COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68037 ANN KIRSCHNICK, ET AL. : : Plaintiff-appellees : : JOURNAL ENTRY -vs- : AND : OPINION ESTATE OF HELEN T. JILOVEC : : Defendant-appellant : : DATE OF ANNOUNCEMENT : AUGUST 31, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-255218 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellees: For defendant-appellant: JOSEPH R. GIOFFRE, ESQ. FREDRIC E. KRAMER, ESQ. Behrens & Gioffre McNeal, Schick, Archibald & 1700 Terminal Tower Biro 50 Public Square 700 Skylight Office Tower Cleveland, OH 44113 1660 West Second Street Cleveland, OH 44113 - 2 - PATTON, C.J. The Estate of Helen T. Jilovec ("appellant") appeals the jury's verdict awarding Ann Kirschnick, et al. for her personal injury. On January 28, 1992, Ann was asked by her mother-in-law, Pauline Kirschnick to meet her at Jilovec's house in Bay Village, Ohio. Pauline was concerned because Jilovec was not answering the door and they had plans to meet. Ann and Pauline then managed to enter Jilovec's home and found her dead body in the bedroom area. Ann phoned her husband, Tom Kirschnick, and asked him to come over to Jilovec's home. The three of them began going through Jilovec's belongings. Ann left the house to get lunch for everyone. Ann exited the side door and slipped and fell on ice that had accumulated in the driveway. Ann severely injured her leg and ankle. Tom testified that the gutters were blocked with leaves and sticks and therefore water overflowed and formed ice which unnaturally accumulated. Tom stated that he had previously told Jilovec to have the lawn care company she employed to clean her gutters on several occasions. Appellant's first assignment of error states: I. ANN KIRSCHNICK WAS A LICENSEE AND NOT AN INVITEE AT THE TIME SHE ENTERED THE PREMISES OF HELEN JILOVEC AND, THEREFORE, THE DEFENDANT WAS ENTITLED TO A DIRECTED VERDICT AS THERE WAS NO EVIDENCE THAT HELEN T. JILOVEC WANTONLY, WILLFULLY OR INTENTIONALLY INJURED THE PLAINTIFF. - 3 - Appellant maintains that Ann was a licensee and not an invitee at the time she entered the appellant's premises and therefore its directed verdict should have been granted because no evidence was presented that appellant wantonly, willfully or intentionally injured Ann. Specifically, appellant asserts that the trial court erred when it decided as a matter of law that Ann was an invitee and not a licensee. In order for Ann to prove her case she had to set forth the following: (1) the appellant owed her a duty or duties; (2) the appellant breached that duty and (3) the breach of the appellant's duty was the proximate cause of her injuries. See Porter v. Miller (1983), 13 Ohio App.3d 93, 96. As previously stated, in this assignment of error appellant argues that it did not owe Ann a duty based on an invitee because she was a licensee. Initially, we note that appellant failed to object at the time the trial court determined that Ann was an invitee. In Ohio the law is clear that an appellate court need not consider an error which was not objected to at the trial level. State v. Williams (1977), 51 Ohio St. 2d 112, syllabus. Nevertheless, we find the trial court did not err in its determination that Ann was an invitee. The legal status of an injured person determines the scope and extent of a landowner's liability. The law looks to see whether the injured person was a trespasser, a licensee or an invitee. Cook v. County Mark, Inc. (Mar. 6, 1991), Ross Cty., unreported. Therefore, we find that - 4 - the legal status of a party is a question of law and not a question of fact. This proposition is further supported by the Ohio Supreme Court's ruling in Mussivand v. David (1989), 45 Ohio St.3d 314, 318, where the court stated "[t]he existence of a duty in a negligence action is a question of law for the court to determine." Invitees are persons who rightfully come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner. Scheibel v. Lipton (1951), 156 Ohio St. 308, paragraph one of the syllabus; Light v. Ohio University (1986), 28 Ohio St.3d 66, 68. The owner of the premises owes a duty to an invitee to exercise ordinary care for the safety and protection by maintaining the premises in a safe condition. Light, supra. In the present case, the testimony showed that Ann had been on the decedent's property several times over the years to assist the decedent. On the day of Ann's fall, the sole purpose of Ann's visit to the decedent's home was to check on the safety of the decedent and to provide any assistance the decedent may have needed. Accordingly, we find that the trial court did not err when it found Ann to be an invitee. Appellant's first assignment of error is overruled. Appellant's second assignment of error states: II. THE TRIAL COURT ERRED IN FAILING TO GRANT A DIRECTED VERDICT IN FAVOR OF THE DEFENDANT BASED ON THE FACT THAT THERE WAS NO SHOWING THAT AN UNNATURAL CONDITION OF SNOW AND ICE - 5 - EXISTED; THAT PLAINTIFF WAS NEGLIGENT AS A MATTER OF LAW, SAID NEGLIGENCE BEING IN EXCESS OF 50%; AND, THAT EVEN IF PLAINTIFF WAS AN INVITEE, SAID PLAINTIFF WAS NOT ENTITLED TO RECOVER. Appellant maintains that the trial court erred in failing to grant its directed verdict based on the fact that there was no showing of an unnatural accumulation of snow and ice and further- more, Ann's negligence was in excess of 50% and therefore she was not entitled to recover. Specifically, appellant claims that Ann has failed to establish that there was an unnatural accumulation of ice on the driveway, therefore its motion for directed verdict should have been granted. Civ. R. 50 governs the manner in which a trial judge may grant a directed verdict and provides in relevant part: * * * (4) When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. When considering a motion for a directed verdict, the trial court must neither consider the weight of the evidence nor the credibility of the witnesses because the motion does not present factual issues, but a question of law. O'Day v. Webb (1972), 29 Ohio St.2d 215, paragraph three of the syllabus; Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284. - 6 - The law in Ohio is clear applying to ice related falls. Ordinarily, an owner has no duty to an invitee to remove natural accumulations of ice from private walks and steps on her premises. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraph three of the syllabus. However, this rule does not preclude liability for injuries which result from unnatural accumulations which differ from surrounding conditions. Tyrell v. Investment Assoc., Inc. (1984), 16 Ohio App.3d 47, 49. By definition, unnatural accumulations are man-made or man-caused. Porter, supra. Freezing and thawing ice are natural phenomena. Where the freezing and thawing differs noticeably from surrounding cir- cumstances due to the presence of a man-made structure, the accumulation will be deemed unnatural for purposes of determining liability. Tyrell, supra. Furthermore, where the ice or snow develops a condition substantially more dangerous to an invitee than he could reasonably anticipate, and the owner knew or should have known this, the owner's failure to remove the ice or snow may constitute negli- gence. Bowins v. Euclid General Hospital (1984), 20 Ohio App.3d 29, 31; Nawal v. The Clearview Inn, Inc., (Aug. 4, 1994), Cuyahoga App. No. 65796, unreported. In the present case, Tom testified that over a four to five month period he repeatedly informed the appellant that her gutters needed to be cleaned. Furthermore, the photographs admitted into - 7 - evidence showed that the gutters were clearly blocked. Moreover, Tom stated that after he came back from taking Ann to the hospital he saw the patch of ice, noticed that it came from the blocked gutters and placed rock salt on it to prevent any further injuries. Viewing all the evidence, we find the trial court did not err when it denied appellant's motion for a directed verdict. Accordingly, appellant's second assignment of error is overruled. Appellant's third assignment of error states: III. THE STATUS OF A PARTY-PLAINTIFF ON THE LAND IS A QUESTION OF FACT TO BE DETERMINED BY A JURY IN A CASE WHERE THE PLAINTIFF HAS NOT BEEN INVITED ON THE PREMISES BY THE OWNER, WHO IS DECEASED, BUT, RATHER, COMES TO ASSIST A THIRD- PARTY. Appellant asserts that Ann's status was a question of fact to be determined by a jury because she was not invited by the owner of the property, who was deceased, but rather came to assist the owner. Specifically, appellant claims that since the court overruled its motion for directed verdict based on the status of Ann as a licensee, the court then should have submitted to the jury, for a factual determination, the question of Ann's status. This assignment of error is interrelated to appellant's first assignment of error. As we previously stated, appellant failed to object at the trial court. However, we note that prior to the commencement of trial there was a dialogue between Ann's counsel, appellant's counsel and the court as to Ann's legal status. The trial court stated that Ann was not a licensee but rather an - 8 - invitee. At this point, appellant's counsel failed to note an objection for the record. Moreover, the record is clear that appellant never objected during the jury instructions nor did appellant submit proposed jury instructions to the court. Therefore, pursuant to Williams, supra, appellant's third assignment of error is overruled. Appellant's fourth assignment of error states: IV. THE TRIAL COURT ERRED WHEN, IN RESPONSE TO A JURY QUESTION, IT STATED THAT THE PLAINTIFF COULD STILL BE COMPENSATED IF THE DEFENDANT WAS NOT AT FAULT FOR A BLOCKED GUTTER, AND THERE WERE OTHER CIRCUMSTANCES TO CAUSE A PATCH OF ICE -- EXAMPLE, CRACKED DRAIN SPOUT. Appellant claims that the trial court erred when it responded to a jury question and stated that Ann could still be compensated if appellant was not at fault for a blocked gutter and there were other circumstances to cause a patch of ice. Specifically, appel- lant asserts that the court's response to the jury question com- pletely eliminated the responsibility of Ann to prove that there was a condition existing of which the decedent had knowledge or which by way of ordinary care should have discovered. The jury question asked: Can the Plaintiff [Ann] still be compensated if the Defendant [appellant] was not at fault for a blocked gutter, and there were other circumstances to cause a patch of ice? Example: Cracked drain spout. The trial court met with legal counsel for both sides in chambers to hear arguments for the answer to this question. The transcript showed that Ann's counsel argued that appellant - 9 - negligently failed to maintain her roof and her gutter system. That the whole system, including the down spout was negligently maintained. Appellant's counsel asserted the following: Plaintiff attempted to show that through showing that the gutter system is defective and that there is an overflow, et cetera. And in answer to the jury's question, the Plaintiff cannot be compensated if it was not the fault of that gutter, and ice was there because of other circumstances. Tr. 342. After hearing the above arguments from trial counsel the court answered "yes" to the jury's question. Similar to jury instructions, a trial court's response to a jury's question regarding matters of law should be legally correct and explicit as not to be misunderstood by the jury. Columbus v. Triplett (1993), 91 Ohio App.3d 239, 246. In the present case, we find the trial court's answer to the jury's question was legally correct and explicit enough for the jury to understand. The testimony at trial showed that the decedent failed to maintain her entire gutter system, including the down spout. Trial counsel stated during closing arguments that decedent failed to maintain her gutters and downspouts as a normal homeowner would. Moreover, the photographs admitted into evidence showed the blocked gutters and the conditions of the downspouts. Accordingly, appellant's fourth assignment of error is overruled. Appellant's fifth assignment of error states: V. THE TRIAL COURT ERRED IN ALLOWING THE PLAINTIFF TO GIVE OPINION TESTIMONY WHEN HE WAS NOT - 10 - QUALIFIED AS AN EXPERT AND WITHOUT FOUNDATION FOR THE SPECIFIC OPINION. Appellant maintains the trial court erred when it allowed the opinion testimony of Tom Kirschnick who was not qualified as an expert and no foundation for the specific opinion was established. Specifically, appellant claims that Tom's testimony stating that the ice formed because the gutters were clogged was in violation of Evid.R. 701. Evid. R. 701 states the following: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. Tom testified that he observed debris including leaves and sticks in the gutters and because of this he determined that the gutters were clogged. Furthermore, the photographs admitted into evidence supported this observation. The photographs showed debris blocking the gutters and showed the condition of the downspouts. Therefore, we hold that Tom's testimony was rationally based on his perception and was helpful to a clear understanding of a fact in issue. Evid. R. 701. Accordingly, appellant's fifth assignment of error is overruled. Judgment affirmed. - 11 - It is ordered that appellees recover of appellant 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. ANN DYKE, J. JOHN V. CORRIGAN, J.,* CONCUR (*SITTING BY ASSIGNMENT: JOHN V. CORRIGAN, RETIRED JUDGE OF COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT) 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, .