COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68118 : MARILYN BRAUN : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION SEARS, ROEBUCK & COMPANY, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 18, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-250313 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: HENRY W. CHAMBERLAIN, ESQ. WILLIAM R. FANOS, ESQ. ERIC R. KENNEDY, ESQ. KATHERINE A. VIERKORN, ESQ. WEISMAN, GOLDBERG & WEISMAN WESTON, HURD, FALLON, 1600 Midland Building PAISLEY & HOWLEY 101 Prospect Avenue 2500 Terminal Tower Cleveland, Ohio 44115 Cleveland, Ohio 44113-2241 BONNIE M. GUST, ESQ. DAVIS & YOUNG 1700 Midland Building 101 Prospect Avenue, W. Cleveland, Ohio 44115-1027 - 2 - KARPINSKI, J.: Plaintiff-appellant Marilyn Braun appeals from an order of the trial court granting summary judgment to defendants-appellees Sears, Roebuck & Company ("Sears") and Furst Landscaping in this personal injury slip and fall action. Plaintiff commenced this action by filing a complaint on April 12, 1993, in the trial court against three defendants: (1) Edward DeBartolo Corporation ("DeBartolo"), Sears and Velotta Paving Inc. ("Velotta"). Plaintiff subsequently filed amended complaints in the trial court dismissing DeBartolo and Velotta and adding new party defendant Furst's Landscaping. Plaintiff alleged she fell on snow and ice in the parking area of a Sears store located at the Richmond Mall on February 19, 1993. She alleged that negligent maintenance of the parking area by Sears and Furst Landscaping proximately caused her fall, which resulted in injuries to her knees and left arm. Sears and Furst Landscaping denied plaintiff's allegations and filed motions for summary judgment supported by plaintiff's own deposition testimony. During her deposition plaintiff testified that she fell on a natural accumulation of ice and snow after she took two to three steps on the access road between the parking lot and the entrance to the Sears store. Plaintiff's joint brief in opposition to defendant's motions for summary judgment argued defendants were liable because plaintiff fell on an unnatural accumulation of ice and snow which - 3 - resulted from the plowing of the access road. Plaintiff's brief in opposition was supported by deposition testimony from defendants and affidavits from five witnesses. Three witnesses observed the parking lot on February 19, 1993: Steve Spector, who fell on the access road approximately one hour after plaintiff; Paul Cefaratti, who accompanied Spector, but did not fall; and Joseph Corbo. Also providing affidavits were Gary Spector, who took photographs of the access road the following day on February 20, 1993, and Michael Velotta, who plowed snow everywhere in Richmond Mall except for the parking lot and access road surrounding the Sears store. The parties thereafter submitted additional briefs. The trial court granted defendant's motions for summary judgment in an order journalized October 5, 1994. Plaintiff timely appeals raising the following sole assignment of error: THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEES' [SIC] MOTION FOR SUMMARY JUDGMENT WHEN THE EVIDENCE ESTABLISHED A GENUINE ISSUE OF MATERIAL FACT REGARDING WHETHER APPELLEES WERE NEGLIGENT IN CREATING A DANGEROUS CONDITION WHEN THEY ALTERED THE NATURAL ACCUMULATION OF ICE AND SNOW BY PLOWING THEIR PARKING LOT SO AS TO CREATE AN UNNATURAL ACCUMULATION OF ICE AND SNOW IN THE ACCESS ROAD. Plaintiff's sole assignment of error lacks merit. Plaintiff argues the trial court improperly granted summary judgment for defendants because she produced evidence that the snow removal efforts in this case aggravated, rather than reduced, the hazardous condition of the access road. Plaintiff contends that snow plowed and piled to the side of the access - 4 - road subsequently thawed and refroze on the access road where she fell. However, based on our review of the record, plaintiff has failed to demonstrate that negligent snow removal created a hazardous condition or substantially increased the risk of injury to warrant the denial of defendants' motion for summary judgment. To support this theory, plaintiff submitted the affidavits of three witnesses. The affidavits of two patrons, Steven Spector and Paul Cefaratti, who walked across the access road approximately one hour after plaintiff fell, stated that it "appeared" the ice on the access road formed from the thawing and refreezing of snow piled near the access road. The affidavit of Michael Velotta, the owner of the snow removal service employed to plow all of Richmond Mall except for the Sears parking lot and access road, stated that the piling of snow creates the hazard or risk of ice accumulation. He never stated, however, that he observed, either from the photographs or personally that day, this particular "ice" accumulation. After viewing the photgraph, he mentions only "snow accumulation." The record contains absolutely no evidence the snow melted and caused ice to form to create an aggravated hazard on the access road on February 19, 1993. The only evidence in the record, apart from the speculative comments of Spector and Cefaratti, is the description of the temperature on the date of the incident as "freezing," "below freezing" or five degrees. There was, however, no evidence of melting temperatures. Furst Landscaping plowed and salted the access road the day before the - 5 - incident. Moreover, Mark Furst testified that the parking lot sloped away from the Sears store. As a result of this slope, any water from melted snow would have flowed away from the access road where the ice formed and plaintiff allegedly fell. Plaintiff has failed to provide an essential link between the defendants' snow removal and plaintiff's fall. Evidence of freezing temperatures without evidence of prior melting temperatures is insufficient as a nexus. Without that link, it is reasonable to conclude any ice could have been caused by natural events, such as slush dropping from cars driving by and freezing, unaided by defendants' actions. Accordingly, plaintiff's sole assignment of error is overruled. Judgment affirmed. - 6 - 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 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. DYKE, J., CONCURS; JAMES D. SWEENEY, P.J., DISSENTS. (See Dissenting Opinion). DIANE KARPINSKI 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 it will become the judgment and order of the court and the time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68118 MARILYN BRAUN : : : : PLAINTIFF-APPELLANT : D I S S E N T I N G : vs. : O P I N I O N : SEARS, ROEBUCK & COMPANY, ET AL. : : : : DEFENDANTS-APPELLEES : DATE: JANUARY 18, 1996 JAMES D. SWEENEY, P.J., DISSENTING: I respectfully dissent from the conclusion reached by the majority in this case. The basis for this dissent is that I believe that the affidavits of Messers. Spector and Cefaratti, which averments therein are perplexingly disregarded by the majority as speculative, create a genuine issue of material fact sufficient to withstand the granting of summary judgment, particularly when one considers that the evidence relative to a motion for summary judgment must be viewed in a light most favorable to the non-moving party. Civ.R. 56. These affiants create a genuine issue of material fact relative to the plaintiff-appellant's assertion that the mounding of the snow near the access road at the entranceway to the store, coupled with the thawing and refreezing of the runoff from that mound of snow and the probability of slushy conditions within the access road acting to conceal the hazard, was a breach of ordinary care to business invitees which aggravated the naturally existing hazards caused by the freezing weather. For these reasons, I .