[Cite as Cain v. McKee Door Sales, 2013-Ohio-4217.]


                             IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT


Betty R. Cain et al.,                                 :

                Plaintiffs-Appellants,                :

v.                                                    :               No. 13AP-352
                                                                  (C.P.C. No. 12CV-02-1655)
McKee Door Sales et al.,                              :
                                                              (REGULAR CALENDAR)
                Defendants-Appellees.                 :


                                          D E C I S I O N

                                 Rendered on September 26, 2013


                Arthur C. Graves, for appellants.

                Joyce V. Kimbler, for appellees.

                  APPEAL from the Franklin County Court of Common Pleas

TYACK, J.
        {¶ 1} Betty R. Cain is appealing from the summary judgment entered in her
lawsuit. She assigns a single error for our consideration:
                The trial court erred in sustaining the Motion for Summary
                Judgment filed on behalf of the Defendants.

        {¶ 2} Betty Cain fell on snow and ice in the parking lot at the office of her eye
doctor. She was seriously injured. As a result, she sued various entities affiliated with the
office building. Summary judgment was granted in her lawsuit.
        {¶ 3} Lawsuits on behalf of persons who fall on ice or snow are rarely successful
in Ohio. The Supreme Court of Ohio has made liability very hard to establish. In
Brinkman v. Ross, 68 Ohio St.3d 82 (1993), the Supreme Court held in the syllabus:
No. 13AP-352                                                                             2

              Homeowner has no common-law duty to remove or make less
              hazardous natural accumulation of ice and snow on private
              sidewalks or walkways on homeowner's premises, or to warn
              those who enter upon premises of inherent dangers presented
              by natural accumulations of ice and snow, regardless of
              whether entrant is social guest or business invitee.

       {¶ 4} The facts in the Brinkman case are that the Brinkmans were invited to visit
the Ross home during the winter. The Ross family knew that the sidewalk into the house
was covered by a sheet of ice which in turn was covered by a dusting of snow. The Rosses
knew the situation was dangerous, but never warned their friends, the Brinkmans. The
Rosses discussed salting their sidewalk or otherwise alleviating the danger, but did not do
so before the Brinkmans arrived. A fall occurred and serious injury ensued.
       {¶ 5} This appellate court found that liability was possible under these facts. The
Supreme Court reversed our findings and published its opinion which included the
syllabus set forth above.
       {¶ 6} Counsel for Betty Cain tries to distinguish the case of Brinkman, arguing
that the construction of the parking lot was improper or improperly designed, resulting in
a trough in the parking lot which accumulated snow, ice and water in what constituted an
unnatural accumulation. Counsel in essence asks us to disregard Brinkman on other
issues, such as failure to warn of the dangers and failure to remove the danger through
salting or plowing. In many ways, the facts in Brinkman were more egregious than those
presented here. The Rosses were aware of the danger. There is no showing that any
defendant here knew of the danger. The Rosses discussed the need to alleviate the
problem and had time to do so. In Betty Cain's situation, the snow built up because the
storm continued while Betty Cain was in her doctor's office.
       {¶ 7} We see nothing in the Brinkman case which implies a different standard for
office premises as opposed to hours used for business purposes, so the only issue which is
left open by Brinkman is the issue of whether the snow, ice and water where she fell were
not a natural accumulation. Counsel for Betty Cain submits that she slipped on "snow
covered ice formed by storm water runoff from a defectively designed parking lot that
created an unnatural accumulation of snow and ice." Appellant's brief, at 7.
       {¶ 8} Nothing in the record before us indicates that the snow in the parking lot
was removed or moved, so the accumulation of snow at least was a natural accumulation.
No. 13AP-352                                                                                 3

       {¶ 9} Betty Cain could not say that ice was present when she arrived at the office
building. If the ice was there, she did not claim to notice it. Betty's affidavit in resisting
summary judgment states:
              As I approached my car from the rear, I was reaching for my
              door and I slipped and fell on the snow and ice that had
              accumulated in the drainage swale of the parking lot * * *.

       {¶ 10} Betty Cain left her car to go into her doctor's office by walking in front of her
car. However, she obviously had to step into the very area where she fell when she was
exiting her car initially, given her statement that she was close enough to be reaching for
her car door when she fell. Further, as noted earlier, snow does not automatically move
once it has fallen. Clearly, snow could drift and accumulate in a low place in the parking
lot. This is not direct evidence of wind conditions or drifting other than the conclusory
statement that the snow and ice had accumulated in the swale of the parking lot.
       {¶ 11} Her affidavit does not demonstrate that the accumulation of snow and ice
was an unnatural accumulation just because it was in a swale. In theory, the ice in the
Brinkman case was an unnatural accumulation because the sidewalks do not occur in
nature.   Snow and ice was not found to be an unnatural accumulation for liability
purposes in Brinkman.
       {¶ 12} The difference from the Brinkman case is that this case includes expert
testimony and information. In resisting the motion for summary judgment, Betty Cain's
counsel provided a report from Robson Forensic. The report was authored by Lee E.
Martin, who is an architect, safety expert and certified building official. The report
provides a detailed review of the parking lot and of weather conditions during the week
when Betty Cain fell. The report notes that she fell on ice at about 1:00 p.m. on February
10. During the week of the fall, the temperature barred between 1 and 37° Fahrenheit.
Under these conditions, melted precipitation would have flowed to the swale and then
froze again. The ice on which she fell, construing the facts strongly in her favor, as
required in addressing the motion for summary judgment, leaves a genuine issue of
material fact as to whether or not she fell on an unnatural accumulation of ice which
resulted from the design of the parking lot.
       {¶ 13} Nothing in the record to this point included that she knew ice was present
when she got out of her car or when she reached for the car door when she returned to her
No. 13AP-352                                                                                4

car. The mere fact it had snowed recently did not make the danger from the ice open and
obvious, such that no duty of care was present. Stated differently, the open and obvious
doctrine commonly argued in slip and fall cases does not automatically apply at this stage
of the proceedings.
       {¶ 14} As a result, we sustain the sole assignment of error.         We reverse the
summary judgment granted by the trial court and remand the case for further appropriate
proceedings.
       {¶ 15} The sole assignment of error is sustained. The judgment of the Franklin
County Court of Common Pleas is reversed and the case remanded for further
proceedings.
                                                         Judgment reversed and remanded
                                                                  for further proceedings.

                                      CONNOR, J., concurs.
                                      DORRIAN, J., dissents.

DORRIAN, J., dissenting.

       {¶ 16} Appellant Betty Cain argues that the ice and snow upon which she fell was
an unnatural accumulation due to the swale. Yet, she was aware of rain (possibly
freezing), and snow which had been falling throughout the parking lot and on the
sidewalk while she was in the doctor's office. Upon leaving the doctor's office, the snowy
and icy conditions caused her to take her time walking back to her car "because it looked
slick to [her], [b]ecause there was ice on the sidewalk as [she] came out the door." (Cain
depo., 23, 25, 26, 30, 31); (see also Architect Lee Martin's Report, at 2, attached as exhibit
No. 2 to Plaintiff's Memorandum Contra Defendant's Motion for Summary Judgment).
Furthermore, no evidence was presented that the snow and ice at the exact location where
she fell was substantially more dangerous than the snow and ice of which she was aware
and had anticipated in the parking lot and on the sidewalk. Taking this into consideration
and given the precedent of the Supreme Court of Ohio and this court, I would affirm the
granting of summary judgment.
