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Diamond v. TA Operating L.L.C.

Court of Appeals of Ohio, Sixth District

September 13, 2013

Donald Diamond, et al. Appellants
v.
TA Operating LLC d.b.a. Petro Shopping Center, et al. Appellees

Trial Court No. 2011CV0904

Konrad Kuczak, for appellants.

Laurie Avery and Michelle J. Sheehan, for appellees.

DECISION AND JUDGMENT

SINGER, P.J.

(¶ 1} Appellants, Donald and Carolyn Jane Diamond, appeal an award of summary judgment issued by the Wood County Court of Common Pleas to appellees, TA Operating, d.b.a. Petro Shopping Center and Travel Centers of America, in a slip and fall negligence suit. Because there was no evidence that the snow and ice upon which appellant fell was a result of an unnatural accumulation or unusually dangerous, we affirm the trial court's ruling.

(¶ 2} On February 21, 2011, appellant Donald Diamond, an over-the-road truck driver, stopped at the Petro Shopping Center. As he walked to the entrance, he stepped on some ice. As he did, his right leg broke through less than two inches of ice, causing him to fall. He consequently suffered severe injuries to his leg. On October 27, 2011, appellants filed a complaint against appellees alleging they were negligent in removing ice and snow from their premises. On November 15, 2012, the trial court granted summary judgment to appellees. Appellants now appeal setting forth the following assignment of error:

The trial court erroneously granted summary judgment.

(¶ 3} On review, appellate courts employ the same standard for summary judgment as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated:

(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

(¶ 4} Appellant's injury occurred when he stepped on the sidewalk in front of the entrance. A curb borders the sidewalk. The portion of the sidewalk he stepped on is uneven with the curb. According to appellant's own witness, the sidewalk was indented from 1.2 inches to 1.68 inches below the top surface of the curb. Because of the difference in elevation, a small dam was formed which prevented water from running off the surface of the sidewalk. Ice formed on this portion of the sidewalk. When appellant stepped on the "dam" area, his foot went through the ice, causing him to lose his balance and fall.

(¶ 5} The evidence shows there had been a small snowstorm the night before. During that time, appellees' custodian testified that he shoveled and salted the sidewalk twice. When appellees' manager came on duty in the morning, he testified that it was snowing. He also testified that he twice applied a product called "Ice Melt" to the sidewalk to melt the ice.

(¶ 6} In granting summary judgment, the trial court held that the sidewalk was an open and obvious danger and that appellees "cannot be held liable as there is no duty to protect against an open and obvious danger, natural accumulation of ice or snow, or minimal defects in the curb."

(¶ 7} In Miller v. Tractor Supply Co., 6th Dist. Huron No. H-11-001, 2011-Ohio-5906, ¶ 8-9, this court discussed the duty of a business owner to remove ice and snow from their premises:

It has long been established in Ohio that an owner or occupier of land 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, ΒΆ 12. This rule has been dubbed by some courts as ...

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