COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69856 VIRGINIA L. DIAN : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION JON DUNLAP, ET AL. : : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: JULY 25, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-264665 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: PAUL M. KAUFMAN 801 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2203 For Defendant-Appellees: SAMUEL R. MARTILLOTTA Mansour, Gavin, Gerlack & Manos Co., LPA 2150 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1994 - 2 - O'DONNELL, J.: Virginia Dian appeals from an entry of the Common Pleas Court granting summary judgment to Jon and Brian Dunlap thereby denying her claim for injuries received when she fell on an accumulation of ice and snow on her property allegedly caused by discharge from a downspout on the adjacent Dunlap property. On January 17, 1993, Virginia Dian, a lessee who resided on Columbia Road in Olmsted Falls, Ohio, slipped on ice and fell causing injury to her back, elbow, shoulder and teeth after she emptied her garbage in bins which were located at the end of a concrete walkway between her residence and the Dunlap property. About a year later, Dian sued Jon and Brian Dunlap, who own but do not reside in the adjacent property, alleging negligence in maintaining a downspout which resulted in the water runoff onto her property where it accumulated, froze, and on which she injured herself. The Dunlaps moved for summary judgment and the trial court granted the motion. Dian now appeals and assigns the following as error for our review: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Dian argues the trial court erred in granting summary judgment in favor of the Dunlaps because genuine issues of fact exist which preclude summary judgment. Specifically, Dian contends the Dunlaps maintained a hazard which created an - 3 - artificial ice condition and reasonable minds could conclude the dangerous condition proximately caused her injuries. The Dunlaps, on the other hand, contend the trial court correctly granted summary judgment in their favor because they did not owe Dian a duty when she fell, because she had superior knowledge of the condition, and because she fell on a natural accumulation of ice. The issue, then, for our consideration is whether the trial court properly granted summary judgment in this instance. In considering the propriety of summary judgment we first look to Civ. R. 56 governs summary judgment. In State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509 at 511, the Ohio Supreme Court explained the rule's requirements: Civ. R. 56(C) provides that before summary judgment may be granted, it must be determined 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 the party against whom the motion for summary judgment is made. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. The party seeking the summary judgment bears the burden of proof in showing that no material issue of fact remains to be litigated. Celotex Corp. v. Catrett (1987), 477 U.S. 317. Furthermore, all doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. - 4 - With this standard in mind we consider the trial court's grant of summary judgment in this case. At the outset, we recognize that it has long been the law in Ohio that a landowner generally is not liable for natural accumulations of ice and snow. As the Ohio Supreme Court explained in Lopatkovich v. Tiffin (1986), 28 Ohio St.3d 204, 207, citing Norwalk v. Tuttle (1906), 73 Ohio St. 242, 245: * * * 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. See also, Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38; Sidle v. Humphrey (1968), 13 Ohio St.2d 45. The Ohio Supreme Court discussed the basis for precluding liability in natural accumulation cases in Brinkman v. Ross (1993), 68 Ohio st.3d 82, at 84: The underlying rationale in both Debie and Sidle, supra, is that everyone is assumed to appreciate the risks associated with natural accumulations of ice and snow and, therefore, everyone is responsible to protect himself or herself against the inherent risks presented by natural accumulations of ice and snow. The Ohio Supreme Court earlier explained in Sidle v. Humphrey (1968), 13 Ohio St.2d 45, at 48: The knowledge of the condition removes the sting of unreasonableness from any danger that lies in it, and obviousness may be relied on to supply - 5 - knowledge. Hence the obvious character of the 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 may have been. This general rule, however, does not preclude liability against a landowner for unnatural accumulations of ice and snow - - those which result from acts of man. Porter v. Miller (1983), 13 Ohio App.3d 93. See also Tyrrell v. Investment Assoc., Inc. (1984), 16 Ohio App.3d 47, where the headnote paragraph reads: 1. An occupier of premises owes a duty to business invitees to provide a reasonably safe ingress and egress. Such duty extends to protection against hazards from nonnatural accumulations of ice and snow in an area which differs markedly from surrounding conditions. Thus, the distinction between natural accumulation cases and unnatural accumulation cases is driven by which party has notice or superior knowledge of the existing dangerous condition of ice and snow. In this case, Dian slipped and fell on ice formed from water discharged onto her property from an allegedly defective downspout. This constitutes an unnatural accumulation of ice and snow because it developed from a man-made condition for which a landowner is generally liable; however, the record in this case reveals that Dian had prior knowledge of the icy condition formed by the water runoff from the downspout. In fact, Dian admitted in her deposition when she first moved into the building in 1990, she had observed water streaming out of the gutter onto her - 6 - walkway and she had also observed ice in that location. When asked in deposition how many times she had seen ice on the concrete walkway, Dian responded: A. Prior to January 17,1993 my best estimation I'll say 20 to 25 times. Q. And it's your testimony that each of those times the ice was there due to my client's gutters? A. Yes. Q. Have you ever spoken with my clients at any time? A. No, I have not. * * * Q. Did you ever complain to either John Dunlap or Brian Dunlap about the gutter at the 7990 property? A. No, I did not. I wasn't even aware of who owned the property. In contrast, the Dunlaps testified in deposition that they did not know about the condition. Hence, although Dian fell on an unnatural accumulation of ice and snow, her superior knowledge of the icy condition and the lack of notice to the Dunlaps compels a result more analogous to natural accumulation cases since her knowledge removes the sting of unfairness and places a duty on her to protect herself from the risks she appreciates. Thus, by analogy to Sidle, supra, we conclude Dian's superior knowledge of the icy condition removes the sting of unreasonableness from any danger that lies in it and the obvious character of the ice and snow formation together with - 7 - Dunlaps' lack of notice about it is incompatible with their negligence in causing it. Therefore, no genuine issues of material fact remain to be litigated and the Dunlaps are entitled to judgment as a matter of law. Accordingly, the trial court properly granted summary judgment in this case, and the assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee(s) recover of appellant(s) 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. SPELLACY, C.J., and NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL 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 journaliza- .