COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67616 JUDITH LUTTERMOSER, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION MAPLECREST ASSOCIATES, LTD., : ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : MAY 25, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 260894 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Alan S. Levine 1200 Illuminating Building 55 Public Square Cleveland, Ohio 44113 For defendants-appellees: Timothy J. Fitzgerald GALLAGHER, SHARP, FULTON & NORMAN Seventh Floor, Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 -2- NAHRA, J.: In this personal injury action for a slip and fall at an office building, plaintiffs-appellants Judith and Donald Luttermoser appeal from the trial court order which granted the motion for summary judgment filed by defendants-appellees Maplecrest Associates, Ltd. and North Pointe Realty, Inc. The incident which led to the instant action occurred on February 14, 1990. At that time, appellant Judith Luttermoser (hereinafter "appellant"), was working as a bookkeeper employed by the Diamond Company. Her employer had its executive offices in the Vantage Point Office Building located at 27600 Chagrin Boulevard, which is owned and managed by appellees. Appellant had been employed by the Diamond Company at that location for approximately two years. Appellant arrived at work that day sometime around noon. She walked from her car in the parking lot into the building. At the time of her deposition, appellant remembered the weather that day 1 as being "wintry" but "nice;" she did not recall any precipitation or wetness on the pavements around the building at the time of her arrival. As was expected of her by her employer, appellant worked at its office until approximately 9:00 p.m. During the hours she was working, she did not observe what the weather conditions were 1 Quoted text in this opinion is taken from evidentiary materials filed in the trial court. -3- outside. When it was time for her to leave, a few other Diamond Company employees remained in the office. Appellant stated in her deposition testimony that she took the elevator from the office down to the lobby, crossed the lobby, pushed against the building's main entrance door to go outside, noticed only that it was "dark" outside, put one foot on the pavement right in front of the door, and "immediately" slipped on an area of ice that was there. Appellant fell and injured her hip so severely she was unable to move. Appellant screamed for help. One of her co-workers heard her in the Diamond Company office on the fourth floor and came downstairs to assist her. As he emerged from the building, he also "fell immediately." Appellant's plight was also noticed by some others who called the police and the Emergency Medical Service. When the police arrived, one of them "held an umbrella over [appellant's] head." From this memory, appellant at the time of her deposition knew it was "raining" when she fell in front of the building. Appellant also remembered it was "freezing" as she lay there waiting for the ambulance to arrive. Appellant was eventually transported to a hospital for treatment of her injury. Ultimately, she underwent surgery and missed four months of work while she recuperated. Subsequently, appellant filed an action against appellees in the Cuyahoga County Court of Common Pleas. Appellant alleged that her injury was due to appellees' negligence in failing to 1) properly maintain the building's premises and 2) properly design -4- the exit and entrance way of the building's premises. Appellant's husband presented a loss of consortium claim. Appellees answered the complaint with denials of the pertinent allegations and several affirmative defenses. Thereafter, appellees filed a motion for summary judgment which was supported by a copy of appellant's deposition testimony. In their motion, appellees argued they were entitled to summary judgment for two reasons. First, appellees asserted appellant was a licensee on the premises at the time of her fall and could not prove her injuries were due to any willful and wanton misconduct on their part. Second, appellees asserted appellant could not prove that what she slipped on was anything other than a natural accumulation of ice or snow. Appellant responded to appellees' motion for summary judgment with a brief in opposition. Therein, appellant argued she was an invitee upon the premises and that a question of fact existed as to whether there she fell on an unnatural accumulation of ice in front of the building. Appellant attached to her brief the following documents: 1) her affidavit; 2) the affidavit of Norman Diamond, her employer; 3) a verified portion of her deposition testimony; and 4) the report of Gerald S. Burko, a "safety consultant," which was supported by affidavit. Mr. Burko stated he had inspected the premises and determined that the design of the building entrance and the weather conditions combined to produce an "unnatural accumulation of ice" to form on the pavement just outside the front door. -5- Thereafter, the trial court issued an order granting appellees' motion for summary judgment without opinion. It is from this order that appellant appeals, presenting three assignments of error for this court's review. Appellant's assignments of error are related, and thus, they are addressed together as follows: I. THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT WHERE GENUINE ISSUES OF MATERIAL FACT EXIST. II. THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT WHERE GENUINE ISSUES OF FACT EXIST AS TO WHETHER THE ACCUMULATION OF ICE WAS UNNATURAL. III. THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHERE GENUINE ISSUES OF MATERIAL FACT EXIST AS TO PLAINTIFF-APPELLANT'S STATUS AS AN INVITEE OR LICENSEE. Appellant argues summary judgment for appellees was improper because genuine issues of material fact remain in this case concerning her status on the property, appellees' breach of a duty toward her, and the character of the ice which caused her fall. Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. * * * Davis v. Loopco Industries, Inc. (1993), 66 Ohio St.3d 64. As the moving parties in this case, appellees had the burden of demonstrating there existed no genuine issue as to any material -6- fact and that they were entitled to judgment as a matter of law. A review of the record reveals appellees met their burden. Appellant alleged appellees' negligence caused her injury. To establish a claim for negligence, appellant had to show three essential elements: (1) a duty or obligation on the part of appellees to protect her from injury; (2) a breach of that duty; and (3) an injury proximately resulting from that breach. Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, paragraph three of the syllabus. See, also, Holl v. Montrose, Inc. (1992), 82 Ohio App.3d 644. As a preliminary matter, appellant's status on the premises must be ascertained to determine the scope of appellees' duty to her. In their motion for summary judgment, appellees argued appellant was merely a "licensee" upon their premises. As this court has stated in the context of a negligence action, ordinarily the distinction is relevant since: * * * The possessor of land owes the mere licensee no duty except to refrain from wantonly or willfully injuring him and to warn of hidden dangers on the property of which the licensee is unaware and which a person of ordinary prudence would reasonably consider to be dangerous. Wieber v. Rollins (1988), 55 Ohio App.3d 106, 107-108. * * * The owner of the premises has a duty to exercise ordinary care to protect the safety of an invitee by maintaining the premises in a safe condition. The owner must correct any hazardous conditions on the premises of which he is aware. Light v. Ohio University (1986), 28 Ohio St.3d 66, 68. Presly (sic) v. Norwood (1973), 36 Ohio St.2d 29, 31 * * * . -7- Kobus v. The Higbee Co. (Mar. 25, 1993), Cuyahoga App. No. 62189, unreported. (Emphasis added.) However, in this case, it was clearly established that appellant was an employee of appellee's tenant the Diamond Company who was leaving her work place at a customary time for her; therefore, appellant's status can be ascertained based upon the language the Ohio Supreme Court used recently in Shump v. First Continental-Robinwood Assoc. (1994), 71 Ohio St.3d 414. Therein, the court stated in pertinent part: The legal duty that a landlord owes a tenant is not determined by the common-law classifications of invitee, licensee, and trespasser under the law of premises liability * * * . * * * * * * "`[T]he duties and liabilities of a landlord to persons on the leased premises by the license of the tenant are the same as those owed to the tenant himself. For this purpose they stand in his shoes. * * * The guest, servant, etc., of the tenant is usually held to be so identified with the tenant that this right of recovery for injury as against the landlord is the same as that of the tenant would be had he suffered the injury.'" [Citations omitted.] * * * For the foregoing reasons, we hold that a landlord owes the same duties to persons lawfully upon the leased premises as the landlord owes to the tenant. Consequently, it is improper to treat a tenant's guest as a licensee with regard to a landlord and to hold that a landlord merely owes a tenant's guest the duty to refrain from wanton or willful misconduct. * * * Id., at 418-420. (Emphasis added.) See, also, Davies v. Kelley (1925), 112 Ohio St. 122; Sidle v. Humphrey (1968), 13 Ohio St.2d 45. -8- Thus, for purposes of her negligence action, appellant was an invitee of appellees. Newton v. Pennsylvania Iron & Coal, Inc., supra; cf., Fuehrer v. Westerville City School Dist. Bd. of Edn. (1991), 61 Ohio St.3d 201; Provencher v. Ohio Dept. of Transportation (1990), 47 Ohio St.3d 365. As stated previously, appellees therefore owed appellant a duty to exercise ordinary care for her safety and protection. Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51; Holl v. Montrose, Inc., supra. This duty obligated appellees to provide a reasonably safe means of ingress and egress. Tyrell v. Investment Assoc., Inc. (1984), 16 Ohio App.3d 47. As owners, they were required to exercise reasonable care to protect appellant from dangers of which they were or reasonably should have been aware. Paul v. Uniroyal Plastics Co. (1988), 62 Ohio App.3d 277. Nonetheless, an owner of property is not liable for injuries to invitees who slip and fall on natural accumulations of ice and snow. Brinkman v. Ross (1993), 68 Ohio St.3d 82; LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 210; Sidle v. Humphrey, supra; Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, 40; Weaver v. Standard Oil Co. (1989), 61 Ohio App.3d 139. 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. Brinkman v. Ross, supra; 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. -9- In their brief in support of their motion for summary judgment, appellees argued appellant slipped on a natural accumulation of ice and snow. 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 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; * * * . (Emphasis in original; underscoring added.) Therefore, in order to establish the breach of a duty owed toward her, appellant had to provide evidence that the ice which caused her fall was the result of some intervening act of appellees which created an unnatural accumulation. Tyrell v. Investment Assoc., Inc., supra; Coletta v. Univ. of Akron (1988), 49 Ohio App.3d 35; Stinson v. Cleveland Clinic Foundation (1987), 37 Ohio App.3d 146; Bittinger v. Klotzman (Mar. 18, 1993), Cuyahoga App. No. 64190, unreported. In support of their argument that appellant slipped on natural accumulation of ice, appellees attached to their motion for summary judgment appellant's deposition testimony. Appellant countered appellees' evidence with the report of "safety consultant" Gerald 2 Burko. 2 Mr. Burko's credentials were not listed in his report. Moreover, although his report referred to several photographs, none were attached to the document. -10- In his report, although Mr. Burko stated he had inspected the entranceway to the building, he did not indicate the date this inspection took place. Mr. Burko opined the design of the building and its walkway was "defective." He stated the building's design permitted precipitation to "funnel into" it and then accumulate on a beam above the door; the water eventually dripped down from the beam on to the sloped ramp below, creating a "hazard" for people entering or exiting the building. Without explaining where he obtained the information, Burko outlined the weather conditions of the days preceding the incident and from this concluded appellant's fall was caused by an "unnatural" accumulation of ice created by "the design and failure to properly maintain this entrance." Furthermore, without any basis for such an assertion, Burko stated that the slope of the walkway was "unanticipated." However, appellant's deposition testimony proved the following: 1) she had worked at the building for about two years, therefore, she was aware of the slope at the entrance; 2) the pavement was dry when she entered the building; and 3) although she was unaware of the outside weather conditions during her working hours, after she exited and fell, she was protected from the rain coming down by an umbrella and the temperature of the air was "freezing." It is clear from a perusal of the evidence before the trial court the ice upon which appellant fell was simply caused by normal precipitation and temperature conditions. Appellant knew there was a ramp outside the door. Further, appellant did not state the ice -11- upon which she fell was from "water dripping" from the beam above her. Moreover, Burko's conclusory report did not prove appellees were negligent since, assuming arguendo some water dripped from the beam above the door, any ice resulting from temperature conditions would not thereby be made "unnatural," nor would any action by appellees have created a "substantially increased" risk of injury. Hoenigman v. McDonald's Corporation (Jan. 11, 1990), Cuyahoga App. No. 56010, unreported; Young v. Clarkwood Apartment Co. (Dec. 19, 1991), Cuyahoga App. No. 59624, unreported; Martin v. Hook SuperX, Inc. (Mar. 18, 1993), Franklin App. No. 92AP-1649, unreported. Thus, the evidence proved appellant could not maintain her action in negligence since she could not show appellees breached any duty toward her. Appellant's evidence was insufficient to raise a genuine issue of material fact in this case, therefore, the trial court did not err in granting appellees' motion for summary judgment. Stamper v. Middletown Hosp. Assn. (1989), 65 Ohio App.3d 65; Myers v. Forest City Ent., Inc. (1993), 92 Ohio App.3d 351; Reaves v. Varga (June 27, 1991), Cuyahoga App. No. 58799, unreported. Cf., Weaver v. Standard Oil Co., supra; Stinson v. Cleveland Clinic Foundation, supra; Tyrell v. Investment Assoc., Inc., supra; Bittinger v. Klotzman, supra. Accordingly, appellant's assignments of error are overruled. The judgment of the trial court is affirmed. -12- It is ordered that appellees 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. SPELLACY, P.J., and NUGENT, J., CONCUR. JOSEPH J. NAHRA 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 journalization, at which time .