[Cite as Miller v. Grewal Bros. Corp.,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY

JAMES D. MILLER,

PLAINTIFF-APPELLANT, CASE NO. 7-11-12

v.

GREWAL BROS. CORP., dba OPINION BEST WESTERN NAPOLEON INN,

DEFENDANT-APPELLEE.

Appeal from Henry County Common Pleas Court Trial Court No. 10 CIV 0145

Judgment Affirmed

Date of Decision: March 26, 2012

APPEARANCES:

George C. Rogers for Appellant

Edward T. Mohler for Appellee Case No. 7-11-12

ROGERS, J.

{¶1} Plaintiff-Appellant, James Miller, appeals the judgment of the Court

of Common Pleas of Henry County granting Defendant-Appellee, Grewal

Brothers Corporation (“Grewal”), summary judgment. On appeal, Miller contends

that the trial court erred in granting Grewal summary judgment based on the

assumption that a non-obvious patch of ice underneath a canopy was a natural

accumulation, and that the trial court erred in failing to grant him summary

judgment on the issue of liability. Based on the following, we affirm the judgment

of the trial court.

{¶2} On January 30, 2009, Miller and three friends, Matthew Morris,

Jeffrey Darstein, and Robert Fromm, drove to Napoleon, Ohio for a billiards

tournament. Miller Depo. Tr., pp. 8-9. The weather that day was cold with

intermittent flurries. Id. at pp. 14-15; Darstein Depo. Tr., pp. 16-17. After the

billiards tournament ended for the day, Morris drove Miller, Darstein, and Fromm

to the Best Western Napoleon Inn (“Hotel”), where they had reserved rooms for

the night. Morris Affidavit, p. 1. Darstein testified that it snowed during the drive

to the Hotel. Darstein Depo. Tr., p. 17. Miller and his friends arrived at the Hotel

at approximately 10:16 p.m. Upon arriving at the Hotel, Morris testified that there

was ice and snow on the ground. Morris Affidavit, p. 1. As a result, Morris

parked his vehicle underneath the Hotel’s canopy, which was attached to the

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Hotel’s main entrance. Id. Morris, Miller, and Darstein each testified that the

area underneath the canopy appeared to be clear of ice and snow. Id.; Miller

Depo. Tr., p. 14; Darstein Affidavit, p. 2. Upon arrival, Miller, without issue,

entered the Hotel’s lobby to check-in. Miller Depo. Tr., p. 16. After checking in,

Miller returned to the rear of Morris’ vehicle, which remained parked underneath

the Hotel’s canopy, to collect his luggage. Id. As Miller collected his luggage he

slipped and fell to the ground, fracturing his left fibula. Id. at pp. 12, 16. Morris

testified that as Miller lay on the ground he observed ice “all around.” Morris

Depo. Tr., p. 20. Miller’s friends brought him into the Hotel’s lobby. Miller

Depo. Tr., p. 17. At that time, the Hotel’s front desk clerk, Angie Carroll, called

the night manager, Balraj Grewal (“Balraj”), and informed him of the accident.

Balraj Depo. Tr., p. 7. Carroll then checked the area underneath the canopy but

did not find any ice. Carroll Affidavit, p. 2. As Miller waited to be transported to

the hospital, he had a conversation with Carroll. Miller Depo. Tr., p. 18.

According to Miller, Carroll mentioned that “it was slick out there and that

somebody should put salt down but nobody had got to it at that point.” Id.

Similarly, Morris testified that Carroll mentioned that she “previously told her

boss that it was icy and the entry needed to be salted but they [had not] gotten to

it.” Morris Affidavit, p. 2; see also Darstein Affidavit, p. 1. Shortly after Miller

was taken to the hospital, Balraj arrived at the Hotel. Balraj Depo. Tr., p. 10.

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Balraj testified that he did not find any ice underneath the canopy and, at

approximately 11:00 p.m., took several pictures of the area underneath the canopy.

Id.; Defendant’s Exhibits A-D. As Balraj was taking pictures the president of

Grewal, Jagdev Grewal (“Jagdev”), arrived at the Hotel. Jagdev Depo. Tr., p. 15.

Upon arrival, Jagdev inspected the area underneath the canopy but did not observe

any ice or snow. Id.

{¶3} In July 2010, Miller filed a complaint against Grewal, because it

operated the Hotel. In his complaint, Miller alleged that Grewal negligently failed

to correct a known hazard, i.e. a patch of ice, which caused him to fall and suffer

damages.1

{¶4} In August 2010, Grewal answered Miller’s complaint, denying the

allegations therein and asserting, among other defenses, that he assumed the risk

and/or was contributorily negligent, and that any accumulation of ice or snow on

the Hotel’s premises was natural.

{¶5} In June 2011, Grewal moved for summary judgment. Grewal argued

that it owed no duty to Miller, and thus cannot be liable for his damages, since any

ice or snow underneath the canopy on the night of his accident accumulated

naturally, and it did not have superior knowledge of any ice or snow underneath

the canopy.

1 We note that Miller’s complaint also names his wife, Sherry Miller, as a plaintiff. We, however, will not consider any claims as they relate to Sherry, because she did not file a separate notice of appeal, nor was she included in Miller’s notice of appeal.

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{¶6} On July 8, 2011, Miller filed a memorandum in opposition to

Grewal’s motion for summary judgment and moved for partial summary judgment

on the issue of Grewal’s liability. In response to Grewal’s motion for summary

judgment, Miller argued that genuine issues of material fact existed as to whether

the ice that caused his fall was an unnatural accumulation; whether the ice was an

open and obvious hazard; and, whether Grewal had superior knowledge of the ice.

{¶7} On July 15, 2011, Grewal filed a memorandum in response to Miller’s

memorandum in opposition.

{¶8} Later that month, the trial court granted summary judgment in favor of

Grewal. In doing so, the trial court found that nothing in the record indicates that

Miller slipped on anything other than a natural accumulation of ice; and, that

Miller was aware of the prevailing wintry conditions, thus placing him on notice

of the possibility of ice near the Hotel’s main entrance. Accordingly, the trial

court held that Grewal owed no duty to Miller and, thus, could not be liable as a

matter of law.

{¶9} It is from this judgment Miller appeals, presenting the following

assignments of error for our review.

Assignment of Error No. I

THE TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, BASED UPON THE ASSUMPTION THAT THE NON-OBVIOUS PATCH OF ICE THAT WAS CREATED IN THE ENTRY AREA

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UNDERNEATH THE PORTICO CONSTRUCTED BY THE DEFENDANT, WAS A NATURAL ACCUMULATION OF ICE AND SNOW.

Assignment of Error No. II

THE TRIAL COURT ERRED IN FAILING TO SUA SPONTE ENTER SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY AS REQUESTED BY PLAINTIFF.

Assignment of Error No. I

{¶10} In his first assignment of error, Miller contends that the trial court

erred in determining that the ice that caused his fall was a natural accumulation.

Specifically, Miller contends that there is a genuine issue of material fact as to

whether the ice that caused his fall was a natural or unnatural accumulation. In the

alternative, Miller contends that even if the ice that caused his fall was a natural

accumulation there is a genuine issue of material fact as to whether Grewal had

superior knowledge of the ice, thus imputing upon Grewal a duty to remove the

ice or warn him of the same. Based on the following, we disagree.

{¶11} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co.,

(8th Dist.

1999). Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distr. Co.,

,

, ¶ 25 (3d Dist.),

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citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed.,

(1994). Summary judgment is appropriate when, looking at the evidence

as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving

party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this

analysis the court must determine “that 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, [the nonmoving] party being entitled to have the

evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”

If any doubts exist, the issue must be resolved in favor of the nonmoving

party. Murphy v. Reynoldsburg,

(1992).

{¶12} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact on a material element of the nonmoving party’s claim. Dresher v.

Burt,

(1996). In doing so, the moving party is not required

to produce any affirmative evidence, but must identify those portions of the record

which affirmatively support his or her argument.

The nonmoving party must

then rebut with specific facts showing the existence of a genuine triable issue; he

or she may not rest on the mere allegations or denials of his or her pleadings.

; Civ.R. 56(E).

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{¶13} Bearing these standards in mind, we turn our attention to Miller’s

negligence claim. To establish a cause of action for negligence, a plaintiff must

show the existence of a duty, breach of that duty, and an injury proximately caused

by the breach. Texler v. D.O. Summers Cleaners & Shirt Laundry Co.,

(1998). To defeat a properly supported motion for summary

judgment in a negligence action, the plaintiff must first demonstrate a duty owed

him by the defendant. Kaeppner v. Leading Mgt., Inc., 10th Dist. No. 05AP-1324,

. The plaintiff must then present evidence from which

reasonable minds could conclude that the defendant breached that duty and that

the breach was the proximate cause of the plaintiff’s injuries.

{¶14} An owner or occupier of land owes business invitees, such as Miller,

a duty of ordinary care in maintaining the property in a reasonably safe condition

so that invitees are not unnecessarily and unreasonably exposed to danger.

Paschal v. Rite Aid Pharmacy, Inc.,

(1985). However, the

Supreme Court of Ohio has consistently held that an owner or occupier’s duty of

ordinary care does not extend to natural accumulations of ice and snow. Debie v.

Cochran Pharmacy-Berwick, Inc.,

(1967); Sidle v. Humphrey,

(1968); Brinkman v. Ross,

(1993). “[I]t 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 from the private

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sidewalks on the premises, or to warn the invitee of the dangers associated with

such natural accumulations of ice and snow.”

. In so holding, the

Supreme Court explained that, “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.”

.

{¶15} Ohio courts have recognized two exceptions to the general rule that

an owner or occupier of land owes no duty to business invitees regarding natural

accumulations of ice and snow, both of which Miller contends are applicable here.

First, a plaintiff may establish negligence where an owner or occupier is actively

negligent in permitting or creating an unnatural accumulation of ice and snow.

Lapatkovich v. City of Tiffin,

(1986). Second, a plaintiff

may establish negligence where an owner or occupier of property is shown to have

actual or implied notice that a natural accumulation of ice or snow on his or her

property has created a condition substantially more dangerous than a business

invitee should have anticipated by reason of knowledge of conditions generally

prevailing in the area. Debie at paragraph one of the syllabus. To survive a

properly supported motion for summary judgment in this type of case, the plaintiff

must produce evidence to establish either that: (1) the landowner was actively

negligent in permitting an unnatural accumulation of ice and snow to exist upon

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their land; or (2) the natural accumulation of ice was substantially more dangerous

than the plaintiff could have anticipated and that the landowner had notice of such

danger. Cooper v. Valvoline Instant Oil Change, 10th Dist. No. 07AP-392, 2007-

Ohio-5930, ¶ 17.

{¶16} With respect to the first exception, Miller contends that there is a

genuine issue of material fact as to whether the ice which caused his fall was a

natural or unnatural accumulation. We disagree as a reasonable trier of fact,

viewing the evidence in the light most favorable to Miller, could not conclude that

the accumulation of ice upon which Miller fell was unnatural.

{¶17} “[A] natural accumulation of ice and snow is one which accumulates

as a result of an act of nature, whereas an unnatural accumulation is one that

results from an act of a person.” Coletta v. Univ. of Akron,

(10th Dist. 1988). “‘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 man-made, the man-caused * * *.” Porter v.

Miller,

(6th Dist. 1983).

{¶18} Cases where courts have found genuine issues of material fact

regarding whether an accumulation of ice and snow was natural or unnatural

generally involve records containing evidence of an unnatural cause or source of

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the accumulation. See Tyrrell v. Invest. Assoc., Inc.,

(8th Dist.

1984) (defect in canopy extending over sidewalk); Sherwood v. Mentor Corners

Ltd. Partnership, 11th Dist. No. 2006-L-020,

(valley between

gable and edge of roof); Nawal v. Clearview Inn, Inc., 8th Dist. No. 65796 (Aug.

4, 1994) (improperly maintained downspouts and gutters). Courts have also

denied summary judgment where there is evidence that an accumulation of ice

results from some source other than precipitation or meteorological conditions.

See Notman v. AM/PM, Inc., 11th Dist. No. 2002-T-0144,

(ice

resulted from water from carwash hoses).

{¶19} Here, the evidence reveals that the weather was cold and snowy on

the day of Miller’s accident; that it snowed during the drive from the billiards

tournament to the Hotel; and, that the area underneath the canopy was open to the

elements on three of its four sides. Likewise, there is no evidence that the

construction of the canopy resulted in an unnatural accumulation of ice; that there

was a defect in the canopy that caused an unnatural accumulation of ice; or, that

ice resulted from something other than precipitation or the prevailing

meteorological conditions. Despite the lack of such evidence, Miller,

nevertheless, contends there is a genuine issue of material fact based on the fact

that reasonable minds could infer that the ice that caused his fall was an unnatural

accumulation because canopies are intended to protect the area underneath them

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from the natural accumulation of ice and snow. While the nonmoving party to a

summary judgment motion is entitled to all reasonable inferences, an inference can

only be made and relied on if it is drawn from evidence in the record. Hurt v.

Charles J. Rogers Transp. Co.,

, 332-33 (1955). Here, Miller

cites nothing in the record that supports his inference or otherwise demonstrates

that the ice at issue was an unnatural accumulation. Absent such evidence, we

find that Miller’s asserted inference does not create a genuine issue of material

fact as to whether the ice at issue was a natural or unnatural accumulation. See

Norton v. Marion Gen. Hosp., 3d Dist. No. 9-06-04,

(a

potential inference is not enough to withstand a motion for summary judgment).

{¶20} With respect to the second exception, Miller contends that there is a

genuine issue of material fact as to whether Grewal had superior knowledge that

the ice at issue was substantially more dangerous than he should have anticipated.

We disagree as a reasonable trier of fact, viewing the evidence in the light most

favorable to Miller, could not conclude that Grewal had superior knowledge of the

ice that caused his fall.

{¶21} In order to be liable under this exception, the owner or occupier must

have some superior knowledge of the existing danger. LaCourse v. Fleitz,

(1986). Here, Miller relies on Carroll’s statement concerning

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the icy nature of the entry area and the fact that the Hotel had salt available for its

premises as evidence of Grewal’s superior knowledge of the ice at issue.

{¶22} First, the fact that the Hotel had salt available does not demonstrate

that Grewal had any knowledge of the ice that caused Miller’s fall. Miller simply

assumes, without support, that since the Hotel had salt available for its premises

Grewal had superior knowledge of the ice at issue. At most, evidence that a

business has salt available for its premises demonstrates that it is generally aware

of the hazards associated with the accumulation of ice and snow, as opposed to

specific knowledge of a particular icy condition. Accordingly, the fact that the

Hotel had salt available for its premises has no relevance in determining whether

there is a genuine issue of material fact as to whether Grewal had superior

knowledge of the ice at issue.

{¶23} As for Carroll’s statement concerning her awareness of the ice in the

entry area, we find that her statement does not create a genuine issue of material

fact as to whether Grewal had superior knowledge of the ice at issue.2 “To the

extent that a business invitee and the owner of the premises have equal knowledge

of the usual dangers resulting solely from natural accumulations of ice and snow,

the latter cannot be charged with actionable negligence with regard to such

dangers.” Mikula v. Slavin Tailors,

(1970). While the area

2 Though there is no evidence that Carroll stated that the area beneath the canopy was icy, we will construe her statement that the entry area was icy as encompassing the area beneath the canopy since the Hotel’s canopy is attached to the Hotel’s main entrance.

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underneath the canopy appeared clear of ice and snow, Miller was, based on his

awareness of the prevailing wintry conditions, charged with knowledge of the

dangers presented by natural accumulations of ice and snow as a matter of law.

As the Second District Court of Appeals explained:

[I]t is assumed that reasonable individuals will understand that winter conditions can create dangers from ice and snow, and individuals will take the necessary precautions. It is not that patches of ice and snow are obvious. Many are not. It is that, as a general matter, the potential for dangerous conditions in winter is obvious. Dangers from natural accumulations of ice and snow are, therefore, generically treated by the law as open and obvious.

Community Ins. Co. v. McDonald’s Restaurants of Ohio, Inc., 2d Dist. Nos.

17051, 17053 (Dec. 11, 1998). Therefore, even though Grewal, via Carroll, knew

of the hazardous condition created by the natural accumulation of ice underneath

its canopy, so, too, as a matter of law, did Miller. See

Moreover, Miller’s

imputed knowledge of the hazardous conditions associated with winter is not

reduced or superseded by the fact that his fall occurred underneath the Hotel’s

canopy. The canopy was open to the elements on three sides, thus plainly

rendering the area underneath the canopy susceptible to the prevailing wintry

conditions and the hazards associated with such conditions. Consequently, the

evidence demonstrates that the parties had equal knowledge of the dangers

resulting from the natural accumulation of ice and snow. As such, Grewal owed

Miller no duty to remove the ice or warn him of the same.

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{¶24} In light of the foregoing, we find that the trial court did not err in

granting Grewal summary judgment. Accordingly, we overrule Miller’s first

assignment of error.

Assignment of Error No. II

{¶25} In his second assignment of error, Miller contends that the trial court

erred in denying him partial summary judgment on the issue of Grewal’s liability.

In light of our finding that Grewal was entitled to summary judgment, Miller’s

second assignment of error is moot and we decline to address it. App.R.

12(A)(1)(c).

{¶26} Having found no error prejudicial to Miller herein, in the particulars

assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr

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