COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69666 ETHEL KIMBRO : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION KONNI'S SUPERMARKET, INC., ET AL. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION JUNE 27, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 270204 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: ANNE KENNEDY LYNCH, ESQ. GEORGE C. ZUCCO, ESQ. Lynch & Lynch Co., L.P.A. 1525 Leader Building 711 Statler Office Tower Cleveland, Ohio 44114 Cleveland, Ohio 44115 - 2 - JAMES M. PORTER, J., Plaintiff-appellant Ethel Kimbro appeals from the order of summary judgment granted in favor of defendant-appellee Konni's Supermarket, Inc. arising out of plaintiff's slip and fall outside defendant's store. We find no error and affirm the granting of summary judgment for the reasons hereinafter set forth. On January 10, 1993, plaintiff was a business invitee on defendant's premises known as Konni's Supermarket which she had patronized before. After making her purchases, plaintiff left the store carrying her purse and bag of groceries. In walking to the parking lot, she had to pass between yellow posts placed on the walkway about twenty-one inches from the curb. The posts were there to protect the store and pedestrians from vehicular traffic and prevent shopping carts from being taken into the parking lot. The posts were approximately four inches in diameter and forty-eight inches high. The space between the poles ranged from seventeen to twenty-four inches. As plaintiff approached the end of the walk leading from the store, she turned her body to make her way between the yellow poles, and the next thing she knew, she had fallen to the ground and suffered injury. She claims her fall was caused by a combination of the hazardous placement of the poles and improper snow removal. Plaintiff stated in her deposition that she had no knowledge as to what caused her to fall. She recalled she was merely walking - 3 - sideways through the poles when she fell. She observed no defects, unnatural accumulation of ice or snow or holes that would cause her to fall. The area was free of defects or foreign objects and was inspected regularly by defendant's employees. Plaintiff's sole assignment of error states as follows: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. It is elementary that to establish a cause of action in negligence, plaintiff must show: (1) a duty on the part of defendant to protect the plaintiff from injury; (2) a breach of that duty; and (3) an injury proximately resulting from the breach. Huston v. Konieczny (1990), 52 Ohio St.3d 215, 217; Jeffers v. Olexo (1989), 43 Ohio St.3d 140; Thomas v. Parma (1993), 88 Ohio App.3d 523, 527; Parsons v. Lawson Co. (1989), 57 Ohio App.3d 49, 50. Plaintiff was a business invitee on defendant's premises and defendant accordingly owed her a duty to exercise reasonable care in keeping the premises in a safe condition and warning the invitee of any latent or concealed perils of which defendant had knowledge. Perry v. Eastgreen Realty Company (1978), 53 Ohio St.2d 51, 52-53; Presley v. Norwood (1973), 36 Ohio St.2d 29, 31; Sweet v. Clare- Mar Corp., Inc. (1987), 38 Ohio App.3d 6. However, a property owner is under no duty to protect a business invitee from hazards which are so obvious and apparent that the invitee is reasonably expected to discover and protect against them herself. Sidle v. - 4 - Humphrey (1968), 13 Ohio St.2d 45, paragraph one of syllabus; Paschal v. Rite Aid Pharmacy (1985), 18 Ohio St.3d 203, 203-204; Brinkman v. Ross (1993), 68 Ohio St. 3d 82, 84. The difficulty with the plaintiff's argument herein is that she offered no evidence to show that defendant breached any duty owed to plaintiff or that, if it did, that it was the proximate cause of plaintiff's injury. The mere fact that plaintiff, while passing between the yellow posts, fell, does not establish any negligence on the part of defendant. Green v. Castronava (1966), 9 Ohio App.2d 156, 161. It was incumbent upon plaintiff in response to defendant's motion for summary judgment to show that there was a dangerous or latent condition of the premises that was the cause of her fall. However, there was no evidence of any defect in the area that was not evident from the placement of the posts and their configuration. The plaintiff was familiar with the area having passed through it on other occasions while patronizing the store. There was no evidence that others had fallen on previous occasions in the area. There is no evidence that defendant either created or tolerated a dangerous condition which was not obvious from the nature of the lay-out. Accordingly, we find that defendant breached no duty to the plaintiff from conditions which were or should have been obvious to all. Furthermore, we also find that plaintiff did not establish that any condition of the property was the proximate cause of her - 5 - fall. She testified that she did not know what caused her fall. Speculation cannot take the place of evidence. As stated by this Court in Guyton v. DeBartolo, Inc. (Nov. 4, 1993), Cuyahoga App. No. 65268, unreported at 2-3: In her deposition testimony, Mrs. Guyton clearly stated that she did not know what caused her to fall but merely "assumed" she slipped on water accumulated on the floor. Speculation or conjecture on a plaintiff's part as to the culpable party who caused her fall and what caused her fall is not sufficient, as a matter of law, since the issue of proximate cause is not open to speculation and plaintiff can point to no wrong or negligent act committed by defendant. Strother v. Hutchinson (1981), 67 Ohio St.2d 282; Townsley v. Cincinnati Gardens, Inc. (1974), 39 Ohio App.2d 5; Castro v. Kathy Lee's Kitchen (Jan. 2, 1992), Cuyahoga App. No. 59338, unreported; Allen v. CGS Investments, Inc. (June 11, 1992), Cuyahoga App. No. 62947, unreported. See, also, Stamper v. Middletown Hosp. Assn. (1989), 65 Ohio App.3d 65, 69. In opposition to defendant's motion for summary judgment, plaintiff presented the report and affidavit of her expert witness who stated in his report that it was his belief that the slip and fall occurred as the result of the natural accumulation of ice and snow. 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 - 6 - natural accumulations of ice and snow. Brinkman v. Ross (1993), 68 Ohio St.3d 82, 83. 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: 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. 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. 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. Moreover, ice and snow are part of wintertime life in Ohio. Lopatkovich v. Tiffin (1986), 28 Ohio St.3d 204, 206: In a climate where the winter brings frequently recurring storms of snow and rain and sudden and extreme changes in temperature, these dangerous conditions appear with a frequency and suddenness which defy prevention and, usually, correction. *** To hold that a liability results from these actions of the elements would be the affirmance of a duty which it would often be impossible, and ordinarily impracticable *** to perform. - 7 - Id., quoting Norwalk v. Tuttle (1906), 73 Ohio St. 242, 245. Plaintiff's counsel conceded at oral argument that there were no "unnatural accumulations" of snow or ice and she was not relying on that theory to support her case. We accordingly find that plaintiff failed to offer any evidence to support a claim that defendant breached a duty owed to plaintiff or that such breach, if any, was the proximate cause of her fall and injuries. Plaintiff's sole assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant 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 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. DAVID T. MATIA, P.J., and PATTON, J., CONCUR. JAMES M. PORTER 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 .