Page 9 - NovemberDecember24 Report

v. Jiffy Print, Inc, 2005-Ohio-4043. A
premises owner can be held liable for
injuries caused by an unnatural accumu-
lation when the premises owner is actively
negligent in permitting or creating the
unnatural accumulation of ice and snow.
The negligent creation of the unnat-
ura l 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.
Knowledge and Notice
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 apprecia-
tion 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 condi-
tion 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 ques-
tion of how to evaluate the standard of
care would be for a person who is experi-
encing their first winter in Ohio. Consider
the hypothetical of a person who recently
moved to Ohio for work from Southern
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.
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 reason-
able 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 accumula-
tions 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 reason-
ably 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.
Conclusion
Though the no-duty winter rule bene-
fits 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 right-
fully 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.
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.
Ingress and Egress
An occupier of a premises must main-
tain 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 accu-
mulations 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 occu-
pier of land. Bailey v. River Props, 8th Dist.
Ohio Court of Appeals (2006).
There is an exceptional set of circum-
stances, 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
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.
THE REPORT | November/December 2024 | CincyBar.org 9