[Cite as Bryant v. Indus. Power Sys., Inc., 2018-Ohio-1741.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


Ian Bryant                                                     Court of Appeals No. L-17-1202

        Appellant                                              Trial Court No. CI0201601080

v.

Industrial Power Systems, Inc., et al.                         DECISION AND JUDGMENT

        Appellees                                              Decided: May 4, 2018

                                                  *****

        Robert L. Gresham, Michael L. Wright and Kesha Q. Brooks,
        for appellant.

        Paul R. Bonfiglio, for appellees.

                                                  *****

        PIETRYKOWSKI, J.

        {¶ 1} This is an appeal from the judgment of the Lucas County Court of Common

Pleas, granting summary judgment in favor of defendants-appellees, Industrial Power

Systems, Inc., and Kevin Grey, on plaintiff-appellant’s, Ian Bryant, complaint for injuries
suffered as a result of his fall on appellees’ property. For the reasons that follow, we

affirm.

                            I. Facts and Procedural Background

          {¶ 2} The underlying facts in this case are undisputed. In the late morning of

March 15, 2015, appellant arrived at appellees’ place of business to pick up a trailer that

was stored outside. Pictures taken on the day of the accident revealed that there were

patches of snow and ice throughout the lot of the storage facility. Appellant typed in his

code to enter the gate to the facility, then drove to where his trailer was parked, and

backed his truck up to the trailer. Appellant testified in his deposition that when he

stepped out of his truck, he slipped and fell, seriously injuring his knee. Notably, the

storage facility was an open, uncovered lot, and there were no trees or shrubs blocking

appellant’s view.

          {¶ 3} On January 8, 2016, appellant filed his complaint, in which he alleged that

he fell on an ice formation that was caused by a clogged drain. Appellant asserted one

claim of premises liability in that appellees negligently failed to maintain the premises or

warn him of the clogged drain and resulting ice formation, and one claim of negligence

per se for violating R.C. 723.011 by failing to maintain the gutters in reasonable repair.

          {¶ 4} Following discovery, appellees moved for summary judgment, arguing that

they owed no duty to appellant because the snow and ice were an open and obvious

winter condition. Alternatively, they argued that appellant’s claims must fail because he

was unable to articulate what condition caused him to fall and where it was located, and




2.
because appellant’s negligence in failing to take proper precautions in winter conditions

outweighed any negligence by appellees as a matter of law.

       {¶ 5} Appellant responded by arguing that the accumulation of snow and ice was

unnatural, and was caused by a deficiently designed, constructed, and maintained gutter

and drainage system. With his opposition, appellant submitted an affidavit and report

from Richard Zimmerman, a licensed professional architect. Zimmerman opined that the

drainage system did not allow the water to flow away freely. Thus, the water backed up

and pooled at the location of the drain, and then froze in the cold weather. Alternatively,

appellant argued that a genuine issue of material fact existed regarding whether the ice on

which he fell was an open and obvious danger, and whether he was negligent as he was

stepping out of his vehicle.

       {¶ 6} On July 18, 2017, the trial court granted appellees’ motion for summary

judgment.

                                II. Assignments of Error

       {¶ 7} Appellant has timely appealed the trial court’s July 18, 2017 judgment, and

now presents five assignments of error for our review:

              1. The trial court erred in finding that there was no question of fact

       as to whether Defendant-Appellee’s inadequate drainage created an

       unnatural accumulation of snow and ice.

              2. The trial court misapplied the “active negligence” and notice

       requirements in a case involving a claimed unnatural accumulation of snow




3.
       and ice that contributed to the Plaintiff-Appellant’s fall at Defendants-

       Appellees’ property, thereby sustaining Defendant-Appellee’s Motion for

       Summary Judgment.

              3. The trial court erred in considering the open and obvious doctrine

       in a case involving an unnatural accumulation of snow and ice.

              4. The trial court erred in finding that the open and obvious doctrine

       applies as a matter of law under the facts of this case.

              5. The trial court erred by failing to find that Appellees are liable for

       failing to keep common areas free of ice and snow.

                                       III. Analysis

       {¶ 8} We review the grant or denial of a motion for summary judgment de novo,

applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61

Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (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, 375 N.E.2d 46 (1978).

       {¶ 9} 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




4.
St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to

some evidence in the record in the form of “pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any, timely filed in the action.” Civ.R. 56(C); Dresher at 292-293.

The burden then shifts to the nonmoving party to provide evidence showing that a

genuine issue of material fact does exist. Dresher at 293.

       {¶ 10} To establish a cause of action for negligence, a plaintiff must show “the

existence of a duty, a breach of the duty, and an injury proximately resulting therefrom.”

Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693

N.E.2d 271 (1998). In general, a landowner owes business invitees, such as appellant, “a

duty of ordinary care in maintaining the premises in a reasonably safe condition so that

its customers are not unnecessarily and unreasonably exposed to danger.” Paschal v. Rite

Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985).

                     A. Unnatural Accumulation of Ice and Snow

       {¶ 11} Because appellant’s first four assignments of error address whether the

accumulation of ice and snow was unnatural, thereby giving rise to a duty on the part of

appellees to remedy the danger or warn appellant, we will consider the assignments of

error together.

       {¶ 12} It is well established that an owner or occupier of land ordinarily owes no

duty to business invitees to remove natural accumulations of ice and snow, or to warn the

invitee of the dangers associated with such natural accumulations of ice and snow.




5.
Brinkman v. Ross, 68 Ohio St.3d 82, 83, 623 N.E.2d 1175 (1993). This is known as the

“no-duty winter rule.” Miller v. Tractor Supply Co., 6th Dist. Huron No. H-11-001,

2011-Ohio-5906, ¶ 8. The underlying rationale of the rule is that living in Ohio during

the winter has its inherent dangers. Thus, “everyone is assumed to appreciate the risks

associated with natural accumulations of ice and snow and, therefore, everyone is

responsible to protect himself or herself against the inherent risks presented by natural

accumulations of ice and snow.” Brinkman at 84.

       {¶ 13} Ohio courts, however, recognize an exception to the “no-duty winter rule”

where the landowner is actively negligent in permitting or causing an unnatural

accumulation of ice or snow. Rudnicki v. Andersons, Inc., 6th Dist. Lucas No.

L-16-1078, 2016-Ohio-8004, ¶ 14, citing Lopatkovich v. Tiffin, 28 Ohio St.3d 204, 207,

503 N.E.2d 154 (1986). “‘Unnatural’ accumulation must refer to causes and factors other

than the inclement weather conditions of low temperature, strong winds and drifting

snow, i.e., to causes other than the meteorological forces of nature. By definition, then,

the ‘unnatural’ is the manmade, the man-caused.” (Emphasis sic.) Porter v. Miller, 13

Ohio App.3d 93, 95, 468 N.E.2d 134 (6th Dist.1983).

       {¶ 14} Here, for purposes of our analysis, we will assume that the ice upon which

appellant slipped was an unnatural accumulation caused by a defective drainage system.

Nonetheless, we hold that appellees did not owe a duty to appellant because they were

not actively negligent in permitting or causing the unnatural accumulation.




6.
       {¶ 15} In this case, there is no evidence in the record that appellees actively

caused the unnatural accumulation of ice. Rather, appellant alleges that appellees were

actively negligent in not maintaining the gutters and drainage system, thereby permitting

the water to pool and freeze. However, to be found actively negligent for permitting an

unnatural accumulation of snow and ice, appellees must have been shown to have had

knowledge of the condition. Compare Tyrrell v. Invest. Assocs., Inc., 16 Ohio App.3d

47, 474 N.E.2d 621 (8th Dist.1984) (directed verdict for business reversed where there

was evidence that the business’s employees knew about the hazard from a dripping

canopy which periodically created an icy patch where the plaintiff fell) with Sleeper v.

Casto Mgmt. Servs., 10th Dist. Franklin No. 12AP-566, 2013-Ohio-3336, ¶ 39 (“In the

absence of some evidence indicating that [the owner] had knowledge of the leaky gutter,

we cannot find that [the owner] was actively negligent in creating or permitting the ice to

exist in the parking lot.”).

       {¶ 16} Here, the record contains no evidence that appellees were aware of the

condition that caused the unnatural accumulation of ice. Appellees’ representative,

Jordan Pingle, testified that appellees were not aware of any issue with improper drainage

causing ice, and that no one had ever issued a complaint about improper drainage or

unnatural ice accumulation. Further, appellant, himself, testified that he had never

noticed ice by the drain or complained about any problems with the drain, and that he did

not know of anyone else who had fallen near the drain or complained about the condition

of the drain. Therefore, we hold that appellees were not actively negligent in permitting




7.
the unnatural accumulation of ice. See Rudnicki, 6th Dist. Lucas No. L-16-1078, 2016-

Ohio-8004, at ¶ 15 (business not actively negligent in permitting an unnatural

accumulation of ice where the record contains no evidence that it was aware of the

presence of ice on the walkway caused by runoff from the overhang); Daley v. Fryer,

2015-Ohio-930, 30 N.E.3d 213, ¶ 23 (3d Dist.) (no active negligence where there is no

evidence the defendants had knowledge that the roof and drainage system were defective

or that the gutter had a tendency to form icy patches on the sidewalk below); Kaeppner v.

Leading Mgmt., 10th Dist. Franklin No. 05AP-1324, 2006-Ohio-3588, ¶ 20 (defendant

not actively negligent where the record contains no evidence that it knew or should have

known of a hazard from the allegedly leaking canopy). Thus, appellant has not shown

that appellees owed him a duty, and his claims for negligence must fail on this basis.

       {¶ 17} Accordingly, appellant’s first, second, third, and fourth assignments of

error are not well-taken.

                             B. Duty by Implied Contract

       {¶ 18} In his fifth assignment of error, appellant argues that appellees owed him a

duty pursuant to an implied contract to keep the common approaches free of ice and

snow. In support, appellant cites Oswald v. Jeraj, 146 Ohio St. 676, 67 N.E.2d 779

(1946), paragraph one of the syllabus, in which the Ohio Supreme Court held, “The

owner of an apartment building who reserves possession and control of the common

approaches which provide ingress to and egress from such building to and from the

public sidewalk and who assumes the duty of keeping such approaches clean and free




8.
from ice and snow is required to exercise ordinary care to render such common

approaches reasonably safe for use by the tenants.”

       {¶ 19} Although never expressly overruled, the Ohio Supreme Court has limited

the application of Oswald. In Sidle v. Humphrey, 13 Ohio St.2d 45, 49, 233 N.E.2d 589

(1968), the court commented that “[e]ach paragraph of the syllabus of the Oswald case is

either limited to an action by the tenant against the landlord or to the duty owed by the

landlord to the tenant.” Further, it was apparent that “the duty of the landlord to the

tenant as to removal of snow and ice was there based upon an implied agreement between

them.” Id. The court then held that a landlord owes no greater duty to a business invitee

of a tenant than the common-law duty that any other occupier of premises would owe to

his business invitee. Id. Thus, the common-law “no-duty winter rule” and the exceptions

thereto apply in this matter, and as discussed above, appellant has not demonstrated that

appellees owed him a duty under that framework.

       {¶ 20} Accordingly, appellant’s fifth assignment of error is not well-taken.

                                      IV. Conclusion

       {¶ 21} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Lucas County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                         Judgment affirmed.




9.
                                                        Bryant v. Indus. Power Sys., Inc.
                                                        C.A. No. L-17-1202




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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