COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66904 YARDENA R. FLOR, ET AL. : : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION FOREST CITY ENTERPRISES, INC., : ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : MARCH 23, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-229051 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellees: RICHARD E. HERTHNECK, ESQ. ALAN B. GLASSMAN, ESQ. JON R. BURNEY, ESQ. Law Office of Jan A. Saurman BURNEY & HERTHNECK 14650 Detroit, Avenue, # 450 160 Plaza West Bldg. Lakewood, OH 44107-9946 20220 Center Ridge Road Rocky River, OH 44116 BONNIE M. GUST, ESQ. GEORGE W. LUTJEN, ESQ. 1700 Midland Bldg. 101 Prospect Avenue Cleveland, OH 44115 - 2 - PATTON, C.J. Plaintiff Yardena Flor slipped and fell on a pedestrian ramp in the parking lot of a grocery store operated by defendant First National Supermarkets, Inc. Flor and her husband Richard Petrie filed this action against First National and Forest City Enterprises, Inc., the owner of the shopping center in which the grocery store is located, alleging defendants' negligence in maintaining a pedestrian ramp which proximately caused her to fall and injure her wrist. Forest City filed a third party complaint against First National for indemnification and contribution. After completion of discovery, both defendants filed motions for summary judgement. The court granted both motions and this appeal followed. I. Flor assigns four errors which collectively challenge the summary judgment. Pursuant to Civ.R. 56(C), a motion for summary judgment shall only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Temple United, Inc. v. Wean (1977), 50 Ohio St.2d 317. - 3 - In order to establish actionable negligence, a plaintiff must identify a duty owed her by defendants, that a breach of that duty proximately caused the injury, and that plaintiff was injured. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. In LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 210, the court set forth the law concerning business invitees and accumulations of snow and ice: This court has repeatedly held that an owner of property is not liable for injuries to business invitees who slip and fall on natural accumulations of ice and snow. See, e.g., Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38. The common thread running through these cases is the principle that the owner or occupier has a right to assume that his visitors will appreciate the risk and take action to protect themselves accordingly. See Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraphs one and two of the syllabus; Jeswald v. Hutt (1968), 15 Ohio St.2d 224, 227; Mikula v. Slavin Tailors (1970), 24 Ohio St.2d 48, 56- 57. Only where it is shown that the owner had superior knowledge of the particular danger which caused the injury that liability attaches, because in such a case the invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate. Debie, supra, at 40; Mikula, supra, at 57. II. In her first assignment of error, Flor argues the court erred by granting summary judgment because an issue of material fact existed as to the cause of her fall. Flor was a regular customer of the Finast supermarket where - 4 - her accident occurred. During her deposition, she testified a freezing rain fell on the day of her fall. She exited her car and entered the store using a short pedestrian ramp which connected the parking lot to the sidewalk adjacent to the store. The ramp is approximately five feet long and reaches to a curb height of four and one-half to five inches. Flor crossed the ramp without incident and entered the store. After making her purchase, she left the store and crossed over the ramp into the parking lot. She slipped on the ramp and fell, injuring her wrist and head. In her deposition testimony, Flor could not say what caused her to fall, but merely speculated she slipped on "black ice": Q. Well, do you know what the cause of your fall was? Was there any debris, was there a banana peel on the ground or -- A. I didn't see anything on the ground. I couldn't even tell if the ramp was icy. Q. You couldn't tell? A. No, I couldn't. It could have been that black ice, for 1 all I know. I just couldn't tell. Speculation or conjecture on a plaintiff's part as to the culpable party who caused her fall and what caused her fall is not 1 Flor has attached to her merit brief meteorological data relating the day in question. She did not submit this evidentiary material to the trial court, therefore we may not consider it as part of the record on appeal. App.R. 9(A) and 12(A)(1)(b); State v. Ishmail (1978), 54 Ohio St.2d 402, paragraph one of the syllabus; Sanders v. Webb (1993), 85 Ohio App.3d 674. - 5 - sufficient, as a matter of law. Since the issue of proximate causation is not open to speculation, plaintiff can point to no wrong or negligent act committed by defendants. Stamper v. Middletown Hosp. Assn. (1989), 65 Ohio App.3d 65, 67-68; Guyton v. DeBartolo (Nov. 4, 1993), Cuyahoga App. No. 65268, unreported; Nagy v. Viacom (Nov. 24, 1993), Cuyahoga App. No. 63214, unreported. The first assignment of error is overruled. III. In her second assignment of error, Flor argues the trial court erred by granting summary judgment because a material issue of fact existed as to whether the fascia which extended over the ramp connecting the parking lot with the sidewalk was negligently designed. Flor maintains the fascia allowed water to drip from the roof onto the ramp, where it could freeze in an unnatural accumulation. As a preliminary matter, we must decide whether First National shares responsibility with Forest City for the design and upkeep of the fascia. In its motion for summary judgment, First National argued it had no legal responsibility for the design or upkeep of the fascia. In support of this argument it presented a copy of its lease which shows Forest City had agreed to maintain all common areas in the shopping center where First National's grocery store is located. Forest City did not rebut this evidence in its motion for summary judgment. Consequently, we find that as a matter of law, First National owed plaintiffs no duty to maintain the fascia. - 6 - As to Forest City, we find plaintiff failed to present any evidence that the negligent design of the fascia proximately caused her to fall. Importantly, her failure to set forth a cause for her fall necessarily negates any allegation that a defective design contributed to an unnatural build up of ice on the ramp. Additionally, nothing in her expert's affidavit suggests the fascia contributed to a build up of ice on the day Flor slipped and fell. The expert found the fascia contained no diverter gutter to protect the ramp from drippage. The expert went on to state, "[t]his could compound the danger of slippery wet or ice surfaces forming on the ramp." Nothing in the report specifically tied the possibility of icing on the day of the fall to the design of the fascia. In fact, the expert's report necessarily could not explain the cause of the fall since Flor herself did not know why she slipped. Absent such a showing by Flor, the record contains no evidence to demonstrate a defect in the fascia contributed to icing on the ramp. See Nagy v. Viacom, supra, at 6. All parties cite to Weaver v. Standard Oil Co. (1989), 61 Ohio App.3d 139, in support of their separate arguments. In Weaver, the court found material issues of fact existed as to whether a recessed cover of a gasoline storage tank, which was covered by snow, constituted a hazard which the gasoline station knew or should have known. The court reached its conclusion in part from an affidavit by a professional engineer who found it likely that the cover plate had acquired an unnatural accumulation of ice due - 7 - to pedestrian traffic. Id. at 142. Weaver is inapplicable to the present case since there is no evidence that an unnatural accumulation of ice existed on the ramp. Flor not only did not know why she fell, she could not even say if the ramp was icy. Her expert cannot supply that fact by averring that an unnatural accumulation of ice might have existed given the structure of the fascia and the weather conditions prevailing on the day of the fall. Unlike the unrebutted facts in Weaver, Flor's expert's conclusion is too tenuous in light of her own testimony. The second assignment of error is overruled. IV. The third assignment of error complains the court erred by granting summary judgment since the unrebutted evidence showed the ramp failed to conform to building code. Flor argues the slope of the ramp exceeded permissible limits under the Ohio Basic Building Code and created an unreasonably dangerous condition due to its slope. In Raflo v. Losantiville Country Club (1973), 34 Ohio St.2d 1, paragraph one of the syllabus states: One who upon entering a building traverses a step, the height of which is proscribed by the state building code, cannot maintain that the hazard was so insubstantial as to go unnoticed at that time, yet was unreasonably dangerous, hence actionable, when it occasioned her fall upon leaving the building. The court also stated, "[i]njuries occasioned by insubstantial defects should not be actionable unless circumstances render them - 8 - `unreasonably dangerous.'" Id. at 4 (citations omitted). Thus, even an obvious violation of a specific, direct basic building code provision may not be negligence per se unless it is unreasonably dangerous. Zimmerman v. St. Peter's Catholic Church (1993), 87 Ohio App.3d 752, 762. Flor testified she had shopped at the grocery store on a weekly basis for fifteen years. She had used the ramp many times without incident, even during the winter months. Nothing in the record suggests the slope of the ramp created an "unreasonably dangerous" condition the many times she had crossed the ramp prior to her fall. In fact, Flor was well aware of the weather conditions on the day of her fall, and she acknowledged the weather conditions had not changed during the brief time she entered the store to make her purchase. As a consequence, Flor is charged with knowledge of the condition of the ramp at the time of her fall. See Raflo, supra, at paragraph two of the syllabus; Wicichowski v. Gladieux (1988), 54 Ohio App.3d 177. The third assignment of error is overruled. V. In her fourth assignment of error, Flor complains the trial court erred by granting summary judgment to First National on the basis that it owed no duty to plaintiffs since Forest City had the contractual duty to maintain the common areas. - 9 - The courts of this state have consistently held that a business owner has no duty to warn invitees of conditions that are obvious: The knowledge of the condition removes the sting of unreasonableness from any danger that lies in it, and obviousness may be relied on to supply knowledge. Hence the obvious character of the condition is incompatible with negligence in maintaining it. If plaintiff happens to be hurt by the condition, he is barred from recovery by lack of defendant's negligence towards him, no matter how careful plaintiff may have been. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 48; see also LaCourse v. Fleitz, supra. As noted earlier, Flor was well aware of the weather conditions the day she fell. Even were we to assume Flor slipped on a patch of ice, her knowledge of the obviously icy conditions would lead First National to expect that she would proceed with caution. See Kamkutis v. Greek Orthodox Comm. (Apr. 9, 1992), Cuyahoga App. No. 62594, unreported. Regardless of whether First National could contract away the maintenance of the common area, it could expect that Flor would take notice of the icy weather conditions and exercise appropriate caution. The fourth assignment of error is overruled. Judgment affirmed. - 10 - It is ordered that appellees recover of appellants their 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 Court of Common Pleas 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, J. O'DONNELL, J., CONCUR CHIEF JUSTICE JOHN T. PATTON 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. .