Wiggins v. Moose Lodge 11

[Cite as Wiggins v. Moose Lodge #11, 2016-Ohio-954.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Richard Wiggins, :

Plaintiff-Appellant, :
No. 15AP-896
v. : (C.P.C. No. 14CV-9692)

Moose Lodge #11, : (ACCELERATED CALENDAR)

Defendant-Appellee. :

DECISION

Rendered on March 10, 2016

On brief: Hillard M. Abroms, for appellant. Argued: Hillard
M. Abroms

On brief: Freund, Freeze & Arnold, and Carl A. Anthony, for
appellee. Argued: Carl A. Anthony

APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Plaintiff-appellant, Richard Wiggins ("Wiggins"), appeals from the decision
of the Franklin County Court of Common Pleas granting defendant-appellee's, Moose
Lodge #11 ("the Lodge"), motion for summary judgment. For the following reasons, we
affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On September 19, 2014, Wiggins refiled this action in the Franklin County
Court of Common Pleas alleging that shortly after midnight on January 22, 2011, due to
the negligence of the Lodge, an unnatural accumulation of snow and ice formed in the
Lodge's parking lot, causing him to fall and sustain injuries.
{¶ 3} On January 20, 2011, 5.7 inches of snow fell in the Columbus area. Between
the snowfall and before Wiggins' fall, the temperature did not rise above freezing. The
high temperature on January 21, 2011, was 20 degrees.
No. 15AP-896 2

{¶ 4} On June 17, 2013, during the pendency of the initial action, Wiggins'
deposition was taken and is part of the record. Wiggins testified that he arrived at the
Lodge around 9 p.m. on January 21, 2011. It was not snowing when he arrived. Wiggins
parked in the parking lot and vehicular traffic had created ruts and packed down the
snow. Wiggins testified that the lot had not been plowed. Wiggins went to the Lodge that
night to see and take pictures of a musical band. In addition to taking pictures of the band
that evening, Wiggins socialized and drank about five cans of Bud Light.
{¶ 5} When he left at 12:30 a.m. on January 22, 2011, Wiggins was carrying a
camera case containing his camera and lenses, and a case with a small laptop in it.
Wiggins walked down the ramp leading from the front door to the parking lot. The lot was
virtually empty, so he went diagonally across the lot toward his Jeep. When he was about
10 to 12 feet into the lot, his feet went forward out from underneath him, and he fell
backward. Wiggins testified as follows:
Q. And your feet slipped out from underneath you on snow
and ice?

A. Yes.

Q. Was there any other reason that you fell other than the
snow and ice?

A. No.

Q. And did the snow and ice appear to just be typical snow
and ice, snow that falls and turns into ice from being
compacted?

A. As far as having been plowed?
Q. I guess what I'm saying is other than just typical snowfall
that eventually gets compacted by traffic driving on it and
freezing, was there anything other than that going on in the
area where you fell that caused you to slip?

A. Refreezing.

Q. Okay. And refreezing?

A. Yes.

Q. So we have the original snowfall which causes the snow
No. 15AP-896 3

to be there, whatever traffic driving over it that --

A. Packs it.

Q. -- packs it, moves it around, maybe melts it a little bit
and eventually refreezes, and that's what you slipped and fell
on?

A. Yes.

Q. When you walked in, that same condition was there,
correct?

A. Yes.

Q. The same snow and ice was there?

A. Yeah, it didn't snow 3 inches while I was there.

Q. Do you know if it did snow at all while you were there?

A. No, I can't answer that.

Q. You don't know?

A. I don't know.

(Deposition of Richard Wiggins, 60-61.)
{¶ 6} Wiggins contends that the accumulation of snow and ice in the parking lot
was an unnatural accumulation. In support of his claim, Wiggins identified Gerald
Mazzoni as an expert witness. Mazzoni's discovery deposition was taken on June 2, 2015,
and is part of the record.
{¶ 7} Mazzoni testified that he is a self-employed general contractor. Mazzoni has
no engineering or architectural training, and has no formal training in drainage systems.
Mazzoni stated that he has "plenty" of on the job training in general drainage issues.
{¶ 8} Mazzoni admitted that prior to his deposition, he conducted no experiments
or testing and had little background of that information upon which to base his opinion.1
He did not speak to Wiggins or review his deposition, or look at photographs or videos of

1 According to an affidavit of Mazzoni filed on August 6, 2015, he returned to the site on July 3, 2015, and

measured the slope. On August 6, 2015, he again returned to the site and observed standing water.
However, nowhere in the affidavit are any of his opinions, or lack thereof, changed or supplemented.
No. 15AP-896 4

the area. The only information Mazzoni had about the facts of this case came from
discussions with Wiggins' lawyer, which involved a general overview of the accident, and a
visit to the property that lasted 15 to 20 minutes several weeks prior to his deposition.
(Deposition of Gerald Mazzoni, 12-13, 25-26.) During that visit, Mazzoni walked around
and visually observed the property. At that time, there was no active drainage going on.
He admitted he did not know what the weather was like in the two weeks prior to the fall.
{¶ 9} Mazzoni testified that the parking lot in question was poorly designed and
did not allow for proper drainage. He opined that under certain conditions, the poor
drainage system might cause unnatural accumulations of snow and ice. He stated water or
moisture could migrate from the upper parts of the slope of the property, and then pool in
the parking lot. (Deposition of Gerald Mazzoni, 31-38.)
{¶ 10} Mazzoni admitted he could not say where the snow and ice upon which
Wiggins fall came from. In fact, when asked specifically, Mazzoni gave several different
answers. When asked how the ice and snow that Wiggins fell on got there, he first stated
"I assume that there was a snow or an ice storm that evening," but he admitted he
really did not know. (Deposition of Gerald Mazzoni, 28.) He later stated that "Mr. Hillard
told me that there was an ice storm and he slipped and fell on ice, so I can only assume
there was ice on the ground." (Deposition of Gerald Mazzoni, 31.) ("Mr. Hillard" is
plaintiff's lawyer, Hillard Abroms.) Later still, Mazzoni testified:
Q. And I'm going to go back to the snow and ice in the parking
lot, and I'm going to ask you where that snow and ice buildup
came from.

A. I mean, that's an open-ended question, I guess. I mean,
where it came from?

Q. Yes.

A. I wasn't there.

Q. Okay. So you don't know?

A. I do not know.

(Deposition of Gerald Mazzoni, 44.) Additionally, Mazzoni testified:
No. 15AP-896 5

Q. Are you saying that the ice and/or snow on which Mr.
Wiggins slipped and fell was caused by a runoff of moisture
from the grass or sidewalk area?

A. Well, you asked me earlier if I knew where the ice came
from.

Q. I did.

A. And my opinion and answer was that ice isn't falling from
the sky, so it's not going to sit right where it fell. So my
opinion is that any snow or rainwater as it's moving
towards the drain, where it fell is not going to be where it is.
So where he fell, it would have to move from -- towards the
building down towards the drain.

Q. Okay. I understand that. So are you saying that it is your
opinion that the ice on which Mr. Wiggins slipped and fell
was caused by a flow of water from up on the property?

A. I wasn't there, so I'm just offering my opinion in general as
far as the drainage and the water flow in this particular
property.

Q. Okay.

A. So as far as Mr. Wiggins and how he fell and that, I can't
answer because I wasn't there.

(Deposition of Gerald Mazzoni, 50-51.) Mazzoni admitted he did not know if, in the days
leading up to Wiggins' fall, it was warm enough for moisture to migrate to the parking lot.
Mazzoni testified he had no opinion, because he did not know, whether the snow and ice
upon which Wiggins fell was a natural or unnatural accumulation of snow and ice.
{¶ 11} On June 25, 2015, the Lodge moved for summary judgment on the grounds
that there is no evidence that it was negligent in this matter, and that it did not owe
Wiggins a duty to protect him because the snow and ice on the ground was a natural
accumulation.
{¶ 12} The court reviewed the evidence and stated "the Court must come to the
conclusion that the snow and ice upon which Plaintiff fell was a natural accumulation of
snow and ice." (Decision and Entry, 4.) The court found that "Plaintiff's testimony, when
looked at as a whole, provides the Court with no evidence to show that the snow and ice
No. 15AP-896 6

upon which Plaintiff fell was anything other than natural." (Decision and Entry, 4.) In
addition, "Mazzoni's testimony does not show that the accumulation of snow and ice on
the night of Plaintiff's fall was unnatural." (Decision and Entry, 5.) As such, the trial court
held that:
When all is said and done, the Court must find that there is no
evidence in this matter to show that the snow and ice upon
which Plaintiff fell was anything other than a natural
accumulation of snow and ice. Therefore, Defendant's motion
must be granted.

(Decision and Entry, 6.)
II. ASSIGNMENT OF ERROR
{¶ 13} Wiggins appeals, assigning a single error as follows:
The trial court erred when it granted summary judgment in
Defendant's favor.

A. The trial court erred when it disregarded testimony of the
Plaintiff that he fell on an unnatural accumulation of snow
and ice, failed to make inferences favorable to Plaintiff, and
instead made inferences in favor of the Defendant.

III. STANDARD OF REVIEW
{¶ 14} Appellate review of summary judgment motions is de novo. Helton v. Scioto
Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). "When reviewing a trial
court's ruling on summary judgment, the court of appeals conducts an independent
review of the record and stands in the shoes of the trial court." Mergenthal v. Star Bank
Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997). We must affirm the trial court's
judgment if any of the grounds raised by the movant at the trial court are found to support
it, even if the trial court failed to consider those grounds. Coventry Twp. v. Ecker, 101
Ohio App.3d 38, 41-42 (9th Dist.1995). However, the party against whom the motion for
summary judgment is made is entitled to have the evidence most strongly construed in
that party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio
St.3d 181, 183 (1997).
{¶ 15} A "party seeking summary judgment, on the ground that the nonmoving
party cannot prove its case, bears the initial burden of informing the trial court of the
basis for the motion, and identifying those portions of the record which demonstrate the
No. 15AP-896 7

absence of a genuine issue of material fact on the essential element(s) of the nonmoving
party's claims." Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). In accordance with
Civ.R. 56(E), when a properly supported motion for summary judgment is made, the
nonmoving party may not rest upon the mere allegations or denials contained in the
pleadings but must come forward with specific facts demonstrating a genuine issue of fact
for trial. If the nonmoving party does not so respond, summary judgment, if appropriate,
shall be entered against him.
IV. MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED
{¶ 16} The Lodge argues that there is no evidence that it was negligent in this
matter. "[I]n order to establish actionable negligence, one seeking recovery must show the
existence of a duty, the breach of the duty, and injury resulting proximately therefrom."
Strother v. Hutchinson, 67 Ohio St.2d 282, 285 (1981). The Lodge argues that the snow
and ice on the ground was a natural accumulation, and therefore, it owed no duty to
Wiggins to protect him.
{¶ 17} In Kaeppner v. Leading Mgmt., Inc., 10th Dist. No. 05AP-1324, 2006-
Ohio-3588, we stated the law in this area, as relevant to the present case, as follows:
An owner or occupier of premises owes business invitees * * *
a duty of ordinary care in maintaining the premises in a
reasonably safe condition so that invitees are not
unnecessarily and unreasonably exposed to danger. Paschal v.
Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203, 18 Ohio B.
267, 480 N.E.2d 474. However, the Supreme Court of Ohio
has consistently held that an owner or occupier's duty of
ordinary care does not extend to natural accumulations of ice
and snow. Debie v. Cochran Pharmacy-Berwick, Inc. (1967),
11 Ohio St.2d 38, 227 N.E.2d 603; Sidle v. Humphrey (1968),
13 Ohio St.2d 45, 233 N.E.2d 589; Brinkman v. Ross (1993),
68 Ohio St.3d 82, 1993 Ohio 72, 623 N.E.2d 1175. Thus, a
landowner has no duty to remove natural accumulations of ice
and snow, even if such conditions exist for an unreasonable
amount of time. Debie at 41.

Ohio courts have recognized exceptions to the general rule
that an owner or occupier of property owes no duty to invitees
regarding natural accumulations of ice and snow. For
example, * * * where an owner or occupier is actively negligent
in permitting or creating an unnatural accumulation of ice
and snow, the no-duty rule is inapplicable. See Lopatkovich v.
Tiffin (1986), 28 Ohio St.3d 204, 207, 28 Ohio B. 290, 503
No. 15AP-896 8

N.E.2d 154. To survive a properly supported motion for
summary judgment in this type of case, the plaintiff must
produce evidence to establish * * * that the land owner was
actively negligent in permitting an unnatural accumulation of
ice and snow to exist. Sasse v. Mahie (Nov. 19, 1999), Lake
App. No. 98-L-157, 1999 Ohio App. LEXIS 5508; see Martin
v. Hook SuperX, Inc. (Mar. 18, 1993), Franklin App. No.
92AP-1649, 1993 Ohio App. LEXIS 1569.

Id. at ¶ 10-11.
{¶ 18} This court has explained in Thatcher v. Lauffer Ravines, 1oth Dist. No.
11AP-851, 2012-Ohio-6193, ¶ 17, that:
An "unnatural" accumulation is one created by causes and
factors other than natural meteorological forces. Natural
meteorological forces include inclement weather conditions,
low temperatures, drifting snow, strong winds, and freeze
cycles. Unnatural accumulations therefore are caused by the
intervention of human action doing something that would
cause ice and snow to accumulate in unexpected places and
ways. Porter v. Miller, 13 Ohio App.3d 93, 13 Ohio B. 110, 468
N.E.2d 134 (6th Dist.1983).

{¶ 19} Simply stated, property owners and occupiers owe no duty to protect
patrons from naturally occurring snow and ice. Brinkman v. Ross, 68 Ohio St.3d 82, 83
(1993). See also Luff v. Ravemore, Inc., 10th Dist. No. 11AP-16, 2011-Ohio-6765, at ¶ 13.
"This is known as the 'winter no-duty rule.' " Id. at ¶ 13. "The rationale is that individuals
are assumed to appreciate and protect themselves against the inherent dangers associated
with ice and snow during Ohio winters." Brinkman at 84, citing Debie v. Cochran
Pharmacy-Berwick, Inc., 11 Ohio St.2d 38 (1967), and Sidle v. Humphrey, 13 Ohio St.2d
45 (1968).
{¶ 20} Wiggins argues in his assignment of error that the court "disregarded
testimony of the Plaintiff that he fell on an unnatural accumulation of snow and ice, failed
to make inferences favorable to Plaintiff, and instead made inferences in favor of the
Defendant."
{¶ 21} Here, Wiggins testified that he fell on "refreezing" ice and snow. However,
appellant admits that "Plaintiff was unable to account for the cause of this refreezing, and
was only able to speculate." (Appellant's Brief, 6.) The ice and snow may have been
compacted, moved by tire and foot traffic, and melted and refroze, but none of those
No. 15AP-896 9

factors converted the snow into something unnatural so as to qualify as an exception to
the "winter no-duty rule". We have held that "[s]now that melts and later refreezes is a
natural accumulation." Kaeppner at ¶ 17. In addition, we have held that "melted run-off
from snow piled onto a sloped area which runs down and re-freezes * * * must be
anticipated by all who live in a snow belt area" and does not constitute an unnatural
accumulation. Moore v. Kroger, 10th Dist. No. 10AP-431, 2010-Ohio-5721, ¶ 10. As such,
Wiggins' testimony provides no evidence that the snow and ice upon which he fell was
anything other than natural.
{¶ 22} Wiggins' expert, Mazzoni, testified that the parking lot in question was
poorly designed and that, under certain conditions, the poor drainage system might cause
unnatural accumulations of snow and ice. Mazzoni admitted he does not know if the snow
and ice upon which Wiggins fell was caused by the lack of drainage and resulting runoff,
or simply by falling snow.
{¶ 23} On numerous occasions during his deposition, Mazzoni was asked if he
could render an opinion as to whether the snow and ice upon which Wiggins fell was an
unnatural accumulation. On each occasion, Mazzoni could not state an opinion. In some
cases he simply stated that he did not know. In sum, Mazzoni suggests conditions were
such that water could run down, due to a slope, pool, and form ice in the parking lot, but
he has no knowledge and offers no opinion that this actually occurred in this case. As
such, Mazzoni's testimony does not provide any evidence that the accumulation of snow
and ice on the night of Wiggins' fall was unnatural.
{¶ 24} Appellant suggests the combination of Wiggins' and Mazzoni's testimony is
sufficient to get the case to the jury. However, Wiggins submitted no evidence that would
allow a jury to do anything but speculate about how the ice in the parking lot at the time of
Wiggins' fall was formed, i.e., there is no evidence to show there actually was a runoff of
water which pooled in the parking lot on January 21, 2011. Wiggins also argues that "[a]
jury, with common knowledge, was denied the opportunity to decide if they agreed or
disagreed with Plaintiff's expert and whether ordinary, reasonable minds could determine
if the ice accumulation was natural or unnatural." (Appellant's Brief, 2-3.) This court's
opinion in Thatcher is instructive. In Thatcher, we stated:
The trial court granted summary judgment in part because it
noted that Riley's testimony was "too speculative" (Sept. 6,
No. 15AP-896 10

2011 Decision at 12). The court relied upon Holbrook v.
Kingsgate Condo Assn., 12th Dist. No. CA2009-07-193, 2010
Ohio 850, for the proposition that an expert must opine that
there is a greater than 50 percent likelihood that the condition
observed caused the unnatural accumulation leading to
injury. As such, the court found that the expert's opinion
demonstrated too great a level of uncertainty and could not
create a genuine issue of material fact on the question of
unnatural accumulation of ice and snow.

Id. at ¶ 36. Here, Mazzoni does not even render the final opinion that the actual ice upon
which Wiggins fell was "probably" formed by runoff and freezing. Even if the jury
"agreed" with Mazzoni, i.e., that they do not have an opinion as to whether the ice was
natural or unnatural, it would not give the jury a basis for finding that the accumulation
was unnatural.
{¶ 25} To create a genuine issue of material fact on this question, appellant would
have had to provide actual evidence to at least allow the jury to form a reasonable
inference that the ice was unnaturally formed. Appellant failed to provide that evidence
here. Wiggins' testimony indicates that the ice was a natural accumulation. He stated the
ice melted and refroze, but he offered no evidence that the ice was formed by runoff.
Mazzoni's testimony establishes only that snow and ice could melt and could then run
down into the parking lot and refreeze. Based solely on that possibility, and without
evidence that this in fact happened, Wiggins speculates in his argument that the ice on
which he slipped was an unnatural accumulation of snow and ice. No evidence actually
establishes that the scenario posited by Mazzoni occurred.
{¶ 26} This court has noted that "[s]peculation and conjecture are not sufficient to
overcome [a party's] burden of offering specific facts showing that there is a genuine issue
for trial." Carroll v. Alliant Techsystems, Inc., 10th Dist. No. 06AP-519, 2006-Ohio-5521,
¶ 17. The mere possibility that water could have melted and run into the parking lot and
refroze, and that Wiggins slipped and fell on such ice, rather than the 5.7 inches of snow
that fell the day before the accident, is insufficient.
{¶ 27} Based on our review of the facts and the relevant law, we agree with the trial
court. Neither Wiggins, nor his expert, has presented evidence that there was an
unnatural accumulation of snow and ice at the time of the incident. Appellant did not
meet his burden to come forward with specific facts demonstrating that there is a genuine
No. 15AP-896 11

issue of material fact as to whether he fell upon an unnatural accumulation of snow and
ice. Therefore, there is no genuine issue of material fact for trial. For the foregoing
reasons, Wiggins' assignment of error is overruled.
V. DISPOSITION
{¶ 28} Having overruled Wiggins' assignment of error, we affirm the judgment of
the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J. and TYACK, J., concur.
_________________