Crossman v. Smith Clinic

[Cite as Crossman v. Smith Clinic, 2010-Ohio-3552.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY

JAMIE CROSSMAN, CASE NO. 9-10-10

PLAINTIFF-APPELLANT,

v.

SMITH CLINIC, ET AL. OPINION

DEFENDANTS-APPELLEES,

Appeal from Marion County Common Pleas Court
Trial Court No. 09CV0060

Judgment Affirmed

Date of Decision: August 2, 2010

APPEARANCES:

Dennis A. Schulze, for Appellant

Richard J. Silk, for Appellee, Smith Clinic
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WILLAMOWSKI, P.J.,

{¶1} Although this appeal has been placed on the accelerated calendar,

this court elects to issue a full opinion pursuant to Loc.R. 12(5).

{¶2} Plaintiff-Appellant, Jamie Crossman (“Crossman” or “Mrs.

Crossman”), appeals the judgment of the Marion County Court of Common Pleas

granting summary judgment in favor of Defendant-Appellee, Smith Clinic (“Smith

Clinic” or “the Clinic”), on Crossman’s claim of injury resulting from a fall in the

Clinic’s parking lot, allegedly caused by snow covering a drainage depression. On

appeal, Crossman contends the trial court erred in granting summary judgment

because it applied the standard of “unnatural accumulation” rather than “improper

accumulation,” and that it failed to construe the facts in her favor. For the reasons

set forth below, the judgment is affirmed.

{¶3} This case concerns a fall that occurred on January 23, 2007, in the

parking lot of Smith Clinic. According to Crossman, she fell as a result of

unevenness (a drainage depression next to the curb) in the parking lot, which may

have been covered with snow. On the day of the accident, Crossman and her

husband were taking their daughter to the Clinic for her weekly physical therapy.

Mr. Crossman was driving and parallel parked next to the curb so that Mrs.

Crossman, who was in the passenger seat, could exit the vehicle onto the curb.

Mrs. Crossman got out of the vehicle, took a few steps, and went to step onto the

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curb when she claims she stepped into a storm drain depression that was covered

with snow, causing her to fall to the ground and strike her knee on a manhole

cover.

{¶4} On January 23, 2009, Crossman filed a complaint against Smith

Clinic and The City of Marion; the trial court subsequently granted the city’s

motion to dismiss. After an opportunity for depositions and discovery, Smith

Clinic filed a motion for summary judgment.1

{¶5} On January 13, 2010, the trial court granted Smith Clinic’s motion

for summary judgment, holding that Crossman failed to demonstrate: (1) that the

snow in the drainage depression was substantially more dangerous than naturally

occurring snow; (2) that Smith Clinic had superior knowledge of the alleged

defect; (3) that anyone acting on behalf of Smith Clinic had plowed the parking

lot; or (4) that the plowing was done negligently.

{¶6} Crossman now appeals from this decision, claiming that the trial

court erred in granting summary judgment in favor of Smith Clinic and raising the

following two assignments of error for our review:

First Assignment of Error

The trial court erred by applying the law of unnatural
accumulation rather than the law of improper accumulation.

1
There were issues with Crossman failing to file the deposition transcript, and the parties’ motions,
responses, and replies were filed and re-filed. However, these procedural issues are not relevant to the
issues before this Court.

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Second Assignment of Error

The trial court committed error prejudicial to [Crossman], by
failing to view the evidence most favorably to [Crossman].

{¶7} Pursuant to Civ.R. 56(C), summary judgment may be granted if “the

pleadings, depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed in the

action, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Harless v. Willis Day

Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46. As such,

summary judgment is appropriate when: (1) there is no genuine issue of material

fact; (2) the moving party is entitled to judgment as a matter of law; and (3)

reasonable minds can come to but one conclusion and that conclusion is adverse to

the nonmoving party, who is entitled to have the evidence construed most strongly

in his or her favor. Horton v. Harwick Chemical Corp., 73 Ohio St.3d 679, 686-

687, 1995-Ohio-286, 653 N.E.2d 1196. An appellate court reviews a summary

judgment order de novo. Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131

Ohio App.3d 172, 175, 722 N.E.2d 108.

{¶8} In order to establish a cause of action for negligence, a plaintiff must

establish each of the essential elements: (1) the existence of a duty; (2) a breach of

that duty; and (3) an injury, proximately resulting therefrom. Armstrong v. Best

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Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶8. It is

undisputed that Crossman was a business invitee at the time of her fall. Generally,

a business owner like Smith Clinic owes its business invitees a duty of ordinary

care in maintaining the premises in a reasonably safe condition, and to warn its

invitees of latent or hidden dangers of which it is or should be aware. Paschal v.

Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 203, 480 N.E.2d 474 (citation

omitted). The mere occurrence of an injury to a business invitee does not give rise

to a presumption or an inference of negligence. Parras v. Std. Oil Co. (1953), 160

Ohio St. 315, 116 N.E.2d 300, paragraph one of the syllabus. An owner or

occupier of a premise is not an insurer of a business invitee's safety. Paschal, 18

Ohio St.3d at 203.

{¶9} Accordingly, the Ohio Supreme Court has held that “[g]enerally, no

liability exists for minor imperfections in the surface of such a parking area --

those slight irregularities reasonably to be anticipated in any traveled surface.”

Neumeier v. City of Lima, 3d Dist. No. 1-05-23, 2005-Ohio-5376, ¶14, quoting

Jeswald v. Hutt (1968), 15 Ohio St.2d 224, 239 N.E.2d 37, paragraph two of the

syllabus. See, also, Sack v. Skyline Chili, Inc., 12th Dist. No. CA2002-09-101,

2003-Ohio-2226 (holding that a sewer grate sunk three inches into the surface of a

parking lot was a minor imperfection).

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{¶10} Furthermore, a business owner’s duty to business invitees does not

extend to hazards from natural accumulations of ice and snow. Tyrrell v.

Investment Assoc., Inc. (1984), 16 Ohio Ap.3d 47, 49, 474 N.E.2d 621. “[I]t is

well established that an owner or occupier of land ordinarily owes no duty to

business invitees to remove natural accumulations of ice and snow from the

private sidewalks on the premises, or to warn the invitee of the dangers associated

with such natural accumulations of ice and snow.” Brinkman v. Ross, 68 Ohio

St.3d 82, 83, 1993-Ohio-72, 623 N.E.2d 1175.

{¶11} However, an exception to the general “no-duty” winter snow rule is

where the land owner or occupier is shown to have actual or implied notice “that

the natural accumulation of snow and ice on his premises has created there a

condition substantially more dangerous to his business invitees than they should

have anticipated by reason of their knowledge of conditions prevailing generally

in the area[.]” Burckholter v. Dentistry For You, 3d Dist. No. 10-08-21, 2009-

Ohio-1654, ¶17, quoting Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11

Ohio St.2d 38, 227 N.E.2d 603, at paragraph one of the syllabus. In order to be

liable, the land owner or occupier must have superior knowledge of the existing

danger. LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 210, 503 N.E.2d 159.

{¶12} A second exception to the general rule exists where the owner or

occupier of land is actively negligent in permitting or causing an unnatural

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accumulation of ice or snow. Norton v. Marion Gen. Hosp., 3d Dist. No. 9-06-04,

2006-Ohio-3535, ¶10, citing Lopatkovich v. City of Tiffin (1986), 28 Ohio St.3d

204, 207, N.E.2d 154. Essentially, a natural accumulation of ice and snow is one

which accumulates as a result of an act of nature, whereas an unnatural

accumulation is one that results from an act of a person. Porter v. Miller (1983),

13 Ohio App.3d 93, 95, 468 N.E.2d 134.

{¶13} “In cases involving an unnatural accumulation of ice and snow, a

plaintiff must show that the defendant created or aggravated the hazard, that the

defendant knew or should have known of the hazard, and that the hazardous

condition was substantially more dangerous than it would have been in the natural

state.” Myers v. Forest City Ent., Inc. (1993), 92 Ohio App.3d 351, 353-54, 635

N.E.2d 1268 (citations omitted). It would appear that Crossman’s claim would

involve a liability analysis involving an unnatural accumulation of ice and snow,

as she complains that the Clinic negligently plowed the parking lot, piling snow

over the drainage depression and/or crumbling blacktop, thereby hiding the

depression/drain and creating a hazard more dangerous than it would have been in

the natural state.

{¶14} However, in her first assignment of error, Crossman contends that

the trial court erred by applying the law of “unnatural accumulation” rather than

the law of “improper accumulation,” as mentioned in Mikula v. Slavin Tailors

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(1970), 24 Ohio St.2d 48, 263 N.E.2d 316, and a handful of subsequent cases. In

the Mikula case, a natural accumulation of snow covered a seven-inch deep hole in

a parking lot and constituted an improper accumulation by concealing the defect.

Id.

{¶15} We find Crossman’s argument unpersuasive for several reasons.

First, the cases referencing an “improper accumulation” are instances where a

natural accumulation of snowfall hid or covered a hazardous condition about

which the property owner knew or should have known. See id, at paragraph six of

the syllabus (“an ‘improper accumulation,’ which is equivalent to natural

accumulation of ice and snow which creates a condition substantially more

dangerous than the invitee should reasonably have anticipated from his knowledge

of weather conditions prevailing generally in the area” (Emphasis added.);

Longenberger v. Collins Food (1977), 52 Ohio App.2d 105, 368 N.E.2d 85 (the

entire area was covered with substantial snow which concealed an abrupt steep

change in grade); Miller v. Biskind Dev. Corp., 8th Dist. No. 53470, 1988 WL

18818 (a natural accumulation of snow covered an eight-inch high concrete

barrier). Whereas, in the case before us, Crossman complains that the drainage

depression was not visible “due to the snow removal procedures of Smith Clinic,”

not a natural accumulation as in Mikula. (Appellant’s Complaint.)

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{¶16} Also, the concealed hazards in the above cited cases were fairly

significant (i.e., a seven-inch deep hole, an eight-inch high concrete island), and

were not the type of changes in grade that a business invitee might readily expect

to encounter. In this case, the drain was a typical and common curb drain, with an

opening in the side/underside of the curb, with a slightly sloping surface in front

of the drain to allow the water to flow into the opening.

{¶17} And finally, although it is true the Ohio Supreme Court in Mikula,

supra, references “improper accumulation” in the context of snow in a parking lot,

it did so with respect to whether instructions to the jury in that case were proper.

The negligence analysis would be the same as for an unnatural accumulation.

{¶18} Crossman’s claim did not fail because the trial court utilized the

wrong standard; it failed because Crossman did not present any evidence to

establish any of the elements of her claim other than her own unsupported

allegations. Crossman’s testimony indicated she wasn’t completely sure what

caused her fall; she failed to establish the duty element of her claim; the snow and

existence of the curb were open and obvious hazards, of which Crossman was

aware; she failed to establish that the drainage depression was significantly

dangerous; she failed to establish that Smith Clinic had superior knowledge of the

conditions in the parking lot; and she did not establish that the parking lot was

negligently plowed. Crossman’s first assignment of error is overruled.

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{¶19} In her second assignment of error, Crossman claims that the trial

court erred by failing to view the evidence in her favor. She claims that there are

three specific “facts” that should have been construed in her favor, precluding

summary judgment in favor of Smith Clinic. Those three “facts” are: 1) that the

Smith Clinic had superior knowledge of the defect; 2) that someone acting on

behalf of Smith Clinic plowed the parking lot; and 3) that the plowing was done

negligently.

{¶20} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 1996-

Ohio-107. In its motion, the moving party “must state specifically which areas of

the opponent's claim raise no genuine issue of material fact” and must support its

assertion with affidavits or other evidence as allowed by Civ.R. 56(C). Mitseff v.

Wheeler (1988), 38 Ohio St .3d 112, 115, 526 N.E.2d 798. Once the moving party

meets its initial burden, the nonmoving party must then produce competent Civ.R.

56(C) evidence demonstrating that there is a genuine, material issue for trial.

Dresher at 293. In order to defeat summary judgment, the nonmoving party must

produce evidence beyond allegations set forth in the pleadings and beyond

conclusory statements in an affidavit. Scott v. Marckel, 3d Dist. No. 4-07-27,

2008-Ohio-2743, ¶18.

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{¶21} Although the court is not to engage in weighing of the evidence, to

survive summary judgment an appellant must produce more than a scintilla of

evidence in support of his or her position. Schmitz v. Bob Evans Farms, Inc.

(1997), 120 Ohio App.3d 264, 268, 697 N.E.2d 1037. Where the nonmoving party

fails to make a sufficient showing on an essential element of the case with respect

to which it has the burden of proof, summary judgment is appropriate. Celotex

Corp. v. Catrett (1986), 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265, 274.

{¶22} The only summary judgment evidence that was submitted was

Crossman’s deposition testimony, along with some photographs of the curb drain

area that were taken during the summer of 2007, many months after Crossman’s

fall. Crossman did not take the deposition of anyone affiliated with Smith Clinic

nor of anyone who had responsibility for maintaining or plowing the parking lot.

She did not proffer any expert’s opinion or affidavits.

{¶23} First, Crossman maintains that the trial court should have found that

she established that the Clinic had superior knowledge of the “alleged defect.”

Crossman presented photographs of the curb drain, showing a depression where

the blacktop enters the drain, however we do not find any evidence on the record

that this was a “defective” drain. Crossman claims this depression was deeper

than the other drains, but she does not present any contrasting measurements or

photos of other drains to substantiate her claim, nor does she present any evidence

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of what constitutes a reasonable drainage depression or how much of a deviation

from a standard would be considered dangerous. Although the blacktop directly in

front of the drain opening is slightly lower than the surrounding area, such a slope

is typical and necessary to allow the water to flow properly into the drain. Other

than her conclusory statement that this particular drainage depression was deeper

than other drainage depressions, there is no evidence confirming this allegation.

{¶24} Crossman also complains that the blacktop around this drain was

“crumbling,” although she is not certain if the fall was caused by the drain’s

depression or the crumbling. The photographs show a slight cracking of the very

top surface layer of the blacktop. However, this does not appear to be a significant

“crumbling”; there is no evidence that this created any danger; and there is no

evidence that the surface was in this condition at the time of the fall, many months

earlier.

{¶25} Furthermore, both the drainage slope and the surface crumbling do

not appear to constitute substantial defects beyond what one might ordinarily

expect to find in a parking lot. “[A]lmost every parking lot provides a spawning

ground for defects in the blacktop, in the absence of any substantial defect or any

unusual attending circumstances, the trial court cannot be faulted for deciding the

case as a matter of law.” Neumeier v. City of Lima, supra, at ¶16, quoting Krause

v. Fred W. Albrecht Grocery Co., 8th Dist. No. 74468, 1999 WL 462357. Parking

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lots can develop depressions from freezing and thawing and may also contain

drainage areas and sewer lids. Id. In another case involving a parking lot fall

near a sewer, this Court stated:

Looking at the deposition testimony and the photographic
evidence in the record, we cannot say that the sewer grate and
the area surrounding the grate was more than a “minor
imperfection” in the surface of the parking lot. It is true that the
sewer grate is sunken and that the surrounding area is in slight
disrepair, but as a matter of law, we do not find that it rises to
the level of a “substantial defect.” It is certainly the kind of
irregularity one may expect to encounter in a parking lot.
Furthermore, there is no evidence in the record of any unusual
attending circumstances that may have rendered the minor
imperfection actionable.

Neumeier, at ¶17.

{¶26} And, even if Crossman had submitted evidence that the drain was

defective, she did not present any evidence that Smith Clinic was aware of any

such dangerous condition. Crossman stated that “one may infer” that the

employees of the Clinic regularly entered into the parking lot, but there was no

testimony from any of the employees or evidence as to where they parked and

entered the building. Furthermore, Crossman visited the Clinic weekly and

regularly entered into the parking lot, so there is no evidence that anyone affiliated

with the Clinic would have had knowledge superior to that of Crossman.

{¶27} Crossman further contends that the trial court erred in not construing

the “facts” regarding the plowing of the Clinic parking lot in her favor and in not

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construing the “facts” concerning negligence of the Clinic in plowing the parking

lot in her favor. Again, the record is completely devoid of any such facts. Even

Crossman changes her theory back and forth from “the law of improper

accumulation [which] does not require any finding that the snow in question was

plowed” to claims that the “Clinic’s agent piled the snow on top of the depression”

and the “snow plower should have been watching where he placed the snow to

avoid covering up the storm drain.” (Appellant’s Brief, p. 11.)

{¶28} There is no evidence in the record as to who was responsible for

maintaining and plowing the parking lot; whether the parking lot had been plowed;

when the parking lot was last plowed; who plowed the lot; or when it had last

snowed. Some courts have held that a plaintiff cannot establish improper plowing

methods without the presentation of expert testimony. See, e.g., Edvon v. Lyons,

8th Dist. No. 83712, 2004-Ohio-5597, ¶20; Rampersaud v. Madison Dev. Co., 9th

Dist. No. 97CA006768, 1998 WL 332956; Bittinger v. Klotzman (1996), 113 Ohio

App.3d 847, 682 N.E.2d 688. Even if we were to assume that the lot had been

plowed, Crossman did not present any evidence, expert or otherwise, concerning

whether the lot was improperly or negligently plowed according to standards

appropriate for plowing commercial parking lots.

{¶29} Unsupported allegations are not sufficient to create an issue of fact

to necessitate the denial of summary judgment. Reprogle v. The Pub, Inc., 3d

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Dist. 17-02-21, 2002-Ohio-4940, ¶11. “The principal function of summary

judgment is to move beyond mere allegations and to analyze the evidence to

ascertain whether an actual need for trial exists.” (Emphasis in original.) Id. In

this case, there was no evidence beyond Crossman’s unsupported allegations and

presumptions to create a material issue of fact concerning any of the elements of

negligence that Crossman would have the burden of proving at trial. Crossman’s

second assignment of error is overruled.

{¶30} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jnc

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