COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71868 ACCELERATED DOCKET RICHARD REINHART : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION MIDWEST DISTRIBUTION SERVICES, : INC. : PER CURIAM Defendant-appellee : : : JUNE 19, 1997 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-302405 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: THOMAS P. ALDRICH, III, ESQ. STEPHEN C. MERRIAM, ESQ. 1060 Greyton Road 126 West Streetsboro, Suite 4 Cleveland Heights, OH 44112 Hudson, OH 44236 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas and the briefs. Plaintiff-appellant Richard Reinhart (hereinafter plaintiff ) appeals the decision of the trial court granting summary judgment in favor of defendant-appellee Midwest Distribution Services, Inc. (hereinafter Midwest ). Plaintiff slipped and fell in Midwest's parking lot and complained Midwest failed to maintain the parking lot by allowing ice and snow to accumulate. On January 15, 1996 at approximately 11:00 a.m. plaintiff drove his truck into Midwest's parking lot, located in Columbus, Ohio, to pick up a load of freight. As a result of inclement weather the parking lot was covered with ice and snow. Plaintiff backed his truck up to the loading dock and waited while his truck was loaded. While waiting, plaintiff observed another truck enter the parking lot. Plaintiff exited his truck and stood in front of the other truck in order to assist the other truck in backing up to the loading dock. After finishing this, plaintiff walked to the Midwest office to find out whether his truck was fully loaded. While walking plaintiff's feet went out from under him and he fell forward on his right side and shoulder. An ambulance was called and plaintiff was treated at a local hospital. Plaintiff then returned to his truck and drove back home to Cleveland. In Cleveland, plaintiff went to -3- the hospital and was treated again. As a result of the injury plaintiff missed a week of work. Plaintiff filed his complaint on January 29, 1996. Midwest filed its motion for summary judgment on November 1, 1996. A month later plaintiff filed a response to Midwest's motion for summary judgment. The trial court granted Midwest's motion for summary judgment on December 9, 1996 stating: [d]eft's motion for sum judgment is granted as there is no dispute of fact: pltf on a natural accumulation of ice & snow; pltf was a frequenter on defts premises; and as [sic] result, defts are entitled to judgment in their favor as a matter of law. Plaintiff argues the hidden ice upon which he slipped was a danger beyond which he could reasonably expect to work and therefore this constituted a negligence issue of fact for a jury to decide. In support of this argument plaintiff cites specific case law and relies on the frequenter statute, R.C. 4101.11, which requires an employer to maintain a safe place of employment. Midwest maintains it has no liability to plaintiff because a property owner is not liable for an injury to an employee of a subcontractor engaged by the owner who slipped on a natural accumulation of ice and snow, in view of the employee's awareness of the obvious accumulation where he was working. Further, Midwest argues the duty imposed by the frequenter statute to frequenters is the same duty a property owner owes to an invitee and this duty was not breached in the present case. -4- The standard for reviewing the granting of summary judgment based upon Civ.R. 56 is outlined in Shaw v. Pollock & Co. (1992), 82 Ohio App.3d 656, 656-659, as follows: Summary judgment is proper if the trial court determines that: (1) No genuine issue 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 to but 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 ***. Plaintiff was a frequenter, as defined in R.C. 4101.01(E), on Midwest's premises. R.C. 4101.11 and 4101.12 impose a duty on the owner and or occupier of premises to protect employees and frequenters and to provide them with a safe workplace. Cyr v. Bergstrom Paper Co. (1982), 3 Ohio App.3d 299, 300-301. The duty imposed under these statutes is not substantially different from the common law duty owed by the owner/subcontractor of property to an invitee. Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, 42. Thus, an owner or occupier is not an insurer of the safety of a frequenter/invitee; rather, he owes a duty to that individual to exercise ordinary care to maintain the premises in a reasonably safe condition ***. Id., at 40. Generally, under Ohio law, the duty to exercise ordinary or reasonable care does not extend to a duty to remove natural accumulations of ice and snow which are similar to surrounding conditions. Id., at paragraphs one and two of the syllabus. The dangers from natural accumulations of ice and snow are considered -5- to be so obvious and apparent that a business invitee is assumed to appreciate those dangers and is responsible for protecting himself or herself from those dangers. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraph two of the syllabus. An exception to the general rule exists where the conduct of the owner or occupier in removing snow or ice constitutes an intervening act which perpetuates or aggravates the preexisting hazardous condition of ice and snow. Coletta v. University of Akron(1988), 49 Ohio App.3d 35, 36. A second exception occurs in a case where the owner of occupier or premises, either expressly or through its conduct, obligates itself to perform the duty of removing ice and snow accumulations from the premises. Hammond v. Moon (1982), 8 Ohio App.3d 66, 68. Under these circumstances, the owner or occupier is required to exercise ordinary care to render walkways, parking lots, etc., reasonably safe. Id., at 68. In the present case, plaintiff testified regarding the weather conditions outside the morning of his accident: Q. When you got up in the morning, I'll call it January 15th, 1996, before you left where you had spent the night, did you observe the weather conditions? A. Yes, sir. Q. Could you describe for me what the weather conditions were? A. Very bad. Q. Snowy? A. We were in a very heavy snow, a lot of ice, tough winter- type conditions. -6- Q. Is it fair to say a pretty good snowstorm, winter storm, that hit the whole Columbus area? A. Yes sir. It hit the whole state of Ohio. Plaintiff later testified about the conditions of Midwest's parking lot when he arrived at the front gate: Q. When you arrived at the location for the pickup, what conditions did you encounter? A. When I got into the front gate on the place, it was extremely icy and a bad situation. It really -- the whole parking area did not look good at all. Q. Had it been plowed at all or was it just buried in snow? A. No. It was never touched to my knowledge of looking at it. Q. So when you pulled in the front gate you were aware of the fact that the driveway, the whole parking lot area was under snow and ice and in bad shape. A. It was in bad shape. It is clear from plaintiff's deposition testimony that he was aware of the dangerous condition of the parking lot before he entered the premises and exited his truck. In addition, plaintiff did not present evidence that Midwest either aggravated the preexisting hazardous condition of ice and snow or that Midwest obligated itself to perform the duty of removing the ice and snow from the premises. Therefore, plaintiff's arguments fail and we conclude the trial court was correct in granting summary judgment in favor of Midwest. Judgment affirmed. -7- It is ordered that appellee recover of appellant 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 Court of Common Pleas 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. Ann Dyke, Presiding Judge Terrence O'Donnell, Judge John T. Patton, Judge 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 .