COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68635 SHERWOOD BARTON, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : CONSOLIDATED RAIL CORPORATION : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 30, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-244673. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: George J. Argie, Esq. Dominic J. Vitantonio, Esq. Mayfield Heights Prosecutors 6571 Wilson Mills Road Mayfield Village, OH 44143-3404 For Defendant-Appellee: Sheila A. McKeon, Esq. Gallagher, Sharp, Fulton & Norman 1501 Euclid Avenue 7th Floor Bulkley Building Cleveland, OH 44115 -2- DAVID T. MATIA, P.J.: Sherwood and Marsha Barton, plaintiffs-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CV-244673, which granted the motion for summary judgment filed by Consolidated Rail Corporation (Conrail), defendant-appellee. Plaintiffs-appellants assign one error for this court's review. Plaintiffs-appellants' appeal is not well taken. I. THE FACTS Sherwood Barton, plaintiff-appellant, is a 54-year-old man who was employed as an over-the-road truck driver for Pennsylvania Truck Lines. On December 26, 1990, plaintiff-appellant reported for work. Plaintiff-appellant's assignment was to transport a loaded tractor-trailer from defendant-appellee's Collinwood facility in Cleveland, Ohio to Altoona, Pennsylvania. When plaintiff-appellant picked up the tractor-trailer at defendant-appellee's Collinwood facility, plaintiff-appellant noticed that it was in need of mechanical repair. Plaintiff- appellant then drove the tractor-trailer over to the shipping dock in order to locate a mechanic. As plaintiff-appellant exited the vehicle and began to walk toward the entrance to the dock, plaintiff-appellant slipped and fell upon an accumulation of snow and ice in defendant-appellee's parking lot, sustaining personal injury as a result. Plaintiff-appellant testified that it had snowed the night before or earlier that morning and there was approximately l/2-inch of snow on the ground. Plaintiff-appellant testified further that the snow was visible and he was aware of its -3- presence as he walked through it toward the shipping dock. (Tr. 18-21.) On December 23, 1992, plaintiffs-appellants filed a two count complaint in the Cuyahoga County Court of Common Pleas. The first count of the complaint alleged that Sherwood Barton, plaintiff- appellant, was injured as a direct and proximate result of defendant-appellee's negligent maintenance of the driveway in question. Count two of the complaint alleged that Marsha Barton, plaintiff-appellant, suffered a loss of consortium as a result of her husband's injury. On August 2, 1994, defendant-appellee filed a motion for summary judgment alleging that, as a matter of law, it was not negligent nor liable for Sherwood Barton's, plaintiff-appellant's, injuries. On August 31, 1994, plaintiffs-appellants filed a brief in opposition to defendant-appellee's motion for summary judgment. On February 3, 1995, the trial court granted defendant-appellee's motion for summary judgment without opinion. On March 3, 1995, plaintiffs-appellants filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT OF ERROR Sherwood and Marsha Barton's, plaintiffs-appellants', sole assignment of error states: THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WERE NO GENUINE ISSUES OF MATERIAL FACT, AND IN CONCLUDING THAT THE DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW. -4- A. THE ISSUES RAISED: SUMMARY JUDGMENT Plaintiffs-appellants argue, through their sole assignment of error, that the trial court erred in granting the summary judgment motion of defendant-appellee. Specifically, plaintiffs- appellants maintain that genuine issues of material fact exist as to whether defendant-appellee possessed knowledge of the hazardous snow and ice condition present in the parking lot that was superior to the knowledge possessed by Sherwood Barton, plaintiff-appellant. Plaintiffs-appellants argue further that, since defendant-appellee had allegedly cleared the area of snow and ice in the past, Sherwood Barton, plaintiff-appellant, fully expected the area to be cleared on December 26, 1990. Plaintiffs-appellants' sole assignment of error is not well taken. B. PREMISES LIABILITY In Ohio, it is well established that an owner and occupier of land ordinarily owes no duty to business invitees to remove natural accumulations of ice and snow from the private sidewalks on the premises, or to warn the invitee of the dangers associated with such natural accumulations of ice and snow. Brinkman v. Ross (1993), 68 Ohio St.3d 82, 83. An occupier of premises is under no duty to protect a business invitee against dangers which are known to the invitee or are so obvious and apparent to the invitee that he may reasonably be expected to discover them and protect himself from them. Sidle v. Humphrey (1968), 13 Ohio St.2d 45. -5- In Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, the Ohio Supreme Court held at paragraph one and two of the syllabus that: 1. When the owner or occupier of business premises is not shown to have notice, actual or implied, that the natural accumulation of snow and ice on his premises has created there a condition substantially more dangerous to his business invitees that they should have anticipated by reason of their knowledge of conditions prevailing generally in the area, there is a failure of proof of actionable negligence. 2. The mere fact standing alone that the owner or occupier has failed to remove natural accumulations of snow and ice from private walks on his business premises for an unreasonable time does not give rise to an action by a business invitee who claims damages for injuries occasioned by a fall thereon. C. STANDARD OF REVIEW FOR SUMMARY JUDGMENT Civ.R. 56(C) provides that before summary judgment may be granted, the court must determine 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; (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 party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 -6- (syllabus). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio App.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. D. THE TRIAL COURT DID NOT ERR IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. In the case sub judice, a review of the deposition testimony of Sherwood Barton, plaintiff-appellant, demonstrates that no genuine issue of material fact existed and the trial court properly granted defendant-appellee's motion for summary judgment. Here, plaintiffs-appellants have presented no evidence to demonstrate that an unusually dangerous condition existed or that defendant-appellee should have had superior knowledge of the icy conditions. In fact, plaintiff-appellant testified that he -7- clearly saw the snow on the ground as he was walking to the shipping dock and that he chose to proceed through the snow nevertheless. In addition, plaintiffs-appellants have not shown or even alleged that the accumulation of ice and snow was anything other than a natural accumulation. No evidence was produced to show that the facts of this case fall into the exception to the general rule that 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; Scaffide v. Fisher Foods, Inc. (Nov. 7, 1991), Cuyahoga App. No. 61431, unreported. Accordingly, plaintiffs-appellants' sole assignment of error is not well taken. Judgment of the trial court is 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. PORTER, J. and NAHRA, J., CONCUR. DAVID T. MATIA PRESIDING 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 .