COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70199 : THOMAS KARCHER, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION ZEISLER-MORGAN PROPERTIES, LTD. : dba ROCKY RIVER SHOPPING CENTER : ASSOCIATES, ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 26, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 285191 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Michael L. Eisner Lisa M. Gerlack FRIEDMAN, DOMIANO & SMITH CO., L.P.A. 600 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For defendant-appellee, Timothy X. McGrail Zeisler-Morgan Properties, Ltd. KITCHEN, DEERY & BARNHOUSE dba Rocky River Shopping 1100 Illuminating Building Center Associates: 55 Public Square Cleveland, Ohio 44113 For defendant-appellee, Michael F. Farrell Timothy Meyer dba Executive One Cleveland Center Building Maintenance: 1375 East Ninth Street Suite 1920 Cleveland, Ohio 44114 -3- NAHRA, P.J.: Appellant, Thomas Karcher ("Karcher"), appeals the grant of summary judgment to co-defendants Zeisler-Morgan Properties, Ltd., ("Zeisler") and Timothy Meyer d.b.a. Executive Building Maintenance ("Executive"). For the following reasons, we affirm. On March 6, 1993, Karcher drove to a movie theatre located in a shopping mall. Between 7:00 p.m. and 7:15 p.m., he parked his vehicle outside the movie theatre in the mall parking lot (the "Lot"). Defendant Zeisler owned and managed the Lot. Karcher testified on deposition that when he arrived, the Lot "wasn't wet" and that it was "basically generally dry." He indicated the presence of "little isolated patches of water here or there." When Karcher returned to his car after watching a movie, he fell on a patch of ice. The resulting injuries were severe. Karcher filed suit against Zeisler and Executive. Executive was hired by Zeisler to remove snow from the Lot for the winter season. Plaintiff alleges: 1) that at the direction of Zeisler, Executive plowed snow into piles at the "high end" of the Lot; 2) that on March 6, 1993, the snow piles partially melted; 3) that the resulting water flowed onto the Lot's surface which sloped back towards the shopping complex and the location of Karcher's fall; 4) that the water on the Lot's surface froze; and, 5) that the ice which formed caused plaintiff's fall. Based upon this theory, plaintiff's Amended Complaint recites four counts. The first count alleges various acts of negligence including creating a hazardous condition, failing to inspect for a -4- hazardous condition, and failing to warn about a hazardous condition. The remaining counts allege inter alia, respondeat superior, negligent hiring and negligent infliction of emotional distress. After discovery, both Zeisler and Executive moved for summary judgment. The trial court granted judgment in favor of both defendants. Karcher appeals and asserts two assignments of error. I. Appellant's first assignment of error states: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING DEFENDANT-APPELLEE ZEISLER-MORGAN'S MOTION FOR SUMMARY JUDGMENT BECAUSE THE EVIDENCE, DEMONSTRATED THAT THE ISSUE OF NEGLIGENCE WAS IN GENUINE DISPUTE. This court reviews de novo a trial court's grant of summary judgment. Palmieri v. Deaconess Hospital (June 13, 1996), Cuyahoga App. No. 70067, unreported. Civ.R. 56(C) provides that a summary judgment may be granted only after the trial court determines: 1) no genuine issues 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 but to 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. [Citations omitted.] LaCava v. Walton (June 13, 1996), Cuyahoga App. No. 69190, unreported. The movant must demonstrate that no genuine issue of material fact remains requiring trial. Palmieri, supra. Doubts must be resolved in favor of the nonmoving party. Id. The nonmoving party must produce evidence on any issue for which that -5- party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095. "[A] nonmovant may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing there is a genuine issue for trial." Id., quoting, Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 629 N.E.2d 513. Generally, "[b]usiness owners have a duty to provide a reasonably safe ingress and egress for business invitees." Garson v. Fast Food Operations, Inc. (July 29, 1993), Cuyahoga App. No. 64923, unreported (internal quotation omitted). However, there is no duty owed to an invitee to remove natural accumulations of ice and snow. Kirschnick v. Jilovec (Aug. 31, 1995), Cuyahoga App. No. 68037, unreported. This rule is subject to an exception. [W]here the ice or snow develops a condition substantially more dangerous to an invitee than he could reasonably anticipate, and the owner knew or should have known this, the owner's failure to remove the ice or snow may constitute negligence. Id., quoting, Bowins v. Euclid General Hospital (1984), 20 Ohio App.3d 29, 31; Nawal v. The Clearview Inn, Inc. (Aug. 4, 1994), Cuyahoga App. No. 65796, unreported. Appellant provided a description of the Lot on the night in question. Karcher testified that on arrival the Lot was dry with isolated patches of water and ice. Appellant testified that after the movie, a "super thin layer of ice" covered the surface of the Lot and that the Lot appeared to be damp. The responding -6- emergency medical service unit's report indicated that "black ice" extensively covered the Lot. Ohio winters pose such well recognized dangers. See Brinkman v. Ross (1993), 68 Ohio St.3d 82, 85, 623 N.E.2d 1125. Wet surfaces freeze and form ice. The record does not support a conclusion that the Lot posed a substantially more dangerous condition than a reasonable person could appreciate. Indeed, it is well within the common experience of most people to appreciate the inherent risk in traversing a wet parking lot on a cold winter evening. Moreover, the condition of the Lot presented an open and obvious danger. As stated by the Ohio Supreme Court in Sidle v. Humphrey (1968), 13 Ohio St.2d 45, the scope of premises liability falls well short of including liability for open and obvious dangers. [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. Id. Accordingly, appellant failed to produce evidence sufficient to survive summary judgment. Finally, appellant's allegation that the condition of the Lot was unnatural is not supported by the record. Indeed, the record is devoid of any evidence suggesting that the Lot's condition was caused by the allegedly negligent snow removal technique. Rather, the evidence demonstrates that the condition of the Lot was the result of natural forces. Appellant testified -7- that when he arrived at the Lot it was dry despite an entire day of above freezing temperatures. Rather than surface water runoff covering the entire Lot, there were only isolated patches of water. The evidence indicates that climatological conditions were ripe for "glazing." These uncontroverted facts demonstrate that plaintiff's theory with respect to the creation of the extensive icing condition is incorrect. As conceded during oral argument, appellant's claim hinges on establishing that in the two hours he watched the movie, the entire thaw-migrate-freeze cycle took place. The record does not support such a conclusion. Accordingly, appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN GRANTING APPELLEE EXECUTIVE BUILDING'S MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUE (sic) OF MATERIAL FACT EXISTED AND REASONABLE MINDS COULD REACH DIFFERENT CONCLUSIONS. As discussed previously, appellant failed to demonstrate any causal relationship between the snow removal technique and the condition of the Lot. Accordingly, summary judgment was properly granted on count two. Affirmed. -8- 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 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. PATTON, J., CONCURS. KARPINSKI, J., CONCURS IN JUDGMENT ONLY. JOSEPH J. NAHRA (See attached Concurring PRESIDING JUDGE Opinion.) 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 of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70199 : THOMAS KARCHER, : : : Plaintiff-Appellant : : CONCURRING v. : : OPINION ZEISLER-MORGAN PROPERTIES, LTD. : dba ROCKY RIVER SHOPPING CENTER : ASSOCIATES, ET AL., : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 26, 1996 KARPINSKI, J., CONCURRING IN JUDGMENT ONLY: I respectfully concur in judgment only, because I do not see .