COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70087 CRYSTAL VALENTINO : ACCELERATED DOCKET : : JOURNAL ENTRY Plaintiff-Appellant : : and : -vs- : OPINION : DENNY'S RESTAURANT : PER CURIAM : : Defendant-Appellee : : DATE OF ANNOUNCEMENT JUNE 6, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 284981 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Andrew M. Wargo, Esq. John L. Sayler, Esq. Reid, Berry & Stanard 1662 Perkwood Road 1300 Illuminating Building Lakewood, Ohio 44107 55 Public Square Cleveland, Ohio 44113 -2- PER CURIAM: Plaintiff-appellant, Crystal Valentino, appeals from the grant of summary judgment in favor of defendant-appellee, Denny's Restaurant, by the Court of Common Pleas of Cuyahoga County. Appellant submits that genuine issues of material fact remain for litigation regarding her slip-and-fall action. A careful review of the record compels affirmance. Appellant arrived at the Denny's Restaurant ("Denny's") located at 6850 Brookpark Road, Cleveland, Ohio, in the early morning hours of February 21, 1993. During the next couple of hours, she discussed the current weather conditions with the manager and a busboy. Although she overheard the manager instruct an employee to salt the area outside the front door, the salting was not started by the time appellant left the restaurant. Appellant slipped and fell, sustaining injury, as she exited the restaurant. In a motion for summary judgment, Denny's argued that since the condition outside the door was not an "unnatural accumulation of ice and snow," as alleged by appellant, it was under no duty to protect appellant from a natural accumulation. Appellant countered in an opposing brief, that a viable cause of action existed because "defendant, through its employees, did not remedy a known dangerous condition, to plaintiff's detriment." The trial court granted Denny's motion for summary judgment on December 12, 1995. The court reasoned that appellant failed to produce any evidence which demonstrated that her fall was caused by an unnatural accumulation of ice and snow. -3- This accelerated appeal followed with appellant claiming as error: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT-APPELLEE WHEN THERE WERE GENUINE ISSUES OF MATERIAL FACT II. THE TRIAL COURT ERRED IN FAILING TO VIEW THE FACTS IN A LIGHT MOST FAVORABLE TO PLAINTIFF-APPELLANT III. DEFENDANT-APPELLEE OWED A DUTY OF ORDINARY CARE TO INSURE THE SAFETY OF PLAINTIFF-APPELLANT WHO WAS ENTITLED TO RELY ON THE APPELLEE'S REPRESENTATIONS AND KNOWLEDGE OF A DANGEROUS CONDITION Appellant basically asserts that the condition outside the entry was "unnatural" insofar as Denny's did nothing to remedy the condition. Appellant thus challenges the trial court's grant of summary judgment in these assignments of error based upon Denny's failure to warn about or remedy the known icy condition of its entry. As a business invitee, Denny's owed appellant a duty of ordinary care in maintaining the premises in a reasonably safe condition. This duty of care did not require Denny's to insure her safety. See Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203; Keiser v. Giant Eagle, Inc. (1995), 103 Ohio App.3d 173. Therefore, if appellant slipped and fell on a natural accumulation of ice and snow, Denny's is not liable because it had a right to assume that appellant would appreciate the risk presented and take action to protect herself. See Brinkman v. Ross (1993), 68 Ohio St.3d 82; LaCourse v. Fleitz (1986), 28 Ohio St.3d 209; Sidle v. Humphrey (1968), 13 Ohio St.2d 45; Weaver v. Standard Oil Co. (1989), 61 Ohio App.3d 139. -4- Consequently, in order for appellant to establish a breach of duty owed toward her, she had to provide evidence that the ice which caused her fall was unnatural. See Lopatkovich v. Tiffin (1986), 28 Ohio St.3d 204. The evidence had to show that some intervening act of Denny's created the unnatural condition, which by definition means "man-made" or "man-caused." See Myers v. Forest City Ent., Inc. (1993), 92 Ohio App.3d 351; Tyrell v. Investment Assoc., Inc. (1984), 16 Ohio App.3d 47; Porter v. Miller (1983), 13 Ohio App.3d 93. The record, however, fails to show the existence of a genuine issue of material fact regarding an "unnatural" condition which, according to appellant, is Denny's unsalted sidewalk/entryway. "'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.'" Sidle, 47, quoting with approval, Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, paragraph two of the syllabus. See Lopatkovich v. Tiffin (1986), 28 Ohio St.3d 204. Moreover, an owner's/occupier's failure to remove ice and snow only constitutes negligence when the owner/occupier knows or should know a condition exists which is substantially more dangerous than can be anticipated by the invitee. Mikula v. Slavin Tailors (1970), 24 Ohio St.2d 48, paragraph five of the syllabus; Debie, paragraph one of the syllabus. Appellant testified at deposition -5- that she was aware of the weather conditions that day, including reports of "black ice." She thus also fails to establish that the condition was substantially more dangerous than should have been anticipated by her. See Bowins v. Euclid General Hosp. (1984), 20 Ohio App.3d 29 (if owner and invitee are equally aware of dangerous condition, and the invitee voluntarily exposes herself to it, the owner will not be liable); compare, Presley v. Norwood (1973), 36 Ohio St.2d 29 (evidence of "hazardous condition," i.e., water covering grease or oil, required jury instruction on notice); Weaver (summary judgment improper where evidence indicated a steel plate could have acquired an unnatural accumulation of ice); Tyrrell (directed verdict improper where evidence existed that defendant drug store was aware of hazard created by dripping canopy); Newman v. Ohio State Univ. (1991), 62 Ohio Misc.2d 162 (defendant had no duty to remove or warn about natural accumulation of ice on steps, regardless of customary removal, when condition not substantially more dangerous than should have been anticipated). In conclusion, appellant failed to demonstrate a genuine issue of material fact exists with regard to whether Denny's breached its duty of ordinary care in maintaining the premises in a reasonably safe condition. Appellant offers no legal support for her theory that Denny's representation that it was going to salt the walkway somehow altered its liability. The trial court thus properly granted summary judgment in favor of Denny's. Osborne v. Lyles (1992), 63 Ohio St.3d 326; Wing v. Anchor Media, Ltd. of Texas -6- (1991), 59 Ohio St.3d 108; Johnson v. New London (1988), 36 Ohio St.3d 60. Appellant's assignments of error are accordingly overruled. Judgment affirmed. -7- 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 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. SARA J. HARPER, PRESIDING JUDGE TIMOTHY E. MCMONAGLE, JUDGE JOHN T. PATTON, 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 time period for review will begin to run. .