[Cite as Schnell v. Target Corp., 2017-Ohio-993.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
Lee Schnell, et al. Court of Appeals No. E-16-039
Appellants Trial Court No. 2015-CV-0005
v.
Target Corporation, et al. DECISION AND JUDGMENT
Appellees Decided: March 17, 2017
*****
Matthew Hawley, for appellants.
James W. Hart, for appellees.
JENSEN, P.J.
I. Introduction
{¶ 1} Appellants, Lee and Debra Schnell, appeal the judgment of the Erie County
Court of Common Pleas, granting summary judgment in favor of appellees, Target Corporation, Sanmarco Corporation, and Sandusky Pavilion, on appellant’s premises
liability claim stemming from a slip and fall accident that occurred on appellees’
property. We affirm.
A. Facts and Procedural Background
{¶ 2} On January 5, 2015, appellants filed a complaint against appellees in which
they alleged that Lee was injured on January 7, 2013, when he slipped and fell on ice in
the parking lot of a Target store located at 4020 Milan Road, Sandusky, Ohio. Appellants
alleged that the ice on which Lee fell was “an unnatural accumulation of ice and
[appellees] were negligent in failing to exercise ordinary or reasonable care to correct or
prevent said hazard and, thereby, maintain the premises in a reasonably safe manner.”
Appellants also alleged that appellees were negligent in failing to warn them of the
“unsafe and dangerous conditions” on appellees’ property. As a result of Lee’s
“permanent and disabling” injuries, appellants sought damages from appellees in excess
of $25,000.
{¶ 3} On February 6, 2015, appellees filed their answer, in which they generally
denied appellants’ allegations and asserted several affirmative defenses. The matter
proceeded through discovery, during which appellants’ depositions were taken.
Thereafter, appellees filed a motion for summary judgment, in which they argued that
summary judgment was proper because appellants failed to produce evidence establishing
the cause of Lee’s fall. Further, appellees asserted that they were entitled to summary
2. judgment because Lee acknowledged during his deposition that the ice upon which he
fell had occurred naturally.
{¶ 4} On December 17, 2015, appellants filed their memorandum in opposition to
appellees’ motion for summary judgment. In their memorandum, appellants argued that
Lee’s deposition testimony established that the fall was caused by ice that was present on
the pavement in the Target parking lot. Moreover, appellants contended that the ice was
not naturally occurring since the photographs of the scene of the fall show that the
parking lot had been plowed and/or treated prior to the fall. Thus, appellants argued that
summary judgment in appellees’ favor was improper.
{¶ 5} Upon consideration of the foregoing, the trial court issued its decision on
appellees’ motion on May 3, 2016. In its decision, the trial court found that there was
sufficient evidence to establish that Lee’s fall was caused by ice. However, the court
found that the evidence demonstrated that the ice on which Lee fell was naturally-
occurring. The court noted appellants’ deposition testimony wherein they acknowledged
that the ice was formed by the thaw and re-freeze cycle of snow from an adjacent snow
bank created when the snow was initially removed from the parking lot surface.
Consequently, the trial court granted appellees’ motion for summary judgment.
B. Assignment of Error
{¶ 6} On appeal, appellants assign the following error for our review:
The Trial Court Erred in Granting Summary Judgment in Favor of
Defendants in the Judgment Entry of May 12, 2016.
3. II. Analysis
{¶ 7} In appellants’ sole assignment of error, they argue that the trial court erred in
granting appellees’ motion for summary judgment.
{¶ 8} We review the grant of a motion for summary judgment de novo, applying
the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d
127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d
102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate
where (1) no genuine issue as to any material fact exists; (2) the moving party is entitled
to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion,
and viewing the evidence most strongly in favor of the nonmoving party, that conclusion
is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio
St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 9} On a motion for summary judgment, the moving party has the burden of
demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio
St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to
some evidence in the record in the form of “pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action.” Civ.R. 56(C); Dresher at 292-293.
The burden then shifts to the nonmoving party to provide evidence showing that a
genuine issue of material fact does exist. Id. at 293.
4. {¶ 10} In a negligence action, a plaintiff must prove (1) the defendant owed the
plaintiff a duty of care; (2) the defendant breached that duty of care; and (3) as a direct
and proximate result of the defendant's breach, the plaintiff suffered injury. Menifee v.
Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).
{¶ 11} The scope of a landowner’s legal duty depends upon the status of the
entrant. Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315,
662 N.E.2d 287 (1996). In this case, the parties agree that Lee was a business invitee. A
landowner ordinarily owes no duty to business invitees to remove natural accumulations
of ice and snow from the premises, or to warn invitees of the dangers associated with
such natural accumulations of ice and snow. Brinkman v. Ross, 68 Ohio St.3d 82, 83-84,
623 N.E.2d 1175 (1993); Jeswald v. Hutt, 15 Ohio St.2d 224, 239 N.E.2d 37 (1968),
paragraph one of the syllabus; Abercrombie v. Byrne-Hill Co., Ltd., 6th Dist. Lucas No.
L-05-1010, 2005-Ohio-5249, ¶ 12. This rule is known as the “no-duty winter rule.”
Miller v. Tractor Supply Co., 6th Dist. Huron No. H-11-001, 2011-Ohio-5906, ¶ 8.
{¶ 12} An exception to the “no-duty winter rule” exists where the landowner is
actively negligent in permitting or causing an unnatural accumulation of ice or snow.
Lopatkovich v. Tiffin, 28 Ohio St.3d 204, 207, 503 N.E.2d 154 (1986). “Unnatural
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[Cite as Schnell v. Target Corp., 2017-Ohio-993.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
Lee Schnell, et al. Court of Appeals No. E-16-039
Appellants Trial Court No. 2015-CV-0005
v.
Target Corporation, et al. DECISION AND JUDGMENT
Appellees Decided: March 17, 2017
*****
Matthew Hawley, for appellants.
James W. Hart, for appellees.
JENSEN, P.J.
I. Introduction
{¶ 1} Appellants, Lee and Debra Schnell, appeal the judgment of the Erie County
Court of Common Pleas, granting summary judgment in favor of appellees, Target Corporation, Sanmarco Corporation, and Sandusky Pavilion, on appellant’s premises
liability claim stemming from a slip and fall accident that occurred on appellees’
property. We affirm.
A. Facts and Procedural Background
{¶ 2} On January 5, 2015, appellants filed a complaint against appellees in which
they alleged that Lee was injured on January 7, 2013, when he slipped and fell on ice in
the parking lot of a Target store located at 4020 Milan Road, Sandusky, Ohio. Appellants
alleged that the ice on which Lee fell was “an unnatural accumulation of ice and
[appellees] were negligent in failing to exercise ordinary or reasonable care to correct or
prevent said hazard and, thereby, maintain the premises in a reasonably safe manner.”
Appellants also alleged that appellees were negligent in failing to warn them of the
“unsafe and dangerous conditions” on appellees’ property. As a result of Lee’s
“permanent and disabling” injuries, appellants sought damages from appellees in excess
of $25,000.
{¶ 3} On February 6, 2015, appellees filed their answer, in which they generally
denied appellants’ allegations and asserted several affirmative defenses. The matter
proceeded through discovery, during which appellants’ depositions were taken.
Thereafter, appellees filed a motion for summary judgment, in which they argued that
summary judgment was proper because appellants failed to produce evidence establishing
the cause of Lee’s fall. Further, appellees asserted that they were entitled to summary
2. judgment because Lee acknowledged during his deposition that the ice upon which he
fell had occurred naturally.
{¶ 4} On December 17, 2015, appellants filed their memorandum in opposition to
appellees’ motion for summary judgment. In their memorandum, appellants argued that
Lee’s deposition testimony established that the fall was caused by ice that was present on
the pavement in the Target parking lot. Moreover, appellants contended that the ice was
not naturally occurring since the photographs of the scene of the fall show that the
parking lot had been plowed and/or treated prior to the fall. Thus, appellants argued that
summary judgment in appellees’ favor was improper.
{¶ 5} Upon consideration of the foregoing, the trial court issued its decision on
appellees’ motion on May 3, 2016. In its decision, the trial court found that there was
sufficient evidence to establish that Lee’s fall was caused by ice. However, the court
found that the evidence demonstrated that the ice on which Lee fell was naturally-
occurring. The court noted appellants’ deposition testimony wherein they acknowledged
that the ice was formed by the thaw and re-freeze cycle of snow from an adjacent snow
bank created when the snow was initially removed from the parking lot surface.
Consequently, the trial court granted appellees’ motion for summary judgment.
B. Assignment of Error
{¶ 6} On appeal, appellants assign the following error for our review:
The Trial Court Erred in Granting Summary Judgment in Favor of
Defendants in the Judgment Entry of May 12, 2016.
3. II. Analysis
{¶ 7} In appellants’ sole assignment of error, they argue that the trial court erred in
granting appellees’ motion for summary judgment.
{¶ 8} We review the grant of a motion for summary judgment de novo, applying
the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d
127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d
102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate
where (1) no genuine issue as to any material fact exists; (2) the moving party is entitled
to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion,
and viewing the evidence most strongly in favor of the nonmoving party, that conclusion
is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio
St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 9} On a motion for summary judgment, the moving party has the burden of
demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio
St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to
some evidence in the record in the form of “pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action.” Civ.R. 56(C); Dresher at 292-293.
The burden then shifts to the nonmoving party to provide evidence showing that a
genuine issue of material fact does exist. Id. at 293.
4. {¶ 10} In a negligence action, a plaintiff must prove (1) the defendant owed the
plaintiff a duty of care; (2) the defendant breached that duty of care; and (3) as a direct
and proximate result of the defendant's breach, the plaintiff suffered injury. Menifee v.
Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).
{¶ 11} The scope of a landowner’s legal duty depends upon the status of the
entrant. Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315,
662 N.E.2d 287 (1996). In this case, the parties agree that Lee was a business invitee. A
landowner ordinarily owes no duty to business invitees to remove natural accumulations
of ice and snow from the premises, or to warn invitees of the dangers associated with
such natural accumulations of ice and snow. Brinkman v. Ross, 68 Ohio St.3d 82, 83-84,
623 N.E.2d 1175 (1993); Jeswald v. Hutt, 15 Ohio St.2d 224, 239 N.E.2d 37 (1968),
paragraph one of the syllabus; Abercrombie v. Byrne-Hill Co., Ltd., 6th Dist. Lucas No.
L-05-1010, 2005-Ohio-5249, ¶ 12. This rule is known as the “no-duty winter rule.”
Miller v. Tractor Supply Co., 6th Dist. Huron No. H-11-001, 2011-Ohio-5906, ¶ 8.
{¶ 12} An exception to the “no-duty winter rule” exists where the landowner is
actively negligent in permitting or causing an unnatural accumulation of ice or snow.
Lopatkovich v. Tiffin, 28 Ohio St.3d 204, 207, 503 N.E.2d 154 (1986). “Unnatural
accumulation” refers to “causes and factors other than the inclement weather conditions
of low temperature, strong winds and drifting snow, i.e., to causes other than the
meteorological forces of nature.” Porter v. Miller, 13 Ohio App.3d 93, 95, 468 N.E.2d
134 (6th Dist.1983). “[S]ince the build-up of snow and ice during winter is regarded as a
5. natural phenomenon, the law requires, at the very least, some evidence of an intervening
act by the [landowner] that perpetuates or aggravates the pre-existing, hazardous presence
of ice and snow.” Id.
{¶ 13} Appellants argue that the black ice on which Lee slipped was unnatural
insofar as it was the product of appellees’ efforts to clear snow from the parking lot. In
her deposition, Debra was asked about the formation of the ice on which Lee fell.
Relevant here, she indicated that the ice apparently formed when runoff from a nearby
snow bank melted and then refroze on the pavement. The snow bank was created when
the parking lot was plowed.
{¶ 14} “[Where] run-off from the melting snow pile created the icy patch, several
courts, including this one, have concluded that this does not constitute an ‘unnatural’
accumulation of ice. When snow is removed, it has to be placed somewhere, and ‘a
certain natural run-off of water is to be expected.’” Flint v. Cleveland Clinic Found., 8th
Dist. Cuyahoga Nos. 80177 and 80478, 2002-Ohio-2747, ¶ 20, quoting Hoenigman v.
McDonald’s Corp., 8th Dist. Cuyahoga No. 56010, 1990 Ohio App. LEXIS 131, *8 (Jan.
11, 1990). Therefore, even if we were to assume that the ice on which Lee fell was the
product of runoff from the nearby snow bank refreezing, the accumulation of such ice
would be considered natural. Id. at ¶ 19 (“Simply piling snow on either side of the
sidewalk, without more, does not constitute an ‘unnatural’ accumulation of ice.”). As
such, the trial court properly concluded that appellees’ were entitled to summary
judgment.
6. {¶ 15} Accordingly, appellants’ sole assignment of error is not well-taken.
III. Conclusion
{¶ 16} For the foregoing reasons, the judgment of the Erie County Court of
Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
7.