[Cite as Poulson v. Fraternal Order of the Eagles, Inc., 2014-Ohio-554.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

PHILLIP POULSON                                             C.A. No.       13CA0011

        Appellant

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
FRATERNAL ORDER OF THE EAGLES,                              COURT OF COMMON PLEAS
et al.                                                      COUNTY OF WAYNE, OHIO
                                                            CASE No.   12-CV-0199
        Appellees

                                 DECISION AND JOURNAL ENTRY

Dated: February 18, 2014



        BELFANCE, Presiding Judge.

        {¶1}     Phillip Poulson appeals the award of summary judgment to the Fraternal Order of

the Eagles (“FOE”) by the Wayne County Court of Common Pleas. For the reasons set forth

below, we affirm in part and reverse in part.

                                                      I.

        {¶2}     On December 1, 2010, Mr. Poulson was with his son James Poulson at the FOE

clubhouse in Wooster, Ohio. At approximately 4:30 in the afternoon, Mr. Poulson exited the

FOE building and stepped onto the ramp outside. The ramp was icy, and Mr. Poulson slipped,

falling to the ground and sliding to the bottom of the ramp. Mr. Poulson was injured in the fall.

        {¶3}     In March 2012, Mr. Poulson filed a complaint against the FOE, alleging

negligence and negligence per se. The FOE answered and, subsequent to discovery, moved for

summary judgment on Mr. Poulson’s claims. Mr. Poulson filed a motion opposing the FOE’s

motion, and the FOE filed a reply. The trial court awarded summary judgment to the FOE, and
                                               2


Mr. Poulson has appealed, raising two assignments of error for our review.         For ease of

discussion, we address Mr. Poulson’s assignments of error together.

                                             II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING
       SUMMARY JUDGMENT WHERE THE FACTS RAISED JURY QUESTION
       WHETHER ATTENDANT CIRCUMSTANCES EXCEPTION APPLIED TO
       THE OPEN AND OBVIOUS DOCTRINE.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING
       SUMMARY JUDGMENT ON THE OPEN AND OBVIOUS DOCTRINE
       WHERE THE HAZARD IS ONE THE BUSINESS INVITEE CANNOT
       AVOID.

       {¶4}   Mr. Poulson argues that the trial court erroneously applied the open-and-obvious

doctrine in granting summary judgment on his claims. We agree in part.

       {¶5}   This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court,

viewing the facts in the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. Summit No. 25427,

2011-Ohio-1519, ¶ 8.

       {¶6}   Pursuant to Civ.R. 56(C), summary judgment is appropriate when:

       (1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a summary

judgment motion, the movant “bears the initial burden of demonstrating that there are no genuine
                                                3


issues of material fact concerning an essential element of the opponent’s case.” (Emphasis sic.)

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).         If the movant satisfies this burden, the

nonmoving party “‘must set forth specific facts showing that there is a genuine issue for trial.”’

Id. at 293, quoting Civ.R. 56(E).

       {¶7}    We initially note that Mr. Poulson set forth two causes of actions in his complaint:

negligence and negligence per se. In his negligence per se cause of action, he alleged that the

FOE had a duty under Ohio Basic Building Code Section 1010.8 to place handrails on both sides

of the ramp, and, on appeal, he argues that the handrails were required by Wooster Codified

Ordinance 1303.03, which requires compliance with the Ohio Basic Building Code. However,

when the FOE moved for summary judgment, it never addressed Mr. Poulson’s allegation about

the violation of the Ohio Basic Building Code or his per se negligence claim. “[I]t is axiomatic

that the trial court may not grant summary judgment in regard to any claim, where a party has

not moved for judgment in regard to that claim.” (Internal quotations and citation omitted.)

Rowe v. Striker, 9th Dist. Lorain No. 07CA009296, 2008-Ohio-5928, ¶ 7. Thus, the trial court

should not have granted summary judgment on Mr. Poulson’s negligence per se claim.1

Accordingly, to the extent Mr. Poulson challenges the trial court’s erroneous application of the

open-and-obvious doctrine to his negligence per se claim, his first assignment of error is

sustained. See Rowe at ¶ 7.




       1
          We briefly note that, in applying the open-and-obvious doctrine, the trial court
determined that Mr. Poulson could not recover on his claim regarding the Ohio Building Code
because any violations were open and obvious. See Lang v. Holly Hill Motel, Inc., 122 Ohio
St.3d 120, 2009-Ohio-2495, syllabus. However, while violations of administrative rules do not
constitute negligence per se, violations of statutes or ordinances requiring compliance with the
administrative rule can, see Sikora v. Wenzel, 88 Ohio St.3d 493 (2000), syllabus, and the open-
and-obvious doctrine is not applicable in cases involving per se negligence. Lang at ¶ 15.
                                                 4


       {¶8}     Mr. Poulson also challenges the trial court’s application of the law concerning his

negligence claim. “Ordinarily, an owner and occupier has no duty to his business invitee to

remove natural accumulations of snow and ice from private walks and steps on his premises.”

Sidle v. Humphrey, 13 Ohio St.2d 45 (1968), paragraph three of the syllabus. This is 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.” Id. at paragraph two of

the syllabus.

       When the owner or occupier of business premises is not shown to have notice,
       actual or implied, that the natural accumulation of snow and ice on his premises
       has created there a condition substantially more dangerous to his business invitees
       than they should have anticipated by reason of their knowledge of conditions
       prevailing generally in the area, there is a failure of proof of actionable
       negligence.

Debie v. Cochran Pharmacy-Berwick, Inc., 11 Ohio St.2d 38 (1967), paragraph one syllabus.

“The mere fact standing alone that the owner or occupier has failed to remove natural

accumulations of snow and ice from private walks on his business premises for an unreasonable

time does not give rise to an action by a business invitee who claims damages for injuries

occasioned by a fall thereon.” Id. at paragraph two of the syllabus.

       {¶9}     In the FOE’s motion for summary judgment, it argued that there was no evidence

that the ice on the ramp was anything other than a naturally occurring accumulation and that Mr.

Poulson had an awareness of the adverse weather conditions. It pointed to Mr. Poulson’s

deposition, in which he testified that the temperature was in the teens when he fell and that it was

sleeting outside. Mr. Poulson argued in his motion in opposition that the hazard created by the

icy ramp was unavoidable because the only way in and out of the FOE was via the ramp. He
                                                5


also argued that the ice on the ramp was not open and obvious under the totality of the

circumstances.

       {¶10} The trial court, in applying Debie, determined that “[Mr.] Poulson ha[d] not

offered any evidence that the FOE had superior knowledge of existing dangers that [Mr.]

Poulson was not already aware of[.]” See Debie at paragraph one of the syllabus. Mr. Poulson

has not challenged the trial court’s conclusion on appeal and does not point to evidence

demonstrating a dispute of fact regarding the FOE’s superior knowledge. However, Mr. Poulson

does argue that Debie and Sidle are not applicable to this case because there was only one way in

and out of the FOE clubhouse, pointing to the Sixth District’s decision in Mizenis v. Sands

Motel, Inc., 50 Ohio App.2d 226 (6th Dist.1975), for support.

       {¶11} In Mizenis, the plaintiff was a hotel guest who occupied the second floor of a

motel. Id. at 226. He was injured when he fell on the stairwell that was covered in snow and ice.

Id. The parties stipulated that the only means of ingress and egress for the plaintiff were two

stairwells at either end of the motel. Id. The parties also stipulated that snow and ice had

accumulated on both stairwells, creating a slippery and dangerous condition that persisted for

days, and that the plaintiff “used great care for his own safety, on all occasions using the hand

rails, moving very slowly and watching where he was going.” Id. at 226-227. They further

stipulated that the plaintiff had first become aware of the condition of the steps when ascending

the stairs to go to his room and he immediately called and asked that the condition be remedied.

Id. at 227. The hotel did not remedy the condition, and the plaintiff traversed the steps with the

snow and ice. Id. The plaintiff had also stayed at the motel on other occasions during the winter

months and in those instances the motel had removed the snow and ice from the stairways. Id.
                                                 6


       {¶12} Given the stipulated facts, the Sixth District considered whether the trial court

erroneously granted summary judgment in concluding there was no genuine issue of fact

concerning negligence and assumption of the risk. Id. at 228. Although the appellate court

reached its decision based upon the innkeeper-guest status of the parties, it observed that, even

assuming the plaintiff had the same status as the plaintiffs in Debie and Sidle (invitees), summary

judgment could not be predicated upon the legal propositions in those cases. Id. at 229. With

respect to the first two propositions of law expressed in Debie and Sidle, the court observed that,

unlike Debie and Sidle, “defendants did have actual notice that the ice and snow on the stairway

created a condition substantially more dangerous to plaintiff than plaintiff should have

anticipated by reason of his knowledge of conditions prevailing generally.” Id. The court also

observed that “the failure of defendants as occupiers to remove the natural accumulations of

snow and ice does not stand alone.” Id. The court also found that the general rules expressed in

Sidle were likewise inapplicable.2 Id. at 229-230. It reasoned that “[t]he obvious and apparent

danger of the snowy, icy stairway to plaintiff, as a business invitee, was not, as a matter of law, a

danger that he might ‘reasonably be expected to protect himself against,’ because the exterior

stairways were the only means of ingress and egress from his motel room.” Id. at 230. The court

found that, having attempted to protect himself by calling and complaining to the desk clerk, the

only other means of protection would have been to stay in his room until the ice thawed. Id. The



       2
          These propositions of law included (1) “An occupier of premises is under no duty to
protect a business invitee against dangers which are known to such invitee or are so obvious and
apparent to such invitee that he may reasonably be expected to discover them and protect himself
against them;” and (2) “The 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, and such
occupier has no duty to his business invitee to remove natural accumulations of snow and ice
from private walks and steps of his premises.” Mizenis at 229.
                                                  7


court thus concluded that at a minimum there was a dispute of fact as to whether the plaintiff

should have protected himself in some other way. Id.

       {¶13} In the instant matter, there are numerous distinctions present in this case from

Mizenis such that Mr. Poulson’s reliance upon that case is misplaced. As noted above, the

Mizenis court predicated its holding upon the innkeeper-guest status of the parties. See Mizenis,

50 Ohio App.2d at 230-232. In addition, the critical facts existing forming the basis of the

court’s observation that the legal principles of Debie and Sidle were inapplicable are not present

in this case. The most prominent distinctions include the fact that in this case the FOE was not

given actual notice of an ice or snow problem and asked to rectify it. In addition, unlike the

parties in Mizenis, the parties here did not stipulate that the only means of ingress and egress at

the FOE was the regular doorway. Furthermore, unlike Mizenis, an alternative exit actually did

exist at the FOE, albeit one typically reserved for the FOE’s employees, such that the regular

doorway was not the only means of ingress and egress to the establishment. Thus, to the extent

that Mr. Poulson argues that the trial court incorrectly failed to apply the reasoning of Mizenis to

this case, we do not find his argument well taken.

       {¶14} Accordingly, to the extent Mr. Poulson challenges the trial court’s award of

summary judgment on his negligence claim, his limited arguments are without merit.

                                               III.

       {¶15} Mr. Poulson’s first assignment of error is sustained in part and overruled in part,

and his second assignment of error is overruled. The matter is remanded for further proceedings

on Mr. Poulson’s claim of per se negligence.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.
                                                 8




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



CARR, J.
WHITMORE, J.
CONCUR.


APPEARANCES:

CHARLES A. KENNEDY, Attorney at Law, for Appellant.

LOUIS M. DEMARCO and JAMES J. REAGAN, Attorneys at Law, for Appellee.

RALPH F. DUBLIKAR, Attorney at Law, for Appellee.
