[Cite as Tanio v. Ultimate Wash, 2013-Ohio-939.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98826
SONIA TANIO
PLAINTIFF-APPELLANT
vs.
ULTIMATE WASH, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-744491
BEFORE: Blackmon, J., S. Gallagher, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: March 14, 2013
ATTORNEYS FOR APPELLANT
Joseph R. Compoli
612 East 185th Street
Cleveland, OH 44119
James R. Goodluck
3517 St. Albans Road
Cleveland Heights, OH 44121
ATTORNEYS FOR APPELLEES
Todd M. Haemmerle
Colleen A. Mountcastle
Gallagher Sharp
6th Floor Bulkley Building
1501 Euclid Avenue
Cleveland, OH 44115
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Sonia Tanio (“Tanio”) appeals the trial court’s granting of
summary judgment in favor of appellee Ultimate Wash of Maple Heights (“Ultimate”).1
She assigns the following two errors for our review:
I. The trial court erred in granting plaintiff-appellant’s motion for
summary judgment.
II. The trial court erred in failing to grant plaintiff’s motion for
award of reasonable attorneys fees and expenses under Rule 37.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
decision. The apposite facts follow.
Facts
{¶3} On the afternoon of January 5, 2009, Tanio took her car to Ultimate, a
free-standing car wash located in Maple Heights, Ohio. The car wash contains both
full-serve and self-serve bays. Tanio chose to use a self-serve bay. The self-serve bays
have a roof but are open at both ends. When Tanio walked to the rear of her car she
slipped and fell on a small patch of black ice, fracturing her knee. She claimed to not
have seen the ice until she fell. A sign is posted in each bay warning, “Bay may be
slippery when wet.”
{¶4} Tanio filed a complaint against Ultimate. She was unaware at the time of
the accident that Ultimate had a floor-heat system to prevent the accumulation of ice.
1
Tanio had also sued “Ultimate Wash of Solon” and “Ultimate Wash” but
voluntarily dismissed the parties from the suit.
However, in her complaint she contended that Ultimate was negligent in maintaining its
car wash because the icy patch indicated either the floor-heat system was not on or was
not operating appropriately.2
{¶5} The parties filed cross motions for summary judgment. Tanio emphasized
the transparent nature of the black ice and the fact the floor-heat system failed to dissolve
the ice. Ultimate argued that Tanio’s claim was prevented by the open and obvious
doctrine because the inherent risk of using a car wash during subfreezing weather is open
and obvious. It argued that Tanio should have expected the icy conditions because the
temperature was below freezing. Ultimate also argued that it was under no duty to
provide the floor-heat system and that because Tanio had not known about the heat
system prior to her fall, she did not rely on the system in choosing to wash her car.
Ultimate also argued there was no evidence that the system was not working on the day in
question.
{¶6} The trial court granted summary judgment in Ultimate’s favor, concluding
in pertinent part that “the risk of ice forming while using a car wash in subfreezing
temperatures is so open and obvious that no duty attaches to the land owner absent
evidence that the owner has somehow aggravated the inherent risk.” As to Tanio’s
contention that the floor heating system was not activated or not working properly, the
2
The floor-heat system is comprised of a boiler that heats a water/Glycol mix,
which is circulated through tubing located beneath the floor surface to prevent ice
from forming on the ground. When the air reaches below 45 degrees Fahrenheit,
the boiler automatically fires up and circulates the mix through the tubing.
court held, “plaintiff has not demonstrated any reliance on the use of a floor-heated
system or that it induced her to patronize this car wash, nor has plaintiff cited any
statutory or other authority requiring an open bay car wash to have a floor-heat system.”
{¶7} Tanio filed a motion for relief from judgment and a notice of appeal on
August 17, 2012. This court remanded the matter to allow the trial court to rule on the
motion for relief from judgment. After the motion was denied, the matter proceeded to
this appeal.
Motion for Summary Judgment
{¶8} Tanio argues the trial court erred by entering summary judgment in
Ultimate’s favor because there was an issue of fact whether the transparent black ice was
open and obvious, and whether the floor-heat system was working or not because of the
accumulation of ice.
{¶9} We review an appeal from summary judgment under a de novo standard of
review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987), N.E. Ohio
Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th
Dist.1997). Accordingly, we afford no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is appropriate.
Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine issue as to any
material fact exists, (2) the party moving for summary judgment is entitled to judgment as
a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving
party, reasonable minds can reach only one conclusion that is adverse to the nonmoving
party. We conclude the trial court did not err by granting summary judgment in
Ultimate’s favor.
{¶10} A common-law negligence claim requires a showing of (1) a duty
owed; (2) a breach of that duty; and (3) an injury proximately caused by the breach.
Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d
1018, ¶ 22. The issue in the instant case is whether Ultimate breached its duty to Tanio.
A determination of whether a duty exists is a question of law for the court to decide, and
therefore, is a suitable basis for summary judgment. Mussivand v. David, 45 Ohio St.3d
314, 318, 544 N.E.2d 265 (1989).
{¶11} Under Ohio law, a landowner owes no duty to warn patrons of open and
obvious conditions. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573,
788 N.E.2d 1088, syllabus. “The rationale underlying this doctrine is ‘that the open and
obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may
reasonably expect that persons entering the premises will discover those dangers and take
appropriate measures to protect themselves.’” Id. at ¶ 5, citing Simmers v. Bentley
Constr. Co., 64 Ohio St.3d 642, 644, 1992-Ohio-42, 597 N.E.2d 504.
{¶12} In most situations, whether a danger is open and obvious presents a
question of law. Nelson v. Sound Health Alternatives Internatl., Inc., 4th Dist. No.
01CA24, 2001-Ohio-2571; Hallowell v. Athens, 4th Dist. No. 03CA29, 2004- Ohio-4257,
¶ 21. However, under certain circumstances, disputed facts may exist regarding the
openness and obviousness of a danger, thus, rendering it a question of fact. Where only
one conclusion can be drawn from the established facts, the issue of whether a risk was
open and obvious may be decided by the court as a matter of law. Klauss v. Marc
Glassman, Inc., 8th Dist. No. 84799, 2005-Ohio- 1306, ¶ 18. We conclude that based
on the facts the court did not err by finding the hazard to be open and obvious.
{¶13} Tanio contends the trial court erred by concluding that the icy patch was an
open and obvious hazard; she argues that because the ice was black ice and transparent,
she was unable to see it. We disagree. The inherent open and obvious risk was not
Tanio’s ability to see the ice, but that the use of water in cold temperatures causes ice to
form. Thus, it is irrelevant whether Tanio could actually see the ice. Common sense
should have alerted Tanio to the fact that the use of water during subfreezing weather
creates a risk that the ground will be slippery. Although Tanio contends that there was
no evidence of the temperature that day, Tanio’s own expert, Thomas Schmidlin, a
certified meteorologist, stated in his report that the temperature range that day was
between 20 and 36 degrees Fahrenheit. Specifically, at the time that Tanio was at the car
wash, the weather report indicated it was between 30 and 31 degrees, which is below the
32 degree freezing point.
{¶14} Ohio case law has established that the use of a self-serve car wash in
subfreezing temperatures presents a danger of ice accumulation that is so open and
obvious that no duty attaches to the land owner, absent evidence that the owner has
somehow aggravated the inherent risk in that activity. See Workman v. W&W Dev.
Corp., 5th Dist. No. 2010-CA-0138, 2011-Ohio-2305; Couture v. Oak Hill Rentals, Ltd.,
6th Dist. No. OT-03-048, 2004-Ohio-5237; Bevins v. Arledge, 4th Dist. No. 03CA19,
2003-Ohio-7297. Tanio attempts to distinguish the above cases based on the fact that
there was a recent snow in some of the cases, the plaintiff saw the ice, or that the plaintiff
fell in a different area of the car wash. However, these facts do not alter the court’s
pronouncement that the use of water in subfreezing temperatures creates an open and
obvious risk.
{¶15} Tanio argues that the fact the floor-heat system was not on or not working
was an attendant circumstance that aggravated the inherent risk; however, there was no
evidence that the floor-heat system was not on or not working. Even Tanio’s experts
admitted that the floor-heat system does not completely eliminate the risk of icy or
slippery conditions from forming. Plaintiff’s expert Michael George (“George”) never
visited or inspected the car wash. He based his opinion on information related to him by
Tanio’s counsel. Counsel had told George that ice engulfed the entire bay, which was
not the conditions as testified to by Tanio. George admitted that the fact that there was
just an icy patch in the bay area altered his conclusion regarding the working condition of
the heat system. He acknowledged that ice and snow could have fallen off other
vehicles, and that if the ice had not been there long, the system may not have had time to
melt it. Plaintiff’s expert John Telesz also conceded that there were certain conditions
where there would be ice even though the floor-heat system was working, such as when
other vehicles drop ice and snow in the bay.
{¶16} Moreover, even if the system was not working, Tanio has failed to show
that she visited the car wash because it had a floor-heat system to prevent ice from
forming. Thus, there is no evidence that she was relying on the system in deciding to
wash her car. Nor is there a requirement that car washes have the floor-heat system;
therefore, if the system was not on or not working would not impute liability to Ultimate
because it had no duty to provide an ice melting system. Tanio cites to the Section 107.1
of the Ohio Fire Code (“OFC”) in support of its argument that car washes are to maintain
floor-heat systems. However, the OFC does not reference either car washes or
floor-heating systems. It states:
Whenever or wherever any device, equipment, system, condition,
arrangement, level of protection, or any other feature is required for
compliance with the provisions of this code, or otherwise installed, such
device, equipment, system, condition, arrangement, level of protection
or other feature shall be thereafter continuously maintained in
accordance with this code and applicable referenced standards. (Emphasis
added.)
{¶17} Because this section appears in the fire code, its logical purpose is for the
owners of equipment to maintain their equipment to prevent fires. Tanio fails to relate
this section to another area of the code that would require floor-heat systems in car
washes.
{¶18} Finally, merely because Ultimate had a floor-heat system, should not
impose a greater duty on it than car washes that do not own floor-heating systems. As
the court in Bevins, 4th Dist. No. 03CA19, 2003-Ohio-7297, held “simply because
appellee’s attempts to keep the premises absolutely free from icy patches failed to prevent
an injury does not mean that he had a duty to do more where the risk associated with
using the car wash in subfreezing temperatures amounted to an open and obvious
condition.” Ultimate did not impart to customers a false sense of security by actively
advertising or posting signs to the effect that its car wash was guaranteed to be
non-slippery due to its heating system. Therefore, Tanio should have expected that icy
patches could exist due to the cold weather.
{¶19} Lastly, Tanio argues that the car wash’s boiler was not certified or
inspected pursuant to R.C. 4104.20. However, Tanio has failed to establish that the lack
of certification had any causal connection to her accident. As we stated, Ultimate had no
duty to provide the floor-heat system. Also, the purpose of the certification is to ensure
that the boiler does not present any explosive danger, not to assure that the boiler was
adequately heating the liquid in the floor-heat system. Pursuant to R.C. 4104.15, the
purpose of the certification is to ensure that the fittings are properly connected to prevent
explosions. There was also no indication that the boiler was not working. In fact,
Tanio’s experts, testified that it was possible to have a boiler not pass certification, but
still be able to heat the water/Glycol mix.
{¶20} We conclude the trial court did not err by granting summary judgment in
Tanio’s favor. The slippery condition on the floor of an open-air car wash bay during
subfreezing weather is inherently open and obvious. There is no evidence that a
floor-heat system was required and no evidence that the system was not working at the
time of the accident. Accordingly, Tanio’s first assigned error is overruled.
Attorney Fees
{¶21} In her second assigned error, Tanio argues that the trial court erred by
failing to award her attorney fees based on Ultimate’s “false, deceptive, and evasive”
answer to Interrogatory Eight.3
{¶22} Interrogatory Eight requested Ultimate to admit that the boiler was not
properly inspected or certified on the day of the accident.
{¶23} Ultimate responded:
This request is irrelevant, and not reasonably calculated to lead to the
discovery of admissible evidence. Without waiving said objection,
Defendant maintains only the most recent boiler inspection certificates.
Defendant neither admits or denies the balance of request for
admission number 8 regarding inspections of certifications prior to
January 5, 2009.
The trial court did not rule on the motion. However, if a motion is not
3
expressly decided by the trial court when the case has concluded, the motion is
presumed to have been denied. Kostelnik v. Helper, 96 Ohio St.3d 1,
2002-Ohio-2985, 770 N.E.2d 58, ¶ 13.
{¶24} Tanio contends this answer is false, deceptive, and evasive because it
neither denies the request nor provides in detail the reasons why Ultimate could not admit
or deny. As a result, she claims that she is entitled to attorney fees pursuant to Civ.R.
37(C).
{¶25} The decision to impose sanctions pursuant to Civ.R. 37 is within the
discretion of the trial court; thus, we will not reverse the trial court’s decision absent an
abuse of discretion. Maurer v. Boyd, 9th Dist. No. 23818, 2008-Ohio- 1384, ¶ 5, citing
Millis Transfer, Inc. v. Z & Z Distrib. Co., 76 Ohio App.3d 628, 602 N.E.2d 766 (6th
Dist.1991). Civ.R. 37(C) provides:
If a party, after being served with a request for admission under Rule
36, fails to admit the genuineness of any documents or the truth of any
matter as requested, and if the party requesting the admissions
thereafter proves the genuineness of the document or the truth of the
matter, he may apply to the court for an order requiring the other
party to pay him the reasonable expenses incurred in making that
proof, including reasonable attorney’s fees. Unless the request had been
held objectionable under Rule 36(A) or the court finds that there was
good reason for the failure to admit or that the admission sought was of
no substantial importance, the order shall be made.
{¶26} Therefore, where a party has denied a request for admission, but the proof
at trial contradicts the denial, the court must award sanctions upon a Civ.R. 37 motion
“unless the request had been held objectionable under Civ.R. 36(A) or the court finds that
there was good reason for the failure to admit or that the admission sought was of no
substantial importance * * *.” Salem Med. Arts & Dev. Corp. v. Columbiana Cty. Bd. of
Revision, 82 Ohio St.3d 193, 195-196, 1998- Ohio-248, 694 N.E.2d 1324.
{¶27} We conclude given our discussion in the previous error that the
information regarding the boiler was irrelevant because the fact that the boiler was not
certified has no causal connection to Tanio’s accident. Ultimate was not required to have
a floor-heat system and Tanio’s experts testified that it was possible for a boiler to work
without being certified. Accordingly, the trial court did not abuse its discretion by
denying the motion for attorney fees. Tanio’s second assigned error is overruled.
{¶28} Judgment affirmed.
It is ordered that appellee recover from appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
PATRICIA ANN BLACKMON, JUDGE
SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR