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Watts v. Richmond Run #1 Condominium Unit Owners Association, Inc.

Court of Appeals of Ohio, Eighth District

June 27, 2013

RALPH WATTS, PLAINTIFF-APPELLANT
v.
RICHMOND RUN #1 CONDOMINIUM UNIT OWNERS ASSOCIATION, INC., ET AL., DEFENDANTS-APPELLEES

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-762878.

ATTORNEY FOR APPELLANT Jeffrey D. Lojewski Berger & Zavesky Co., L.P.A.

ATTORNEYS FOR APPELLEES For Richmond Run #1 Condominium Unit Owners Association, Inc. John B. Stalzer Reminger Co., L.P.A., For Rossoll Landscaping, Inc. Sarah A. Miller Joseph G. Ritzier Ritzier, Coughlin & Paglia, Ltd.

BEFORE: Celebrezze, J., Stewart, A.J., and Jones, J.

JOURNAL ENTRY AND OPINION

FRANK D. CELEBREZZE, JR., J.

{¶ 1} Appellant, Ralph Watts, initiated this appeal from the trial court's grant of summary judgment in favor of appellees, Richmond Run #1 Condominium Unit Owners Association, Inc. ("Richmond") and Thomas Rossoll, d.b.a. Rossoll Landscaping, Inc. ("Rossoll").[1] The trial court found that the winter conditions that caused Watts to fall were open and obvious. On appeal, Watts claims the trial court erred in granting summary judgment. After a thorough review of the record and law, we affirm.

I. Factual and Procedural History

{¶ 2} Watts filed suit against appellees on August 26, 2011, alleging that he slipped and fell as a result of appellees' negligence in clearing snow from a private street within the condominium development where he resided.

{¶3} On January 6, 2011, at about 12:30 p.m., Watts left his home to walk to the mailboxes located by the entrance of his condominium development. He noticed that his driveway was icy and walked with caution to its end and onto the private street that runs through the condominium development. He also noticed that ice and water had accumulated at the edges of the street, creating a hazardous slush. The condominium development lacks sidewalks along the street, so Watts walked in the middle of the street. According to Watts's deposition, he was in the middle of the street walking toward the mailboxes when he heard a car approaching from the rear at a high rate of speed. He stepped to the side of the street in order to get out of the way of the oncoming car. He stated that he fell because "the snow bank [at the edge of the street] impeded me from getting out of the way * * * which caused me to fall[, ]" and that because of the snow plowed at the edges of the street, he "had no escape route." The car stopped and the occupants inquired if Watts needed assistance.

{¶ 4} Later in his deposition, Watts admitted that he fell at the edge of the street before any snow embankment. He admitted to falling on the slushy ice and water that had accumulated at the edges of the street and never made it as far as the snow embankment, which he estimated was three-to-four-feet high. After he slipped on the slush, he attempted to get up and fell a second time. He sought medical attention and, as a result of his injuries, missed five days of work.

{¶ 5} Based on the deposition testimony, Richmond and Rossoll separately moved for summary judgment arguing that the accumulation of snow at the edges of the street did not cause Watts to fall. They also argued that the cause of Watts's fall was open and obvious as a natural weather condition one should be accustomed to living in Ohio. Watts opposed summary judgment. On September 14, 2012, the trial court granted Richmond's and Rossoll's motions for summary judgment and issued a lengthy opinion setting forth its rationale a few days later. Watts then appealed to this court assigning four errors.[2]

II. Law and Analysis

A. Standard of Review

{¶ 6} All of Watts's assigned errors deal with the grant of summary judgment under Civ.R. 56. This rule provides that before summary judgment is granted, it must be determined that

(1) No genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

{¶ 7} It is well established that the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). "[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 296, 1996-Ohio- 107, 662 N.E.2d 264. The nonmoving party has a reciprocal burden of specificity and cannot rest on mere ...


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