COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72058 MARIA SZARKA : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION MT. SINAI MEDICAL CENTER, ET AL. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT DECEMBER 18, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-29722 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: For Defendant-Appellee: CHRISTIAN F. WAAG, ESQ. CHRISTINE REID, ESQ. ANTHONY W. KERBER, ESQ. Reminger & Reminger Company Anthony W. Kerber Company 113 St. Clair Avenue Building 14701 Detroit Avenue Cleveland, Ohio 44114 INA Building, Suite 540 Lakewood, Ohio 44107 For Defendant-Appellee Ampco System Parking: For Defendant-Appellee ROMNEY B. CULLERS, ESQ. Harry S. Peterson Company: ANTHONY J. HARTMAN, ESQ. CHRIS BATOR, ESQ. JAY A. YURKIW, ESQ. CHARLES J. FRENCH, III Hermann Cahn & Schneider Baker & Hostetler, L.L.P. 1301 E. 9th Street 3200 National City Center Suite 500 1900 East Ninth Street Cleveland, Ohio 44114 Cleveland, Ohio 44114-3485 -2- PATRICIA ANN BLACKMON, P.J.: Maria Szarka, plaintiff-appellant, appeals the trial court's summary judgment decision in favor of AMPCO System Parking ( AMPCO ), and Harry S. Peterson Company, ( Company ),defendants- appellees. Szarka's action claimed negligence by AMPCO and Company for a fall she suffered in the parking garage at her place of employment at Mt. Sinai Medical Center. AMPCO managed the parking garage and Company was an independent contractor at the premises during repairs. Szarka assigns the following errors for our review: I. THE LOWER COURT ERRED IN APPLYING OHIO'S STANDARD OF REVIEW FOR SUMMARY JUDGMENT. II. THE LOWER COURT ERRED IN GRANTING DEFEND- ANT[S]/APPELLEE[S'] MOTION[S] FOR SUMMARY JUDGMENT BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT REGARDING SAID DEFENDANT[S]/ APPELLEE[S'] NEGLIGENCE. III. THE LOWER COURT ERRED IN GRANTING DEFEN- DANT[S]/APPELLEE[S'] MOTION[S] FOR SUMMARY JUDGMENT BECAUSE SAID DEFENDANT[S]/APPEL- LEE[S'] AFFIRMATIVE DEFENSE OF ASSUMPTION OF RISK RAISES A DISPUTED FACTUAL ISSUE OF COMPARATIVE NEGLIGENCE. Harry S. Peterson Company raises the following cross- assignment of error: THE TRIAL COURT ERRED BY IMPLICITLY OVERRULING PETERSON'S MOTION TO DISMISS BECAUSE PLAINTIFF FAILED TO SERVE PETERSON PERSONALLY WITHIN ONE YEAR OF THE FILING OF PLAINTIFF'S ORIGINAL COMPLAINT PURSUANT TO RULES 3(A) AND 15(D) OF THE OHIO RULES OF CIVIL PROCEDURE AND BECAUSE PLAINTIFF'S CLAIMS AGAINST PETERSON ARE BARRED BY THE TWO-YEAR STATUTE OF LIMITATIONS. -3- Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Company was hired to perform resurfacing work on the sixth floor level of the parking garage at the Mt. Sinai Medical Building. The work involved the replacement of deteriorating concrete. The area being worked on was closed to parking. As a result, cars were allowed to park on the opposite side of that area. On the day of the fall, Szarka drove her car into the parking garage and proceeded to the sixth floor where she found an available parking space. She exited her car and walked toward the elevators. She intended to take the elevator down to the main floor where she could access the Medical Center Building. As she neared the elevators, she noticed that the elevators had been blocked off due to the repair work being done on the sixth floor parking area. Szarka decided to walk down the ramp leading to the fifth floor so she could take that elevator. As she approached the entrance to the elevators, she noticed it was blocked by a large puddle of water. Szarka decided to walk through the outside edge of the puddle to access the elevators. She stepped into the puddle with her left foot. As she attempted to take a step with her right foot, Szarka's left foot slipped in the puddle. She fell and injured her left ankle. Because Szarka's first and second assignments of error both challenge the trial court's decision to grant AMPCO and Company's -4- motions for summary judgment, we will address them together. Under Civ.R. 56, summary judgment should be granted if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts, and stipulations of fact filed in the action show there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Summary judgment should be denied unless, after construing the evidence most strongly in favor of the non-movant, it appears that reasonable minds can come to but one conclusion and that conclusion is adverse to the non-movant. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the non- moving party has no evidence to prove its case but rather must point to some specific evidence which affirmatively demonstrates that the non-moving party has no evidence to support its claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party satisfies its initial burden, the non-moving party then has a reciprocal burden to set forth specific facts showing a genuine issue for trial. If the non-movant does not do so, summary judgment shall be entered against him. Dresher v. Burt (1996), 75 Ohio St.3d 280. Civ.R. 56(C). Both AMPCO and Company rely on the open and obvious rule and used Szarka's deposition testimony to support their position. Her testimony revealed the following: Q: You saw that puddle before you fell, correct? -5- A: Correct. Q: Was there anything blocking the view of the puddle? A: Not that I recall. Q: Tell me how big the puddle was. A: It was a large puddle. It covered the entire entrance to the elevator. (Szarka Depo. at 70.) We agree with both AMPCO and Company that the open and obvious rule applies to this case. The open and obvious rule relieves an owner and occupier of land from liability to an invitee who is injured on the land. The owner or occupier has no duty to warn because the hazard is open and obvious to the invitee. The open and obvious nature of the hazard itself serves as a warning. Consequently, the invitee must take notice and protect herself from the hazard. Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644, citing Sidle v. Humphrey (1968), 13 Ohio St.2d 45 and Pashal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203. Szarka, in her deposition, said she saw the puddle of water and chose to traverse it. Thus, she accepted any hazard that might be caused as a result of her decision to walk through the puddle. She said it covered the entire entrance. She could have taken care by walking an alternate way. Consequently,we are not persuaded by her argument that some- how she was forced to walk in this area because the sixth floor was off limits. There was nothing keeping her from walking to the next level. She chose this area and was aware of the water. Under the -6- open and obvious rule she is burdened to take care and protect herself. She, however, argues that the water contained an oily substance. We are not persuaded by this argument. This is not unusual considering that this was a parking garage. She, nevertheless, argues that this oily substance leaked from the sixth floor where the workers were working with cement. There is no evidence of this fact. She has the burden of producing evidence of a leak created by the repair work. This, she has not done. In Simmers,the Ohio Supreme Court declined to extend the open and obvious rule to independent contractors. The court held although the rule applied to landowners, it did not apply to those having no interest in the property. Thus, Szarka argues Company is not exempt from liability under the open and obvious rule. In reading Simmers it is clear that the court was concerned that the independent contractor admitted creating the hole and that the hole was a dangerous condition. The independent contractor also admitted that the area was a place frequented by the public. Thus, the open and obvious doctrine could not shield the independent contractor from liability in that case. The court went on to state that the issue to be resolved in cases of this nature is whether the traditional negligence elements applied to the independent contractors' behavior. The first concern is whether there is a duty. The duty was found in Simmers because the contractor knew of the existence of the hole. -7- In this case, Company stated in a deposition by its employee Brian Store that they did not create the puddle. He denied that any of the coating on the sixth floor could have leaked onto the fifth floor. He described that this was an open garage and that the rain frequently caused puddles. Because Szarka presented no evidence that Company created the hazardous condition, the open and obvious rule applies to relieve Company of liability for her injuries. See Krause v. G&C Properties (Nov. 3, 1994), Cuyahoga App. No. 66379, unreported. ( When the independent contractor did not create the condition, Simmers does not apply and the independent contractor is entitled to the same immunities as the owner or occupier. ) Finally, Szarka argues that, although she saw the puddle, she was not aware that it posed a danger of injury to her. She argues that she feared getting wet from stepping in the puddle but had no idea she could suffer serious physical injury. Citing Stinson v. Cleveland Clinic Found., (1987), 37 Ohio App.3d 146 and Czech v. Owners Management, Inc. (April 16, 1992), Cuyahoga App. No. 62164, unreported. Szarka argues that her decision to step into the puddle demonstrates she was not aware of any hazard. In Stinson, the plaintiff fell on a patch of ice on a sidewalk at Cleveland Clinic. The court noted the possibility that the freeze and thaw cycle of snow melting from grass abutting the sidewalk. The court determined that a genuine issue of fact existed about whether the resulting condition was substantially more dangerous than an invitee could reasonably anticipate. In -8- Czech, the plaintiff encountered a puddle of oil and water on the floor of an apartment complex parking garage. Upon exiting her car, she walked around the puddle. However, when she returned to her car, Czech walked through the puddle and fell. In Czech, the court determined that, because she walked around the puddle the first time she encountered it, Czech was on notice of the existence of the puddle and the hazard it posed. In her deposition, Szarka admitted she tried to walk through the shallowest end of the puddle, which indicates an awareness of a potential hazard. Q: Did you stop at all before you attempted to walk through the puddle? A: Yes. Q: How long did you stop there and where were you stopped? A: I was stopped on the outskirts of the puddle. Q: What were you thinking at that time? A: How to get into the doorway the safest way. Q: What did you decide to do? A: To try and step into the least amount of puddle that I could so I could enter the entranceway. [Szarka Depo. at 70-71.(Emphasis added)] Under the circumstances, we conclude that the puddle was an open and obvious defect, and specifically, that Company owed no duty to Szarka. Szarka's first and second assignments of error are overruled. second assignment of error, we overrule her third assignment of error as moot. In light of our decision to affirm the trial court's decision, we decline to address Harry S. Peterson's cross assignment of error. See Pang v. Minch (1990), 53 Ohio St.3d 186. Judgment affirmed. 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. PORTER, J., and NAHRA, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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 .