COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60268 : ESTHER NOTIS, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION : CITY OF CLEVELAND HEIGHTS : : Defendant-Appellee : : DATE OF ANNOUNCEMENT APRIL 9, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 178309 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: PETER H. WEINBERGER LAURE A. WAGNER 1500 National City Bank Bldg. Assistant Director of Law 629 Euclid Avenue 40 Severance Circle Cleveland, Ohio 44114 Cleveland Hts., Ohio 44118 -2- PATRICIA A. BLACKMON, J.: Esther Notis, plaintiff-appellant, hereinafter Appel- lant timely appeals the granting of a motion for summary judgment by the trial court in favor of the appellee, City of Cleveland Heights, defendant-appellee, hereinafter Appellee. We affirm. On the evening of November 20, 1988, the Cleveland Heights Recreation Pavilion ice skating rink was rented by the B'Nos Agudas Israel religious youth group. Appellant was one of the group's adult chaperons, and four of her own children were present, who were members of the group. Despite the uncertainty of how many adult chaperons were present, Appellant was able to name five of the adults, including herself. There were approximately seventy-five to eighty children skating with the group between the ages of five to eighteen. The group was provided with a rental application and rink rental policies, which included a provision that the party would be responsible for the group's behavior. Rowdiness was expressly prohibited. The application form also placed the group on notice that it would be responsible to the City of Cleveland Heights for damage caused by the members of the group. Appellant was injured when she stopped in the middle of the rink to talk with her friend Shandi Fishman. It was against the rules of the ice skating rink to stop and stand in the middle of the ice. Appellant was knocked down by a group of four or five girls who were skating in a human train. As a result of the collision, Appellant suffered a broken leg. -3- With respect to how the collision occurred, Appellant testified at deposition that she was hit from behind by the train of girls and the whole train ran into her. Appellant was only able to identify one of the girls, whose mother was also present. Appellant testified during her deposition that she did not recall seeing the girls skating in a chain prior to the collision. Appellant did observe guards skating around the rink at the time of the accident, who immediately came over to her as soon as she fell. Appellant's friend, Shandi Fishman, gave an account of the incident by way of an affidavit that was consistent with Appellant's version. However, Ms. Fishman does not indicate in her affidavit how long the girls had been skating in the chain, whether someone had reported the girls to the guards, or if a guard had previously warned one of the girls about skating around the rink in this fashion. Appellant filed a lawsuit alleging negligence on the part of the City of Cleveland Heights because it was the duty of the ice rink guards to prevent the patrons from skating in a dangerous manner. Appellant's sole assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT SINCE REASONABLE MINDS COULD NOT COME TO BUT ONE CONCLUSION ADVERSE TO THE PLAINTIFF-APPELLANT. Ohio Civ. R. 56(C) states, in pertinent part as follows: A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only -4- therefrom, 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, such party being entitled to have the evidence or stipulation construed most strongly in his favor. The issue generated by this assigned error is straight- forward. The issue is whether reasonable minds can come to one conclusion and that conclusion is adverse to Appellant against whom the motion for summary judgment is made, where the evidence is construed most strongly in favor of the appellant. The trial court must ask whether there is a genuine issue as to any material fact as a matter of law. A business invitee is one who is impliedly invited to a premises for transacting business and to whom a duty of care is owed. Blacks Law Dictionary, Abridged Fifth Edition. This court in Jacqueline Powers, et al. v. First National Supermarkets (June 13, 1991), Cuyahoga App. No. 61005, unreported, stated a general rule regarding business invitees and summary judgment. This court held that summary judgment is properly granted where plaintiff, a business invitee, fails to show that a business or its employee had, or in the exercise of ordinary care have had, notice of that potential hazard for a sufficient time to enable them in the exercise of ordinary care to remove it or warn customers about it. This court also held in Elizabeth Matthews v. Philnick Associates, et al. (December 12, 1991), Cuyahoga App. No. 61744 that an occupier of premises is under no duty to protect a business invitee against dangers which are known to such invitee -5- or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect against them, citing Sidle v. Humphrey (1968), 13 Ohio St. 2d 45. Even though these cases are slip and fall cases from a factual standpoint, the legal axioms as a matter of law are applicable to the instant case because Appellant was undoubtedly a business invitee. Appellant attempts to argue that the guidelines and rules of conduct for the skating rink guards somehow raise the standard of care for the City of Cleveland Heights to that of an insurer of safety. If we accept the proposition that the duty or standard of care owed to a business invitee can be modified by such rules and regulations, the same principle must hold true for Appellant whose group signed an agreement that they would be responsible for the behavior of the group. It is a settled principle of law in Ohio that the owners or operators of an amusement facility are not insurers of the safety of the patrons. Rathbun v. Humphrey (1953), 94 Ohio App. 429. The Ohio Supreme Court, in Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64 held that 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 pleading, 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 appropriate, shall be entered against him. -6- To defeat a motion for summary judgment filed by defendant in a negligence action, plaintiff must identify a duty, or duties, owed him by the defendant, and the evidence must be sufficient, considered most favorably to the plaintiff, to allow reasonable minds to infer that a specific duty was breached, that the breach of duty was the proximate cause of plaintiff's injury, and that plaintiff was injured. Keister v. Park Centre Lanes (1981), 3 Ohio App. 3d 19. Appellant has not met her burden under Harless; there have not been specific facts set forth by affidavit or as otherwise provided in Civ. R. 56 that demonstrate that there is a genuine issue for trial. The trial court noted in its ruling that no evidence had been presented as to when the human skating chain was formed, how the guards failed to be watchful, or how they could have prevented the incident other than a blanket allegation that they were standing together. We, therefore, hold that absent any evidence of actual or constructive notice to the owner occupier, summary judgment is properly granted. Further, where the record does not contain any evidence that creates a genuine issue of material fact as to how the owner or occupier, or its agents were negligent in their supervision of the ice skating rink, summary judgment is proper. Evidence that the guards were standing in one place is not tantamount to the creation of an issue of fact relating to negligence because the guards could have been together for any number of legitimate reasons relating to the exercise of ordinary -7- care. Thus, evidence of this nature alone (i.e. that the guards were standing together) does not create a genuine issue of material fact as to a breach of ordinary care. Judgment affirmed. -8- It is ordered that Appellee recover of Appellants its 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. Exceptions. NAHRA, P.J., and HARPER, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .