[Cite as Kacsmarik v. Lakefront Lines Arena, 2011-Ohio-2553.]




         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 95981




                         MICHELE KACSMARIK, ET AL.

                                                          PLAINTIFFS-APPELLANTS

                                                   vs.

                     LAKEFRONT LINES ARENA, ET AL.
                                                          DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            AFFIRMED
                                          2


                                Civil Appeal from the
                          Cuyahoga County Common Pleas Court
                                Case No. CV-651268

      BEFORE: E. Gallagher, J., Celebrezze, P.J., and S. Gallagher, J.

      RELEASED AND JOURNALIZED:               May 26, 2011

ATTORNEYS FOR APPELLANTS

David R. Grant
Stephen S. Vanek
Friedman, Domiano & Smith Co., L.P.A.
55 Public Square
Suite 1055
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

For Lakefront Lines Arena

Rafael P. McLaughlin
Martin T. Galvin
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115-1093

For Manhattan Construction Co., Inc.

Josh L. Schoenberger
Richard A. Williams
Williams & Petro, L.L.C.
338 S. High Street, 2nd Floor
Columbus, Ohio 43215-4546
                                    3

For MCG Architects

Laura A. Hauser
Robert S. Lewis
Thompson Hine L.L.P.
3900 Key Center
127 Public Square
Cleveland, Ohio 44114



EILEEN A. GALLAGHER, J.:

      {¶ 1} Plaintiffs-appellants   Michele     Kacsmarik     (hereinafter

“appellant”) and Greg Kacsmarik, Sr., appeal the trial court’s decisions

granting summary judgment in favor of defendants-appellees Manhattan

Construction Company, Inc. (hereinafter “Manhattan”), Lakefront Lines

Arena and T.M.J. Investments L.L.C. (hereinafter “T.M.J.”), and MCG

Architects.   Appellants argue that the trial court erred in granting the

appellees’ motions because genuine issues of material fact precluded

summary judgment. For the reasons that follow, we affirm.

      {¶ 2} This case arises out of an incident that occurred on April 21,

2007 at Lakefront Lines Arena, 5310 Hauserman Road in Parma, Ohio,

which is owned by appellee T.M.J. On that date, appellant Michele

Kacsmarik’s 11-year-old son, Greg Kacsmarik, was practicing with his ice

hockey team at the Lakefront Lines Arena’s hockey rink. Appellant arrived
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shortly before the practice ended and sat on a bench, approximately nine feet

and diagonally left from the exit door located in the ice rink’s dasher boards.

      {¶ 3} As the hockey practice was ending, individual players were

leaving the ice, one at a time. The first player to exit the rink struggled to

open the door from inside the rink. Appellant rose off the bench, walked six

to eight steps to the rink door, and opened it for the player. With the rink

door remaining open, appellant did not sit back down on the bench but

rather stood with her back to the wall to the right of the bench. Appellant

was not standing directly in front of the open rink door but rather slightly

diagonally to the left of the door and approximately three feet away from it.

Appellant positioned herself such that she was closer to the door than the

bench itself.

      {¶ 4} Appellant testified at deposition that while standing near the

open door, she was “not really paying attention” to the activity on the ice.

While she was     waiting for her son to exit the rink, approximately six

players came off the ice through the open rink door. One player, D.B., lost

his footing as he exited the ice and began to somersault as his foot touched

the floor outside the rink door. He eventually slid into appellant with his

ice skate blade cutting into her right ankle. As a result of the incident,

appellant suffered injuries to her ankle requiring multiple surgeries and
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physical rehabilitation.

      {¶ 5} Appellant brought suit in the Cuyahoga County Common Pleas

Court on February 19, 2008, against a number of defendants, including the

three appellees. Appellees Manhattan and MCG Architects were named as

defendants   alleging      negligent   construction   and   architectural   work,

respectively, in the conversion of the arena to an ice rink facility in 1997.

Appellee T.M.J. is the owner of the arena and was named as a defendant

based upon a theory of premises liability. The trial court granted separate

summary judgment motions in favor of Manhattan, T.M.J., and MCG.

Appellants’ three assignments of error assert that the trial court erred in

granting summary judgment in favor of each of the appellees.

      {¶ 6} Our review of a trial court’s grant of summary judgment is de

novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d

241. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1)

there is no genuine issue of material fact, (2) the moving party is entitled to

judgment as a matter of law, and (3) reasonable minds can come to but one

conclusion and that conclusion is adverse to the nonmoving party, said party

being entitled to have the evidence construed most strongly in his favor.

Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196,

paragraph three of the syllabus; Zivich v. Mentor Soccer Club (1998), 82
                                     6

Ohio St.3d 367, 696 N.E.2d 201. The party moving for summary judgment

bears the burden of showing that there is no genuine issue of material fact

and that it is entitled to judgment as a matter of law.      Dresher v. Burt

(1996), 75 Ohio St.3d 280, 662 N.E.2d 264.

      {¶ 7} Appellants’ first assignment of error asserts that the trial court

erred in granting summary judgment in favor of appellee Manhattan.

Count four of appellants’ amended complaint alleges that Manhattan was

negligent in their construction work at Lakefront Lines Arena in 1997.

Manhattan was the general contractor for the renovation of the arena into an

ice rink and was responsible for assuring that the subcontractors followed

the renovation plans.      Specifically, appellant argues that Manhattan

deviated from the architectural plans and built the bench that she sat on

prior to her injury. The construction plans did not call for any spectator

seating to be built.

      {¶ 8} The trial court, in its journal entry granting summary judgment

in favor of Manhattan, concluded that Manhattan did not construct the

subject bench, stating, “[a]lthough the evidence does not establish when,

how, or by whom the spectator bleachers were installed, it is undisputed that

the spectator bleachers were not installed by this defendant at that time, or

at any subsequent time.”
                                      7

      {¶ 9} Contrary to the trial court’s conclusion, the record clearly reveals

how the subject benches came into being.          David Erne, the owner of

Manhattan Construction, testified that the subject bench was built by

volunteers and tradesmen using Manhattan’s materials and supervised by

Manhattan. Erne himself supervised the construction of the benches to

assure that it was done correctly. (Deposition of David Erne, p. 69-70.)

      {¶ 10} However, the fact that the trial court incorrectly concluded that

the origin of the subject bench could not be ascertained does not end our

inquiry. To overcome a summary judgment motion in a negligence action, a

plaintiff must prove that the defendant breached a duty owed to the plaintiff

and that this breach was the proximate cause of the plaintiff’s injuries.

Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d

677, 693 N.E.2d 271. In the present case, even assuming that Manhattan’s

actions in supervising the installation of the subject bench, contrary to the

architect’s plans, demonstrated a duty owed to appellant and a breach of that

duty, summary judgment remained proper on wholly separate grounds. The

evidence here irrefutably demonstrates that the bench was not the proximate

cause of appellant’s injuries.

      {¶ 11} “Proximate causation” has been described as “some reasonable

connection between the act or omission of the defendant and the damage the
                                      8

plaintiff has suffered.” Marsh v. Heartland Behavioral Health Ctr., Franklin

App. No 09AP-630, 2010-Ohio-1380, ¶40, quoting Prosser, Law of Torts (5

Ed.1984) 263, Section 41.    “[T]he proximate cause of an event is that which

in a natural and continuous sequence, unbroken by any new, independent

cause, produces that event and without which that event would not have

occurred.”   Sabolik v. HGG Chestnut Lake Ltd. Partnership, 180 Ohio

App.3d 576, 583, 2009-Ohio-130, 906 N.E.2d 488, quoting Aiken v. Indus.

Comm. (1944), 143 Ohio St. 113, 53 N.E.2d 1018. In other words, proximate

cause is “that without which the accident would not have happened, and

from which the injury or a like injury might have been anticipated.” Id.,

citing Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 539 N.E.2d 614, quoting

Corrigan v. E.W. Bohren Transport Co. (1968), 408 F.2d 301, 22 Ohio Misc.

201.

       {¶ 12} Generally, the issue of proximate cause is a question of fact and

is not resolvable by means of summary judgment.             Lecso v. Heaton,

Cuyahoga App. No. 94121, 2010-Ohio-3880, citing Creech v. Brock & Assoc.

Constr., 183 Ohio App.3d 711, 2009-Ohio-3930, 918 N.E.2d 541, ¶14.

However, summary judgment may be granted on the issue of proximate

cause where the facts are clear and undisputed and the relation to cause and

effect is so apparent that only one conclusion may be fairly drawn.”       Id.,
                                      9

citing Schutt v. Rudolph-Libbe, Inc. (Mar. 31, 1995), Wood App. No.

WD-94-064.

      {¶ 13} The undisputed facts in this case reveal that the bench was

wholly unrelated to appellant’s injury.     Appellant was not sitting on the

bench when she was injured. The evidence is that appellant left the bench,

opened the ice rink door and instead of returning to the bench, stood

approximately three feet back and diagonally exposed to the open rink door

while as many as six players exited. Appellant testified at her deposition

that, had she not been standing where she was, she would not have been

injured. Photos of the scene reveal that the location of the bench, unlike the

area where plaintiff was standing when struck, is not in a direct line of sight

of a player exiting the ice rink. Appellant does not argue, nor does it appear

from the photos to be physically possible, that had she been utilizing the

bench complained of at the time of the incident, that she would have been

injured. The sole conclusion that can be drawn from the evidence is that the

bench played no role in appellant’s injury. Appellant’s first assignment of

error is overruled.

      {¶ 14} In their second assignment of error, appellants argue    that the

trial court improperly granted summary judgment in favor of appellee T.M.J.

on appellants’s premises     liability claim.   T.M.J.’s motion for summary
                                    10

judgment asserted various defenses, including that appellant’s injury

resulted from an open and obvious condition on the property. The trial court

granted T.M.J.’s motion for summary judgment without issuing a formal

opinion.

      {¶ 15} A business owner owes a business invitee, such as appellant, a

duty of ordinary care in maintaining the premises in a reasonably safe

condition so that invitees are not subject to unreasonable dangers. Frano v.

Red Robin Internatl., Inc., 181 Ohio App.3d 13, 2009-Ohio-685, 907 N.E.2d

796; Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 480

N.E.2d 474. Although a business is not an insurer of its invitee’s safety, it

must warn them of latent or concealed dangers if it knows or has reason to

know of the hidden dangers. Frano, Jackson v. Kings Island (1979), 58

Ohio St.2d 357, 390 N.E.2d 810.

      {¶ 16} “The existence of a duty is fundamental to establishing

actionable negligence, without which there is no legal liability.” Adleman v.

Timman (1997), 117 Ohio App.3d 544, 690 N.E.2d 1332. A business has no

duty to protect an invitee from dangers that 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.       Sidle v. Humphrey

(1968), 13 Ohio St.2d 45, 233 N.E.2d 589. “The rationale behind the [open
                                      11

and obvious] doctrine is that the open and obvious nature of the hazard itself

serves as a warning.”     Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d

642, 595 N.E.2d 902.      The open and obvious doctrine concerns the first

element of negligence, whether a duty exists. Sidle. Therefore, the open

and obvious doctrine obviates any duty to warn of an obvious hazard and

bars negligence claims for injuries related to the hazard. Henry v. Dollar

Gen. Store, Greene App. No. 2002-CA-47, 2003-Ohio-206; Hobart v. Newton

Falls, Trumbull App. No. 2002-T-0122, 2003-Ohio-5004. Where a hazard is

open and obvious, a business owner owes no duty to an invitee, and it is

unnecessary to consider the issues of breach and causation. Frano, Ward v.

Wal-Mart Stores Inc., Lake App. No. 2000-L-171, 2001-Ohio-4041.

      {¶ 17} The Supreme Court of Ohio reaffirmed the viability of the open

and obvious doctrine in Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79,

2003-Ohio-2573, 788 N.E.2d 1088. In Armstrong, the court held that the

emphasis in analyzing open and obvious danger cases relates to the

threshold issue of duty.      The rule properly considers the nature of the

dangerous condition itself, as opposed to the nature of the plaintiff’s conduct

in encountering it.     Id.   “The fact that a plaintiff was unreasonable in

choosing to encounter the danger is not what relieves the property owner of

liability. Rather, it is the fact that the condition itself is so obvious that it
                                     12

absolves the property owner from taking any further action to protect the

plaintiff.”   Id. at 82.   Moreover, the open and obvious danger does not

actually have to be observed by the plaintiff in order for it to be an open and

obvious condition under the law. Konet v. Mark Glassman, Inc., Lake App.

No. 2004-L-151, 2005-Ohio-5280. The determinative issue is whether the

condition was observable. Id.

      {¶ 18} We find the open and obvious doctrine to be applicable to the

present circumstances. When an ice rink’s door is closed, outside spectators

at ground level are physically separated from hockey players, hockey sticks,

ice skate blades, and hockey pucks. Ground level spectators such as

appellant are protected by the rink’s dasher boards, plexiglass, and netting.

The players are encased inside the ice rink such that the present collision

cannot occur. However, when the ice rink’s door is open, the above

protections drop away. A person standing in the vicinity of an open ice rink

door is exposed to the activity on the ice, including, as in this case, players

and their skate blades as they negotiate the rink’s exit. Appellant testified

at deposition that she had previously attended hundreds of hockey practices

and games.      She was aware that people do fall when they exit the ice.

Appellant had previously seen players lose their footing as they have exited

ice rinks. We find that the danger inherent in standing in the immediate
                                     13

proximity of an open ice rink door while young hockey players are

negotiating the exit at variable speeds is so obvious that it absolves the

property owner from taking any further action to protect the plaintiff.

Appellant’s second assignment of error is overruled.

      {¶ 19} Appellant’s third and final assignment of error asserts that the

trial court erred in granting summary judgment in favor of appellee MCG

Architects. Count four of appellant’s amended complaint alleges that MCG

Architects negligently performed its design responsibilities in the renovation

of Lakefront Lines Arena into an ice rink facility.           In regards to the

renovation of the facility, MCG Architects contracted in 1997 to provide the

design and construction documents for modifications to existing locker

rooms, restrooms, shower facilities, maintenance room, offices, weight room,

storage room, and mechanical room. Relevant to the present case, MCG

Architects contracted to provide plans for the new ice pit. Notably, MCG

Architects’ renovation duties did not call for the design of any spectator

seating.   MCG    Architects’   contract    also   specifically   provided   that,

“Construction Phase Services are not included as part of this proposal * * *

MCG will not be able to certify to the actual execution of the construction

relative to its compliance to the Construction Documents or to the quality

and completeness.”    Plaintiff’s brief in opposition to motion for summary
                                     14

judgment, Exhibit 2.

      {¶ 20} Appellants allege that MCG Architects was negligent in the

performance of its architectural duties by failing to include spectator seating

in the ice rink’s plans and, more specifically, failing to create a design that

physically separated fully geared hockey players entering and exiting the

rink from coming into contact with spectators.

      {¶ 21} “It is well-established that a plaintiff must demonstrate the

following elements in an action for professional negligence: (1) the existence

of a legal duty; (2) a breach of that duty; (3) proximate causation; and (4)

injury or damages. If the party moving for summary judgment in a

negligence action can point to evidence illustrating that the nonmoving party

will be unable to prove any one of these elements, then the movant is

entitled to judgment as a matter of law.” Second Natl. Bank of Warren v.

Demshar (1997), 124 Ohio App.3d 645, 707 N.E.2d 30.

      {¶ 22} “Generally, one who contracted in a specialized professional

capacity to provide the design for a particular structure may be held to

respond in damages for the foreseeable consequences of a failure to exercise

reasonable care in the preparation of the design.”      Cincinnati Riverfront

Coliseum, Inc. v. McNulty Co. (1986), 28 Ohio St.3d 333, 337, 504 N.E.2d

415. Whether an architect exercises reasonable care in the preparation of
                                     15

designs depends upon the standard of care that licensed architects must

follow.   Expert testimony is required to establish the standard of care,

unless the lack of skill or care of the professional is so apparent as to be

within the comprehension of a layperson and requires only common

knowledge and experience to understand it.      Simon v. Drake Constr. Co.

(1993), 87 Ohio App.3d 23, 621 N.E.2d 837.

      {¶ 23} In the present instance, in response to MCG Architects’ motion

for summary judgment, appellant offered the affidavit and report of Alan R.

Caskey in criticism of the architectural work done during the renovation.

Mr. Caskey avers in his affidavit that he is a “park and recreation expert”

with “extensive education, training, and experience in planning, designing

and publishing in this field, including the design, construction and operation

of ice skating facilities.”

      {¶ 24} A review of Mr. Caskey’s affidavit and preliminary report reveal

that he is critical of MCG Architects’ design work on the arena in that it,

“could have separated the spectators from the hockey player’s movement

to/from the locker room to the ice rink.” However, Mr. Caskey also averred

that this separation could have been accomplished by “ice rink management

policies.” Mr. Caskey is also critical of MCG Architects for not redesigning

safe spectator seating into the plans despite such seating being removed by
                                      16

MCG’s client. Mr. Caskey asserted at deposition that a functional analysis

should have been done, if not by MCG Architects then by a consultant such

as himself to uncover potentially hazardous conditions at the ice rink.

However, Mr. Caskey concedes that this functional analysis is not

necessarily done by the architect; rather, Mr. Caskey himself often performs

this type of analysis.

      {¶ 25} At no point in Mr. Caskey’s affidavit or his preliminary report

does he assert that he is familiar with the standard of care that licensed

architects must follow in the present situation. Mr. Caskey is not a licensed

architect and specifically stated at deposition, that, “I’m not trying to testify

as an architect. I’m trying to testify as the individual who works as part of

the team with the architect to determine what the functional plan of the

facility is.” Caskey Deposition, p. 127-128. Although Mr. Caskey is critical

of MCG Architects for failing to consult with a functional analyst such as

himself, he does not and apparently, is not qualified to testify that a

licensed architect fails to exercise reasonable care in the preparation of an

ice rink design when he fails to undertake such consultations.

      {¶ 26} At oral argument appellants acknowledged that Mr. Caskey

could not testify as to the relevant standard of care for an architect in this

instance.   Instead, appellants argued that the deposition testimony of a
                                             17

former MCG architect, John Burk, established the standard of care. In the

relevant portion of the testimony cited by appellants, John Burk stated, “as

long as you don’t put the bench right at the — ice or right at the door to the

ice, I would say that benches around [the] facility would be reasonably safe

— I would not put an entrance — to the ice or exit to the ice right off of

seating.” This statement, however, is irrelevant to appellant’s theory of

liability against MCG; that MCG’s failure to create a design that physically

separated fully geared hockey players entering and exiting the rink from

coming into contact with spectators was a breach of an architect’s standard

of care. Appellants do not allege, and the facts clearly reveal, that MCG had

nothing to do with the creation of the bench near the ice rink door.

       {¶ 27} Under these circumstances, we hold that the trial court did not

err in granting summary judgment in favor of MCG Architects as appellants

failed to establish a duty owed by MCG Architects or a breach of that duty.

Appellant’s third assignment of error is overruled.

       {¶ 28} The judgment of the trial court is affirmed.

       It is ordered that appellees recover from appellants 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.
                                            18

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
