[Cite as Harden v. Villas of Cortland Creek, L.L.C., 2013-Ohio-4629.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


MARY HARDEN,                                             :          OPINION

                 Plaintiff-Appellant,                    :
                                                                    CASE NO. 2012-T-0088
        - vs -                                           :

VILLAS OF CORTLAND CREEK,                                :
LLC, et al.,
                                                         :
                 Defendants-Appellees.


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2010 CV
3260.

Judgment: Affirmed.


Richard L. Demsey and Justin D. Gould, Richard L. Demsey Co., L.P.A., 1350 Euclid
Avenue, Suite 1550, Cleveland, OH 44115 (For Plaintiff-Appellant).

Louis M. DeMarco and James J. Reagan, 50 S. Main Street, Suite 615, Akron, OH
44308 (For Defendants-Appellees Villas of Cortland Creek, LLC; Walnut Run Senior
Adult Community; MV Residential Property Management, Inc.; MV Residential
Development, LLC; Miller-Valentine Group, LLC and MV Residential Construction,
Inc.).

Victoria D. Barto, The Law Office of Stephen J. Proe, The Genesis Building, 6000 The
Lombardo Center, Suite 420, Seven Hills, OH 44131 (For Defendant-Appellee
Mahoney Excavating, Inc.).

Mark E. Bumstead, Letson, Griffith, Woodall,Lavelle & Rosenberg Co., 108 Main
Avenue, S.W., 6th Floor, P.O. Box 151 Warren, OH 44481 (For Third Party
Defendant-Appellee R.T. Vernal Excavating & Paving, Inc.).



COLLEEN MARY O’TOOLE, J.
        {¶1}    Mary Harden appeals from the grant of summary judgment by the

Trumbull County Court of Common Pleas to numerous defendants in her action for

personal injuries arising from a slip and fall at her retirement community.1 The trial court

concluded that application of the open and obvious danger doctrine meant defendants

owed her no duty. We affirm.

        {¶2}    Mrs. Harden was a longtime resident of northeast Ohio, 76 years old at

the time of her accident. In late August 2008, she entered a lease for a villa at the Villas

of Cortland Creek, in Cortland, Ohio. This is a recently completed community for senior

citizens. About 5:30 p.m., January 1, 2009, she decided to deposit her rent check at the

office. Her son Mark, who lived with her, advised her not to go. A cold rain was falling.

Mrs. Harden followed the same route she always used when walking to the office or

clubhouse.     She walked along the sidewalk on the north side of Sunshine Avenue

where she lived, then crossed the road at a slight diagonal to the south side, reaching

the mailroom, where she deposited her check. She then returned along the sidewalk on

the south side of the road. It was getting dark. The sidewalk on the south side of

Sunshine Avenue gives out when it reaches the parking lot fronting the villas.

        {¶3}    As always, Mrs. Harden chose to recross to the north side, where her

apartment was, by walking through the pedestrian crossway between two handicapped

parking spaces. The crossway is crosshatched with paint. Through the center of the

crossway runs a shallow trough, directing water from an adjacent field into a drain in the




1. By a suggestion of death filed on or about February 20, 2013, Mrs. Harden’s counsel informed this
court their client died February 13, 2013. Pursuant to App.R. 29(A), we directed that this appeal continue
and be decided as if Mrs. Harden was not deceased. Keeton v. Telemedia Co. of S. Ohio, 98 Ohio
App.3d 405, 407, fn.1 (4th Dist.1994).


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parking lot. Mrs. Harden slipped, fell, and broke her hip. She felt underneath her some

black ice, as well as water running along the trough.

       {¶4}    Mrs. Harden filed this action for personal injuries December 20, 2010,

naming Villas of Cortland Creek, LLC, Walnut Run Senior Adult Living Community, MS

Residential Property Management, Inc., MV Residential Development, LLC, Miller

Valentine Group, LLC, MV Residential Construction, Inc., and MV Residential Land,

LLC (“MV Communities”), and Buckeye Civil Design, LLC (engineer for the project) as

defendants.     Her deposition was taken May 19, 2011. MV Communities and Buckeye

Civil Design filed for summary judgment. Mrs. Harden filed an amended complaint,

adding the architect for the project, Mohney Excavating, Inc. (paving contractor for the

project), Lock-Tite Masonry & Concrete, LLC, and Harris’ Greenscape, LLC (landscaper

for the project), as defendants.        Mohney pleaded in its subcontractor, R.T. Vernal

Excavating and Paving, Inc., as a third party defendant.

       {¶5}    Eventually, Mrs. Harden dismissed her actions against the architect and

Buckeye Civil Engineering, and filed her brief in opposition to MV Communities’

summary judgment motion. Mohney and R.T. Vernal filed motions for partial summary

judgment, and Harris Greenscape a motion for summary judgment, all of which Mrs.

Harden opposed.2

       {¶6}    On or about October 5, 2012, the trial court granted summary judgment to

all defendants. The trial court found that the ice upon which Mrs. Harden allegedly fell

was a natural accumulation, thus establishing that defendants owed her no duty under




2. Mohney also filed a supplemental motion for summary judgment.


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the open and obvious danger doctrine. It also found that the darkness at the time Mrs.

Harden fell was an open and obvious danger. This appeal timely ensued.3

       {¶7}    Mrs. Harden assigns a single error:

       {¶8}    “The trial court committed prejudicial error in granting defendants-

appellees’ Motions for Summary Judgment based solely upon its opinion that the

accumulation of black ice that caused appellants (sic) fall, whether or not natural or

unnatural, was open and obvious although reasonable minds could clearly come to a

contrary conclusion in favor of appellant.”

       {¶9}    Under this assignment of error, Mrs. Harden presents two issues for

review:

       {¶10} “1. Whether or not the appellant submitted sufficient justiciable issues of

fact relevant to all of the attendant circumstances and elements necessary to except

appellant from the ‘open and obvious’ doctrine under Ohio law?

       {¶11} “2. Whether or not the appellant submitted sufficient justiciable issues of

fact establishing that the accumulation of black ice was an unnatural event that was

caused by the several or joint and concurrent negligent and/or willful conduct on the part

of appellees, which conduct would except appellant from the ‘open and obvious’

doctrine under Ohio law?”

       {¶12} Mohney and R.T. Vernal make a cross assignment of error:

       {¶13} “The Trial Court properly granted Mohney Excavating’s Supplemental

Motion for Summary Judgment as Mohney Excavating completed its Work at Walnut

Run in Compliance with the Job Plans and Specifications.”4


3. On or about March 19, 2013, Mrs. Harden and Harris’ Greenscape, LLC, jointly moved this court to
dismiss the appeal against Harris’, which motion we granted April 15, 2013.


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        {¶14} We review summary judgment rulings de novo, applying the same

standard as the trial court. Lorain Natl. Bank v. Saratoga Apartments., 61 Ohio App.3d

127, 129 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).

Under Civ.R. 56(C), summary judgment is appropriate where (1) no genuine issue as to

any material fact exists; (2) the moving party is entitled to judgment as a matter of law;

and (3) reasonable minds can come to but one conclusion, and viewing the evidence

most strongly in favor of the nonmoving party, that conclusion is adverse to the

nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).

        {¶15} On a motion for summary judgment, the moving party has the burden of

demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio

St.3d 280, 292 (1996). The moving party must point to some evidence in the record of

the type listed in Civ.R. 56(C). Id. at 292-293. Under Civ.R. 56(C), the evidence to be

considered is limited to the “pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,

timely filed in the action * * *.” Nevertheless, the trial court may consider a type of

document not expressly mentioned in Civ.R. 56(C) if such document is accompanied by

a personal certification that it is genuine or is incorporated by reference in a properly

framed affidavit pursuant to Civ.R. 56(E). See Bowmer v. Dettelbach, 109 Ohio App.3d

680, 684 (6th Dist.1996). The burden then shifts to the nonmoving party to provide

evidence showing that a genuine issue of material fact does exist. Dresher at 293;

Civ.R. 56(E).


4. MV Communities, Mohney Excavating, Inc., and R.T. Vernal also presented assignments of error, each
of which urges this court to affirm the trial court on the basis of the open and obvious doctrine. As these
do not allege any error by the trial court, we decline to reach them.



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       {¶16} We consolidate all the assignments of error for review.

       {¶17} This is a premises liability case. As the Court of Appeals, Tenth Appellate

District recently observed:

       {¶18} “In order to establish actionable negligence in general, a plaintiff must

show the existence of a duty, a breach of that duty, and injury proximately resulting

therefrom.   In cases specifically involving common-law premises liability, a property

owner or occupier owes different duties of care to different classes of persons on the

premises. Ohio law applies the typical common-law classifications of business invitee,

licensee, and trespasser.

       {¶19} “Although the Ohio Supreme Court has never explicitly defined the status

of residential tenants in an apartment complex, most premises-liability cases have

assumed without discussion that residential tenants are invitees for these purposes, as

are their guests. Property owners owe invitees a duty of ordinary care in maintaining

the premises in a reasonably safe condition, including an obligation to warn invitees of

latent or hidden dangers so as to avoid unnecessarily and unreasonably exposing

invitees to risk of harm. The property owner is not, however, an insurer of the invitee’s

safety for all purposes and against all hazards.

       {¶20} “Even if the facts otherwise might establish a breach of the duty owed to

invitees, Ohio law places an additional burden on the plaintiff in a premises liability

case. The ‘open-and-obvious’ doctrine further limits the owner’s duty to warn an invitee

of those dangers on the premises that are either known to the invitee or so obvious and

apparent to the invitee that he or she may reasonably be expected to discover them and

guard against them. The rationale for this doctrine is that, because the open-and-




                                            6
obvious nature of the hazard itself serves as a warning, the property owner may

reasonably expect persons lawfully on the premises to discover the hazard and take

appropriate measures to protect themselves. The open-and-obvious doctrine relates to

the threshold question of whether the defendant had a duty towards the plaintiff.

       {¶21} “Open-and-obvious dangers are those that are not hidden, concealed from

view, or undiscoverable upon ordinary inspection. A person need not actually observe

the dangerous condition for it to be ‘open and obvious’ under the law; the determinative

issue is whether the condition is, under an objective standard, observable. Even in

instances where the plaintiff did not actually notice the condition until after it had caused

injury, we have concluded that no duty was breached if the plaintiff could have observed

the dangerous condition with reasonable attention to his or her surroundings. In other

words, the open-and-obvious doctrine focuses on the nature of the hazard itself, not on

any party’s particular conduct or subjective assessment of the hazard.”           (Citations

omitted.) Thatcher v. Lauffer Ravines, LLC, 10th Dist. Franklin No. 11AP-851, 2012-

Ohio-6193, ¶10-13.

       {¶22} Generally, an owner of land owes no duty under Ohio law to remove

natural accumulations of snow and ice, these being legally defined as open and obvious

dangers.    Marshall v. Plainville IGA, 98 Ohio App.3d 473, 475 (1st Dist.1994).

However, liability may attach to “unnatural” accumulations of ice or snow. Id.

       {¶23} “An ‘unnatural’ accumulation is one created by causes and factors other

than natural meteorological forces. Natural meteorological forces include inclement

weather conditions, low temperatures, drifting snow, strong winds, and freeze cycles.

Unnatural accumulations therefore are caused by the intervention of human action




                                             7
doing something that would cause ice and snow to accumulate in unexpected places

and ways.” (Citation omitted.) Thatcher at ¶17.

        {¶24} “Where a construction defect in the premises, existing for a sufficient time,

causes injury to a pedestrian by creating an artificial condition such as an unreasonable

accumulation of ice on a walkway, the owner or occupier incurs liability.” Marshall at

475.

        {¶25} The allegation in this case is that Mrs. Harden slipped on a patch of black

ice, created by the trough in the pedestrian crossway, evidently designed to channel

water from the adjacent field to a drain. In opposition to the summary judgment motions

filed by MV Communities and Buckeye Civil Design, Mrs. Harden presented the affidavit

and report of Richard L. Zimmerman, a licensed architect. Mr. Zimmerman opined, to a

reasonable degree of professional architectural certainty, that placing this trough in the

crossway was in violation of the Ohio Building Code and Americans with Disabilities

Architectural Guidelines, and in violation of reasonable standards of maintenance and

care. He further opined that the trough created an unnatural accumulation of ice upon

which Mrs. Harden slipped.

        {¶26} Mr. Zimmerman’s report was sufficient to raise a genuine issue of material

fact regarding whether the ice on which Mrs. Harden slipped was an unnatural

accumulation resulting from a construction defect, and thus, potentially actionable at

Ohio law on this basis.5         However, we conclude that no duty toward Mrs. Harden


5. This writer respectfully disagrees with the concurrence’s conclusion that the decision in Lang v. Holly
Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, undermines the efficacy of the Zimmerman report.
In Lang, the Court merely held that violations of administrative rules, such as the Ohio Basic Building
Code, do not constitute negligence per se, and that the open and obvious doctrine remains viable when
such allegations are made. Id. at ¶16-21. However, the Court noted that a violation of the Building Code
is “strong evidence” of negligence. Id. at ¶21. Mr. Zimmerman did not conclude in his report that the
code violations he observed constituted negligence per se. He concluded that the trough was the reason


                                                    8
existed, due to the admitted darkness at the time of her accident. This court has held

that darkness itself is an open and obvious danger, obviating any duty from a property

owner to its invitees. Swonger v. Middlefield Village Apartments, 11th Dist. Geauga No.

2003-G-2547, 2005-Ohio-941, ¶13. Accord Jackson v. Bd. of Pike Cty. Commissioners,

4th Dist. Pike No. 10CA805, 2010-Ohio-4875, ¶24.

         {¶27} Mrs. Harden’s assignment of error lacks merit. Due to the disposition of

the assignment of error, we find the cross assignment of error by Mohney and R.T.

Vernal moot.

         {¶28} The judgment of the Trumbull County Court of Common Pleas is affirmed.

         {¶29} It is the further order of this court that appellant is assessed costs herein

taxed.

         {¶30} The court finds there were reasonable grounds for this appeal.



TIMOTHY P. CANNON, P.J. concurs in judgment only with a Concurring Opinion,

DIANE V. GRENDELL, J., concurs in judgment only.



                                  ______________________


TIMOTHY P. CANNON, P.J. concurring in judgment only.

         {¶31} I concur in the judgment of the majority. I do not agree, however, that Mr.

Zimmerman’s report was sufficient to establish a question of fact as to whether the ice

on which appellant slipped was an “unnatural accumulation” resulting from a

ice accumulated at the spot where Mrs. Harden fell, and that the trough was a construction defect. His
report did not premise the conclusion that the trough was a construction defect on the violations.
However, pursuant to Lang the violations he observed and recounted in his report were strong evidence
of negligence.


                                                  9
construction defect; nor does any alleged “code violation” inhibit the application of the

open and obvious defense.        With respect to this main component of appellant’s

argument, the Ohio Supreme Court has affirmatively stated that a violation of code

provisions does not prevent assertion of the open and obvious defense. The syllabus in

Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120 (2009) states: “The open-and-obvious

doctrine may be asserted as a defense to a claim of liability arising from a violation of

the Ohio Basic Building Code.”

      {¶32} Accordingly, I respectfully concur in judgment only.




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