COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71629 PATRICIA BAILEY, ET AL. : : ACCELERATED CASE Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION ST. VINCENT DePAUL CHURCH, : ET AL. : : PER CURIAM Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: MAY 8, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-283911 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: KEVIN TOOHIG (#0067447) MARK J. OBRAL (#0006019) ANTHONY L. ANIA (#0055161) DONALD E. CARAVONA & ASSOCIATES 1900 Terminal Tower Cleveland, Ohio 44112 For Defendants-Appellees: JEFFREY A. SCHENK (#0052020) QUANDT, GIFFELS AND BUCK CO., L.P.A. 800 Leader Building Cleveland, Ohio 44114 - 2 - PER CURIAM: Plaintiffs-appellants, Patricia and Herbert Bailey ("appellants"), appeal an order of the trial court granting summary judgment in favor of defendants-appellees, St. Vincent DePaul Church and the Catholic Diocese of Cleveland ("appellees"). Appellants assign the following errors for our review: I. THE COURT OF COMMON PLEAS ERRED IN GRANTING APPELLEES' MOTIONS FOR SUMMARY JUDGMENT PURSUANT TO RULE 56 OF THE OHIO RULES OF CIVIL PROCEDURE. II. THE DEFENDANTS WERE NEGLIGENT IN FAILING TO WARN OF, REMEDY OR ELIMINATE THE HAZARDOUS CONDITION ON THEIR PREMISES. Finding appellants' appeal to lack merit, the judgment of the trial court is affirmed. I. On February 24, 1993, appellant Patricia Bailey ("Mrs. Bailey"), was on her way to appellee St. Vincent DePaul Church ("St. Vincent DePaul") located at 13400 Lorain Avenue, Cleveland, Ohio to attend a 7:00 p.m. church service. While approaching the church, Mrs. Bailey slipped and fell on ice which had accumulated on the walkway located between the parking lot and the side entrance of St. Vincent DePaul church. As a result of her fall, Mrs. Bailey injured her right knee. On January 26, 1995, appellants filed a complaint with the Cuyahoga County Court of Common Pleas alleging that appellees negligently failed to maintain the sidewalks and premises at St. Vincent DePaul Church. Appellants also set forth a claim for loss - 3 - of consortium. On August 7, 1996, appellees filed a joint motion for summary judgment. Appellants filed their brief in opposition to appellees' motion for summary judgment on September 16, 1996. On October 25, 1996, the trial court granted appellees' motion for summary judgment. II. For purposes of this appeal, appellants' two assignments of error will be addressed together. In particular, appellants assert that Mrs. Bailey's injury was caused by the unnatural accumulation of ice and snow and/or St. Vincent DePaul's negligent maintenance of the church gutters. 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. It is well-settled that there is no general duty upon an occupier of land to warn invitees on the property 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. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, syllabus; Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. "The dangers from natural accumulations of ice and snow are ordinarily so obvious and apparent that an occupier of [the] premises may reasonably expect that a business invitee on the premises will discover those dangers and protect himself against them." Id., syllabus at two. 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. Therefore, an owner and occupier has no duty to remove natural accumulations of ice and snow from private walks and steps on the premises. Id., syllabus at three. Exceptions to the general rule stated above 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 - 5 - conditions prevailing generally in the area, negligence may be proven. Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38. A second exception to the no-duty rule exists where the owner is actively negligent in permitting or creating an unnatural accumulation of ice and snow. Lopatkovich v. City of Tiffin (1986), 28 Ohio St.3d 204. In order to prevail on their asserted claims, appellants must produce evidence that either the natural accumulation of snow and ice was substantially more dangerous than Mrs. Bailey could have appreciated and that appellees knew of this or should have known this, or that appellees were actively negligent in permitting or creating an unnatural accumulation of ice and snow. In the present case, appellants submit that the ice on which Mrs. Bailey fell was substantially more dangerous than Mrs. Bailey could have appreciated. In particular, appellants contend that icicles hanging from the church which would thaw and then refreeze on the sidewalk created a condition substantially more dangerous than the invitees should have reasonably anticipated from their knowledge of the weather conditions prevailing in the area. Mrs. Bailey, during her depositional testimony, stated that she had looked at the sidewalk prior to her fall and knew that it had been shoveled. However, Mrs. Bailey stated that she did not see the ice on which she fell. Mrs. Bailey further testified that she had seen icicles hanging from the church on the night of her fall which were similar to icicles which had formed during all of - 6 - the winters she had attended church at St. Vincent DePaul. Therefore, because of Mrs. Bailey's own admissions of her knowledge of the conditions prevailing generally in the area that day, and on numerous occasions prior to her fall, we do not find that the ice on which Mrs. Bailey fell was a substantially dangerous condition that she would not anticipate. Next, appellants submit that the defective condition of the roof and/or gutters and the placement of the sidewalk directly under a known drainage area as well as failure to salt and/or re- salt created an unnatural accumulation of ice. This court in Hoenigman, et al. v. McDonald's Corp, et al. (January 11, 1990), Cuyahoga App. No. 56010, unreported, stated that: "Unnatural" accumulation must refer to causes and factors other then the inclement weather conditions of low temperature, strong winds and drifting snow, i.e. to causes other than by the meteorological forces of nature. By definition, then, the "unnatural" is the man-made, the man-caused * * * . * * * [S]ince the build-up of snow and ice during winter is regarded as a natural phenomenon, the law requires, at the very least, some evidence of an intervening act by the landlord (or a property owner) that perpetuates or aggravates the pre-existing, hazardous presence of ice and snow. Appellants contend that an unnatural accumulation of ice was formed as a result of water that fell off of the church's roof. Appellants asserted that the accumulation was unnatural because St. Vincent DePaul negligently maintained the roof and the gutters. - 7 - Appellants, however, have presented no evidence of a defective roof or gutters. In fact, Mr. John McLoughlin, the head custodian at St. Vincent DePaul at the time Mrs. Bailey fell, stated during his depositional testimony that never, in twenty-six years, did he receive a complaint regarding the area where Mrs. Bailey fell. (Depo., John McLoughlin, p. 35). Further, Mr. McLoughlin testified that no concerns regarding the maintenance of the church gutters were ever raised. (Depo., John McLoughlin, p. 35). Mr. McLoughlin's testimony was corroborated by the depositional testimony of Mr. Timothy Rohde, a part-time custodial supervisor at St. Vincent DePaul. Mr. Rohde also testified that he was never aware of a problem with the church gutters leaking. (Depo. Timothy Rohde, p.22). Moreover, no evidence was presented that water from the roof caused the fall. In the absence of evidence presented regarding the land- owner's negligence, the freeze and thaw cycle accompanying the winter climate in northeastern Ohio remains a natural accumulation. McDonald's, supra at 8-9. Thus, the argument that the ice on which Mrs. Bailey fell was unnatural is purely speculative. Further, there is no evidence that the appellees in any way contributed to the transformation of a natural accumulation of snow and ice to an unnatural one. Id. Moreover, "'[t]he failure to identify or explain the reason for a fall while a plaintiff is on property owned by a defendant precludes a finding that the defendant acted - 8 - negligently.'" Id., citing Mines v. Russo's Stop & Shop (February 23, 1989), Cuyahoga App. No. 55073, unreported. After construing the evidence most favorably to the appellants, this court finds that the record discloses no genuine issue of material fact. Thus, appellees were entitled to judgment as a matter of law. Accordingly, both of appellants' assignments of error are overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellants 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. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE 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 .