COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73693 DIANE BARRY : ACCELERATED DOCKET PLAINTIFF-APPELLANT : : JOURNAL ENTRY v. : : AND PARKING PROPERTIES, INC. : ET AL. : OPINION DEFENDANTS-APPELLEES : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: JULY 9, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-303870. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Patrick F. Roche, Esq. Davis & Young, L.P.A. 1700 Midland Building 101 Prospect Avenue, West Cleveland, OH 44115-1027 For Defendants-Appellees: Romney B. Cullers, Esq. Thomas P. Marotta, Esq. Jay A. Yurkiw, Esq. Hermann, Cahn & Schneider 1301 East Ninth Street, Suite 500 Cleveland, OH 44114 Robert H. Eddy, Esq. Alexander E. Goetsch, Esq. Gallagher, Sharp, Fulton & Norman 1501 Euclid Avenue, 7th Floor Cleveland, OH 44115 -2- PER CURIAM: This matter came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, the briefs and oral arguments of counsel. Plaintiff-appellant DianeBarry ( appellant ) appeals from the judgment of the Cuyahoga County Court of Common Pleas which granted the motions for summary judgment in favor of the defendants- appellees ( appellees ) Parking Properties Inc., Systems Parking Inc., Ampco System Parking Inc. and System Property Development Company, Inc. For the reasons stated, below we affirm. The facts giving rise to this appeal are as follows. On March 16, 1994, appellant fell and was injured while exiting the parking lot between West 6th St. and West 9th St. in Cleveland, Ohio. On February 23, 1996, appellant filed her initial complaint. Ultimately, appellant maintained her action for negligence against appellees as the owners or operators of the parking lot, claiming appellees were negligent in creating an increased slope of the original driveway and in their failure to provide warnings of the increased slope and possible slippery conditions. Parking Properties Inc., Systems Parking Inc. and Ampco System Parking jointly filed a third-party complaint for indemnification against System Parking Development Company, Inc. as the owner of the subject property. On July 9, 1997, System Property Development Company, Inc. filed its motion for summary judgment. On November 26, 1997, Parking Properties Inc., System Parking Inc., and Ampco -3- Systems Parking Inc. filed a joint motion for summary judgment. After briefing, the trial court granted the joint motion of appellees on December 4, 1997 and on December 22, 1997 by nunc pro tunc entry for November 24, 1997 granted the motion of System Property Development Company, Inc. Appellant timely appeals these judgments and advances one assignment of error for our review. GENUINE ISSUES OF MATERIAL FACT EXISTED, AND THE TRIAL COURT THEREFORE ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE APPELLEES WHERE THE APPELLANT SLIPPED, FELL, AND WAS INJURED WHILE EXITING A PARKING LOT OWNED AND OPERATED BY THE APPELLEES WHERE THE UNCONTROVERTED EVIDENCE OFFERED BY AN ENGINEER WAS THAT THE APPELLANT FELL ON A RAMP USED AS A PEDESTRIAN EXIT FROM APPELLEES' PARKING LOT; WHERE SUCH PEDESTRIAN EXIT DID NOT HAVE A NON- SLIP CONCRETE FINISH AS DID OTHER PEDESTRIAN EXITS FROM THE PARKING LOT; WHERE THERE WAS NO CAUTION SIGN INDICATING POSSIBLE SLIPPERY SURFACE; WHERE MELTING SNOW AND ICE MAKE THE RAMP AN UNSAFE WALKING SURFACE; AND WHERE THE SLOPE OF THE RAMP IS STEEPER THAN ONE VERTICAL AND SEVEN HORIZONTAL AS OPPOSED TO THE RECOMMENDED SLOPE OF ONE VERTICAL AND TWELVE HORIZONTAL. Appellant contends that the trial court erred in granting summary judgment motions in favor of the appellees asserting questions of fact remained to be resolved. Specifically, appellant argues that she presented uncontroverted expert evidence to show that appellees created a hazard by causing the parking lot ramp to have an excessive slope, thereby causing the ramp to be an unsafe walking surface due to freezing and thawing cycles during winter weather. As such, appellant contends that appellees breached the duty of reasonable care and duty to warn her of an unsafe condition. We do not agree. -4- This court reviews the lower court's grant of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704. An appellate court applies the same test as a trial court which test is set forth in Civ.R. 56(C) which specifically provides that before summary judgment may be granted it must be determined 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. Temple v. Wean United Inc., (1977), 50 Ohio St.2d 317, 327. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Dresher v. Burt (1996), 75 Ohio St.3d 280. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359. In accordance with Civ.R. 56(E), a nonmovant may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing there is a genuine issue for trial. Chaney v. Clark Cty. Agricultural Soc., (1993), 90 Ohio App.3d 421. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Dresher, supra; Celotex, supra at 322. In order to sustain an action in negligence, a party must establish the three essential elements: duty, breach of the duty, -5- and an injury proximately caused by the breach. Menifee v. Ohio Welding Products, Inc.(1984), 15 Ohio St.3d 75. An owner or occupier has a duty to protect or warn an invitee from or against known or hidden dangers. Paschal v. Rite Aid Pharmacy (1985), 18 Ohio St.3d 203. In a negligence action, it is incumbent upon the party to produce evidence constituting the negligence or proof of facts from which negligence might be presumed. She may not rely on mere speculation. Gedra v. Dallmer (1950), 153 Ohio St. 258; Mines v. Russo's Stop & Shop (February 23, 1989), Cuyahoga App. No. 55073, unreported. The undisputed facts of the matter sub judice are as follows. Appellant traversed the area of her fall approximately twice a day for six weeks. She admitted that she did not know the cause of her fall. Further, she was unable to identify what was unsafe about the parking lot. Appellant's expert report indicated that the slope of the ramp plus ice made the ramp an unsafe walking surface. However, appellant proffered no evidence to show that these appellees created the slope. Moreover, appellant failed to offer evidence to show that a sheet of ice, snow or moisture existed on the surface of the ramp at the time of appellant's fall. Appellant submitted a certified record of the National Weather Service which demonstrated the weather conditions at Cleveland Hopkins International Airport on that day. However, in light of both the deposition testimony wherein appellant admitted she did not know whether there was ice or snow on the ramp and the witness' affidavit evidence which indicated that the area of the fall was -6- bone dry with no accumulation of ice or snow, this report does not create a question of fact as to whether snow and ice existed on the surface of the parking lot at that time. Therefore, consistent with the record before us and the law as stated above, appellant's failure to offer evidence as to the cause of her fall is dispositive of the issues before us. We find that the trial court properly entered summary judgment in favor of appellees. Judgment affirmed. -7- 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. TERRENCE O'DONNELL, PRESIDING JUDGE TIMOTHY E. McMONAGLE, JUDGE LEO M. SPELLACY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .