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Bakies v. RSM Maintenance, Inc.

Court of Appeals of Ohio, Third District, Allen

August 19, 2019

JOSEPH BAKIES, PLAINTIFF-APPELLANT,
v.
RSM MAINTENANCE, INC., ET AL., DEFENDANTS-APPELLEES.

          Appeal from Allen County Common Pleas Court Trial Court No. CV2017 0635.

         Judgment Affirmed

          Mark S. Pantello for Appellant Mark S. Maddox for Appellees, RSM Maintenance, Inc. & Meijer Stores Limited Partnership

          Matthew J. Timperman for Appellee, RBK Enterprises, LLC

          OPINION

          PRESTON, J.

         {¶1} Plaintiff-appellant, Joseph Bakies ("Bakies"), appeals the December 21, 2018 judgment of the Allen County Court of Common Pleas granting the motions for summary judgment of defendants-appellees, RSM Maintenance, Inc. ("RSM"), Meijer Stores Limited Partnership ("Meijer"), and RBK Enterprises, LLC ("RBK"). For the reasons that follow, we affirm.

         {¶2} Meijer operates a retail location at 3298 Elida Road in Lima, Ohio. Meijer contracted with RSM for snow removal and salting services at the Lima location. (See Doc. No. 48, Plaintiffs Ex. 8). RSM acted as a middle management company between Meijer and RBK, and it subcontracted with RBK, a snow removal company, to perform snow removal and salting services at Meijer's Lima location. (Doc. No. 41, Knowlton's Oct. 23, 2018 Depo. at 8). (See Doc. No. 48, Plaintiffs Ex. 9). Brian Knowlton ("Knowlton") is the owner of RBK and often performed or assisted with the snow removal and salting services at Meijer's Lima location. (Doc. No. 41, Knowlton's Oct. 23, 2018 Depo. at 8).

         {¶3} On the morning of December 17, 2016, Bakies and his fiancée, Kristen Shoemaker ("Shoemaker"), went for breakfast at the IHOP restaurant in Lima, Ohio. (Doc. No. 38, Bakies's Aug. 13, 2018 Depo. at 16-17). Bakies described the weather that morning as cold, "wet," and raining intermittently. (Id. at 16-17). Bakies described the roads during his drive to IHOP as "wet" but "okay." (Id. at 17). Following breakfast, Bakies and Shoemaker drove across the street to Meijer's Lima location for some Christmas shopping. (Id. at 18). Bakies dropped off Shoemaker at the front entrance of the store, and she entered the store without incident. (Id. at 18-20). Bakies then drove to one of the parking spaces. (Id. at 18-20). While driving to the parking spot, Bakies noted that the Meijer parking lot was "wet" but he did not notice any ice. (Id. at 18-19). After parking, Bakies opened the door to step out and "as soon as [he] hit the pavement, [he] went down" and was unable to get up. (Id. at 20-25). Bakies speculated he slipped on "black ice" but did not see any ice on the ground, only that the pavement looked "wet." (Id. at 22-23). Two Meijer employees assisted Bakies in getting up from the ground and into his vehicle, and Shoemaker drove him to the hospital for medical care for injuries to his right shoulder. (Id. at 25-27).

         {¶4} On November 13, 2017, Bakies filed a complaint against RSM, RBK, and Meijer Group, Inc. asserting claims of negligence. (Doc. No. 1). On January 2, 2018, RSM and Meijer Group, Inc. filed their answer to Bakies's complaint and a contingent cross-claim against RBK. (Doc. No. 9). On January 8, 2018, by agreement of the parties, Bakies filed an amended complaint substituting Meijer for Meijer Group, Inc. (Doc. No. 10). On January 18, 2018, RSM and Meijer filed their amended answer and contingent cross-claim.[1] (Doc. No. 11). On January 25, 2018, RBK filed its answer to the amended complaint. (Doc. No. 14).

         {¶5} On November 1, 2018, RSM and Meijer filed a motion for summary judgment. (Doc. No. 39). In their motion for summary judgment, RSM and Meijer argued that they did not owe a legal duty to Bakies with respect to the wet or icy conditions of the parking lot. (Id.). RSM argued that as a "middle management company," it does not own or occupy the premises and, therefore, did not owe a duty to Meijer's customers under a premises liability theory. (Id). Moreover, RSM argued that it was not actively involved in salting and removing snow from Meijer's parking lot and was not contractually obligated to salt the Meijer parking lot. (Id.). Meijer argued that it did not have a duty to remove a natural accumulation of ice or rain from the parking lot. (Id.). Meijer also contended that it did not have superior knowledge regarding the conditions of the parking lot and that no abnormal conditions existed in the area in which Bakies fell. (Id.).

         {¶6} RBK also filed a motion for summary judgment on November 1, 2018. (Doc. No. 42). In its motion for summary judgment, RBK contended that the slippery pavement Bakies fell on was open and obvious and the result of a natural accumulation of ice. (Id.). Therefore, RBK asserted that it did not have a duty to warn Bakies of the danger associated with the condition of the Meijer parking lot. (Id.).

         {¶7} On December 11, 2018, Bakies filed his response to the defendants' motions for summary judgment. (Doc. No. 48). RBK filed its reply brief in support of its motion for summary judgment on December 14, 2018. (Doc. No. 52). On December 21, 2018, Meijer and RSM filed their reply brief in support of their motion for summary judgment. (Doc. No. 54). That same day, the trial court granted the motions for summary judgment. (Doc. No. 53).

         {¶8} On January 22, 2019, Bakies filed his notice of appeal. (Doc. No. 56). Bakies raises three assignments of error for our review, which we will address together. For ease of discussion, we will also address Bakies's assignments of error out of order. We will first address Bakies's first assignment of error, followed by his third and second assignments of error, respectively.

Assignment of Error No. I
The trial court erred when it determined that Defendants-Appellees did not assume a contractual duty.
Assignment of Error No. II
The trial court erred when it determined that Defendants-Appellees are afforded the same limitation of duty that owners and occupiers are afforded as it relates to unnatural accumulations of ice and snow.
Assignment of Error No. III
The trial court erred when it determined that Defendants-Appellees did not have superior knowledge of the danger ...

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