COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59624 BETTY YOUNG : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION CLARKWOOD APARTMENT CO., ET AL. : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 142333 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: WILLIAM L. TOMSON, JR. 11221 Pearl Road Strongsville, Ohio 44136 For Defendant-Appellees: ROBERT J. HANNA JANET H. SMITH Arter & Hadden 1100 Huntington Building Cleveland, Ohio 44115 - 2 - POLLEX, J.: Plaintiff appeals from the trial court's order granting defendants' motion for summary judgment in plaintiff's action for damages arising out of a "slip and fall." The relevant facts follow. On February 19, 1987, plaintiff drove from her work to her home at defendant Clarkwood Apartments. She walked from her car to her apartment, stayed there long enough to eat and have a "couple of beers," then left again to meet her brother at a bar. She had two drinks there, then drove home again, arriving some- time after midnight. She got out of her car and began to walk toward the apartment building. The area was well lit and there was no snow on the parking lot or the walkway. However, the walkway was wet in parts and dry in parts and the temperature was below freezing. As plaintiff walked toward the building she slipped on a patch of ice and fell, fracturing her ankle and sustaining other injuries. Plaintiff subsequently filed a complaint in the Cuyahoga County Common Pleas Court against defendants, alleging her injuries were a result of defendants' negligence. In their answer defendants denied the allegations and pleaded affirmative defenses. Following some discovery, defendants filed a motion for summary judgment, attaching thereto a significant portion of the deposition taken of plaintiff. Plaintiff filed a brief in opposition to defendants' motion. In support of her brief she - 3 - attached the following two items: (1) a document purporting to be a monthly summary from the National Weather Service Forecast Office in Cleveland, Ohio of "Local Climatological Data" for the month of February, 1987; and (2) a four-page portion of her deposition. Defendants filed a reply brief without further documentation. The trial court thereafter granted defendants' motion for summary judgment. It is from this order plaintiff appeals, citing one assignment of error. Plaintiff's sole assignment of error follows: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. This assignment of error lacks merit. Plaintiff argues material issues of fact remain in the case, viz., whether there was a breach of a duty owed toward plaintiff by defendants. This argument is unpersuasive. The trial court granted summary judgment for defendants pursuant to Civ. R. 56, which provides in pertinent part the following: (C) *** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion - 4 - and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. (Emphasis added). Civ. R. 56(E) further states as follows: (E) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appro- priate, shall be entered against him. (Emphasis added.) The rule thus requires the motion for summary judgment, and any material submitted in opposition thereto, to be supported by competent evidence which would be admissible at trial. Plaintiff therefore had the burden to prove by competent evidence there were genuine issues of material fact in the case sub judice. This she failed to do. In general, an owner of property must exercise reasonable care for the safety of business invitees. Perry v. Eastgreen Realty Co. (1978), 53 Ohio St. 2d 51, 53. This duty obligates the owner to provide a reasonably safe means of ingress and - 5 - egress. Tyrell v. Investment Assoc., Inc. (1984), 16 Ohio App. 3d 47, 49. Nonetheless, an owner of property is not liable for injuries to business invitees who slip and fall on natural accumulations of ice and snow. LaCourse v. Fleitz (1986), 28 Ohio St. 3d 209, 210; Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St. 2d 38, 40; Sidle v. Humphrey (1968), 13 Ohio St. 2d 45, 49-50; Sunday v. Federated Dept. Stores (Jan. 18, 1990), Cuyahoga App. No. 56216, unreported. The rationale for this rule is that the owner or occupier has a right to assume that his visitors will appreciate the risk and act accordingly to protect themselves. LaCourse v. Fleitz, supra. Moreover, ice and snow are part of wintertime life in Ohio. Lopatkovich v. Tiffin (1986), 28 Ohio St. 3d 204, 206. For, In a climate where the winter brings frequently recurring storms of snow and rain and sudden and extreme changes in temperature, these dangerous conditions appear with a frequency and suddenness which defy prevention and, usually, correction. *** To hold that a liability results from these actions of the elements would be the affirmance of a duty which it would often be impossible, and ordinarily impracticable *** to perform. Id., quoting Norwalk v. Tuttle (1906), 73 Ohio St. 242, 245. In Porter v. Miller (1983), 13 Ohio App. 3d 93, 95, the court distinguished between natural and unnatural accumulations of ice and snow, stating as follows: "Unnatural" accumulation must refer to causes and factors other than the inclement weather condi- tions of low temperature, strong winds and drifting snow, i.e, to causes other than the - 6 - meteorological forces of nature. By definition, then, the "unnatural" is the man-made, the man- caused; extremely severe snow storms or bitterly cold temperatures do not constitute "unnatural" phenomena. (Emphasis in original.) Liability attaches only where it is shown that the owner had superior knowledge of the particular danger which caused the injury because in such a case the invitee may not reasonably be expected to protect himself from a risk he cannot fully appre- ciate. Sidle v. Humphrey, supra, at paragraph two of the sylla- bus; Debie v. Cochran Pharmacy-Berwick, Inc., supra; Sunday v. Federated Dept. Stores, supra. Therefore, in order to establish the breach of a duty owed toward plaintiff, plaintiff must provide the following: *** [T]here must be some evidence of an inter- vening act by a landlord that perpetuates or aggravates a pre-existing hazardous condition of ice and snow before any possible liability could attach to the landlord. *** When the top portion of a natural accumulation of snow and ice is removed, the accumulation of ice and snow remaining is still a natural accumu- lation. It is only where a landowner has superior knowledge of a hazardous condition greater than that which would ordinarily be anticipated from a natural accumulation of ice and snow or where the accumulation itself is unnatural that the land- owner may have liability. See Mikula v. Slavin Tailors (1970), 24 Ohio St. 2d 48, 53 O.O. 2d 40, 263 N.E. 2d 316. Essentially, a natural accumu- lation 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. See Porter, supra. (Emphasis in origi- nal.) Coletta v. Univ. of Akron (1988), 49 Ohio App. 3d 35. - 7 - Thus, plaintiff was required to make an affirmative showing that the ice was an "unnatural accumulation" and that defendants had superior knowledge of the particular danger. The only competent evidence the trial court had before it in the case sub judice was plaintiff's deposition. The following pertinent portions were submitted by defendants in support of their motion for summary judgment: Q. You were in the middle between that line and the snowbank? A. Yes. Q. Okay. And, you said that there was snow to the side here where this bank is? A. Right. Q. Was there snow on the ground there? A. No. Q. Were you looking where you were going? A. Yes, I was. Q. And, as you were going, there was no snow in front of you? A. Right. Q. What did you fall on? A. I guess it was some ice. Q. And, did you see the ice before you fell? A. No, I didn't. Q. Did you see a patch of water or anything that looked -- Did anything jump out at you when you were walking ahead? A. Not as I can remember. - 8 - Q. You were looking ahead? A. Yes. Q. And, was there any snow at all on the ground or was it shoveled? A. It had been shoveled. Q. So, was it dry or wet? A. Well, I guess it was half and half. Q. I don't want you to guess. I want you to just tell me what you remember. Was it wet or was it dry? A. I would say part of it was wet and part of it was dry. Q. So, you knew part was wet and part was dry as you were walking? A. Yes. Q. Was it cold enough for water to freeze that night? A. Yes, I would say so. Q. And, you slipped on the wet part? A. Yes. Q. But you didn't see the wet part? A. No. Q. Okay. Do you know how the wet part got there? A. No. Q. Was it just a function of the winter weather? A. I would say so. - 9 - Q. And, that's what you slipped on? A. Yes. * * * Q. Okay. Was there any leaky drains or anything around there, anything that caused that, like a water leak or anything like that? A. Not that I noticed. * * * Q. And as far as you remember, the ice got there just a part of the winter weather? A. Yes. (Tr. 48-52.) In her brief in opposition to defendants' motion, plaintiff attacked an unverified document purporting to be from the National Weather Service. This "evidence" was not competent as required by Civ. R. 56(E); therefore, the trial court could properly disregard it. Plaintiff also submitted portions of her deposition, none different than what defendants provided. Thus, a review of the evidence in the case sub judice reveals plaintiff produced neither evidence the ice was an "unnatural accumulation" nor evidence that defendants had superior knowledge of the particular danger. Faced with a similar factual situation as that in the case sub judice, this court has recently stated the following: Coletta is both persuasive and factual [sic] similar on the issue of whether the plowing or shoveling to remove a natural accumulation automatically changes the nature of the - 10 - accumulation of ice and snow from natural to unnatural. The Franklin County Court of Appeals held that the accumulation of snow and ice remaining is still a natural accumulation. We agree. The appellant produced no evidence that appellee had superior knowledge of a hazardous condition greater than that which would ordinarily be anticipated from a natural accumulation of ice and snow. Appellant produced no evidence that we could reasonably construe to create a genuine issue of material fact regarding the appellee's superior knowledge. Therefore, we cannot deem summary judgment to have been improper. Finally, the appellant produced no evidence to create a genuine issue of material fact as to the accumulation being unnatural. The appellant testified that there were no defects in the pavement and that it was level. There was no evidence presented like that in Stinson v. Cleveland Clinic Foundation (1987), 37 Ohio App. 3d 146. In Stinson, the snow was piled on an incline and the freeze-thaw cycle resulted in water running down off the incline and turning back to ice on the sidewalk. We held, in Stinson, that a genuine issue of material fact exited as to whether the ice on the sidewalk, under these circumstances, was an unnatural accumulation. We, therefore, hold that when a plaintiff business invitee presents no evidence to create a genuine issue of material fact as to the landowner's superior knowledge of the hazardous condition, greater than that which would ordinarily be anticipated from a natural accumulation of ice and snow, nor any evidence that the accumulation was unnatural, summary judgment is proper when the top portion of a natural accumulation is removed because the remaining accumulation of ice and snow is also natural, for which a landowner owes a business invitee no duty. (Emphasis added.) Morgan v. Eastown Eagle Supermarket (Nov. 14, 1991), Cuyahoga App. No. 59359, unreported. - 11 - As in Morgan, supra, plaintiff in the case sub judice failed to sustain her burden that there existed a genuine issue of material fact; therefore, the trial court did not err in granting defendant's motion for summary judgment. Accordingly, plaintiff's assignment of error is overruled and the judgment of the trial court is affirmed. - 12 - It is ordered that appellee(s) recover of appellant(s) 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. NAHRA, P.J., and HARPER, J., CONCUR JUDGE ROBERT C. POLLEX* *Judge Robert C. Pollex, Court of Common Pleas, Probate and Juvenile Divisions, Wood County, Ohio, Sitting by Assignment. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .