[Cite as Van Horn v. Thomas & King, 2014-Ohio-2941.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

ABBY VAN HORN, 

 PLAINTIFF-APPELLANT, 

V. 

THOMAS & KING, et al., 

 DEFENDANTS-APPELLEES. 

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CASE NO. 13 MA 124 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 11CV3700 

JUDGMENT: Reversed and Remanded 

APPEARANCES: 

For Plaintiff-Appellant Attorney William E. Pfau III 

P.O. Box 9070 

Youngstown, Ohio 44512 

For Defendants-Appellees Attorney William Jack Meola 

972 Youngstown-Kingsville Road 

P.O. Box 740 

Vienna, Ohio 44473 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

 

 

 Dated: June 20, 2014 
[Cite as Van Horn v. Thomas & King, 2014-Ohio-2941.]

DONOFRIO, J. 

{¶1} Plaintiff-appellant, Abby Van Horn, appeals from a Mahoning County 

Common Pleas Court judgment granting summary judgment in favor of defendantappellee, Thomas and King, Inc., on appellant’s claim alleging her slip and fall on an 

unnatural accumulation of ice and snow. 

{¶2} On December 27, 2010, at approximately 7:00 p.m., appellant, her 

three-year-old-son, and an acquaintance went to dinner at Applebee’s Restaurant in 

Boardman. Applebee’s is owned and operated by appellee. After spending 

approximately one hour in the restaurant eating dinner, appellant and her son exited 

the building. Appellant was holding her son’s hand as the two walked down the 

sidewalk adjacent to the parking lot. Appellant’s son was behind her, but still holding 

her hand. She turned to talk to him and as she did, appellant slipped on a patch of 

ice and fell on the sidewalk. The fall caused her to fracture her patella. 

{¶3} After appellant’s fall, as she sat on the sidewalk, she noticed that she 

had slipped on a patch of ice that was approximately 6-inches wide by 12- to 18-

inches long. Appellant stated that she did not notice the ice until she was on the 

ground. 

{¶4} The day before appellant’s fall, Blasco Commercial Services (Blasco), 

which was under contract for snow removal at Applebee’s, plowed the parking lot. 

According to appellant, there had been no precipitation, either snow or rain, on the 

day of her fall but it was cold and windy. Also according to appellant, when she 

walked on the sidewalk to enter the restaurant, it appeared to be cleared and salted 

with some patches of snow remaining. 

{¶5} Appellant filed a complaint against appellee alleging that appellee 

breached its duty of care owed to her to maintain its premises in a reasonably safe 

condition and due to appellee’s negligence, she slipped and fell on an unnatural 

accumulation of ice. Appellant later amended her complaint to add claims against 

Blasco. 

{¶6} Appellee and Blasco filed a motion for summary judgment. They 

asserted they could not be liable for appellant’s fall because (1) it was not a result of 
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a condition of ice and snow that was made more hazardous by their maintenance of 

the area and (2) the ice on which appellant fell was open and obvious. Appellant 

filed a response in opposition. 

{¶7} A magistrate issued a decision in which he stated appellant conceded 

Blasco was entitled to summary judgment. The magistrate went on to find there was 

a genuine issue of material fact with respect to appellee’s alleged negligence in the 

maintenance of its premises. The magistrate found there was circumstantial 

evidence that the ice on which appellant slipped and fell was an unnatural 

accumulation caused by water and ice dripping from the bumpers of vehicles that 

were permitted to park in such a manner that the bumpers would overhang the 

sidewalk in front of Applebee’s. He further found that while appellee has installed 

parking blocks on the south side of the building, which prevented vehicles’ bumpers 

from overhanging the adjacent sidewalk, no such bumpers were present on the west 

side of the building where appellant fell. Therefore, the magistrate concluded there 

was enough circumstantial evidence to create a genuine issue of material fact to 

preclude summary judgment in favor of appellee. 

{¶8} Appellee filed objections to the magistrate’s decision. It asserted that in 

making his decision the magistrate made an impermissible inference that appellant 

fell on ice that was formed by water or snow that had dripped from a bumper and 

then made another inference that water or snow did drip from a bumper and froze on 

the sidewalk where appellant fell. Appellee argued the evidence presented did not 

support these inferences. Appellee further argued that the ice on which appellant fell 

was open and obvious. And appellee argued the magistrate failed to apply the law 

as set out in Leightner v. Cafaro Ross Partnership, 7th Dist. No. 01 CA 132, 2002-

Ohio-5209. 

{¶9} The trial court agreed with appellee’s objections. It found reasonable 

minds could come to but one conclusion and that conclusion was adverse to 

appellant. Therefore, the trial court entered summary judgment in appellee’s favor. It 

also granted summary judgment to Blasco. 
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{¶10} Appellant filed a timely notice of appeal on August 16, 2013. Appellant 

does not contest the court’s grant of summary judgment in favor of Blasco. Her 

appeal only challenges the grant of summary judgment in favor of appellee. 

{¶11} Appellant raises a single assignment of error that states: 

 THE TRIAL COURT ERRED IN GRANTING SUMMARY 

JUDGMENT IN FAVOR OF DEFENDANT THOMAS & KING, INC. IN 

ITS JUDGMENT ENTRY OF AUGUST 6, 2013. 

{¶12} Appellant argues summary judgment was improper in this case. 

{¶13} First, appellant contends there is a genuine issue of material fact as to 

whether the ice was an open and obvious condition. She asserts appellee did not 

put forth any evidence that the ice that caused her fall was open and obvious. And 

she notes that in her deposition she stated she did not notice the ice until she was on 

the ground next to it and the ice was not noticeable except upon close observation. 

Additionally, appellant notes appellee’s manager stated that Applebee’s employees 

conducted visual inspections of the area every 15 to 30 minutes specifically looking 

for ice and snow. Thus, appellant contends either the ice was not open and obvious 

because it was not noticed by Applebee’s employees or appellee was negligent in its 

inspection. 

{¶14} Second, appellant argues there is a genuine issue of material fact as to 

whether the ice on the walkway was a natural accumulation of ice. She asserts the 

evidence demonstrated that Blasco shoveled and salted the sidewalks at Applebee’s 

on December 26, 2010, in response to one-half of an inch of snow. (Jerry Blasco Aff. 

¶3, Ex. C). No additional work was done by Blasco until January 7, 2011. (Jerry 

Blasco Aff. Ex. C). There had been no precipitation on December 27, 2010. (Van 

Horn Aff.). When appellant arrived at Applebee’s, the sidewalks appeared shoveled 

and salted. Appellant further asserts that her affidavit and accompanying 

photographs demonstrate that vehicles parking at Applebee’s routinely park with the 

front bumpers overhanging the sidewalk. (Van Horn Aff. Exs. 4, 5, 6; Dearden Dep. 
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Exs. 3, 5, 6). This evidence, appellant asserts, reveals that even though the 

sidewalks were salted and shoveled following one-half of an inch of snowfall the 

previous day, the sidewalk developed an oblong 12-inch to 18-inch long by 6-inch 

wide layer of ice along the parking lot edge of the sidewalk. Taking all of the 

circumstantial evidence into consideration, appellant argues, leads to the conclusion 

that she fell on an unnatural accumulation of ice from water and ice that dripped from 

vehicles’ bumpers that overhung the sidewalk and then froze, which was the 

conclusion the magistrate reached. She argues the inferences were reasonably 

drawn from the evidence. 

{¶15} Finally, appellant argues the evidence did not establish that appellee 

met its duty of reasonable care owed to her as a business invitee. 

{¶16} In reviewing a trial court's decision on a summary judgment motion, 

appellate courts apply a de novo standard of review. Cole v. Am. Industries & 

Resources Corp., 128 Ohio App.3d 546, 552, 715 N.E.2d 1179 (7th Dist.1998). 

Thus, we shall apply the same test as the trial court in determining whether summary 

judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary 

judgment if no genuine issue of material fact exists and when construing the 

evidence most strongly in favor of the nonmoving party, reasonable minds can only 

conclude that the moving party is entitled to judgment as a matter of law. State ex 

rel. Parsons v. Flemming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994). A 

“material fact” depends on the substantive law of the claim being litigated. Hoyt, Inc. 

v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th 

Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 

2505, 91 L.Ed.2d 202 (1986). 

{¶17} A negligence claim requires the plaintiff to prove: (1) duty; (2) breach of 

duty; (3) causation; and (4) damages. Anderson v. St. Francis-St. George Hosp., 

Inc., 77 Ohio St.3d 82, 84, 671 N.E.2d 225 (1996). 

{¶18} In this case, appellant was appellee's business invitee. Generally, a 

premises owner owes a business invitee a duty to exercise ordinary care and to 
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protect the invitee by maintaining the premises in a safe condition. Presley v. 

Norwood, 36 Ohio St.2d 29, 31, 202 N.E.2d 81 (1973); Light v. Ohio University, 28 

Ohio St.3d 66, 67, 502 N.E.2d 611 (1986). 

{¶19} But a business owner does not owe invitees a duty to warn of dangers 

that are open and obvious. Armstrong v. Best Buy Co. Inc., 99 Ohio St.3d 79, 2003-

Ohio-2573, 788 N.E.2d 1088, ¶5. “Where a danger is open and obvious, a 

landowner owes no duty of care to individuals lawfully on the premises.” Id. at the 

syllabus. That is because the owner may reasonably expect those entering the 

property to discover the dangers and take appropriate measures to protect 

themselves. Simmers v. Bentley Constr. Co., 64 Ohio St.2d 642, 644, 597 N.E.2d 

504 (1992). 

{¶20} Likewise, a premises owner “ordinarily owes no duty to business 

invitees to remove natural accumulations of ice and snow from the private sidewalks 

on the premises, or to warn the invitee of the dangers associated with such natural 

accumulations of ice and snow.” Brinkman v. Ross, 68 Ohio St.3d 82, 83, 623 

N.E.2d 1175 (1993). This is because people are assumed to appreciate the risks 

associated with natural accumulations of ice and snow and to protect themselves 

against the inherent risks presented by natural accumulations of ice and snow. Id. at 

84. 

{¶21} Additionally, this court has held that the open and obvious doctrine 

applies to unnatural accumulations of ice and snow, thus rendering no duty on the 

part of the landowner. Mounts v. Ravotti, 7th Dist. No. 07 MA 182, 2008-Ohio-5045, 

¶53-58; 

{¶22} In her deposition, appellant stated that when she arrived at Applebee’s 

it was dark. (Van Horn Dep. 28). She parked in front of the building, facing South 

Avenue. (Van Horn Dep. 36). As she entered Applebee’s, appellant noticed that the 

parking lot was plowed or shoveled, and salted. (Van Horn Dep. 40). And there 

were big mounds of snow in the parking lot from the plowing. (Van Horn Dep. 40). 

She had no trouble walking on the sidewalk into the restaurant that evening. (Van 
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Horn Dep. 40, 43). The sidewalk was cleared and salted. (Van Horn Dep. 41). 

Appellant noticed some patches of snow “here and there” on the sidewalk. (Van 

Horn Dep. 42-43). Additionally, some parts of the sidewalk were wet and some parts 

were dry. (Van Horn Dep. 63). 

{¶23} When she exited Applebee’s, appellant was holding her three-year old 

son’s hand with her left hand. (Van Horn Dep. 32). The weather was cold and 

windy. (Van Horn Dep. 33). It was neither raining nor snowing. (Van Horn Dep. 33). 

The temperature was in the 20s or 30s. (Van Horn Dep. 34). Other patrons were on 

the sidewalk so appellant went to the left-hand side of the sidewalk, closest to the 

parking lot, to pass the other patrons. (Van Horn Dep. 45). Appellant’s son was 

behind her, but she was still holding his hand as she turned to talk to him. (Van Horn 

Dep. 45). When she turned, her right foot landed on a patch of ice and she fell. (Van 

Horn Dep. 45). 

{¶24} Appellant stated that she went generally through the same area when 

she entered Applebee’s as when she exited. (Van Horn Dep. 48). She did not notice 

any snow or ice in the area where she fell when she was entering Applebee’s. (Van 

Horn Dep. 48). Appellant did not notice the ice that she slipped on until after she fell. 

(Van Horn Dep. 48). But nothing was obscuring her view of the ice. (Van Horn Dep. 

48). Once she fell, appellant examined the patch of ice and determined it was 

approximately 12- to 18-inches long and 6-inches wide. (Van Horn Dep. 49). There 

was no snow on top of the ice and it was “pretty flush” with the sidewalk. (Van Horn 

Dep. 50-51). There was nothing obscuring appellant’s view of the ice. (Van Horn 

Dep. 48). 

{¶25} Appellant opined that vehicles’ bumpers that were overhanging the 

sidewalk on the night of the fall played a part in her fall. (Van Horn Dep.63-64). She 

stated the ice patch was in the area where a bumper would have overhung the 

sidewalk and ice and water would have dripped onto the sidewalk. (Van Horn Dep. 

64). There was no car parked in that spot when she fell. (Van Horn Dep. 64). But 

she observed that the ice was in the area where a bumper would overhang the 
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sidewalk and the ice patch was the right width and depth to match up with a bumper. 

(Van Horn Dep. 64). 

{¶26} According to Applebee’s manager Jeffrey Dearden, he was working on 

the night of appellant’s fall, but could not recall the incident. Dearden gave 

deposition testimony about Applebee’s general practices. Dearden stated that snow 

removal is handled by an outside contractor. (Dearden Dep. 15). But general 

cleanup and maintenance is handled by Applebee’s employees. (Dearden Dep. 15). 

He stated that employees remove trash and “sweep” the parking lot for trash, ice, and 

snow. (Dearden Dep. 15). This is done at the manager’s discretion. (Dearden Dep. 

16). Dearden stated that the manager on duty would check the walkways to make 

sure they were clear of ice and snow and have an employee remove it with a shovel 

or “ice melt.” (Dearden Dep. 16). He stated that during the winter months, the 

manager would send employees out on a regular basis, approximately every 15 to 30 

minutes, to look for ice and snow that needed to be removed. (Dearden Dep. 16-17). 

{¶27} Dearden also testified regarding “parking blocks,” which are located in 

some areas of Applebee’s parking lot that appear to be curb-like, concrete barriers 

that prevent cars from parking too close to the building. (Dearden Dep. 22-23). 

Dearden stated these parking blocks were located on the south-side of Applebee’s 

parking lot but not in the front of the building. (Dearden Dep. 22-23). He then 

identified a photograph depicting several cars parked in front of Applebee’s with their 

bumpers overhanging the sidewalk. (Dearden Dep. Ex. 5). Dearden stated he has 

observed vehicles parking in this manner. (Dearden Dep. 24). 

{¶28} Per the affidavit of Jerry Blasco, Blasco was under contract to perform 

snow removal services at Applebee’s. (Blasco Aff. ¶2). Jerry Blasco averred that 

prior to appellant’s December 27 fall, the last time Blasco performed services at 

Applebee’s was in the morning on December 26, when it salted and shoveled the 

parking lot and also salted the walks. (Blasco Aff. ¶3, Ex. C). This was in response 

to one-half inch of snow. (Blasco Aff. Ex C). The next date that Blasco performed 

services at Applebee’s was January 7. (Blasco Aff. Ex. C). 
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{¶29} A genuine issue of fact exists as to whether the ice on which appellant 

slipped was a natural accumulation or an unnatural accumulation. Appellant stated 

that when she first walked on the sidewalk she noticed patches of snow “here and 

there.” Given that the temperature was in the 20s or 30s, the snow could have 

melted a bit and frozen into ice patches, which would have been a natural 

accumulation. Appellant also stated that cars were parked with their bumpers 

overhanging the sidewalk and that the size of the ice patch on which she slipped was 

consistent with water dripping off of the bumper, landing on the sidewalk, and 

freezing. If water dripped off a bumper onto the sidewalk and froze, this would have 

been an unnatural accumulation. 

{¶30} Whether the ice patch was the result of a natural or unnatural 

accumulation is irrelevant, however, if it was open and obvious. 

{¶31} Appellant stated that it was dark outside when she arrived at 

Applebee’s. Yet she was able to observe that the sidewalk was cleared and salted. 

And she noticed there were some patches of snow on the sidewalk. She also 

noticed that parts of the sidewalk were wet and parts were dry. However, appellant 

claimed she did not see the 12- to 18-inch long patch of ice on which she slipped 

until she was on the ground. Notably, when appellant slipped she was turning to 

speak to her son who was behind her. Given this evidence, it is possible that the ice 

patch was open and obvious. Regardless of the darkness outside, appellant was 

able to observe the sidewalk conditions in detail. And appellant stated that nothing 

was obscuring her view of the ice. Importantly, however, appellant slipped when she 

turned to look at her son, who was walking behind her. It is possible that given 

appellant’s description of the conditions that evening that, had she not turned, she 

would have noticed the ice patch. 

{¶32} But there is evidence, however, to suggest that the ice patch was not 

open and obvious. Dearden, Applebee’s manager, stated that during the winter, an 

employee inspects the outside area of the restaurant every 15 to 30 minutes looking 

for ice and snow that needs to be removed. If the employee notices ice or snow in 
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need of removal, the employee tends to it with ice melt or a shovel. Presuming 

Applebee’s procedures were followed on the evening of appellant’s fall, an employee 

would have inspected the sidewalk at the most 30 minutes prior to appellant’s fall. If 

the ice patch was present, it was not open and obvious or else the employee would 

have noticed it and treated it. 

{¶33} Thus, construing the evidence in appellant’s favor, a genuine issue of 

material fact exists as to whether the ice patch was open and obvious. This does not 

end our analysis, however. 

{¶34} Appellee urges that this case is similar to that of Leightner v. Cafaro 

Ross Partnership, 7th Dist. No. 01 CA 132, 2002-Ohio-5209. In Leightner, the 

appellant stepped on a piece of ice and fell when returning to his car in the Eastwood 

Mall parking lot. Id. at ¶2. Appellant filed a negligence complaint against the mall. 

The trial court granted summary judgment in favor of the mall concluding that the 

appellant slipped on a natural accumulation of ice and snow, which the mall had no 

duty to remove, and the condition was open and obvious. Id. ¶4. The appellant 

appealed. 

{¶35} This court discussed the difference between natural and unnatural 

accumulations of ice and snow. We noted that a natural accumulation is that which 

accumulates as a result of an act of nature. Id. at ¶52, citing DeSalvo v. Edward J. 

DeBartolo Corp., 7th Dist. No. 96 CA 229, 1998 WL 896327 (Dec. 16, 1998). But an 

unnatural accumulation of ice and snow is one caused by forces other than 

meteorological forces of nature such as low temperatures, strong winds, and drifting 

snow. Id. 

{¶36} We then cited the appellant’s deposition testimony on the subject. The 

appellant described the parking lot as having a big pile of dirty snow and ice from 

previous snow-plowing and noted that “chunks” had rolled down into the parking lot. 

Id. at ¶28. The appellant stated when he was walking to his car, “it was a blizzard,” 

there was snow on the parking lot, it was blowing and windy. Id. at ¶30, 42. The 

parking lot had ice chunks or “black balls of ice” on it, some were the size of 
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grapefruits. Id. at ¶33, 44, 48. Considering this evidence, we stated it was arguable 

whether the appellant’s fall was caused by a natural or unnatural accumulation of ice. 

Id. ¶54. Therefore, we concluded the trial court may have erred in finding that the fall 

was due to a natural accumulation. Id. 

{¶37} We noted the requirements a slip-and-fall plaintiff must show in a case 

involving an unnatural accumulation of ice and snow: (1) the defendant created or 

aggravated the hazardous condition; (2) the defendant knew or should have known 

of the hazardous condition; and (3) the hazardous condition was substantially more 

dangerous than it would have been in its natural state. Id. at ¶53, citing DeSalvo, 

supra. We stated that the question in that case was whether the mall was negligent 

in creating the condition that led to the appellant’s fall. Id. at ¶55. We went on to find 

there was a genuine issue of material fact as to whether the mall created an 

unnatural accumulation of ice and snow by plowing the parking lot and a genuine 

issue of material fact as to whether the pile of snow resulting from the plowing 

created a hazard. Id. But we concluded the pile of snow was not substantially more 

dangerous than it would have been in its natural state. Id. We noted that the snow 

had to be piled somewhere and it should be expected that balls or chunks of ice and 

snow would result and roll away from the pile. Id. Moreover, we noted, because of 

the harsh weather that day, conditions were hazardous to begin with. Id. We then 

concluded that we should not discourage land owners from attempting to clear ice 

and snow from their property by holding them liable for injury resulting from remaining 

ice and snow. Id. Thus, we affirmed the trial court’s award of summary judgment. 

{¶38} Leightner, however, is distinguishable from this case. First, in 

Leightner, the weather conditions at the time of the appellant’s fall were blizzard-like. 

Thus, there was clearly a natural accumulation of snow occurring at the time of the 

fall. But in this case, although it was cold out, it was neither raining nor snowing at the 

time of appellant’s fall. Second, in Leightner, we determined that the pile of snow 

was not substantially more dangerous than it would have been in its natural state, 

i.e., spread over the parking lot. And we reasoned that we did not want to 
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discourage land owners from attempting to clear ice and snow from their property by 

finding them liable for injury resulting from any remaining ice and snow. In this case, 

however, the evidence suggested it was possible that the patch of ice on which 

appellant slipped was caused from water and ice dripping from car bumpers onto the 

sidewalk and then freezing. This would have had nothing to do with Applebee’s 

attempts to clear the ice and snow from their parking lot and sidewalk. Appellant did 

not slip on ice that had been piled up in clearing the parking lot or sidewalk. 

{¶39} Additionally, in examining the requirements we set out in Leightner that 

a slip-and-fall plaintiff must show in a case involving an unnatural accumulation of ice 

and snow, genuine issues of material fact exist here. First, there is a question of fact 

as to whether appellee aggravated the hazardous condition by allowing vehicles to 

park with their bumpers overhanging the sidewalk. Second, there is a question of 

fact as to whether appellee knew or should have known of the ice on the sidewalk 

since its employees were conducting checks of the parking lot and sidewalk every 15 

to 30 minutes. And as to the third requirement, while there was no evidence that 

appellee altered the natural state of the ice on the sidewalk, there was evidence to 

suggest that the ice accumulated on the sidewalk in an unnatural way, by dripping off 

of car bumpers, as opposed to the natural way of falling from the clouds. 

{¶40} In sum, genuine issues of material fact exist as to whether the ice on 

which appellant slipped was open and obvious, whether the ice was due to a natural 

or unnatural accumulation, and whether appellant can meet all of the requirements a 

slip-and-fall plaintiff must show in a case involving an unnatural accumulation of ice 

and snow. Therefore, summary judgment was improper. 

{¶41} Accordingly, appellant’s sole assignment of error has merit. 
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{¶42} For the reasons stated above, the trial court’s judgment is hereby 

reversed. The matter is remanded to the trial court for further proceedings. 

Vukovich, J., concurs. 

DeGenaro, P.J., dissents.