COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69293 DENNIS FORTESQUE : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION RINI REGO SUPERMARKETS, INC. : dba RISER FOODS, INC., ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 25, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 277963. JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE RINI- REGO SUPERMARKETS, INC., dba RISER FOODS, INC.: Alex Berezin, Esq. Roger H. Williams, Esq. Shawn W. Maestle, Esq. Williams & Sennett Co., L.P.A. Dworken & Bernstein Co., 126 W. Streetsboro Street, L.P.A. Suite 4 950 Illuminating Building Hudson, Ohio 44236 55 Public Square Cleveland, Ohio 44113 Robert G. Hurt, Esq. 7029 Pearl Road Suite 310 Middleburg Heights, Ohio 44130 -2- HARPER, J.: In this personal injury action for a slip and fall incident outside a supermarket, plaintiff-appellant, Dennis Fortesque ("appellant"), appeals from the trial court's order which granted the motion for summary judgment filed by defendants-appellees, Rini Rego Supermarkets, Inc. ("Riser Foods") and Illes Construction, Inc. ("Illes"). The underlying action stems from appellant's slip and fall incident on December 18, 1993. Upon appellant's arrival at Riser Foods in North Royalton at about 6:30 p.m., the premises of Riser Foods were under renovation by Illes. As a result of the renovation, a temporary ramp was erected which served as the sole means to enter and exit the store. After appellant completed his shopping at Riser Foods, he exited the store by walking on the wooden ramp, whereon he slipped and fell. Appellant sustained injuries as a result of the fall and immediately went to the Riser Foods Store office to report the incident to the store employees. Appellant informed Riser Foods employees of the fall. He testified one of the employees told him that she had almost fallen several times when leaving the premises and she believed that the ramp was dangerous. However, the employee later denied making that statement. On October 3, 1994, appellant filed a complaint, wherein he requested damages, in the Cuyahoga County Court of Common Pleas against both Riser Foods and Illes. In his complaint, appellant alleged that his injury was due to Riser Foods' negligence. He -3- asserted that Riser Foods' failure to frequently inspect the ramp, clean, discover its slippery condition, and implement preventive measures to reduce the danger it posed to appellant, constituted negligence. In appellant's complaint against Illes, appellant alleged Illes was negligent because Illes failed to regularly carry out inspections of the ramp to discover its slippery condition, and warn appellant of the hazardous condition. Illes answered the complaint and denied the allegations and asserted defenses. Riser Foods also answered the complaint, denied pertinent allegations and asserted defenses. Riser Foods cross-claimed and asserted that appellant's injuries were the sole and proximate result of Illes' negligence; and Riser Foods was entitled to indemnification from Illes should appellant recover from Riser Foods. Illes responded and cross-claimed against Riser Foods and asserted that Riser Foods' negligence was primary and that Illes was entitled to indemnification should appellant prevail in his complaint. Subsequently, appellant moved to amend his complaint and presented a loss of consortium claim by his wife. After the completion of discovery, Riser Foods filed a motion for summary judgment. Riser Foods' motion for summary judgment incorporated excerpts from appellant's deposition in its brief, and asserted that they were entitled to summary judgment for two reasons. First, Riser Foods asserted that it was entitled to summary judgment because Riser Foods is not an insurer of appellant's safety and does not have a duty to protect appellant -4- from conditions which are known or are obvious and apparent. Riser Foods maintained that appellant knew about the wet condition of the ramp due to the natural accumulation of rain and snow. Second, appellant had notice of the condition of the ramp because he walked over the same area minutes prior to his fall. Illes asserted similar reasons in its brief in support of its motion for summary judgment. Subsequently, appellant stipulated to filing a joint response to Illes' and Riser Foods' individual motions for summary judgment. Appellant's joint response to both Illes' and Riser Foods' individual motions for summary judgment asserted that each appellee owed appellant, who was an invitee, a duty to exercise reasonable care because Illes and Riser Foods had prior knowledge of the temporary condition. In addition, appellant asserted that his prior use of the ramp does not, as a matter of law, transform a latent, defective and dangerous condition into one that is open and obvious. The trial court granted summary judgment in favor of Riser Foods and Illes finding that they were entitled to summary judgment, as a matter of law. Appellant timely appeals and raises the following assignment of error for this court's review: THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT SINCE THERE EXISTS A MATERIAL ISSUE OF FACT. I. In appellant's sole assignment of error, appellant contends the trial court erred when it granted summary judgment in favor of -5- Illes and Riser Foods because genuine issues of material fact remain pending for litigation concerning Illes' and Riser Foods' breach of duty towards appellant. This case was disposed of by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines 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 party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. It should be awarded with caution only after doubts are resolved and evidence construed in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus. -6- In order to defeat a motion for summary judgment in a negligence action, the plaintiff must identify a duty owed him by the defendant. Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19. This evidence, construed most strongly in the plaintiff's favor, must be sufficient to allow reasonable minds to infer that a specific duty was breached; that the breach was the proximate cause of plaintiff's injury; and that the plaintiff was injured. Id. Whether a defendant owes a duty to a plaintiff depends on the relationship between them. Commerce & Industry Ins. Co. v. Toledo (1989), 45 Ohio St.3d 96, 98. A business invitee is one who comes 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. A merchant owes patrons and prospective customers upon the premises of a shopping center a duty to exercise ordinary care for their safety which is the degree of care exercised by a reasonable and prudent person. Parsons v. Lawson Co. (1989), 57 Ohio App.3d 49. The merchant or owner of premises must maintain the premises in a reasonably safe condition and warn the invitee of latent or concealed defects of which the merchant or owner has or should have knowledge. Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679. The duty of care extends to providing a reasonably safe ingress or egress. Tyrrell v. Investment Assoc., Inc. (1984), 16 Ohio App.3d 47. However, a merchant is not an insurer of the customer's safety. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. -7- Not every accident that occurs gives rise to a cause of action. Thousands of accidents occur every day for which no one is liable and no one is to blame. S.S. Kresge Co. v. Fader (1927), 116 Ohio St. 174. However, a premises owner is under no duty to protect a business invitee from dangers which are so open and obvious that the invitee is reasonably expected to discover and protect against them himself. Sidle v. Humphrey (1968), 13 Ohio St.2d 45 paragraph one of the syllabus. Paschal v. Rite-Aid Pharmacy (1985), 18 Ohio St.3d 203. The Paschal court stated: Owners or lessees of stores owe a duty to the patrons of the store to exercise ordinary care to prevent accidents and injury to the patrons, while in the store, but they are not insured against all accidents and injuries to such invitee that he may reasonably be expected to discover them and protect himself against them. Id. The Ohio Supreme Court stated in DeAmiches v. Popzcun (1973), 35 Ohio St.2d 180, that: "[T]he 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 a 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 himself may have been. ***" Id., 184, quoting 2 Harper & James, the Law of Torts 1491. In Ohio, it is generally well-established that a premise owner can not be liable to an invitee who fails to avoid a known peril simply because he "did not think" or "forgot." Jeswald v. Hutt (1968), 15 Ohio St.2d 224. -8- The Ohio Supreme Court in Raflo v. Losantville County Club (1973), 34 Ohio St.2d 1, rejected an argument made by plaintiff that a step was made dangerous more so when leaving the building than when entering it. The court stated, in relevant part: This attempt to designate a defect so insubstantial for the purpose of notice upon entering but substantial for the purpose of imposing liability for a fall upon exiting shows an ambivalence with which we cannot concur. Injuries occasioned by insubstantial defects should not be actionable unless circumstances render them "unnecessarily dangerous." Raflo, supra, at 4, quoting from the dissent in Smith v. United Properties (1965), 2 Ohio St.2d 310, 316, 209 N.E. 2d 142, approved in Helms v. American Legion (1966), 5 Ohio St.2d 60, 213 N.E. 2d 734. This court in Jennings v. Ameritrust Co. (Oct. 6, 1994), Cuyahoga App. No. 66867, unreported, addressed a factual pattern similar to the facts in the case sub judice. In Jennings, a plaintiff who was a regular patron of the bank tripped and fell as she left the bank's premises. On appeal, she argued the trial court erred when it granted summary judgment for the bank. This court affirmed the summary judgment for the bank and stated: In this case, the burden was on the plaintiff to offer evidence in response to defendant's motion for summary judgement that there was some hazardous or latent condition which caused her fall. There was no evidence of any defect in the step and its height, having chosen not to use it in the past. There was no evidence that others had fallen on previous occasions. There is no evidence here that defendant either created or tolerated a dangerous condition which was not obvious from the nature of the facility. Accordingly, we find that defendant breached no duty to the plaintiff for conditions which were or should have been obvious to all. Id. at 5-6. -9- Appellees are obligated to provide a reasonably safe means of ingress and egress. Tyrell v. Investment Assoc. Inc. (1984), 16 Ohio App.3d 47. 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. 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, supra. A shopkeeper's duty does not extend to protecting business invitees against the hazards of natural accumulations of ice and snow which are similar to the surrounding circumstances. Sidle, supra. Ice and snow are usual occurrences of winter life in Northern Ohio. Hoenigman v. McDonalds' Corp. (Jan. 11, 1990), Cuyahoga App. No. 56010, unreported (where plaintiff had knowledge of the condition of the step at least equal to that of defendant, defendant did not breach any duty owed to plaintiff and defendant is not negligent as a matter of law). See, LaCrouse v. Fleitz (1986), 28 Ohio St.3d 209; Wicichowski v. Gladieux (1988), 54 Ohio App.3d 177. Turning to the facts in the case sub judice, appellant's status as a business invitee is undisputed. Appellant averred that he went to the store on December 18, 1993, in the evening. He described the weather conditions as being misty, consisting of light snow and rain with a light accumulation of snow on the ground. Appellant acknowledged that he walked up the ramp possibly three to four times prior to his fall. In addition, he confirmed -10- that he did not have any problems walking up and down the ramp prior to the incident. He did not complain to Riser Foods about the ramp prior to his fall. Appellant described the circumstances leading to his fall. He confirmed that he did not trip on the ramp but rather he walked onto the ramp and then slipped. Appellant testified that prior to his fall, the ramp was slippery. He averred that to the best of his knowledge, the ramp was not broken. Upon review of the record before this court, there is no previous incidents on the premises of Riser Foods like what occurred to appellant. Appellant traversed the ramp to gain entrance to the store, thus appellant had knowledge of the prevailing condition of the ramp. LaCrouse, supra. Appellant has failed to show that Illes and Riser Foods breached any duty to him, as a business invitee since: (1) appellant possessed knowledge of the prevailing condition; (2) the ramp was not broken; (3) appellant was aware of the condition of the ramp because he walked onto the ramp prior to his fall. Consequently, appellant's evidence was insufficient to raise a genuine issue of material fact in the case sub judice. Therefore, the trial court did not err in granting the motion for summary judgment in favor of Illes and Riser Foods. 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 Cuyahoga County 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. LEO M. SPELLACY, C. J., AND DIANE KARPINSKI, J., CONCUR JUDGE SARA J. HARPER 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 .