORE:          Blackmon, J., S. Gallagher, P.J., and E.A. Gallagher, J.

             RELEASED AND JOURNALIZED:                       March 14, 2013
ATTORNEYS FOR APPELLANT

Joseph R. Compoli
612 East 185th Street
Cleveland, OH 44119

James R. Goodluck
3517 St. Albans Road
Cleveland Heights, OH 44121


ATTORNEYS FOR APPELLEES

Todd M. Haemmerle
Colleen A. Mountcastle
Gallagher Sharp
6th Floor Bulkley Building
1501 Euclid Avenue
Cleveland, OH 44115
PATRICIA ANN BLACKMON, J.:

      {¶1} Appellant Sonia Tanio (“Tanio”) appeals the trial court’s granting of

summary judgment in favor of appellee Ultimate Wash of Maple Heights (“Ultimate”).1

She assigns the following two errors for our review:

      I. The trial court erred in granting plaintiff-appellant’s motion for
      summary judgment.

      II.   The trial court erred in failing to grant plaintiff’s motion for

      award of reasonable attorneys fees and expenses under Rule 37.

      {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

                                          Facts

      {¶3} On the afternoon of January 5, 2009, Tanio took her car to Ultimate, a

free-standing car wash located in Maple Heights, Ohio. The car wash contains both

full-serve and self-serve bays. Tanio chose to use a self-serve bay. The self-serve bays

have a roof but are open at both ends. When Tanio walked to the rear of her car she

slipped and fell on a small patch of black ice, fracturing her knee. She claimed to not

have seen the ice until she fell. A sign is posted in each bay warning, “Bay may be

slippery when wet.”

      {¶4} Tanio filed a complaint against Ultimate. She was unaware at the time of

the accident that Ultimate had a floor-heat system to prevent the accumulation of ice.

      1
       Tanio had also sued “Ultimate Wash of Solon” and “Ultimate Wash” but
voluntarily dismissed the parties from the suit.
However, in her complaint she contended that Ultimate was negligent in maintaining its

car wash because the icy patch indicated either the floor-heat system was not on or was

not operating appropriately.2

       {¶5} The parties filed cross motions for summary judgment. Tanio emphasized

the transparent nature of the black ice and the fact the floor-heat system failed to dissolve

the ice. Ultimate argued that Tanio’s claim was prevented by the open and obvious

doctrine because the inherent risk of using a car wash during subfreezing weather is open

and obvious. It argued that Tanio should have expected the icy conditions because the

temperature was below freezing. Ultimate also argued that it was under no duty to

provide the floor-heat system and that because Tanio had not known about the heat

system prior to her fall, she did not rely on the system in choosing to wash her car.

Ultimate also argued there was no evidence that the system was not working on the day in

question.

       {¶6} The trial court granted summary judgment in Ultimate’s favor, concluding

in pertinent part that “the risk of ice forming while using a car wash in subfreezing

temperatures is so open and obvious that no duty attaches to the land owner absent

evidence that the owner has somehow aggravated the inherent risk.” As to Tanio’s

contention that the floor heating system was not activated or not working properly, the


       2
        The floor-heat system is comprised of a boiler that heats a water/Glycol mix,
which is circulated through tubing located beneath the floor surface to prevent ice
from forming on the ground. When the air reaches below 45 degrees Fahrenheit,
the boiler automatically fires up and circulates the mix through the tubing.
court held, “plaintiff has not demonstrated any reliance on the use of a floor-heated

system or that it induced her to patronize this car wash, nor has plaintiff cited any

statutory or other authority requiring an open bay car wash to have a floor-heat system.”

       {¶7} Tanio filed a motion for relief from judgment and a notice of appeal on

August 17, 2012. This court remanded the matter to allow the trial court to rule on the

motion for relief from judgment. After the motion was denied, the matter proceeded to

this appeal.

                            Motion for Summary Judgment

       {¶8} Tanio argues the trial court erred by entering summary judgment in

Ultimate’s favor because there was an issue of fact whether the transparent black ice was

open and obvious, and whether the floor-heat system was working or not because of the

accumulation of ice.

       {¶9} We review an appeal from summary judgment under a de novo standard of

review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987), N.E. Ohio

Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th

Dist.1997).    Accordingly, we afford no deference to the trial court’s decision and

independently review the record to determine whether summary judgment is appropriate.

Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine issue as to any

material fact exists, (2) the party moving for summary judgment 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 reach only one conclusion that is adverse to the nonmoving

party.    We conclude the trial court did not err by granting summary judgment in

Ultimate’s favor.

         {¶10}        A common-law negligence claim requires a showing of (1) a duty

owed; (2) a breach of that duty; and (3) an injury proximately caused by the breach.

Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d

1018, ¶ 22. The issue in the instant case is whether Ultimate breached its duty to Tanio.

A determination of whether a duty exists is a question of law for the court to decide, and

therefore, is a suitable basis for summary judgment. Mussivand v. David, 45 Ohio St.3d

314, 318, 544 N.E.2d 265 (1989).

         {¶11} Under Ohio law, a landowner owes no duty to warn patrons of open and

obvious conditions. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573,

788 N.E.2d 1088, syllabus. “The rationale underlying this doctrine is ‘that the open and

obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may

reasonably expect that persons entering the premises will discover those dangers and take

appropriate measures to protect themselves.’” Id. at ¶ 5, citing Simmers v. Bentley

Constr. Co., 64 Ohio St.3d 642, 644, 1992-Ohio-42, 597 N.E.2d 504.

         {¶12}   In most situations, whether a danger is open and obvious presents a

question of law. Nelson v. Sound Health Alternatives Internatl., Inc., 4th Dist. No.

01CA24, 2001-Ohio-2571; Hallowell v. Athens, 4th Dist. No. 03CA29, 2004- Ohio-4257,

¶ 21. However, under certain circumstances, disputed facts may exist regarding the
openness and obviousness of a danger, thus, rendering it a question of fact. Where only

one conclusion can be drawn from the established facts, the issue of whether a risk was

open and obvious may be decided by the court as a matter of law. Klauss v. Marc

Glassman, Inc., 8th Dist. No. 84799, 2005-Ohio- 1306, ¶ 18. We conclude that based

on the facts the court did not err by finding the hazard to be open and obvious.

       {¶13} Tanio contends the trial court erred by concluding that the icy patch was an

open and obvious hazard; she argues that because the ice was black ice and transparent,

she was unable to see it. We disagree. The inherent open and obvious risk was not

Tanio’s ability to see the ice, but that the use of water in cold temperatures causes ice to

form. Thus, it is irrelevant whether Tanio could actually see the ice. Common sense

should have alerted Tanio to the fact that the use of water during subfreezing weather

creates a risk that the ground will be slippery. Although Tanio contends that there was

no evidence of the temperature that day, Tanio’s own expert, Thomas Schmidlin, a

certified meteorologist, stated in his report that the temperature range that day was

between 20 and 36 degrees Fahrenheit. Specifically, at the time that Tanio was at the car

wash, the weather report indicated it was between 30 and 31 degrees, which is below the

32 degree freezing point.

       {¶14} Ohio case law has established that the use of a self-serve car wash in

subfreezing temperatures presents a danger of ice accumulation that is so open and

obvious that no duty attaches to the land owner, absent evidence that the owner has

somehow aggravated the inherent risk in that activity. See Workman v. W&W Dev.
Corp., 5th Dist. No. 2010-CA-0138, 2011-Ohio-2305; Couture v. Oak Hill Rentals, Ltd.,

6th Dist. No. OT-03-048, 2004-Ohio-5237; Bevins v. Arledge, 4th Dist. No. 03CA19,

2003-Ohio-7297. Tanio attempts to distinguish the above cases based on the fact that

there was a recent snow in some of the cases, the plaintiff saw the ice, or that the plaintiff

fell in a different area of the car wash. However, these facts do not alter the court’s

pronouncement that the use of water in subfreezing temperatures creates an open and

obvious risk.

       {¶15} Tanio argues that the fact the floor-heat system was not on or not working

was an attendant circumstance that aggravated the inherent risk; however, there was no

evidence that the floor-heat system was not on or not working. Even Tanio’s experts

admitted that the floor-heat system does not completely eliminate the risk of icy or

slippery conditions from forming. Plaintiff’s expert Michael George (“George”) never

visited or inspected the car wash. He based his opinion on information related to him by

Tanio’s counsel. Counsel had told George that ice engulfed the entire bay, which was

not the conditions as testified to by Tanio. George admitted that the fact that there was

just an icy patch in the bay area altered his conclusion regarding the working condition of

the heat system.    He acknowledged that ice and snow could have fallen off other

vehicles, and that if the ice had not been there long, the system may not have had time to

melt it. Plaintiff’s expert John Telesz also conceded that there were certain conditions

where there would be ice even though the floor-heat system was working, such as when

other vehicles drop ice and snow in the bay.
       {¶16} Moreover, even if the system was not working, Tanio has failed to show

that she visited the car wash because it had a floor-heat system to prevent ice from

forming. Thus, there is no evidence that she was relying on the system in deciding to

wash her car. Nor is there a requirement that car washes have the floor-heat system;

therefore, if the system was not on or not working would not impute liability to Ultimate

because it had no duty to provide an ice melting system. Tanio cites to the Section 107.1

of the Ohio Fire Code (“OFC”) in support of its argument that car washes are to maintain

floor-heat systems. However, the OFC         does not reference either car washes or

floor-heating systems. It states:

       Whenever or wherever any device, equipment, system, condition,
       arrangement, level of protection, or any other feature is required for
       compliance with the provisions of this code, or otherwise installed, such
       device, equipment, system, condition, arrangement, level of protection
       or other feature shall be thereafter continuously maintained in
       accordance with this code and applicable referenced standards. (Emphasis
       added.)

       {¶17} Because this section appears in the fire code, its logical purpose is for the

owners of equipment to maintain their equipment to prevent fires. Tanio fails to relate

this section to another area of the code that would require floor-heat systems in car

washes.

       {¶18}   Finally, merely because Ultimate had a floor-heat system, should not

impose a greater duty on it than car washes that do not own floor-heating systems. As

the court in Bevins, 4th Dist. No. 03CA19, 2003-Ohio-7297, held “simply because

appellee’s attempts to keep the premises absolutely free from icy patches failed to prevent
an injury does not mean that he had a duty to do more where the risk associated with

using the car wash in subfreezing temperatures amounted to an open and obvious

condition.” Ultimate did not impart to customers a false sense of security by actively

advertising or posting signs to the effect that its car wash was guaranteed to be

non-slippery due to its heating system. Therefore, Tanio should have expected that icy

patches could exist due to the cold weather.

       {¶19}    Lastly, Tanio argues that the car wash’s boiler was not certified or

inspected pursuant to R.C. 4104.20. However, Tanio has failed to establish that the lack

of certification had any causal connection to her accident. As we stated, Ultimate had no

duty to provide the floor-heat system. Also, the purpose of the certification is to ensure

that the boiler does not present any explosive danger, not to assure that the boiler was

adequately heating the liquid in the floor-heat system. Pursuant to R.C. 4104.15, the

purpose of the certification is to ensure that the fittings are properly connected to prevent

explosions. There was also no indication that the boiler was not working. In fact,

Tanio’s experts, testified that it was possible to have a boiler not pass certification, but

still be able to heat the water/Glycol mix.

       {¶20} We conclude the trial court did not err by granting summary judgment in

Tanio’s favor. The slippery condition on the floor of an open-air car wash bay during

subfreezing weather is inherently open and obvious.          There is no evidence that a

floor-heat system was required and no evidence that the system was not working at the

time of the accident. Accordingly, Tanio’s first assigned error is overruled.
                                      Attorney Fees

       {¶21} In her second assigned error, Tanio argues that the trial court erred by

failing to award her attorney fees based on Ultimate’s “false, deceptive, and evasive”

answer to Interrogatory Eight.3

       {¶22} Interrogatory Eight requested Ultimate to admit that the boiler was not

properly inspected or certified on the day of the accident.

       {¶23} Ultimate responded:

       This request is irrelevant, and not reasonably calculated to lead to the

       discovery of admissible evidence.        Without waiving said objection,

       Defendant maintains only the most recent boiler inspection certificates.

           Defendant neither admits or denies the balance of request for

       admission number 8 regarding inspections of certifications prior to

       January 5, 2009.




       The trial court did not rule on the motion. However, if a motion is not
       3

expressly decided by the trial court when the case has concluded, the motion is
presumed to have been denied.        Kostelnik v. Helper, 96 Ohio St.3d 1,
2002-Ohio-2985, 770 N.E.2d 58, ¶ 13.
         {¶24} Tanio contends this answer is false, deceptive, and evasive because it

neither denies the request nor provides in detail the reasons why Ultimate could not admit

or deny. As a result, she claims that she is entitled to attorney fees pursuant to Civ.R.

37(C).

         {¶25}   The decision to impose sanctions pursuant to Civ.R. 37 is within the

discretion of the trial court; thus, we will not reverse the trial court’s decision absent an

abuse of discretion. Maurer v. Boyd, 9th Dist. No. 23818, 2008-Ohio- 1384, ¶ 5, citing

Millis Transfer, Inc. v. Z & Z Distrib. Co., 76 Ohio App.3d 628, 602 N.E.2d 766 (6th

Dist.1991). Civ.R. 37(C) provides:

         If a party, after being served with a request for admission under Rule

         36, fails to admit the genuineness of any documents or the truth of any

         matter as requested, and if the party requesting the admissions

         thereafter proves the genuineness of the document or the truth of the

         matter, he may apply to the court for an order requiring the other

         party to pay him the reasonable expenses incurred in making that

         proof, including reasonable attorney’s fees. Unless the request had been

         held objectionable under Rule 36(A) or the court finds that there was

         good reason for the failure to admit or that the admission sought was of

         no substantial importance, the order shall be made.

         {¶26} Therefore, where a party has denied a request for admission, but the proof

at trial contradicts the denial, the court must award sanctions upon a Civ.R. 37 motion
“unless the request had been held objectionable under Civ.R. 36(A) or the court finds that

there was good reason for the failure to admit or that the admission sought was of no

substantial importance * * *.” Salem Med. Arts & Dev. Corp. v. Columbiana Cty. Bd. of

Revision, 82 Ohio St.3d 193, 195-196, 1998- Ohio-248, 694 N.E.2d 1324.

       {¶27}    We conclude given our discussion in the previous error that the

information regarding the boiler was irrelevant because the fact that the boiler was not

certified has no causal connection to Tanio’s accident. Ultimate was not required to have

a floor-heat system and Tanio’s experts testified that it was possible for a boiler to work

without being certified. Accordingly, the trial court did not abuse its discretion by

denying the motion for attorney fees. Tanio’s second assigned error is overruled.

       {¶28}   Judgment affirmed.

       It is ordered that appellee recover from appellant its 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.




PATRICIA ANN BLACKMON, JUDGE

SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
