[Cite as Oliver v. Fox's Food, L.L.C. , 2023

- Ohio

- 1551.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Gregory L. Oliver , :

Plaintiff

- Appell ant , : No. 22AP

- 73 (C .P.C. No. 19CV

- 8252 )

v. : (REGULAR CALENDAR) Fox ’ s Food , LLC et al., :

Defendant s
- Appell ee s
. :

D E C I S I O N

Rendered on May 9, 2023

On brief: Law Offices of Brent L. English , and Brent L. English , for appellant. Argued: Brent L. English

. On brief: Caborn & Butauski Co. L.P.A. , and Joseph A. Butauski , for appellee Fox’s Food, LLC

. Argued: Alyssa A. Wolf

.

APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER , J. {¶ 1} Plaintiff

- appellant, Gregory L. Oliver, appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant

- appellee, Fox ’ s Food, LLC ( “ Fox ’ s Food ” )

. For the following reasons, we affirm.
I. Facts and Procedural History {¶ 2} This matter arises from Oliver ’ s January 1, 2018 slip and fall on the sidewalk adjacent to Blocks Bagels , a bakery operated by Fox ’ s Food, in Bexley, Ohio. It had snowed the previous day, and temperatures were in the single digits when Oliver slipped and fell due to the icy conditions

. As a result of the fall, he s ustained injuries to his head, hip, and left knee

.No. 22AP

- 73 2

{¶ 3} In October 2019, Oliver initiated this action against Fox ’ s Food alleging negligence. In July 2021, Fox ’ s Food moved for summary judgment on the basis that it owed no duty to Oliver as to the hazardous condition that ca used his slip and fall

. In response, Oliver asserted, for the first time in the litigation, that he was an intended third

party beneficiary of the lease agreement between Fox ’ s Food and the owner of the property, and that Fox ’ s Food breached this lease agreement by not clearing the sidewalk of the accumulated snow and ice. {¶ 4} In December 2021, the trial court granted summary judgment in favor of
Fox ’ s Food. The court found that , under premises liability law, Fox ’ s Food owed no duty to Oliver to clear the sidewalk of the snow and ice, and therefore his negligence claim failed. The court also declined to consider Oliver ’ s breach of contract claim because he first introduced this theory of recovery i n his response to the summary j udgment motion. {¶ 5} Oliver timely appeals.
II. Assignments of Error {¶ 6} Oliver assign s the following two assignments of error for our review : [1.] The trial court committed reversible error by granting summary judgment despite the existence of genuine issues of fact in dispute. [2.] The trial court committed reversible error by granting summary judgement despite the fact that the condition of the sidewalk on which appellant fell was not open and obvious.
III. Discussion {¶ 7} Because Oliver ’ s two assignments of e rror involve interrelated issues, we address them together. His first assignment of error alleges the trial court erred in granting summary judgment in favor of Fox ’ s Food because there existed genuine issues of material fact. And in his second assignmen t of error, he contends the trial court erred in granting summary judgment in favor of Fox ’ s Food because the sidewalk ’ s hazardous condition was not open and obvious. These assignments of error are not well

- taken

. {¶ 8} “ An appellate court reviews summary judgment under a de novo standard. ” Estate of Sample v. Xenos Christian Fellowship , Inc. , 10th Dist. No. 20AP

- 563, 2021

- Ohio

3898, ¶ 9 . Summary judgment is appropriate only when the moving party demonstrates : (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment asNo. 22AP

- 73 3

a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled t o have the evidence most strongly construed in its favor. Civ.R. 56(C) ; State ex rel. Grady v. State Emp. Relations Bd ., 78 Ohio St.3d 181, 183 (1997) . The court reviewing the motion only may consider “ the pleadings, depositions, answers to interrogatori es, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action

. ” Civ.R. 56(C). {¶ 9} Pursuant to Civ.R. 56(C) , the moving party bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 293 (1996) . However, the moving party cannot discharge its initial burden under this rule with a conclusory assertion that the nonmoving party has no evidence to prove its case; the moving party must specifically point to evidence of the type listed in Civ.R. 56(C) affirmatively demonstrating that the nonmoving party has no evidence to support the nonmoving party ’ s claims. Id

. ; Vahila v. Hall , 77 Ohio St.3d 421, 429 (1997)

. Once the moving party discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56 , with specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at
430; Civ.R. 56(E)

. {¶ 10} Here, Oliver a sserted a negligence claim against Fox ’ s Food based on his slip and fall. To establish negligence, a plaintiff must prove : (1) the existence of a duty, (2) a breach of that duty, and (3) an injury proximately resulting from the breach. A.M. v. Miami Univ. , 10th Dist. No. 17AP

- 156, 2017

- Ohio

- 8586, ¶ 32. A plaintiff ’ s failure to present evidence establishing any one of these elements will entitle the defendant to judgment. Id. The trial court found Oliver failed to submit evidence showing Fox ’ s Food owed a duty to protect him from the hazard that caused him to slip and fall. We agree. {¶ 11} Whether a duty exists is a question of law for the court to determine. Mussivand v. David , 45 Ohio St.3d 314, 318 (1989). I n a premises liability case, the relationship between the owner or occupier of the premises and the injured party determines the duty owed. Canfield v. United Airlines , Inc. , 10th Dist. No. 21AP

- 252, 2021

- Ohio

- 4460 , ¶ 18. An owner or occupier of premises owes business invitees, such as OliverNo. 22AP

- 73 4

in this case, a duty of ordinary care in maintaining the premises in a reasonably safe condition so that invitees are not unneces sarily and unreasonably exposed to danger. Paschal v. Rite Aid Pharmacy , Inc. , 18 Ohio St.3d 203 (1985)

. But an owner or occupier of premises generally owes no duty to remove natural accumulations of snow and ice or warn business invitees of the dangers associated with such accumulations. Brinkman v. Ross , 68 Ohio St.3d 82, 83

- 84 (1993). Because “ everyone is assumed to appreciate the risks associated with natural accumulations of ice and snow * * * everyone is responsible to protect himself or herself a gainst the inherent risks presented by natural accumulations of ice and snow. ” Id. at 84. This principle has been referred to as the “ no
- duty winter rule. ” Thatcher v. Lauffer Ravines , L

. L

. C

. , 10th Dist. No. 11AP

- 851, 2012

- Ohio

- 6193 , ¶ 15. {¶ 12} The no
- duty winter rule does not apply if: (1) the natural accumulation of snow and ice was substantially more dangerous than the plaintiff could have anticipated , and the owner or occupier of the premises had notice of such danger , or (2) the owner or occupie r of the premises was actively negligent in permitting an unnatural accumulation of snow and ice to exist. Kaeppner v. Leading Mgt. , Inc. , 10th Dist. No. 05AP

- 1324, 2006

- Ohio

- 3588, ¶ 11

. “ An ‘ unnatural ’ accumulation is one created by causes and factors o ther than natural meteorological forces , ” which “ include inclement weather conditions, low temperatures, drifting snow, strong winds, and freeze cycles. ” Thatcher at ¶ 17. Thus,

“ unnatural accumulation s are caused by the intervention of human action doing something that would cause ice and snow to accumulate in unexpected places and ways. ” Id. , citing Porter v. Miller , 13 Ohio App.3d 93 (6th Dist.1983). But “ [s] alting or shoveling does not

turn a natur al accumulation into an unnatural accumulation

. ” Cunningham v. Thacker
Servs. , Inc. , 10th Dist. No. 03AP

- 455, 2003

- Ohio

- 6065, ¶ 14

. {¶ 13} The submitted evidence demonstrated that, a t approximately 9:45 a.m. on January 1, 2018, Oliver drove and parked at Blocks Bagels in Bexley , Ohio, a shop owned and operated by Fox ’ s Food. As Oliver walked toward the shop on a sidewalk under the control of Fox ’ s Food, he slipped and fell , sustaining extensive injuries. At his deposition, Oliver testified that it had snowed the day prior to his slip and fall, the temperature was in the single digits when he arrived at Blocks Bagels , and the resulting icy conditions caused him to s lip and fall

. Additionally , on appeal, Oliver concedes the record contains no evi dence the accumulation of snow and ice on the premises was unnatural or th eNo. 22AP

- 73 5

accumulation of snow and ice was substantially more dangerous than what o rdinarily c ould be anticipated. Thus, neither of the previously discussed exceptions to the no

- duty winter rule applied. Oliver argues , however, there is an additional exception to the no

- duty winter rule when there is a contractual duty to keep a sidewalk cleared of snow and ice. {¶ 14} In support of his contractual duty argument, Oliver cites Chatelain v. Portage View Condominiums , 151 Ohio App.3d 98, 2002

- Ohio

- 6764 , ¶ 8 (9th Dist.), for its statement that “ [t]he duty to remove natural accumulations of snow or ice can arise when
* * * the d uty is created by express contract. ” (Internal citations omitted

. ) He asserts this contractual duty arose from the lease agreement between the property owner and Fox ’ s Food , and that he was an intended third

- party beneficiary of the lease agreement. Thu s, he claims he was injured as a result of Fox ’ s Food breaching its contractual duty to ensure the safety of the sidewalk. But Oliver did not properly raise this breach of contract claim

. {¶ 15} In Ervin v. Case Bowen Co. , 10th Dist. No. 07AP

- 322, 2008

- Ohio

- 393, ¶ 12, the plaintiff asserted a negligence claim arising from a slip and fall on frozen precipitation, and then, in response to a summary judgment motion, claimed the defendant had breached a contractual duty to remove snow and ice on the pre mises. The trial court rejected the plaintiff ’ s claim that the defendant had breached a contractual duty to him, and the plaintiff challenged that ruling on appeal. This court held the plaintiff

- appellant could not allege trial court error as to a breach of contract claim when the claim was not raised in th e amended complaint. Id. at ¶ 12. Similarly, in Tchankpa v. Ascena Retail Group , Inc. , 10th Dist. No. 19AP

- 760, 2020

- Ohio

- 3291, the plaintiff first raised a claim in response to the defendant ’ s summar

y judgment motion. On appeal, this court noted that raising a claim for the first time in response to a summary judgment motion is “ insufficient to thwart ” such a motion. Id. at ¶ 25. “ A plaintiff must respond to a motion for summary judgment based
on t he claims already presented rather than surprise the defendant and court with new theories of recovery. ” Id. {¶ 16} Here, i n Oliver ’ s memorandum in opposition to Fox ’ s Food ’ s summary judgment motion, he asserted, for the first time , that he was an intended third

- party beneficiary under the applicable lease agreement , and that Fox ’ s Food ’ s breac h of its contractual duty under the lease caus ed his slip and fall

. Oliver only pleaded negligence in his complaint; he did not plead facts that, if proven, would support a breach of contractNo. 22AP

- 73 6

claim

. Although Oliver alleged Fox ’ s Food had a duty to clear the sidewalk of snow and ice , he did not directly allege, or even suggest , the duty arose pursuant to the terms of a contract

. Thus, p ursuant to T

chankpa and Ervin , we find the trial court did not err in declin ing to consider Oliver ’ s breach of contract claim first presented in response to the summary judgment motion of Fox ’ s Food. And because th is claim was not properly presented, it was unnecessary for the trial court to analyz e Oliver ’ s related assertion that he was an intended third

- party beneficiary of the lease agreement allegedly breached

. {¶ 17} Oliver also argues the trial court erred in concludin g the hazardous condition of the sidewalk, on which he slipped and fell, was open and obvious. Although both eliminate the duty owed to a business invitee, the “ open
- and

- obvious doctrine ” is distinct from the “ no
- duty winter rule

. ” As this court has explained: “ The no

- duty winter rule assumes everyone will appreciate and protect themselves against risks associated with natural accumulations of ice and snow; the open and obvious doctrine assumes only those who could observe and appreciat e the danger will protect themselves against it. ” Sherlock v. Shelly Co. , 10th Dist. No. 06AP

- 1303, 2007

- Ohio

- 4522, ¶ 22. Thus, a finding that the

no
- duty winter rule applie s to a slip and fall caused by naturally accumulated snow and ice obviates any ne ed to also determine the applicability of the open

- and

- obvious doctrine. But analysis of the open
- and

- obvious doctrine may be necessary if the business invitee slipped and fell on unnaturally accumulated snow and ice. {¶ 18} While t his court has not directly res olved the issue, s ome court s have required a plaintiff, who has established the existence of an unnatural accumulation of snow and ice, also to carry the burden of showing that the hazardous condition that caused the slip and fall was not open and obvious. See Thatcher at ¶ 19 , 20

- 21 (discussing the split in Ohio courts “ on the question of whether the open

- and

- obvious rule applies to unnatural accumulations ” ). Under this approach , the open

- and

- obvious doc trin e is an exception to the unnatural accumulation exception to the no

- duty winter rule. R egardless of the approach adopted , however, Oliver submitted no evidence showing the existence of an unnatural accumulation of snow and ice on the premises . T heref ore , it was unnecessary for the trial court to analyze the application of the open

- and

- obvious doctrine

. Consequently , Oliver ’ s challenge to the trial court ’ s open
- and

- obvious doctrine finding presents a moot issue.No. 22AP

- 73 7

{¶ 19} Because Oliver failed to demonstrate Fox ’ s Food owed him a duty to clear the snow and ice on the premises, the trial court did not err in granting summary judgment in favor of Fox ’ s Food . Accordingly, we overrule Oliver ’ s first and second assignments of error.
IV. Disposition {¶ 20} Having overruled Oliver ’ s two assignments of error , we affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed

.

BEATTY BLUNT, P.J. , and MENTEL , J., concur.

_____________