Bell v. Kroger Co.

2025 Ohio 2495
CourtOhio Court of Appeals
DecidedJuly 15, 2025
Docket24AP-713
StatusPublished

This text of 2025 Ohio 2495 (Bell v. Kroger Co.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bell v. Kroger Co., 2025 Ohio 2495 (Ohio Ct. App. 2025).

Opinion

[Cite as Bell v. Kroger Co., 2025-Ohio-2495.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

John Bell, :

Plaintiff-Appellant, : No. 24AP-713 v. : (C.P.C. No. 23CV-4219)

The Kroger Company et al., : (REGULAR CALENDAR)

Defendants-Appellees. :

D E C I S I O N

Rendered on July 15, 2025

On brief: Beausay & Nichols Law Firm, and Jacob J. Beausay, for appellant. Argued: Jacob J. Beausay.

On brief: Marshall Dennehey P.C., and Jillian L. Dinehart, for appellees The Kroger Company and Casto Partners, LLC. Argued: Jillian L. Dinehart.

On brief: Williams & Finkbine Co., LLC, and Susan S.R. Petro, for appellee Rocky Fork Company. Argued: Susan S.R. Petro.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J. {¶ 1} Plaintiff-appellant, John Bell, appeals from a judgment of the Franklin County Court of Common Pleas granting in part motions to strike the opinions of Bell’s expert witness, and granting motions for summary judgment filed by defendants-appellees, The Kroger Company, Casto Partners, LLC, and Rocky Fork Company (collectively, “appellees”). For the following reasons, we affirm. No. 24AP-713 2

I. Facts and Procedural History {¶ 2} On January 25, 2019, Bell slipped and fell on a patch of ice while exiting his vehicle in the parking lot of a Kroger store located in the Westerville Plaza Shopping Center in Westerville, Ohio. Casto owns the parking lot for that store and Rocky Fork had been contracted to provide snow removal and de-icing services in the parking lot. Bell filed a complaint in the Franklin County Court of Common Pleas against appellees, asserting their negligence caused his fall and the injuries he suffered. Bell claimed appellees failed to properly remove snow that had fallen several days earlier and de-ice the parking lot, resulting in a hazardous condition that caused him to fall. {¶ 3} Bell testified in a deposition that he drove to the Kroger store after work on the evening of January 25, 2019. Bell claimed it had snowed several days earlier but that there had not been any snowfall since. The parking lot at Bell’s office had been plowed and salted after the snowfall, and he described that parking lot as being perfectly dry when he left work. He further asserted he had not encountered any hazardous parking lots in the days immediately prior to January 25, 2019. Bell was familiar with winter conditions in Ohio, having lived in the state since 1970 after growing up in Chicago. {¶ 4} Bell had a handicapped-parking placard, but all the handicapped parking spaces near the Kroger store were occupied. He drove through the parking lot and parked in the first unoccupied parking space he could find. Bell stated that the area where he parked was dark and not located under a light, but that the pavement looked black and safe to step onto. As Bell stepped out of his vehicle, his foot slipped and he fell, landing partially under a neighboring car. Bell got up and back into his vehicle, then called his family; a member of his family called for emergency medical services. Bell’s daughter arrived shortly after his fall and took a photograph of the area where he fell. The photograph depicted slush and ice in the area between Bell’s vehicle and the adjacent vehicle. Bell was then transported from the scene for medical treatment. {¶ 5} Rocky Fork’s records indicated that the parking lot had been plowed on the morning of January 22, 2019, and that salt had been applied to the parking lot twice that morning after the plowing was completed. Salt had been applied to the parking lot again on the morning of January 24 and the morning of January 25. The records indicated that salt was applied for 6 minutes on January 24 and for 1 minute on January 25; however, in No. 24AP-713 3

a deposition, the Rocky Fork employee who drove the salt truck asserted those recorded time durations were incorrect. He explained that at times drivers would fail to properly record their start times in Rocky Fork’s tablet-based recording system and would later manually adjust to reflect the actual times. The salt truck driver testified he applied approximately 2,000 pounds of salt to the parking lot on January 24 and 3,000 pounds of salt to the parking lot on January 25. {¶ 6} Bell submitted a report from an expert witness, Richard L. Zimmerman, who concluded that appellees did not meet the appropriate standard of care and that such failure was the cause of Bell’s fall and injury. Zimmerman’s report noted that the parking lot had been plowed on January 22, 2019, and included historical data about the weather conditions on the following days. The report stated that “approximately 0.91 inches of combined rain and snow precipitation fell, as temperatures dropped to 31 degrees and below, and winds gusted to 30 mph” during a 24-hour period spanning January 23 to January 24. (Pl.’s Ex. 1A at 7, attached to Sept. 10, 2024 Pl.’s Memo Contra.) Zimmerman concluded that during that period the parking lot was subject to “accumulating rain, freezing rain, snow, and ice.” (Pl.’s Ex. 1A at 7.) The report further asserted that on January 25 the temperature never rose above 21 degrees. Zimmerman concluded that 6 minutes of salting on January 24 “would likely have been only partially effective at melting all slush, snow, and ice from the incident parking lot” and that 1 minute of salting on January 25 “may not have even affected the incident area” and “would likely have been minimally effective at melting any slush and ice from the incident parking lot.” (Pl.’s Ex. 1A at 7.) At a subsequent deposition, Zimmerman acknowledged that time durations for salting may have been incorrect but did not modify his conclusions regarding the effectiveness of Rocky Fork’s snow removal and de-icing methods. {¶ 7} Zimmerman concluded there was an unnatural accumulation of ice in the parking lot at the time of Bell’s fall that created a hazardous condition. Zimmerman asserted that the hazardous condition violated the Ohio Building Code, the Ohio Revised Code, the Ohio Fire Code, and Westerville ordinances because the surface was not slip- resistant. Zimmerman further stated that the hazardous condition was not open and obvious to Bell and that appellees had prior notice of the hazardous condition. In deposition testimony, Zimmerman conceded it was virtually impossible to guarantee an No. 24AP-713 4

absolutely clear parking lot in winter conditions, but asserted it was possible to achieve a slip-resistant finish in winter through due diligence and a proper sequence of plowing and continued salting. Zimmerman opined that Bell slipped and fell on black ice, not on slush; his conclusion was based on Bell’s deposition testimony and the photograph taken by Bell’s daughter. {¶ 8} Appellees moved to strike Zimmerman’s expert opinion, asserting it was based on impermissible legal conclusions, was not based on professional education, experience, or testing, and would not be helpful to the finder of fact. {¶ 9} Kroger and Casto moved for summary judgment, asserting they lacked notice of any dangerous condition beyond typical snowy conditions, that Bell slipped and fell on a natural accumulation of ice and lacked any evidence that it was an unnatural accumulation, and that the icy condition was open and obvious. Rocky Fork also moved for summary judgment, asserting it owed no duty to Bell and that, even if a duty existed, Bell failed to establish a breach of that duty. {¶ 10} The trial court granted in part the motions to strike Zimmerman’s expert opinions, ruling that Zimmerman’s opinions related to violations of the Ohio Building Code were not relevant because Bell had not asserted a negligence per se claim. The court also concluded that Zimmerman’s report failed to establish how he applied his expertise to determine that Rocky Fork violated the standard of care.

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Cite This Page — Counsel Stack

Bluebook (online)
2025 Ohio 2495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-kroger-co-ohioctapp-2025.