COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70133 RICHARD N. MITCHELL, : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION : MIDTOWN APARTMENTS CO., et al., : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-280302 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: FREDERICK D. KANTER 27600 Chagrin Blvd., Suite 360 Cleveland, Ohio 44122 For Appellee Midtown CONNIE M. HORRIGAN Apartment Complex: WILLIAM H. BAUGHMAN, JR. JAMES L. McCRYSTAL, JR. GLENN D. SOUTHWORTH Weston, Hurd, Fallon, Paisley. & Howley 2500 Terminal Tower Cleveland, Ohio 44113 For Appellee Bob Miller JOHANNA M. SFISCKO Landscaping: 55 Public Square, Suite 1100 Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: Richard N. Mitchell appeals the judgment of Common Pleas Court granting summary judgment in favor of Midtown Apartment Co. and its management company, Forest City Enterprises (hereafter Midtown) and also granting summary judgment in favor of Bob Miller Landscaping, on Mitchell's claim for injuries sustained when he slipped and fell in the Midtown Apartments parking lot in Parma. On November 15, 1992, at 10:45 p.m., Mitchell arrived for his regularly scheduled poker game at the Midtown Apartments. After parking his car he walked across the parking lot stepping around spots which had become icy and impacted with snow and entered the building. Mitchell finished playing poker at 5:30 a.m. the next morning and exited the building with his friend, Alan Firestein. While walking across the parking lot, Mitchell noticed the pavement had a film or glaze of thin ice covering it and warned Firestein to be careful. Thereafter, Mitchell slipped, fell backward, and was knocked unconscious. An ambulance, then, transported him to the hospital where he received stitches on the back of his head. Almost two years later, Mitchell sued Midtown and he also sued Bob Miller Landscaping, the snow removal contractor at the building. In response, both Midtown and Miller filed motions for summary judgment which the trial court granted. Mitchell now appeals assigning the following as error for our review: THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO EACH OF DEFENDANTS-APPELLEES HEREIN. - 3 - Mitchell argues the trial court erred in granting summary judgment because a genuine issue of material fact exists as to whether the appellees breached their duty of care owed to him where the conditions of the parking lot, combined with the slope of that parking lot, defective plowing and unsalted condition of the pavement, created an unnatural hazardous condition. Midtown and Miller contend the trial court properly granted summary judgment because they are not liable for injuries caused by natural accumulations of snow and ice or from an open and obvious dangerous condition. Thus, the issue presented for our review is whether the trial court properly granted summary judgments in this case. Pursuant to Civ. R. 56, summary judgment is proper when, after construing the evidence most strongly in favor of the non- moving party, the court determines that no genuine issues of material fact exist, the moving party is entitled to judgment as a matter of law, and reasonable minds could come to but one conclusion, which is adverse to the non-moving party. See Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. However, once shown, Civ. R. 56(E) states: "a nonmovant may not rest upon the mere allegations or denials of his - 4 - pleadings but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. With this standard in mind, we consider Mitchell's claims against Midtown for premises liability and against Miller for negligent snow plowing. We begin our analysis of the premises liability claim by recognizing that the parties generally agree Mitchell entered the premises as a business invitee. As such, under Ohio law, Midtown owed him a duty to maintain the premises in a reasonably safe condition and to warn him of any latent dangers. Paschal v. Rite Aid Pharmacy, Inc. (1985) 18 Ohio St.3d 203. Despite this general duty, however, Ohio law further recognizes that the owner of the premises is not an insurer against all forms of risk. Id. For instance, as the Ohio Supreme Court explained in its first syllabus paragraph to Sidle v. Humphrey (1968), 13 Ohio St.2d 45: [A]n occupier of premises is under no duty to protect a business invitee against dangers which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them. In this case, the record reflects Mitchell testified in his deposition that upon exiting the building he saw that a glaze or film of ice covered the entire parking lot, that he knew that the area looked "treacherous and horrendous," and that he warned his friend of the condition. (Mitchell Deposition pp. 22-30). - 5 - After reviewing this evidence, and based on Mitchell's own testimony, we conclude that Mitchell recognized the danger of ice in the Midtown parking lot before he fell. Thus, under Sidle, supra, Midtown was under no duty to protect him from known dangers. Accordingly, no genuine issue of material fact exists on the issue of premises liability, Midtown is entitled to judgment as a matter of law, and reasonable minds could come to but one conclusion, and that conclusion is adverse to Mitchell. Temple, supra. Therefore, the trial court properly granted summary judgment in favor of Midtown on the issue of premises liability. We cannot resolve the claim against Miller on the basis of Midtown's non-liability because the Ohio Supreme Court held in its syllabus to Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642: An independent contractor who creates a dangerous condition on real property is not relieved of liability under the doctrine which exonerates an owner or occupier of land from the duty to warn those entering the property concerning open and obvious dangers on the property. Therefore, we will separately address the issue of negligent snow plowing. This court has previously addressed negligent snow plowing claims and has held the techniques for removing snow and ice from large commercial parking lots are matters which require the introduction of expert testimony. See Bowins v. Euclid General - 6 - Hosp. Assoc. (1984), 20 Ohio App.3d 29 and Madvid v. City of South Euclid (March 10, 1994), Cuyahoga App. No. 64767, unreported. In its motion for summary judgment, Miller argued it did not negligently plow the Midtown parking lot and, in fact, presented affidavit evidence that it did not plow the Midtown lot during the hours Mitchell attended his poker game inside the building. In response, Mitchell stated that he heard the parking lot being plowed while he played cards, but acknowledged that he did not see the plows, and he provided no evidence that Miller plowed the parking lot when he was in the apartment. Furthermore, Mitchell provided no expert testimony on the issue of negligent snow plowing as required by Bowins, supra. Under Civ. R. 56(E) Mitchell, as the nonmovant, may not rest upon the mere allegations or denials of his motion in opposition but must set forth specific facts showing there is a genuine issue for trial. In this regard, Mitchell has neither shown that Miller performed the snow plowing he heard, nor provided expert testimony on his allegation of negligent plowing. Therefore, even after construing the evidence most strongly in favor of Mitchell, we conclude that no genuine issue of material fact exists on the issue of negligence, Miller is entitled to judgment as a matter of law, and reasonable minds could come to but one conclusion, and that conclusion is adverse to Mitchell. Temple, supra. Thus, the trial court properly granted summary judgment - 7 - in favor of Miller on the negligent snow plowing claim, 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 PATTON, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .