COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71015 : WILLIAM J. STRAZINSKY : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : TRI-COUNTY PROPERTIES, INC. ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT MAY 15, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 282121 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: LEON M. PLEVIN, ESQ. THOMAS J. DOWNS, ESQ. JOHN SCHLOSS, ESQ. 410 Lakeside Place Nurenberg, Plevin, Heller 323 Lakeside Avenue, West & McCarthy Cleveland, Ohio 44113 1st Floor Standard Building 1370 Ontario Street For Medina County Commissioners: Cleveland, Ohio 44113 MICHAEL K. LYONS, ESQ. Assist. Medina County Prosecutor 60 Public Square, 3rd Floor Medina, Ohio 44256 -2- PATRICIA ANN BLACKMON, P.J.: Plaintiff-appellant William Strazinsky appeals a decision from the trial court granting summary judgment in favor of defendant- appellee Tri-County Properties, Inc. Strazinsky assigns the following error for our review: THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT WHEN GENUINE ISSUES OF MATERIAL FACT REMAIN REGARDING DEFENDANTS' BREACH OF ITS ASSUMED DUTY TO REMOVE ICE AND SNOW FROM THE COMMON AREAS OF THE APARTMENT COMPLEX IN WHICH PLAINTIFF-APPELLANT RESIDES. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On Sunday, January 2, 1994, at approximately 9:00 AM, William Strazinsky was leaving his apartment building at Laurel Hill apartments when he fell on an icy landing and severely injured his knee. Strazinsky later filed a negligence action against Tri- County Properties (the building's maintenance company). Tri-County moved for summary judgment, alleging Strazinsky fell on a natural accumulation of snow, which they had no duty to remove. They argued a landowner could be liable for injuries resulting from a hazardous condition only when he has superior knowledge of such condition. In response to the motion for summary judgment, Strazinsky argued Tri-County undertook the responsibility to make sure the walkways were free of ice. He produced evidence that Tri-County's normal practice was to have one of its employees inspect the -3- building's high traffic areas at approximately 6:00 am. There- after, Tri-County would make a decision about whether it was necessary to apply salt to the areas. If salting was necessary, it was usually done within thirty to forty-five minutes after the decision was made so the process would be complete by the time tenants began to go outside. The evidence revealed that, although a Tri-County employee inspected the areas on the morning of Strazinsky's fall and were preparing to clear snow from the common areas, Strazinsky's landing had not been shoveled or salted before the accident. The common areas had been salted the previous day due to snowfall and an ice storm. During the night before Strazinsky's fall, the temperature dropped below freezing and the area received freezing drizzle and snow. As a result, the landing where Strazinsky fell was coated with a layer of snow over a layer of ice. On November 29, 1995, Strazinsky amended his complaint to add Laurel Hill Development Company (owner of the apartment building). Laurel Hill moved for summary judgment, adopting the arguments previously raised by Tri-County. The trial court denied the motion for summary judgment, concluding a factual question remained about whether Tri-County assumed the duty of clearing natural accumulations of ice and snow and whether such duty was breached. Strazinsky later amended his complaint to include the Medina County Board of Commissioners (his employer) and Klais & Co. Inc. (his health care provider) as defendants. The Medina County Board -4- of Commissioners filed a cross claim for subrogation and a counter- claim against Strazinsky for indemnification. Tri-County and Laurel Hill filed a motion for reconsideration of their motion for summary judgment. On May 31, 1996, the trial court granted the motion for reconsideration and entered final judgment in favor of Tri-County and Laurel Hill, stating there was no just reason for delay. The court also stayed the claims by and against the Medina County Board of Commissioners until the resolution of the appeal involving Tri-County and Laurel Hill. This appeal followed. Strazinsky assigns error in the trial court's grant of summary judgment, arguing that genuine issues of material fact remained regarding Tri-County's breach of its assumed duty to remove ice and snow from the common areas of Strazinsky's apartment building. While conceding that, generally, a landowner has no duty to remove normal accumulations of ice and snow, Strazinsky argues that a landlord may obligate himself to perform such duty by an express contract or by a contract implied by a course of conduct. Summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts, and stipulations of fact show there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Civ.R. 56(C). When evaluating a motion for summary judgment, the trial court must construe the evidence most strongly in favor of the non-movant and resolve doubts in his favor. Id. Murphy v. Reynoldsburg (1992), 65 Ohio -5- St.3d 356, 358-359. Once the motion for summary judgment is filed, the nonmovant may not rest on his pleadings, but must produce evidence on any issue for which he bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111. R.C. 5321.04(A)(3) provides that a landlord who is a party to a rental agreement shall keep all common areas of the premises in a safe and sanitary condition. However, this statute does not impose a duty on landlords to remove natural accumulations of ice and snow. LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 212. Strazinsky argues Tri-County's three year pattern of removing snow and applying ice to the building's common areas gave rise to a duty to keep the common areas free of snow. In support of his argument, Strazinsky cites Oswald v. Jeraj (1946), 146 Ohio St. 676 and Espurvoa v. Calhoun Investment Co. (January 23, 1992), Franklin App. No. 91AP-406, unreported. In Oswald, a tenant was injured in a fall on accumulated ice and snow outside his apartment building. The Oswald court held, when a landowner has established a pattern of removing snow from common areas and the landowner fails to remove snow and ice for over ten hours before the plaintiff's fall, an issue of fact exists as to whether the landowner was negligent. In Espurvoa, there was conflicting evidence about how long the snow remained on the grounds before it was cleared. The plaintiff presented evidence that the snow remained on the ground for up to twenty-four hours. Construing the evidence in favor of the -6- plaintiff, the court concluded that there was a genuine issue of fact as to whether the landowner breached its duty of care. In this case, the deposition testimony of Dennis Cahill revealed Tri-County's generally accepted practice was to inspect the common areas about 6:00 am to determine if salting was necessary. Cahill stated the policy was the same on Saturdays and Sundays, but that the inspection would probably take place a little later on holidays. Snow removal and salting was usually commenced within a half hour after the inspection was completed. However, Cahill also stated that, normally, it would take up to forty-five minutes before snow removal and salting would begin at Strazinsky's building. The evidence is undisputed that, on the day Strazinsky fell, Tri-County employees were on their way to get salt for the common areas shortly before 9:00 am when Strazinsky fell. The evidence showed that, as a general rule, inspection of the premises took place at 6:00 am. Snow removal and salting of the common areas outside Strazinsky's building would usually began approximately thirty to forty-five minutes later -- 6:30 to 6:45 am. On holidays, the inspection could begin as late as 8:00 am which would mean that, on holidays, snow removal and salting would not begin at Strazinsky's building until 8:30 to 8:45 am. The evidence reveals the Strazinsky's fall took place on Sunday, January 2, 1994, during the New Year's Day holiday weekend. The evidence indicates that, at the time of Strazinsky's fall, Tri- County employees had completed their inspection of the common areas -7- and were on their way to get salt and begin the snow-removal process. Ultimately, the common areas were shoveled and salted. Tri-County's employees were, at most, slightly over two hours late in commencing the snow removal process. This is in sharp contrast to the situations in Oswald and Espurvoa where there were delays of ten hours and twenty-four hours, respectively. In Yanda v. Consolidated Management, Inc. (August 16, 1990), Cuyahoga App. No. 57268, unreported, we opted "not to discourage the diligence of landlords to exercise ordinary care in undertaking to clear their properties of ice and snow in a reasonable manner." In this case, in light of the holiday weekend and the relatively short delay in commencing the snow removal process, we conclude no reasonable factfinder could find Tri-County breached its duty to remove ice and snow from the common areas outside Strazinsky's apartment. Consequently, we affirm the decision of the trial court. Judgment 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. Exceptions. O'NEILL,* J., CONCUR. KARPINSKI, J., CONCURS IN JUDGMENT ONLY PATRICIA ANN BLACKMON PRESIDING JUDGE (*SITTING BY ASSIGNMENT: JOSEPH E. O'NEILL, RETIRED JUDGE OF THE 7TH DISTRICT COURT OF APPEALS.) 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 .