[Cite as Lacey v. Lenox Creek Condominium Assn., 2019-Ohio-1984.]



                Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 107094


                                   DEBRA K. LACEY
                                                        PLAINTIFF-APPELLANT

                                                  vs.

                     LENOX CREEK CONDOMINIUM
                         ASSOCIATION, ET AL.
                                                        DEFENDANTS-APPELLEES




                                         JUDGMENT:
                                          AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                  Case No. CV-17-880762

        BEFORE: Laster Mays, P.J., E.A. Gallagher, J., and Sheehan, J.

        RELEASED AND JOURNALIZED:                       May 23, 2019
ATTORNEYS FOR APPELLANT

Larry S. Klein
Christopher J. Carney
Klein & Carney Co., L.P.A.
55 Public Square, Suite 1200
Cleveland, OH 44114

Paul W. Flowers
Louis E. Grube
Paul W. Flowers Co., L.P.A.
Terminal Tower, Suite 1910
50 Public Square
Cleveland, OH 44113


ATTORNEYS FOR APPELLEES

Robert J. Koeth
Gallagher Sharp, L.L.P.
1501 Euclid Avenue, 6th Floor
Cleveland, OH 44115

Ann E. Leo
Koeth Rice & Leo Co., L.P.A.
1280 West Third Street
Cleveland, OH 44113

Michael Edward Lyford
Law Offices of John V. Rasmussen
6060 Rockside Woods Blvd., Suite 131
Independence, OH 44131
ANITA LASTER MAYS, P.J.:

       {¶1}     Plaintiff-appellant Debra K. Lacey (“Lacey”) appeals the trial court’s grant

of summary judgment in favor of defendants-appellees, Lenox Creek Condominium

Association, Inc. (“Lenox”) and Western Reserve Property Management (“Reserve”) in a

trip-and-fall   personal injury case.     We affirm the trial court’s judgment.

I.     Background and Facts

       {¶2} For more than two years, Lacey resided in a condominium unit rented from

defendants Donald and Anna Walencey.           Lenox owned the complex, and Reserve served

as the property manager.

       {¶3} On October 9, 2016, between 3:00 p.m. and 4:00 p.m., Lacey was walking

her two dogs on separate four-to-six-foot-long leashes around the complex parking lot.

Lacey observed her friend Roberta Mitchell (“Mitchell”) drive up to the complex mailbox

banks located about 50 feet ahead of her.          Lacey’s attention was focused on Mitchell

when she stepped into a pothole in the parking lot.        Lacey required surgery for a torn left

medial meniscus and developed deep vein thrombosis as a result of the procedure.

Lacey had never fallen in the parking lot before.

       {¶4}     On May 23, 2017, Lacey filed a premises liability negligence action against

the Walenceys,1 Lenox, and Reserve.          On February 23, 2018, after the discovery period


           The Walenceys were dismissed without prejudice and are not parties to this appeal. Their
       1


cross-claim for indemnification against the other defendants became moot upon the dismissal and the
trial court’s finding in favor of appellees. “A judgment for the defendant in a civil action, which
judgment renders the defendant’s third-party complaint for indemnification or contribution moot, is a
final appealable order pursuant to R.C. 2505.02, and Civ.R. 54(B) is not applicable to such a
concluded, appellees moved for summary judgment on the grounds that the pothole was

open and obvious and there were no attendant circumstances that would serve as an

exception to the open-and-obvious doctrine.      Lacey responded on March 8, 2018, and

appellees replied on March 15, 2018.

       {¶5} On April 5, 2018, the trial court granted the motion. The trial court held

“[t]he pothole in the parking lot was open and obvious and no attendant circumstances

that would warrant an exception were present.”      Journal Entry No. 103255783 (Apr. 5,

2018), citing Seifert v. Great N. Shopping Ctr., 8th Dist. Cuyahoga No. 74439, 1998 Ohio

App. LEXIS 5308 (Nov. 5, 1998). This appeal ensued.

II.    Assignment of Error

       {¶6}    The sole assignment of error before this court is that the trial court erred as

a matter of law by granting summary judgment in favor of appellees. Lacey argues that

genuine issues of material fact exist regarding whether:     (1) the condition was open and

obvious, (2) Reserve, as the property manager, has standing to assert the

open-and-obvious defense, and (3) attendant circumstances were present that precluded

application of the open-and-obvious doctrine in this case.

III.   Standard of Review

       {¶7}   We review a trial court’s entry of summary judgment de novo, using the

same   standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,


judgment.” Wise v. Gursky, 66 Ohio St.2d 241, 242, 421 N.E.2d 150 (1981). See also Gen. Acc.
Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21, 540 N.E.2d 266 (1989).
671 N.E.2d 241 (1996). Summary judgment may only be granted when the following

are established:    (1) there is no genuine issue as to any 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 the conclusion is adverse to the party against whom the motion for

summary judgment is made, who is entitled to have the evidence construed most strongly

in its favor.   Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d

46 (1978); Civ.R. 56(C).

       {¶8}     The party moving for summary judgment bears the initial burden of

apprising the trial court of the basis of its motion and identifying those portions of the

record that demonstrate the absence of a genuine issue of material fact on an essential

element of the nonmoving party’s claim.     Dresher v. Burt, 75 Ohio St.3d 280, 293, 662

N.E.2d 264 (1996). “Once the moving party meets its burden, the burden shifts to the

nonmoving party to set forth specific facts demonstrating a genuine issue of material fact

exists.” Willow Grove, Ltd. v. Olmsted Twp., 2015-Ohio-2702, 38 N.E.3d 1133, ¶ 14-15

(8th Dist.), citing Dresher. “To satisfy this burden, the nonmoving party must submit

evidentiary materials showing a genuine dispute over material facts.” Willow Grove at ¶

15, citing PNC Bank v. Bhandari, 6th Dist. Lucas No. L-12-1335, 2013-Ohio-2477.

IV.    Discussion

       A.       Open-and-Obvious Doctrine

       {¶9}      To overcome summary judgment in this case, Lacey must establish that

genuine issues of material fact exist regarding whether:   (1) appellees owed Lacey a duty
of care; (2) appellees breached the duty; and (3) the breach was the proximate cause of

Lacey’s injury.     Bounds v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 90610,

2008-Ohio-5989, ¶ 10, citing Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81

Ohio St.3d 677, 680, 693 N.E.2d 271 (1998).

      {¶10} “Whether a duty [of care] exists is a question of law for the court to

determine.” Bounds at ¶ 10, citing Mussivand v. David, 45 Ohio St.3d 314, 318, 544

N.E.2d 265 (1989).     There can be no legal liability in the absence of establishing the

existence of a duty. Bounds at ¶ 10, citing Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539

N.E.2d 614 (1989).    The “analysis ends and no further inquiry is necessary.” Bounds at

¶ 10, citing Gedeon v. E. Ohio Gas Co., 128 Ohio St. 335, 338, 190 N.E. 924 (1934).

      {¶11}       A landowner’s duty to those entering their land varies depending on

whether the individual is a trespasser, licensee, or business invitee.   There is no duty

owed to a licensee or trespasser “except to refrain from willful, wanton, or reckless

conduct that is likely to” cause injury. Skowronski v. Waterford Crossing Homeowners’

Assn., 8th Dist. Cuyahoga No. 96144, 2011-Ohio-3693, ¶ 11, citing Bae v. Dragoo &

Assocs., Inc., 156 Ohio App.3d 103, 2004-Ohio-544, 804 N.E.2d 1007 (10th Dist.).

      {¶12}       The parties agree that Lacey was a business invitee at the complex.

Appellees’ responsibility to Lacey as a business invitee was to exercise “ordinary care in

maintaining the premises in a reasonably safe condition and has the duty to warn its

invitees of latent or hidden dangers.” Carlo v. Kohl’s Dept. Stores, Inc., 8th Dist.
Cuyahoga No. 105725, 2017-Ohio-8173, ¶ 8, citing Paschal v. Rite Aid Pharmacy, Inc.,

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

      {¶13}   “A premises owner is obligated to warn invitees of latent or concealed

dangers if the owner knows, or has reason to know, of hidden dangers.”       Id., citing

Rogers v. Sears, Roebuck & Co., 1st Dist. Hamilton No. C-010717, 2002-Ohio-3304.

Summary judgment may be granted “[w]here a hazard is not hidden from view or

concealed and is discoverable by ordinary inspection.” Id., citing Parsons v. Lawson

Co., 57 Ohio App.3d 49, 566 N.E.2d 698 (5th Dist.1989). A business owner has no duty

to warn of open-and-obvious dangers, acting as a complete bar to a claim of negligence.

Skowronski at ¶ 21, citing Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573,

788 N.E.2d 1088.

      {¶14}    Further,

      [w]here reasonable minds could differ with respect to whether a danger is
      open and obvious, the obviousness of the risk is an issue for the jury to
      determine. Klauss v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 84799,
      2005-Ohio-1306. A pedestrian using a public sidewalk is under a duty to
      use care reasonably proportioned to the danger likely to be encountered but
      is not as a matter of law required to look constantly downward. Swiger v.
      Kohl’s Dept. Store, Inc., 191 Ohio App.3d 629, 2010-Ohio-6230, 947
      N.E.2d 232 (2d Dist.). “Attendant circumstances” may also divert the
      individual’s attention from a hazard and excuse the failure to observe it.
      See Hissong v. Miller, 186 Ohio App.3d 345, 2010-Ohio-961, 927 N.E.2d
      1161 (2d Dist.). Moreover, as explained in Hissong, “[t]he existence and
      the obviousness of a danger which allegedly exists on a premises is
      determined by a fact-specific inquiry and must be analyzed on a
      case-by-case basis.” (Citation omitted.)

Skowronski, 8th Dist. Cuyahoga No. 96144, 2011-Ohio-3693, at ¶ 22.
       {¶15}   “[I]t is incumbent upon the plaintiff to identify or explain the reason for

the fall.” Id. at ¶ 14, citing Stamper v. Middletown Hosp. Assn., 65 Ohio App.3d 65,

582 N.E.2d 1040 (12th Dist.1989). The testimony may also be provided by “‘outside

witnesses.’” Id. at id.

       {¶16}   Several witnesses were deposed in this case.       According to Reserve

Property Manager Robert Swope (“Swope”), Lenox contracted with Reserve to act as an

agent for Lenox to provide repair and maintenance services for the complex.           The

contract included an indemnification clause that protected Reserve for acts committed

within the scope of the contractual authority.

       {¶17}   Due to the size of the five-to-six acre complex, Reserve relied on unit

owners to report service needs in addition to Reserve’s weekly visual inspections.

Reserve made repair recommendations to the Lenox board of directors whose approval

was required for expenditures exceeding $1,000.

       {¶18} Semiannual inspections of the complex were also conducted. Though he did

not keep inspection records, Swope walked or drove around the complex on a weekly

basis to inspect the walkway and driveway areas.    Repairs were routinely conducted by

third-party contractor Aspen Construction L.L.C. (“Aspen”).      Swope had not seen the

pothole prior to the date of the incident and, after the incident, he promptly took

photographs and notified Aspen to repair the pothole.       Swope did not consider the

pothole to be a trip hazard because it was clearly observable. Swope was not aware of any

other trip-and-fall occurrences at the complex.
         {¶19}     Aspen employed a subcontractor to repair the pothole with asphalt cold

patch.    According to Aspen Project Manager Richard Takacs (“Takacs”), the pothole

was approximately eight to nine inches in length, four inches wide and one-half inch

deep. Potholes exceeding one-inch in depth required a more extensive repair procedure

and could not be repaired with asphalt cold patch. Aspen also repaired several other small

potholes observed during the visit.

         {¶20}     Takacs explained that potholes can form and expand quickly due to

inclement weather including heavy rain and water accumulation. Potholes

also form or are impacted by temperature changes, traffic, landscaping operations, and

snow plows.

         {¶21}      Mitchell, a resident owner in the complex for about three years, met

Lacey while both were walking their dogs. On the day of the incident, Mitchell drove past

Lacey who was walking her dogs near the complex mailbox banks located shortly beyond

the community center.       Mitchell parked, exited the car, and retrieved her mail.    She

could not see Lacey from the mailbox area and did not see Lacey fall.

         {¶22}     As Mitchell returned to her car, she saw Lacey on the ground and helped

her to her feet.     Mitchell testified that she tripped over the same pothole approximately

two months earlier, and again a month prior to the incident when she was walking her dog

one night. The pothole was located between two of the mailbox banks in front of one of

the garages.     Mitchell described the hole as “relatively sufficient” and “small enough
that you didn’t always notice it, but big enough [to notice] if you stepped in it.” Mitchell

Deposition, at 22-24. Mitchell did not report the pothole to appellees.

       {¶23}   Lacey argues that appellees had constructive knowledge of the pothole

based on Beck v. Camden Place at Tuttle Crossing, 10th Dist. Franklin No. 02AP-1370,

2004-Ohio-2989.     Beck determined that a landowner is “charged with constructive

knowledge of defects which would have been revealed by a reasonable inspection of the

premises.” Id. at ¶ 21, citing State Farm Mut. Auto. Ins. Co. v. Chatham Dev. Corp.,

10th Dist. Franklin No. 94APE08-1243, 1995 Ohio App. LEXIS 2398 (June 6, 1995).

       {¶24} Lacey posits that appellees failed to reasonably inspect the complex because

Swope was only on-site 20 hours per week and there were no written inspection records.

However, Lacey also testified that she walked her dogs through the complex daily for

more than two years and never tripped on any potholes or defects in the driveways or

walking areas of the complex.

       {¶25}   It is undisputed that appellees did not have actual knowledge of the

pothole. Whether or not appellees had constructive knowledge or should have known of

the pothole is not relevant because the pothole was open and obvious as a matter of law.

“When a danger is open and obvious, a premises owner owes no duty of care to

individuals lawfully on the premises.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d

79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 13, citing Sidle v. Humphrey, 13 Ohio St.2d 45,

233 N.E.2d 589 (1968).
      {¶26} “By focusing on the duty prong of negligence, the rule properly considers

the nature of the dangerous condition itself.”         Id.   “[T]he owner or occupier may

reasonably expect that persons entering the premises will discover those dangers and take

appropriate measures to protect themselves.”          Id. at ¶ 5, citing Simmers v. Bentley

Constr. Co., 64 Ohio St.3d 642, 644, 597 N.E.2d 504 (1992).

      {¶27}    As this court has previously stated,

      The question of whether a danger is open and obvious is an objective one.
      Abdelshahid v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 102109,
      2015-Ohio-2274, ¶ 25, citing Goode v. Mt. Gillion Baptist Church, 8th Dist.
      Cuyahoga No. 87876, 2006-Ohio-6936, ¶ 25. The fact that a plaintiff was
      unaware of the danger is not dispositive of the issue. Id. Rather, the
      court must consider whether, in light of the specific facts and circumstances
      of the case, an objective, reasonable person would deem the danger open
      and obvious. Id.; Carpenter v. Marc Glassman, Inc., 124 Ohio App.3d
      236, 705 N.E.2d 1281 (8th Dist.1997).

Butler v. Cleveland Clinic, 8th Dist. Cuyahoga No. 105457, 2018-Ohio-93, ¶ 11.

      {¶28} The pothole was approximately eight to nine inches in length, four inches

wide and one-half inch deep based on the evidence in this case.      Lacey testified that the

incident occurred during the afternoon, and she did not identify any lighting or weather

issues. Lacey did state that she was walking her dogs and was not paying attention.

We find that viewed in a light most favorable to Lacey, “an objective, reasonable person

would deem the danger open and obvious.” (Citations omitted.)         Id.

      B.      Attendant Circumstances

      {¶29}    Lacey also urges that attendant circumstances existed that distracted her

attention from the hazard excuses her failure to observe it, requiring a case-by-case,
fact-specific analysis. Skowronski, 8th Dist. Cuyahoga No. 96144, 2011-Ohio-3693, at

¶ 22, citing Hissong, 186 Ohio App.3d 345, 2010-Ohio-961, 927 N.E.2d 1161.

      {¶30} In Bounds, 8th Dist. Cuyahoga No. 90610, 2008-Ohio-5989, we considered

whether attendant circumstances existed that created a “genuine issue of material fact as

to whether a danger was open and obvious.” Id. at ¶ 24, citing Quinn v. Montgomery

Cty. Edn. Serv. Ctr., 2d Dist. Montgomery No. 20596, 2005-Ohio-808; Collins v.

McDonald’s Corp., 8th Dist. Cuyahoga No. 83282, 2004-Ohio-4074.                “Attendant

circumstances” include “all facts relating to the event, such as time, place, surroundings

or background, and the conditions normally existing that would unreasonably increase the

normal risk of a harmful result of the event.” Id., citing Menke v. Beerman, 12th Dist.

Butler No. CA97-09-182, 1998 Ohio App. LEXIS 868 (Mar. 9, 1998).

      {¶31}    According to the record, Lacey’s view was partially blocked by the antics

of the two dogs, and she admitted that she was distracted when she saw Mitchell at the

mailboxes.    Lacy argues that these events serve as attendant circumstances because they

were reasonably foreseeable.    We disagree.    A landlord is not required to act as an

insurer of the safety of its invitees. Howard v. Meat City, Inc., 3d Dist. Allen No.

1-16-32, 2016-Ohio-7989, ¶ 10, citing Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120,

2009-Ohio-2495, 909 N.E.2d 120, ¶ 11.     See also Carlo v. Kohl’s Dept. Stores, Inc., 8th

Dist. Cuyahoga No. 105725, 2017-Ohio-8173, ¶ 9.
       {¶32}    A business invitee also has a duty to take reasonable precautions

to avoid dangers.    Bounds at ¶ 19, citing Brinkman v. Ross, 68 Ohio St.3d 82, 84,

1993-Ohio-72, 623 N.E.2d 1175. “[I]t is [also] incumbent upon the plaintiff to identify

or explain the reason for the fall.” Stamper, 65 Ohio App.3d at 67, 582 N.E.2d 1040.

Lacey admitted that she was not paying attention when she fell. The fall occurred during

daylight hours between 3:00 p.m. and 4:00 p.m. Lacey did not state that the weather

conditions were poor that day. “[T]he attendant circumstance must be ‘an unusual

circumstance of the property owner’s making.’”         Haller v. Meijer, Inc., 10th Dist.

Franklin No. 11AP-290, 2012-Ohio-670, ¶ 10, quoting McConnell v. Margello, 10th Dist.

Franklin No. 06AP-1235, 2007-Ohio -4860, ¶ 17, citing Lang v. Holly Hill Motel, Inc.,

4th Dist. Jackson No. 06CA18, 2007-Ohio-3898.

       {¶33}    Viewed in a light most favorable to Lacey as the nonmoving party, there

are no facts before this court that support the presence of attendant circumstances

sufficient to require a reversal of summary judgment in this case.

       C.      Agent or Independent Contractor

       {¶34}    Lacey states that the open-and-obvious defense is not available to Reserve

as an independent contractor.    “[A]n independent contractor who creates a dangerous

condition on real property is not relieved of liability under the [open- and-obvious

doctrine]” and liability must be analyzed by first determining the existence of a duty of

care and then considering whether the contractor is exonerated by the “open and obvious
dangers.”     Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 645, 597 N.E.2d 504

(1992).

         {¶35} Appellees counter that Reserve served as the exclusive managing agent of

Lenox, a condominium association, for the common areas of the complex so that Reserve

may step into its shoes and exercise the defense. We find that appellees’ position has

merit.

         {¶36}    The Ohio Supreme Court has determined that:

         “The relation of principal and agent or master and servant is distinguished
         from the relation of employer and independent contractor by the following
         test: Did the employer retain control, or the right to control, the mode and
         manner of doing the work contracted for? If he did, the relation is that of
         principal and agent or master and servant.”

Councell v. Douglas, 163 Ohio St. 292, 295, 126 N.E.2d 597 (1955), quoting         Miller v.

Metro. Life Ins. Co., 134 Ohio St. 289, 291-292, 16 N.E.2d 447 (1938).

         {¶37} According to the Ohio Condominium Act, R.C. Chapter 5311, a

condominium association may hire a managing agent to fulfill the duties of the

association subject to the control of the board of directors. R.C. 5311.08(B)(1)(h).    See

also R.C. 5311.01(M) defining “condominium instruments” to include “any contracts

pertaining to the management of the condominium property” and              R.C. 5311.23(D)

providing that an action for failure to comply with condominium instruments may be

commenced by the condominium association “in its own name, in the name of the board

of directors, or in the name of the association’s managing agent.”     Akerstrom v. 635 W.

Lakeside, Ltd., 2018-Ohio-98, 105 N.E.3d 440, ¶ 12 (8th Dist.), citing R.C. 5311.23(D).
         {¶38} The December 10, 2015 Condominium Management Agreement between

Lenox and Reserve appoints Lenox to act as the managing agent pursuant to Article II of

the Declaration of Condominium Ownership. Lenox appoints Reserve as the exclusive

agent to manage the common elements of the complex “subject at all times to the

direction and control” of Lenox.           The general delineation of duties specifies that the

activities are subject to the direction and control of Lenox.            Included is the authority for

Reserve to “hire, supervise, and discharge” personnel hired by Reserve on behalf of

Lenox to fulfill the duties.

         {¶39}     Reserve’s activities are conducted under the direction and control of

Lenox. The duties include the: (1) collection of condominium assessment fees from unit

owners, (2) receipt of other payments on behalf of Lenox for deposit into a trust account,

and (3) preparation of checks for board signature to disburse sums payable by Lenox.

Lenox reimburses Reserve for all office expenses relating to the agency.                  Lenox also

indemnifies Reserve for negligent acts or omissions relating to the exercise of its duties,

including personal injuries, and Lenox secures the insurance for Reserve’s activities by

naming Reserve as an additional insured on the Lenox insurance policies.2

         {¶40}     The terms of the November 1, 2016 landscaping and snow plowing

agreement contained in the record provide further insight into Reserve’s status as an

agent.       The agreement is between Lenox and the landscaping company.                          The




              Willful acts of misconduct or fraud are not indemnified.
         2
landscaping company is specifically identified as an independent contractor. The

agreement lists the basic scope of work and contract price for the services.

       {¶41} Payment for optional work projects requires written authorization from

Reserve as the agent of Lenox prior to performance. The contract is indicative of an

arms-length transaction with the contractor bearing responsibility for its own acts or

omissions and indemnifying Lenox and Reserve. The contractor is responsible for

providing proof of insurance.     The contractor’s invoices are to be directed to Lenox in

care of Reserve.

       {¶42}    A review of Ohio law, as well as the cases presented by the instant parties,

did not reveal a case specifically addressing whether a condominium managing agent is

an independent contractor, perhaps because the designation is self-explanatory and

contemplated by the Ohio Condominium Act.          In fact, a review of premises liability

cases against a condominium association and its managing agent involving business

invitees and the open-and-obvious defense reveals application of the doctrine to both

parties without a discussion of legal status.

       {¶43} Examples of such cases include:          Brandimarte v. Packard, 8th Dist.

Cuyahoga No. 67872, 1995 Ohio App. LEXIS 2095, 1 (May 18, 1995), finding that a

condominium association, its managing company, and cleaning company were entitled to

the protection of the open-and-obvious doctrine against a business invitee.        Hurst v.

Carriage House W. Condominium Owners Assn., 2017-Ohio-9236, 102 N.E.3d 1071 (6th

Dist.), finding that the condominium association and managing agent were entitled to
the open-and-obvious defense; and Ervin v. Case Bowen Co., 10th Dist. Franklin No.

07AP-322, 2008-Ohio-393, affirming the grant of summary judgment in favor of the

condominium managing agent in a negligence action due to the open-and-obvious nature

of natural accumulations of snow.

       {¶44}    Viewed in a light most favorable to Lacey as the nonmoving party, we

find that the open-and-obvious defense is available to Reserve as the agent of Lenox.

V.     Conclusion

       {¶45}   The trial court’s judgment is affirmed.

       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

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

the Rules of Appellate Procedure.


____________________________________________
ANITA LASTER MAYS, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
MICHELLE J. SHEEHAN, J., CONCUR
