The open and obvious doctrine is a well-established principle in Ohio law; it has been adjacently extended with the no-duty winter rule to further shield premises owners from liability when an invitee slips and falls on their property. Although premises owners customarily have the duty to exercise ordinary care in maintaining their premises in a reasonably safe condition, the introduction of the no-duty winter rule has limited that requirement. The no-duty winter rule bars an injured party’s recovery when their injuries stem from the wholly natural accumulation or not-negligent unnatural accumulation of winter weather. This doctrine is built on the assumption that everyone will appreciate and protect themselves against the risks associated with accumulations of snow and ice. Sherlock v. Shelly Co., 10th Dist. No. 06AP-1303, 2007 Ohio 4522, 22.
While the no-duty winter rule is particularly favorable to premises owners, injured parties have several exceptions that create valid and winnable torts. Attorneys should scrutinize the precise details of the case before recommending a course of action in any case that falls under this doctrine. By considering the rule’s many exceptions, a careful practitioner can discover pitfalls that prevent unnecessarily lengthy and costly litigation.
There are multiple ways that an injured party can avoid this bar to recovery. When there is a natural accumulation of winter weather, for the injured party to succeed, they must prove that they could not have been, or were not, aware of the hazardous condition that caused their injury at the time they were injured. Klein v. Ryan’s Family Steakhouse, 9th Dist. No. 2002 Ohio 2323. For a plaintiff to succeed in a case involving an injury caused by unnatural accumulations of winter weather, they must prove that the premises owner created or aggravated the hazard, that the premises owner knew or should have known of the hazard, and that the hazardous condition was substantially more dangerous than it would have been in its natural state. Id.
A natural accumulation of winter weather occurs from natural circumstances, such as falling snow or when water freezes to ice. A natural but “improper accumulation” can create a duty for the premises owner. A premises owner will be held liable for injuries caused by a natural accumulation when it obscures a hazardous condition that the injured party could not have been or was not aware of at the time of the injury. Id. See also Cristino v. Rock Creek Kitchen Bar & Grill, 208 N.E.3d 1033. The owner’s duty springs from actual or implied notice that a natural accumulation of snow and ice on their premises has created a substantially more dangerous condition than an invitee could have anticipated. Sherwood v. Mentor Corners Ltd. Partnership, 11th Dist. 2006-Ohio-6865. Alternatively, if the natural accumulation of snow or ice covers a significant defect, such as a hole in a sidewalk that creates a hidden hazard, no liability exists where the injured party had knowledge of the defect equal to or superior to that of the owner or occupier of the premises Des Amiches v. Popczun, 35 Ohio St. 2d 180. Thus, even a natural accumulation can be actionable under Ohio Law.
An unnatural accumulation occurs when the condition is man-made and causes the ice and snow to accumulate in an unexpected way. Like improper natural accumulations, unnatural accumulations are not covered by the no-duty winter rule. Mubarak v. Giant Eagle, Inc, 2004-Ohio-6011. See also Lawrence v. Jiffy Print, Inc, 2005-Ohio-4043. A premises owner can be held liable for injuries caused by an unnatural accumulation when the premises owner is actively negligent in permitting or creating the unnatural accumulation of ice and snow. The negligent creation of the unnatural accumulation takes more than just the typical winter weather measures. Interference by a premises owner, such as salting and shoveling, does not turn a natural accumulation into an unnatural accumulation. Courts have repeatedly acknowledged that when snow is removed, it must be placed somewhere, and “a certain natural run-off of water is to be expected.” Cunningham v. Thacker Servs. Inc., 10th Dist. No. 03AP-455, 2003-Ohio-6065, 14 and Flint v. Cleveland Clinic Foundation, 8th Dist. No. 8017 7 & 80478, 2002-Ohio-2747.
Courts use many factors to determine when someone should be able to recover for injuries stemming from winter weather. In assessing the conditions surrounding no-duty winter rule cases, courts have evaluated the knowledge of the injured party regarding the condition that caused their injury. Courts consider irrelevant the issue of which party has a better appreciation of the natural accumulation of ice and snow on the premises because the invitee is charged with an appreciation of those risks as a matter of law. Brink v. Ross., 68 Ohio St.3d, 82, 83-84, 1993 Ohio 72, 623 N.E.2d 1175 (1993). Courts have justified this expectation with the presumption that a reasonable person will naturally exercise caution when confronted with an obvious danger.
Courts have evaluated the injured party’s knowledge of the dangerous condition by considering the injured party’s familiarity with Ohio winters. The more experienced they are with Ohio winter weather; the less likely Courts are to find in the injured party’s favor. See Johnson v. CBRE, Inc., 225 N.E.3d 1163 and Mubarak v. Giant Eagle Inc., 2004-Ohio-6011 (The court acknowledged that the plaintiff had lived in northeast Ohio for at least 17 years and has experienced many winters when evaluating their knowledge of the hazardous condition.) This begs the question of how to evaluate the standard of care would be for a person who is experiencing their first winter in Ohio. Consider the hypothetical of a person who recently moved to Ohio for work from Southern Florida. A winter storm drops several feet of snow shortly before their first trip to a grocery store, which fails to clear its parking lot. Does this person have the same standard of care as an Ohio resident of 17 years? The converse of the Johnson and Mubarak rules suggests not, although no case has addressed the subject to date.
An occupier of a premises must maintain the premises in a reasonably safe condition so that its customers are not unnecessarily or unreasonably exposed to danger. Bowen v. Columbus Airport L.P., 10th District Ohio Court of Appeals (2008). This duty includes maintaining a reasonably safe ingress and egress for business invitees. Id. This exception still does not, however, extend to natural accumulations of ice and snow. Id. Business owners still do not have a duty to invitees to remove natural accumulations of ice and snow resulting typically from freezing and thaw cycles. Id. Such ice formations are considered natural accumulations, absent showing negligence on the occupier of land. Bailey v. River Props, 8th Dist. Ohio Court of Appeals (2006).
There is an exceptional set of circumstances, however, when a premises owner will be held liable for invitees injured by natural accumulations of ice and snow. When there is a single, reasonable method of ingress and egress impeded by a hazard such as snow and ice, and the premises owner has actual knowledge of the hazard, the premises owners cannot reasonably expect that the invitee protect themselves against risk of injury. Simpson v. Concord United Methodist Church, et al. 2nd Dist. Ohio Court of Appeals (2005). As the reasonable alternatives available to avoid a known danger are reduced in number, the degree of voluntariness on the part of the business invitee is also reduced. Mizenis v. Sands Motel, Inc., (1975), 50 Ohio App.2d 226, 232 (where an innkeeper failed to remedy an icy hazard on the only reasonable ingress and egress to the plaintiff’s motel room after being notified of the hazard).
In addition, while the landlord has no duty to remove natural accumulations of snow and ice from common areas that remain under his control, the landlord may assume such a duty, and when he does, he is required to exercise ordinary care to render common approaches reasonably safe for use by tenants. Hammond v. Moon, (1982), 8 Ohio App. 3d, 66, 68. The assumption of such a duty may be through express agreement or created impliedly from a course of conduct. Id. A premises owner cannot deprive an injured invitee of recovery where the premises owner has restricted the invitee to choose between a hazardous means of ingress and egress and an unreasonable means of ingress and egress.
Though the no-duty winter rule benefits premises owners on its face, injured parties have plenty of leeway under this doctrine to bring, and win, their suits. The no-duty winter rule was not intended to stand in the way of someone who rightfully deserves compensation for their injuries. In recognition of this, Courts have riddled the rule with exceptions. Practitioners for both the plaintiff and defense would do well to avoid using overly simplistic analyses of the no-duty winter rule when recommending whether to file, or defend, such cases. As with most legal things, the devil is in the details.
Hellard Bentley recently graduated from NKU’s Chase College of Law. While at Chase, Kallie competed on the National Trial Team and Moot Court Team. She has worked at Lawrence & Associates since May 2022 and recently transitioned from the litigation department to workers’ compensation. Lawrence is the managing partner of Lawrence & Associates, a litigation firm operating throughout Kentucky and Ohio. He is a board member of several legal organizations and for Charities for Kentucky, and an NIL for the UK Wildcats.