COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70780 WALTER KOLOSIONEK, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION BP AMERICA, INC. : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-293302 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: A. SCOTT FROMSON (#0037889) SUSAN PRIEST RICHLAK (#0063901) A. SCOTT FROMSON & ASSOCIATES, INC. 160 SIGNATURE SQUARE I 25201 CHAGRIN BOULEVARD CLEVELAND, OHIO 44122 For Defendant-Appellant: ROBERT C. McCLELLAND (#0012352) RADEMAKER, MATTY, McCLELLAND & GREVE 55 PUBLIC SQUARE - SUITE 1775 CLEVELAND, OHIO 44113 - 2 - SPELLACY, J.: Plaintiffs-appellants, Walter and Zosia Kolosionek, ("appellants"), appeal the order of the trial court granting summary judgment in favor of defendant-appellee, BP America, Inc., ("appellee"). Appellants assign the following error for our review: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WHEN THE EVIDENCE BEFORE THE TRIAL COURT SHOWS THAT THERE ARE GENUINE ISSUES OF MATERIAL FACT AND THAT DEFENDANT IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. Finding appellants' appeal to lack merit, the judgment of the trial court is affirmed. I. On January 25, 1994, at 5:30 a.m., appellant Walter Kolosionek ("Mr. Kolosionek"), while on his way to work, stopped at appellee's BP America, Inc. gas station located at 5206 State Road, Parma, Ohio. While at the gas station, Mr. Kolosionek pumped his gas and proceeded to pay the cashier. After paying the cashier, Mr. Kolosionek, upon returning to his vehicle, slipped and fell against the concrete surrounding the gas pump. As a result of his fall, Mr. Kolosionek fractured his right hip. On August 3, 1995, appellants filed their complaint in the Cuyahoga County Court of Common Pleas alleging that appellee negligently failed to maintain the premises at the gas station. Appellants also set forth a claim for loss of consortium. On February 29, 1996, appellee filed a motion for summary judgment. - 3 - Appellants filed their brief in opposition to appellee's motion for summary judgment on May 1, 1996. On May 9, 1996, the trial court granted appellee's motion for summary judgment. II. In their sole assignment of error, appellants contend that the trial court erred in granting summary judgment in favor of appellee. In particular, appellants assert that Mr. Kolosionek's injuries were caused by the unnatural accumulation of ice and snow and/or the improper salting and/or snow removal techniques employed by appellee. In reviewing a lower court's decision granting a motion for summary judgment, appellate courts must follow the standard contained in Civ.R. 56(C) which provides as follows: Summary judgment shall be rendered forthwith if the [evidence], timely filed in the action, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. *** A summary judgment shall not be rendered unless it appears from such evidence *** and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence *** construed most strongly in his favor. An appellate court must independently review the record to determine if summary judgment was appropriate. Therefore, an appellate court affords no deference to the trial court's decision while making its own judgment. Schwartz v. Bank One, Portsmouth, - 4 - N.A. (1992), 84 Ohio App.3d 806, 809; Morehead v. Conley (1991), 75 Ohio App.3d 409, 411-412. In Ohio, the rule relieving a storeowner from liability to business invitees for open and obvious dangers is rooted in the case of Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraph one of the syllabus. The rule provides that an owner or occupier of land owes no duty to warn invitees of open and obvious dangers on the property. Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. Its application has been limited generally to cases in which it is held that, because of an invitee's appreciation of the related dangers, owners and occupiers of land owe no duty to remove or warn them of natural accumulations of ice and snow on sidewalks or in parking lots. See Brinkman v. Ross (1993), 68 Ohio St.3d 82, 83-85. The rationale is that an open and obvious danger itself serves as a warning, and that "the owner or occupier may reasonably expect that persons entering the premises will discover those dangers and take the appropriate measures to protect themselves." Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644. Exceptions to the general rule set forth supra, however, exist. If an occupier is shown to have had notice, actual or implied, that a natural accumulation of snow and ice on his or her premises has created a condition substantially more dangerous than a business invitee should have anticipated by reason of the knowledge of conditions prevailing generally in the area, negligence may be proven. Debie v. Cochran Pharmacy-Berwick, Inc. - 5 - (1967), 11 Ohio St.2d 38. Also, where an owner is actively negligent in permitting or creating an unnatural accumulation of ice and snow, the no-duty rule is inapplicable. Lopatkovich v. City of Tiffin (1986), 28 Ohio St.3d 204. Therefore, in order to prevail, appellants must produce evidence that either the natural accumulation of snow and ice was substantially more dangerous than Mr. Kolosionek could have appreciated and that appellee knew of this or should have known this, or that the appellee was actively negligent in permitting or creating an unnatural accumulation of ice and snow. We will consider each of these arguments in turn. Appellants submit that the ice upon which Mr. Kolosionek fell was substantially more dangerous than Mr. Kolosionek could have appreciated. In particular, appellants contend that appellee's improper salting techniques and failure to salt and shovel around the pumping station created a condition substantially more dangerous to its business invitees than they should have reasonably anticipated from their knowledge of the weather conditions prevailing in the area. Appellant next submits the snow and ice surrounding appellee's pumping station, though originally a natural accumulation, was transformed into an unnatural accumulation of ice, due to appellee's improper removal of the snow and ice from the area surrounding the pumping station. In particular, appellants argue that appellee improperly removed snow from the area surrounding the - 6 - pumping station by pushing the snow into piles which were left to melt and flow back into the pumping areas, only to refreeze under the canopy near the stations. Mr. Kolosionek, during his depositional testimony, stated that on January 25, 1994, he was aware that the ground surrounding the pumping station was icy and that a thin layer of snow was covering the ice on the ground. Mr. Kolosionek also stated that no plowing had been done at appellee's pumping station. Furthermore, Mr. Kolosionek testified that there were no piles of snow or ice around him at the time he was pumping his gas. Thus, Mr. Kolosionek certainly was on notice that appellee had not cleared the area surrounding the pumping station of snow and ice. Moreover, Mr. Kolosionek admitted that he was aware of the accumulation of ice and snow in the area surrounding the pumping station prior to his fall. Therefore, because of Mr. Kolosionek's own admissions of his knowledge of the conditions prevailing generally in the area that day, we hold, as a matter of law, that the snow and ice surrounding the pumping station was not a substantially dangerous condition that Mr. Kolosionek would not anticipate. Since no substantially dangerous condition existed, appellee's knowledge or lack of knowledge is immaterial. After construing the evidence most favorably to the appellants, we find the record discloses no genuine issue of material fact. Thus, appellee is entitled to judgment as a matter - 7 - of law. Accordingly, appellants' sole assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellants 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. DAVID T. MATIA, P.J. and ANN DYKE, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .