[Cite as Hill v. Monday Villas Property Owners Assn.,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

CAROL HILL :

Plaintiff-Appellant : C.A. CASE NO. 24714

v. : T.C. NO. 10CV1256

MONDAY VILLAS PROPERTY : (Civil appeal from OWNERS ASSOCIATION, et al. Common Pleas Court)

Defendants-Appellees :

:

..........

OPINION

Rendered on the 2nd day of March , 2012.

..........

JOSEPH P. McDONALD, Atty. Reg. No. 0055230, 683 State Route 725, Suite 210, Centerville, Ohio 45459 Attorney for Plaintiff-Appellant

BRANDON M. ALLEN, Atty. Reg. No. 0079164 and PAUL B. RODERER, JR., Atty. Reg. No. 0063936, 4 E. Schantz Avenue, P. O. Box 897, Dayton, Ohio 45409 Attorneys for Defendant-Appellee, Monday Villas Property Owners Association

CHRISTIE A. M. BRYANT, Atty. Reg. No. 0080806, 5181 Natorp Blvd., Suite 535, Mason, Ohio 45040 Attorney for Defendant-Appellee, 4 Seasons Property Maintenance, L.L.C.

GREGORY P. DUNSKY, Atty. Reg. No. 0009098, Assistant U.S. Attorney, 200 W. Second Street, Suite 602, Dayton, Ohio 45402 Attorney for Defendant-Appellee, United States Department of Health and Human Services

.......... 2

FROELICH, J.

{¶ 1} Carol Hill appeals from a judgment of the Montgomery County Court

of Common Pleas, which granted summary judgment in favor of the Monday Villas Property

Owners Association (“Monday Villas”) on her personal injury and contract claims.

{¶ 2} On the morning of February 24, 2008, Hill fell in the common area of

Monday Villas condominium complex, which is located in Huber Heights. Specifically, Hill

fell while attempting to circumvent a large frozen puddle on the sidewalk leading to her unit.

Parts of the ground were covered with snow and ice at the time of Hill’s fall, but there was no

precipitation at that time. Hill suffered injuries in the fall, including a broken hip.

{¶ 3} In April 2008, Hill filed a complaint against Monday Villas and “John

Doe Corporation” for her personal injuries (Case No. 2008 CV 3671). This complaint was

voluntarily dismissed pursuant to Civ.R. 41(A), without prejudice.

{¶ 4} Hill subsequently filed a second complaint against Monday Villas,

alleging negligence and breach of a contractual duty. The complaint also alleged negligence

against the maintenance company hired by Monday Villas, Four Seasons Property

Maintenance, LLC. Hill’s insurance company and the U.S. Department of Health were also

named, because they had paid some of Hill’s medical expenses. In its answer, Monday

Villas denied the claims and asserted several defenses, including assumption of the risk, the

open and obvious nature of the hazard, and absence of a duty, and the natural accumulation of

the ice and snow (if any) at the location of Hill’s fall.

{¶ 5} Both parties filed motions for summary judgment. The trial court

granted Monday Villas’s motion, concluding that “there [was] no genuine issue that [Hill] 3

encountered a natural accumulation of ice and snow on the sidewalk at Monday Villas.

[Hill] had a choice between the sidewalk and the grass, both of which were covered with

naturally occurring ice and/or snow. Regardless of the surface upon which [Hill] fell, there

is no issue that her injuries were caused by natural winter phenomena.” The trial court

further concluded that Hill was “intimately familiar” with the complex and the area around

her unit, including the potentially icy puddle on the sidewalk of which she complained. The

trial court designated its decision granting summary judgment as a final appealable order,

although it did not expressly refer to the other claims.

{¶ 6} Hill appeals from the trial court’s judgment, raising three assignments

of error.

{¶ 7} Hill’s first and second assignments of error state:

THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO

GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER THE ICE

AND SNOW WHICH HILL ENCOUNTERED WAS A “NATURAL”

ACCUMULATION, FOR WHICH MONDAY VILLAS OWES NO DUTY,

OR AN “UNNATURAL” ACCUMULATION, FOR WHICH MONDAY

VILLAS OWES A DUTY.

THE TRIAL COURT ERRED IN FINDING THAT MONDAY VILLAS DID

NOT HAVE A DUTY TO CAROL HILL TO CLEAR “NATURAL”

ACCUMULATIONS OF ICE AND SNOW FROM THE SIDEWALKS OF

THE CONDOMINIUM COMPLEX WHEN THOSE SIDEWALKS WERE 4

THE ONLY MEANS OF INGRESS AND EGRESS TO HER

CONDOMINIUM.

{¶ 8} Hill contends that there was a genuine issue of material fact as to

whether the ice on the sidewalk was an unnatural accumulation because “pooling in this area

had been a problem for at least five years,” and an attempt to repair the sidewalk had not

solved the problem. She also claims that there was a genuine issue of material fact as to

Monday Villas’s negligence because the puddle in question blocked her sole means of

accessing her unit.

{¶ 9} Civ.R. 56(C) provides that summary judgment may be granted when

the moving party demonstrates that (1) there is no genuine issue of material fact; (2) the

moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most

strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion

and that conclusion is adverse to the party against whom the motion for summary judgment is

made. State ex rel. Grady v. State Emp. Relations Bd.,

,

(1997); Harless v. Willis Day Warehousing Co.,

,

(1978). The moving party “bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact on the essential element(s) of the nonmoving party’s claims.”

Dresher v. Burt,

,

(1996). If the moving party

satisfies its initial burden, “the nonmoving party then has a reciprocal burden *** to set forth

specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so

respond, summary judgment, if appropriate, shall be entered against the nonmoving party.” 5

Id.; see Civ.R. 56(E).

{¶ 10} In any negligence action, the plaintiff must demonstrate the existence of a

duty, a breach of that duty, and an injury proximately resulting from the breach of the duty.

Mussivand v. David,

,

(1989); Jeffers v. Olexo,

,

(1989).

{¶ 11} Under the common law related to premises liability, the status of a person

who enters on land determines the nature and extent of the legal duty owed to him or her.

Shump v. First Continental-Robinwood Assoc.,

,

(1994). An owner of a unit in a condominium complex has generally been considered a

business invitee in relation to a homeowners’ association, which controls the common areas

of the complex. See e.g., Brandimarte v. Packard, 8th Dist. Cuyahoga No. 67872,

, *2 (May 18, 1995), citing Tarescavage v. Meridian Condominium, Inc., 8th Dist.

Cuyahoga No. 65446,

, *5 (May 12, 1994).

{¶ 12} An owner or occupier of land owes no duty to warn invitees of open and

obvious dangers on the property. Paschal v. Rite Aid Pharmacy, Inc.,

,

(1985), citing Sidle v. Humphrey (1968),

,

; Swiger v. Kohl’s Dept. Store, Inc.,

,

,

(2d. Dist.). To be open and obvious, a hazard must not be concealed and

must be discoverable by ordinary inspection. Parsons v. Lawson Co.,

,

(1989). “The rationale is that an open and obvious danger

itself serves as a warning and that ‘the owner or occupier may reasonably expect

that persons entering the premises will discover those dangers and take appropriate 6

measures to protect themselves.’”

citing Simmers v. Bentley Constr. Co.,

,

(1992). Natural accumulations of snow and

ice are generally considered to be open and obvious. Sidle at paragraph two of the

syllabus; Swiger, citing Brinkman v. Ross,

,

(1993).

{¶ 13} In support of its motion for summary judgment, Monday Villas relied on

depositions, including photographs, from Paul Gehman, a former officer of Monday Villas,

John Collins, the member of the association who was responsible for building maintenance,

and Hill. Hill’s own testimony established that her fall did not occur at the location of the

puddle. The evidence further indicated that there was nothing “unnatural” contributing to

the existence of the puddle, except the uneven or depressed nature of the pavement. Monday

Villas also presented evidence that it had contracted with Four Seasons for the removal of

snow from the common areas of the development and that Four Seasons had, in fact,

performed these services.

{¶ 14} In opposing Monday Villas’s motion for summary judgment, Hill relied on

the same three depositions and the attached photos and documents. She pointed to evidence

that the central sidewalk began at the parking lot, passed between several units, and ended at

Hill’s front door; the central sidewalk was transected at several points by sidewalks leading

to other units and their patios. Hill stated in her deposition that the sidewalk leading from

the parking lot to her unit became “covered with water when it rained heavily.” Gehman and

Collins also stated that water tended to pool on the central sidewalk between the parking lot

and Hill’s unit after significant amounts of rain. 7

{¶ 15} Hill stated that, on the morning of February 24, 2008, such a puddle was

present on the sidewalk and appeared to be frozen; to avoid it, she walked some distance

across the grass in an effort to reach her unit. While so traversing the grass, Hill came to a

spot where she needed to cross a “second” sidewalk, which ran roughly perpendicular to the

one on which the puddle was located. When she stepped from the grass onto the second

sidewalk, she fell to the ground. No one witnessed Hill’s fall.

{¶ 16} Hill testified that she did not “notice anything on the second sidewalk” and

did not know what caused her to fall. She testified: “I cannot tell you what happened. All I

know is when I realized what had happened, I was on the ground. I was on the cement.”

She also testified that it had been a “moderate to bright morning,” that the temperature was

above freezing, and that, although the grass was covered with snow, neither the parking lot

nor the sidewalk was covered with snow. Hill claims that she had verbally lodged

complaints about the sidewalk with Monday Villas in the past, and she presented some

evidence that efforts had been made to eliminate the pooling by replacing part of the

sidewalk.

{¶ 17} Before addressing Hill’s claim that the puddle represented an unnatural

accumulation of snow or ice and to the trial court’s analysis of this issue, we note that Hill

did not allege that she fell on snow or ice; she could not explain how or why she had fallen.

Although much of the evidence focuses on issues related to the puddle on the central

sidewalk, it is clear from Hill’s testimony that she did not fall due to snow or ice that had

accumulated at that location; Hill had chosen a route through the grass in order to avoid the

puddle. Whether the puddle itself represented a natural or unnatural accumulation of ice or 8

snow or whether it was an open and obvious danger was not directly at issue, because Hill

did not fall at the location of the puddle.

{¶ 18} We also observe that Hill disclaimed any knowledge of what caused her fall

as she stepped onto the second sidewalk. “When the cause of a fall cannot be identified, a

finding of negligence is precluded.” Russell v. Creatif' Catering, Inc., 2d Dist. Montgomery

No. 17031,

, *2 (Dec. 4, 1998), citing Stamper v. Middletown Hosp. Assn.,

,

(12th Dist. 1989), and Harshaw v. Trotwood

Foodtown, Inc., 2d Dist. Montgomery No. 15125,

(Jan. 24, 1996). Neither

Hill nor any of the other witnesses testified as to any condition that would have caused Hill to

fall where she did, and there was no suggestion that there existed a natural or unnatural

accumulation of snow or ice at that location.

{¶ 19} An owner of land owes no duty to warn invitees of open and obvious

dangers on the property, including natural accumulations of ice and snow on sidewalks or in

parking lots. Swiger, citing Brinkman,

,

. A

property owner may have a duty to remove “unnatural” or “improper” accumulations of snow

and ice, which exist when the accumulation creates a hazard “substantially more dangerous”

than that normally associated with snow or ice. Murphy v. McDonald’s Restaurants of Ohio,

Inc., 2d Dist. Clark No. 2010 CA 4,

, ¶ 18; Community Ins. Co. v.

McDonalds Restaurants of Ohio, Inc., 2d Dist. Montgomery Nos. 17051, 17053,

(Dec. 11, 1998). Although it is undisputed that a depressed area in or around the

central sidewalk caused water to pool there, no evidence was offered that Monday Villas

contributed to an unnatural accumulation of snow or ice by creating a blockage or flow of 9

water apart from normal drainage.

{¶ 20} In the past, we have dealt with various attempts to characterize the presence

of snow and ice as unnatural. For example, we have held that snow placed on elevated

islands or in piles from plowing, which later caused a runoff of water that froze into ice, was

not an unnatural accumulation. Murphy; McDonald v. Koger,

,

,

. We have also rejected the suggestion that an

accumulation of ice on a man-made surface creates a question of fact as to whether the

accumulation was unnatural. See, e.g., Debie v. Cochran Pharmacy-Berwick, Inc.,

,

(1967) (sidewalk); Sidle,

,

(steps); DeAmiches v. Popczun,

,

(1973) (driveway).

We have further held that depressions in a paved surface, such as a step or sidewalk, “should

reasonably be expected” by an invitee, who can anticipate and protect herself against them.

Gober v. Thomas & King, Inc., 2d Dist. Montgomery No. 16248,

, *4 (June

27, 1997).

{¶ 21} Other appellate courts have also addressed the accumulation of water or ice

in a depression in a sidewalk or driveway, which subsequently froze due to cold weather;

these courts have repeatedly held that such an accumulation of ice is not unnatural. See

e.g., Juredine v. Heather Hill, Inc., 11th Dist. Geauga No. 92-G-1704,

(Mar. 26, 1993); Goodwill Indust. of Akron v. Sutcliffe, 9th Dist. Summit No.19972,

(Sept. 13, 2000). “[S]ince the build-up of snow and ice during winter is

regarded as a natural phenomenon, the law requires, at the very least, some evidence of an

intervening act by the landlord (or a property owner) that perpetuates or aggravates the 10

pre-existing, hazardous presence of ice and snow” to estalish an unnatural accumulation.

Porter v. Miller,

,

(6th Dist. Lucas 1983); Houvouras

v. Pant, 2d Dist Montgomery No. 13989,

, *4 (Mar. 2, 1994).

{¶ 22} The trial court found that there was “no genuine issue that [Hill]

encountered a natural accumulation of ice and snow on the sidewalk.” It appears that this

finding focused on the central sidewalk, where the puddle lay, although this is not where the

fall occurred. Even if we were to assume, for the sake of argument, that an unnatural

accumulation of ice existed on the central sidewalk, Hill acknowledged in her deposition that

she perceived the risk posed by the frozen puddle and took steps to avoid it. Monday Villas

presented evidence that the other sidewalks had been cleared, and Hill admitted this in her

deposition. There was no evidence of a natural or unnatural accumulation of ice at the

location where Hill fell, and the accumulation of ice on the central sidewalk was not the

proximate cause of Hill’s injury.

{¶ 23} Moreover, Hill created no genuine issue of material fact that her decision to

avoid the hazard posed by the puddle was, in itself, the proximate cause of any injury that she

sustained on her alternate route. Hill relies on cases in which a hazard known to an owner

blocked the sole means of ingress and egress, wherein the plaintiff did not have an available

alternative and had to cross the hazard. See e.g., Mizenis v. Sands Motel, Inc.,

,

(6th Dist. 1975) (motel stairs); Hammond v. Moon,

,

(10th Dist. 1982) (steps of office building in which plaintiff

worked). These cases are not factually analogous to this case, wherein an alternative route – 11

a wide, albeit snow-covered, lawn – was available.1

{¶ 24} There was no genuine issue of material fact that the icy puddle on the

sidewalk was an unnatural accumulation, which Monday Villas owed a duty to remove.

There was also no genuine issue of material fact that the icy puddle was the proximate cause

of Hill’s fall. Accordingly, the trial court did not err in granting Monday Villas’s motion for

summary judgment.

{¶ 25} The first and second assignments of error are overruled.

{¶ 26} Hill’s third assignment of error states:

THE TRIAL COURT ERRED IN FINDING THAT THE MONDAY VILLAS

CONDOMINIUM DECLARATIONS IMPOSED A MUTUAL DUTY ON MONDAY

VILLAS AND CAROL HILL, AS A CONDOMINIUM OWNER, TO CLEAR

SIDEWALKS IN COMMON AREAS OF SNOW, AND THAT MONDAY VILLAS

COULD NOT BE LIABLE TO HILL FOR BREACH OF THIS DUTY BECAUSE IT WAS

MUTUAL, WHEN THE DECLARATION ONLY IMPOSE[D] A MUTUAL DUTY FOR

MONDAY VILLAS AND INDIVIDUAL UNIT OWNERS TO CLEAR STREETS OF

SNOW AND MAKES NO REFERENCE TO INDIVIDUAL OWNERS HAVING A DUTY

TO CLEAR SIDEWALKS.

1 Hammond also discusses a duty assumed by a landlord’s past conduct. This court has sought to distance itself from the suggestion in Hammond and its progeny that a landlord can assume such a duty through its actions, on the grounds that imposing a duty on landlords to remove ice and snow through an “implied course of conduct” theory would discourage landlords from ever attempting to remove ice and snow from the common areas of their premises as a courtesy to their tenants, and would, therefore, make those areas less safe. Pacey v. Penn Garden Apts., 2d Dist. Montgomery No. 17370,

, *7 (Feb. 19, 1999). 12

{¶ 27} Hill contends that Monday Villas had a contractual duty, imposed by the

Monday Villas Condominium Declaration, to clear the sidewalks in the common areas of

snow and ice. Thus, she asserts that, even if the puddle on the sidewalk were a natural

accumulation, Monday Villas had a duty to protect her from the hazard it presented. The

trial court agreed with this assertion, but it further held that Hill and the other residents of the

complex shared the duty to keep common areas free of ice and snow. The court refused to

“impose liability on [Monday Villas] for breach of a duty under which [Hill] herself was

similarly responsible.” Hill disagrees with the latter part of the trial court’s conclusion.

Monday Villas contends that the condominium declarations did not create a contract, and

therefore it owed no contractual duty to Hill.

{¶ 28} Monday Villas claims that “Condominium Declarations are not a contract

under Ohio law,” and that they do not “create a private cause of action.” In fact, there is case

law supporting the general proposition that condominium declarations and bylaws are

contracts between the association and the purchaser. See Acacia on the Green Condominium

Assoc., Inc. v. Gottlieb, 8th Dist Cuyahoga No. 92145,

, ¶ 20, citing

Nottingdale Homeowners’ Assn., Inc. v. Darby,

,

(1987); see also Murtha v. Ravines of McNaughton Condominium Assn., 10th Dist. Franklin

No. 09AP-709,

, ¶ 13. However, whether such a declaration or the cases

finding such declarations to be a contract would also support a cause of action in contract for

a personal injury is another question, and one which we need not reach, because regardless of

whether Monday Villas had a duty, there is no evidence that a duty was breached.

{¶ 29} In Davis v. The Timbers Owners’ Assn., 1st Dist. Hamilton No. C-990409, 13

(Jan. 21, 2000), the court similarly confronted a claim by a condominium

owner, who fell on ice in a common area, that the association had assumed a duty to remove

snow and ice through its bylaws and declarations. The court’s resolution of the claim is

helpful to our discussion:

{¶ 30} “To prove a breach in a case where a defendant has assumed a duty to

remove snow and ice, the plaintiff must show that the defendant removed the snow and ice in

a manner inconsistent with what a reasonable person would have done under similar

circumstances – in other words, negligently. See Kinkey v. Jewish Hosp. Assn. of

Cincinnati,

,

(1968). Here, even with the

evidence viewed in the light most favorable to [the plaintiff], reasonable minds could not

have concluded that any of the defendants breached any duty owing to her. There is no

evidence that the defendants plowed or piled the snow in a negligent manner. Persons who

plow or shovel snow are not negligent merely because ice remains after snow is cleared.

See

,

; * * * . And the snow had to be piled somewhere, with a

certain natural runoff of water to be expected. See Hoenigman v. McDonald’s

Corp. (Jan. 11, 1990), Cuyahoga App. No. 56010, unreported. Because of the

cold weather on the day that [the plaintiff] fell, conditions were hazardous to begin

with, and we conclude that there is no evidence that any of the defendants

negligently increased the risk. Ice and snow are dangerous, but the danger is the

price we pay for living in an area with an ever-changing kaleidoscope of weather.”

{¶ 31} We conclude that, even assuming that Hill had a right to assert a claim based

on Monday Villas’s assumption of the duty in its declarations, she failed to create a genuine 14

issue of material fact that Monday Villas had executed that duty – the removal of ice and

snow – in a negligent manner. Hill herself testified that the parking lot and sidewalk were

clear at the time of her fall, but for the puddle. And, because she did not fall at the location

of the puddle, any defect in the maintenance of the sidewalk at that location was not the

proximate cause of her injury.

{¶ 32} Hill’s third assignment of error is overruled.

{¶ 33} The judgment of the trial court will be affirmed.

..........

GRADY, P.J. and FAIN, J., concur.

Copies mailed to:

Joseph P. McDonald Brandon M. Allen Paul B. Roderer, Jr. Christie A. M. Bryant Gregory P. Dunsky Hon. Michael L. Tucker