[Cite as Burskey v. Malabar Farm State Park, 2011-Ohio-4787.]



                                     Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us




WILLIAM S. BURSKEY

       Plaintiff

       v.

MALABAR FARM STATE PARK

       Defendant

        Case No. 2011-02301-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    On February 3, 2011, plaintiff, William Burskey, suffered property damage
when ice fell from a building owned by defendant, Malabar Farm State Park, and struck
the parked car plaintiff’s wife was driving. Specifically, the hood and both front fenders
were damaged by ice falling from the roof of defendant’s visitor’s center where plaintiff’s
wife was working. Plaintiff’s wife submitted a statement wherein she related that “I have
witnessed several times in the past that snow & ice has fallen from the roof and on the
particular day that it fell on my vehicle it was only 20° and because of the low
temperature I did not have any idea that this would happen. I parked in my regular
parking area that is provided for employees.” Plaintiff contended the car was damaged
as a proximate result of negligence on the part of defendant in maintaining a dangerous
condition on state park premises. Consequently, plaintiff filed this complaint seeking to
recover $2,124.24 for repairing the vehicle, the cost of car rental, and reimbursement of
the filing fee. The $25.00 filing fee was paid.
        {¶2}    Defendant denied any liability in this matter.     Defendant pointed out
plaintiff’s wife “was aware of the open and obvious condition of ice sliding off the
overhanging eaves of the visitor center and could have taken precaution to protect
against the potential dangers of this known condition.” Therefore, the state park was not
charged to protect plaintiff from hazards that were open and obvious.
      {¶3}   An owner of land generally owes a duty to individuals such as plaintiff to
maintain the premises in a reasonably safe condition. Paschal v. Rite Aid Pharmacy,
Inc. (1985), 18 Ohio St. 3d 203, 18 OBR 267, 480 N.E. 2d 474. However, a land owner
ordinarily owes no duty to business invitee plaintiffs to remove natural accumulations of
ice and snow on the premises or to warn the invitees of dangers associated with these
natural accumulations. Brinkman v. Ross, 68 Ohio St. 3d 82, 1993-Ohio-72, 623 N.E.
2d 1175. Everyone is assumed to appreciate the risks presented by such snow and ice
accumulations and consequently, everyone is expected to bear responsibility for
protecting himself from such risks presented by natural accumulations of ice and snow.
Brinkman.
      {¶4}   Conversely, liability may result if the premises owner permits an unnatural
accumulation of ice or snow to exist. See Lopatkovich v. City of Tiffin (1986), 28 Ohio
St. 3d 204, 207, 28 OBR 290, 503 N.E. 2d 154; Tyrrell v. Investment Associates, Inc.
(1984), 16 Ohio App. 3d 47, 16 OBR 50, 474 N.E. 2d 621. In Porter v. Miller (1983), 13
Ohio App. 3d 93, 13 OBR 110, 468 N.E. 2d 134, the court clarified the distinction
between an unnatural and natural snow accumulation stating:                   “‘Unnatural’
accumulation must refer to causes and factors other than inclement weather conditions
of low temperatures, strong winds and drifting snow, i.e., to causes other than
meteorological forces of nature. By definition, then, the ‘unnatural’ is the man-made, the
man-caused; extremely severe snow storms or bitterly cold temperatures do not
constitute ‘unnatural’ phenomena.” at pg. 95.
      {¶5}   In Myers v. Forest City Enterprises, Inc. (1993), 92 Ohio App. 3d 351, 635
N.E. 2d 1268 appeal dismissed, 69 Ohio St. 2d 1213, 1994-Ohio-408, 633 N.E. 2d
1136, the court further addressed the state of unnatural accumulations, noting: “In
cases involving an unnatural accumulation of ice and snow, a plaintiff must show that
the defendant created or aggravated the hazard, that the defendant knew or should
have known of the hazard, and that the hazardous condition was substantially more
dangerous than it would have been in the natural state. (Citations omitted.) Melting
snow that refreezes into ice is natural, not an unnatural accumulation of ice.” at pgs.
353-354.
      {¶6}   Based on the evidence in the instant claim, the court concludes the ice
and snow that damaged plaintiff’s car was a natural accumulation.            Ordinarily,
defendant would be relieved from legal liability for injury resulting from this natural
occurrence. However, there are exceptions to this general rule. If the landowner is
shown to have had notice, actual or implied, that a natural accumulation of snow and ice
on the premises has created a condition substantially more dangerous than an invitee
should have anticipated by reason of the knowledge of conditions prevailing generally in
the area, negligence may be shown. Paschal; Gober v. Thomas & King, Inc. (June 27,
1997), Montgomery App. No. 16248. Ohio’s freeze and thaw cycles, which commonly
cause icy conditions, are natural accumulations absent a showing of negligence on the
part of the landowner. Hoenigman v. McDonald’s Corp. (Jan. 11, 1990), Cuyahoga
App. No. 56010.     For liability to attach the landowner must have some superior
knowledge of the condition. LaCourse v. Fleitz (1986), 28 Ohio St. 3d 209, 28 OBR
294, 503 N.E. 2d 159.     Insufficient evidence supporting this proposition has been
presented. Plaintiff, in the present claim, has failed to establish defendant owed him a
duty to remove natural accumulations of snow and ice from the visitor’s center.
Therefore, absent a duty, negligence cannot be proven.
                                 Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us




WILLIAM S. BURSKEY

        Plaintiff

        v.

MALABAR FARM STATE PARK

        Defendant

         Case No. 2011-02301-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION

         Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

William S. Burskey                                Charles G. Rowan
3579 Schrack Road                                 Department of Natural Resources
Lucas, Ohio 44843                                 2045 Morse Road, D-3
                                                  Columbus, Ohio 43229-6693
SJM/laa
5/17
Filed 6/17/11
Sent to S.C. reporter 9/21/11
