in the supreme court of ohio in the supreme court of ohio charles w. larrick appellant, vs. j.b.t....

IN THE SUPREME COURT OF OHIO

CHARLES W. LARRICK

Appellant,

vs.

J.B.T. DBA SMOKIN, A BBQ JOINT

and

WOODLANE PLAZA ASSOCIATES, LLC,

Appellees.

CASE NO. 2007-0856

On Appeal from the Montgomery CountyCourt of Appeals, Second AppellateDistrict, Court of Appeals Case No.CA 021692

MEMORANDUM IN OPPOSITION TO JURISDICTIONOF APPELLEE WOODLANE PLAZA ASSOCIATES, LLC

Kevin C. Connell (0063817)FREUND, FREEZE & ARNOLDOne Dayton CentreI South Main Street, Suite 1800Dayton, OH 45402-2017(937) 222-2424(937) 222-5369 FaxkconnellQffalaw.comAttorney for AppelleeWoodlane Plaza Associates

Ronald J. Maurer (0063391)MAURER LAW OFFICES, LLC800 East Franklin StreetCenterville, OH 45459

William G. Knapp, HI (0026226)800 East Franklin StreetCenterville, OH 45459Attorneys for AppellantCharles W. Larrick

Shawn M. Blatt (0056051)FREUND, FREEZE & ARNOLDOne Dayton Centre1 South Main Street, Suite 1800Dayton, Ohio 45402-2017(937) 222-2424(937) 222-5369 Faxsblatt,ffalaw.comAttorney for AppelleeJ.B. T. dba Smokin' A BBQ Joint

F EDf t^JUN 0 7 2007

MARCIA J MENGEL, CLERKSUPREME COURT OF OHIO

FREUND, FREE7E & ARNOLDA Legal Professional Association

TABLE OF CONTENTS

Page

EXPLANATION OF WHY THIS CASE IS NOT ACASE OF PUBLIC OR GREAT GENERAL INTEREST . . . . . . . . . . . . . . . . . . . . . . . . 1

U. STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Statement of the Facts . . . . . . . . ., . : . . . . . . . : : . . . . . . . . . . . . . . . . . . . . . . . . . 3

In this case, the ramp in question was open and obvious on the dateof the incident; accordingly, Appellee, Woodlane Plaza Associates,LLC, owed no duty to protect or otherwise warn Larrick of the ramp.Therefore, summary judgment is appropriate in this case . . . . . . . . . . . . . . . . . . . 5

A. The Slope of the Ramp was Open and Obvious . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. The Handrailing Along the Ramp Was Open and Obvious . . . . . . . . . . . . . . . . . . 8

C. The Natural Accurnulation of Ice on the Ramp in QuestionWas the Sole Proximate Cause of Lamck's Fall . . . . . . . . . . . . . . . . . . . . . . . . . 10

W. CONCLUSION ............................. ........................... 11

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

FREUND, FREEZE & ARNOLDA Legal Professional Association

I. EXPLANATION OF WHY THIS CASE IS NOTA CASE OF PUBLIC OR GREAT GENERAL INTEREST

This case does not present a question of public or great general interest. Appellant invites this

Court to exercise discretionary jurisdiction in a case that presents neither a new legal theory nor an

exception to the long standing legal principles that preclude liability as a matter of law. This case

involves a slip and fall on ice and snow that naturally accumulated on an access ramp outside a

restaurant in January 2005.

io tort law in this area is e arrasetttea ann nas oeen ror

again in 1993, this Court confirmed no duty is owed to remove natural accumulations of ice and

snow. Tiffin, infra.; Brinkman, infra. Only four years ago, this Court removed any doubt that the open

and obvious doctrine remains viable in Ohio and, when applicable, eliminates the duty element of

a negligence claim. Armstrong, infra. Not only has this Court defined the contours of the legal

landscape, Ohio's appellate courts have often found for premises owners in cases with facts

comparable if not identical to those presented in this case. Stein, infra.; Early, infra.; Olivier, infra.;

LeJeune,infra.

Appellant's argument has not changed since the trial court granted suinmary judgment in

favor of Appellees; nor has it changed since the Second District upheld the trial court's decision.

Appellant offers no unexplored nuance to Ohio tort law; and, likewise, offers no explanation for the

belief that some inequity or lack of balance exists. This case does not present any questions of

public or great general interest. Thus, this Court should decline Appellant's invitation to exercise its

discretionary jurisdiction.

1

FREUND,FREEZE & ARNOLDA Legal Pr6fessional Association

II. STATEMENT OF THE CASE AND FACTS

A. Statement of the Case

The events giving rise to this case occurred on a cold January night in 2005, when Appellant,

Charles W. Larrick ("Larrick") was allegedly injured after slipping and falling on ice as he descended

an access ramp leading from a barbeque restaurant to the parking lot. On April 1, 2005, Larrick filed

a civil action against both the restaurant, J.B.T. Ltd, dba Smokin' a BBQ Joint ("Smokin"'), and the

premises owner, Woodlane Plaza Associates, LLC ("Woodlane"), in the Common Pleas Court of

Montgomery County, Ohio. Larrick claimed the ramp's "hazardous" condition, the ice, and alleged

"defects" in its construction caused his injuries.

Because Woodlane owed no dutyto warn or otherwise protect Larrick from open and obvious

conditions or natural accumulations of snow and ice, Woodlane moved for summary judgment on

the issue of liability. Larrick opposed summary judgment, and on June 14, 2006, the trial court

granted Woodlane's motion. It concluded:

"This Court finds that [Larrick] failed to present evidence ...sufficient to raise a genuine issue of fact as to whether [Larrick's] fallwas caused by something other than a natural accumulation of iceresulting from the forces of nature during the winter[; and that] thereis no evidence nor does [Larrick] assert that Defendants' knowledgeof the risk presented by the ice accumulated on the ramp was superiorto his own, or that Defendants had notice, either actual or implied,that the conditions at the spot where [Larrick] fell were substantiallymore dangerous than those prevailing generally in the area."

June 14, 2006 Decision, Order, and Entry Sustaining Summary Judgment, Judge Michael Hall, p.

7.

On July 13, 2006, Larrick appealed to the Second Appellate District (Montgomery County,

Ohio). By December 11, 2006, the parties had submitted their written arguments to the appellate

2


court. Oral arguments took place on March 16, 2007. On March 30, 2007, the Second District

affirmed the trial court's decision:

"[W]e agree with the trial court that Larrick failed to create a genuineissue ofmateria] fact with regard to whether the ice was an unnaturalaccumulation. . . . There is no evidence in the record to indicate thatthe ice was not visible from the top of the ramp. . . . Thus, weconclude that [Larrick] did not demonstrate a genuine issue of factwith regard to whether the ice on the ramp was open and obvious.... We recognize that accidents may have more than one proximatecause ...In this case [however] neither Larrick nor his expert testifiedthat the lack of a handrail or the slope of the ramp played a causal rolern s us, any reso li o that c arm would necessarily re yupon speculation and conjecture, which is not sufficient to create agenuine issue ofmaterial fact whether the absent handrail or the slopeof the ramp proximately caused Larrick's injuries."

Larriclc v. J.B.T., Ltd., Montgomery App. No. 21692, 2007-Ohio-1509, at 12-15.

On May 10, 2007, Larrick filed his Notice of Appeal to this Court, together with his

Memorandum in Support ofJurisdiction. Based on the following arguments, the record fails to create

a genuine issue as to any material fact; and both the trial court and appellate court properly found

Woodlane is ehtitled to judgment as a niatter of law.

B. Statement of the Facts

On a cold winter's evening in January of 2005, Larrick slipped on a patch of ice as he

descended an access ramp leading from Smokin's restaurant to the parking lot where he had parked.

September 2, 2005 Transcript of Appellant Charles W. Larrick's Deposition Testimony ("Larrick

Dep."), pp. 61, 72. Larrick specifically identified the ice as the sole reason for his fall:

"Q. What did you slip and fall on or why did you fall?A. I hit a patch of ice as I was coming down ... probably the last six,eight feet of the ramp itself was a sheet of ice."

Larrick Dep., pp. 72-73.

3


The fall occurred when Larrick was leaving the restaurant after picking up a carry-out order.

Id. at pp. 67-68. When Larrick arrived at the parking lot, it was dark outside but the parking lot had

noticeable lighting. Id. at pp. 58-59. He parked right next to the building, exited the car with his

girlfriend, Kimberly Robinson ("Robinson"), and walked to the stairs located to the left of where he

parked. Id. at pp. 56, 59-60, 115. As he walked up the steps, Larrick observed a sign that read "Do

Not Enter." Despite his understanding that the sign applied to pedestrian traffic, Larrick and his

girlfriend ascended the stairs anyway and entered Smokin' to place their order. Id. at p. 60. He had

no difficulty entering the building. Id. at p. 64.

After receiving the carry-out order, which Robinson carried, Larrick and Robinson headed

back to the car. Id. at pp. 67-68. Robinson followed Larrick as they walked all the way around the

building to the ramp, a route specifically chosen by Larrick to return to the car. Id. at p. 69. Nothing

prevented Larrick from descending the stairs to return to the car. Id. at pp. 70-71.

Larrick proceeded down the ramp leading to the parking lot. Id. at pp. 70-71. He was able

to see where he was walking, though he did not see the ice upon which he ultimately fell. Id. at p.

77. Upon getting halfway down the ramp, Larrick encountered a patch of ice, which he claims was

covering the last several feet of the ramp. Id. at pp. 72-73. He slipped on the ice and landed at the

end of the ramp. Id. at p. 74. He had nothing in his hands at the time, and was looking straight

ahead as he was walking down the ramp. Id. at pp. 75, 115. He did not see the patch of ice until

after he fell and was lying on the ground. Id. at pp. 75, 77-78.

4


III. ARGUMENTS IN RESPONSE TO PROPOSITION OF LAW NO. 1

In this case, the ramp in question was open and obvious on thedate of the incident; accordingly, Appellee, Woodlane PlazaAssociates, LLC, owed no duty to protect or otherwise warnLarrick of the ramp. Therefore, summary judgment wasappropriate in this case.

In order to establish actionable negligence, one must show the existence of a duty, a breach

of the duty, and an injury resulting proximately therefrom. Menifee v. Ohio Welding Products, Inc.

(1984), 15 Ohio St. 3d 75, 77, 472 N.E.2d 707; Strother v. Hutchinson (1981), 67 Ohio St. 2d 282,

285, 423 N.E.2d 467. "The existence of a duty is fundamental to establishing actionable

negligence." Adelman v. Timman (1997), 117 Ohio App. 3d 544, 549, 690 N.E.2d 1332.

With respect to a business premises, a premises owner has a duty to warn a business invitee

"of unreasonably dangerous conditions that the invitee cannot reasonably be expected to discover."

Beair v. KFCNat'l. Mgmt. Co., Tuscarawas App. No. 2003 AP 05 0043, 2004-Ohio- 140 1, 8. The

premises owner is not an insurer of a customer's safety and a premises will not be considered

unreasonably dangerous where the defect is so insubstantial and of the type that passersby commonly

encounter it. Id. A premises owner owes no duty of care to any individuals on the premises where

a condition is open and obvious, and so apparent that the individual may reasonably be expected to

discover the condition and protect himself or herself against the condition. Armstrong v. Best Buy

Co., Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573, 14, 788 N.E.2d 1088; Paschal v. Rite-Aid

Pharmacy, Inc. (1985), 18 Ohio St. 3d 203, 203-204, 480 N.E.2d 474.

The mere fact that Larrick fell does not establish any negligence on the part of Woodlane.

Dunlde v. Cinemark USA, Inc., Licking App. No. 04 CA 70, 2005-Ohio-3049, 10. Without a duty,

it is unnecessary to consider the issues of breach, damages and causation. Leonard v. Modene &

5


Assoc., Inc., Wood App. No. WD-05-085, 2006-Ohio-5471, 52. Whether the defendant owed a

duty to the plaintiff is a fundamental aspect of establishing actionable negligence, and is a question

of law for the court to decide. Mussivand v. David ( 1989), 45 Ohio St. 3d 314, 318.

In Ohio, there is no duty owed to an invitee to remove natural accumulations of ice and snow.

Lopatlcovich v. Tifftn ( 1986), 28 Ohio St. 3d 204, 206-207; 503 N.E.2d 154; Brinkman v. Ross, 68

Ohio St. 3d 82, 83, 1993-Ohio-72, 623 N.E.2d 1175. With respect to claims ofnegligence based on

alleged building code violations, the open and obvious nature of an alleged building code violation

"obviates the dutyto warn." Olivier v. Leaf& Vine, Miami App. No. 2004 CA 35, 2005-Ohio-1910,

28 (citing, Armstrong, 2003-Ohio-2573, 4); ("The open-and-obvious doctrine obviates the duty

to warn and acts as a complete bar to any negligence claims" when it is applicable.); Stein v.

Honeybaked Ham Co., Summit App. No. 22904, 2006-Ohio-1490, 13. Further, an invitee need

not actually "observe the dangerous condition for it to be an `open and obvious' condition under the

law; rather, the determinative issue is whether the condition is observable." L'arly v. Damon's Rest.,

Franklin App. No. 05AP-1342, 2006-Ohio-3311, S.

Tn the present case, the record supports the conclusion that any alleged building code

violations were open and obvious; and, accordingly, did not pose an "unreasonable danger" for

which a duty was owed. Furthermore, the record supports the conclusion that Woodlane possessed

no superior knowledge of the condition of the subject ramp.

A. The Slope of the Ramp was Open and Obvious.

Larrick does not elaborate, but implies that the missing handrail and the slope should have

precluded summaryjudgment in this case. Larrick's concern with the slope of the ramp is misplaced

and does not create a genuine issue of material fact.

6


Ohio appellate courts have held that the slope of an access ramp is "an open and obvious

danger that impose[s] no duty on the owner to warn or protect invitees." Demos v. Toys "R " Us,

Inc., (July 5, 2000), Lorain App. No. 99 CA007404; Stein, supra at 17-18; LeJeune v. Croclcer

Shell Food Mart & Car Wash (Oct. 22, 1998), Cuyahoga App. No. 74262. In LeJeune, supra, the

Eighth Appellate District upheld summary judgment in favor of the defendant-premises owner on

the duty element of plaintiff's claim with respect to an access ramp and reasoned:

"By definition, a wheelchair ramp is constructed and designed inorder or access to ttiose unable to nego la e a curb between aparking lot and an elevated sidewalk adjacent to it. The ramp isnecessarily inclined to gradually meet this existing change in height.Although a wheelchair ramp may be dangerous because of its angleof incline, an invitee may reasonably be expected to recognize theneed for caution and protect against the danger."

Similarly, the present case involves alleged "dangers" associated with the slope of an access

ramp that Larrick should have recognized in the exercise of reasonable care. Access ramps upon

business premises are normal, commonly-encountered structures. Moreover, the record in this case

demonstrates that the subject ramp was open, obvious, and observable to Larrick. At the time of the

incident, Larrick knew he was walking down a "wheelchair ramp" as he had specifically chosen that

course of travel back to his car after exiting Smokin'. Larrick Dep., p. 71. Jnherently, appellant also

knew the ramp was inclined, as it led from the higher elevation of the sidewalk area to the lower

elevation of the parking lot. Id. There is simply no indication of any kind in the record that the ramp

in question was a "hidden danger" ofwhich Woodlane possessed any greater knowledge than Larrick

himself. Accordingly, Woodlane owed no duty to Larrick with respect to the condition of the ranip

in question.

7


B. The Handrailing Along the Ramp Was Open and Obvious

To the extent Larrick claims the inadequacy of the handrail along the subject ramp should

be considered by a jury, such an argument is unsupported by applicable case law and Larrick's

testimony. As argued above, building code violations do not give rise to a duty to warn where the

alleged violations are open and obvious. See, Olivier, 2005-Ohio-1910, 28. Where the presence

or absence of a handrail is not concealed or hidden from the business invitee's view and no attendant

circumstances exist, the open and obvious doctrine applies. See, Early, 2006-Ohio-3311, 10-17.

In Early, the Tenth Appellate District upheld summary judgment in favor of the defendant-

premises owner, where plaintiff alleged that an unreasonably dangerous condition was presented by

the presence of a handrail on one side of a staircase and the absence of a handrail on the other. Id.

After considering the testimony of plaintiff's expert regarding the absence of a handrail, the court

determined that nothing prevented plaintiff herself from observing that there was not a handrail on

one side of the staircase. Id. Specifically, the court found:

"Because the absence of the handrail was not hidden, concealed fromview, or undiscovered upon ordinary inspecfion, plaintiff could haveseen the condition if she had looked. Accordingly, the evidence ofrecord supports the trial court's determination that the lack of anorthside handrail was an open and obvious hazard."

Id.

Here, the fact that the handrail along the subject ramp did not fully extend to the lower

portion of the ramp was readily observable to anyone traversing the ramp, and was readily

discoverable upon an ordinary inspection. Moreover, nothing distracted Larrick at the time of the

incident; accordingly, no attendant circumstances rendered the condition of the handrail

8


unreasonably dangerous. Larrick Dep., pp. 75, 114-115. There was no traffic at the time, Larrick

had nothing in his hands, and nothing was blocking his view. Id.

Even though the incident occurred in the evening, Larrick testified that there was enough

lighting provided around the building and in the parking lot that he believed lie could see where he

was walking. Id. at p. 77. Moreover, there is no evidence to suggest that Woodlane possessed any

greater knowledge of the handrail's characteristics along the subject ramp. Thus, the evidence

supports the proposition that Woodlane owed no duty to Larrick with respect to the condition of the

subject ramp.

Lanick primarily relies upon one case, Betts v. Windland, (Nov. 4, 1991), Washington App.

No. 90CA39. The use of the Betts decision is misplaced with respect to the facts of this case, and

is distinguishable. In Betts, the business invitee fell on an out-of-the-ordinary staircase, which was

constructed in an unusual manner and with unusual materials. Id. The homeowners, who had never

built a staircase before, built the stairs at issue and constructed them out of pine logs from their own

property. Id. The stairs were the only means and the main means of ingress and egress from the

homeowners' house. Id. The stairs were sloped downward, and the handrail was too far away from

a person to reach it, all of which were unknown to plaintiff prior to the slip and fall on the slick

stairs. Id. The homeowners, on the other hand, had knowledge of the condition of the stairs because

they built them. Accordingly, the court determined issues of fact remain as to whether the

construction of the stairs presented an unreasonably dangerous condition. Id.

Conversely, the structure on which Larrick fell in this particular case was an ordinary access

ramp, as discussed above, was necessarily sloped, and Larrick knew the slope existed before he fell.

Larrick Dep., p. 71. Indeed, the condition of the ramp, including its slope and handrails, was readily

9

FREUND, FREE7E & ARNOLDA Legal Professional Association

observable to Larrick and no distraction prevented him from focusing his complete attention on the

ramp as he descended it. Id. at pp. 75, 115. Again, no evidence of alleged superior knowledge on

the part of Woodlane or attendant circumstances exists in this case. Thus, Betts is inapplicable to

the facts of the present case.

In sum, the alleged hazards were open, obvious and observable to any patron choosing to

walk down the ramp, in that a simple glance at the ramp would have revealed its condition.

Accordingly, Larrick failed to establish any genuine issue of material fact as to whether an

unreasonably dangerous condition existed at the time of the incident. The appellate and trial courts

properly determined Woodlane owed Larrick no duty as a matter of law.

C. The Natural Accumulation of Ice on the Ramp in Question Was the SoleProximate Cause of Larrick's Fall.

To establish negligence in a slip and fall case, it is incumbent upon the plaintiff to identify

or explain the reason for the fall. Beair, 2004-Ohio-1410, 9. Negligence cannot arise from

speculation and the mere occurrence of an accident does not give rise to the presumption of

negligence. Demos, Lorain App. No. 99 CA 007404. Generally, when a wrongful or negligent act,

in a natural and continuance sequence, produces a result which would not have taken place without

the act, proximate cause is established. McCoy v. Ids Realty, (June 20, 1995), Franklin App. No. Y

94APE11-1636. Notwithstanding, proximate cause may be determined as a matter of law where the

evidence construed most strongly in plaintiffs favor, and the undisputed facts are such that no

reasonable person could infer that a defendant's acts were the cause of plaintiff's injuries. Williams

v. 312 Walnut Ltd. Pshp, (Dec. 31, 1996), Hamilton App. No. C-960368. Accordingly, if the

plaintiff's evidence on the issue of proximate cause is so meager and inconclusive that a finding of

10


proximate cause would rest solely on speculation and conjecture, judgment as a matter of law is

appropriate. Id.

In this case, Larrick's own testimony illustrates that he fell due to the presence of ice on the

ramp, not because of any alleged peculiarities on the ramp itself. Larrick Dep., pp. 72-73. In fact,

when asked directly during his deposition, he clearly and precisely identified the "patch of ice"

covering the bottom portion of the subject ramp as the reason for his fall:

"Q.... why did you fall?A. I hit a patch of ice as was coming down ... pro a y the last six,eight feet of the ramp itself was a sheet of ice."

Id.

Any attempt by Larrick to argue that he would not have fallen and sustained injury but for

the slope of the ramp and/or the inadequacy of the ramp's handrails, would require sheer speculation

and conj ecture. There is no way of knowing whether appellant would or would not have fallen had

the slope of the ramp been different, or had there been a fully-extended handrail. As such,

Appellant's theory of recovery based upon alleged building code violations is meritless, and the

lower courts correctly concluded that no issues of material fact remained in this case as to causation.

IV. CONCLUSION

Based on the foregoing, this case does not present a question of public or great general

interest to invoke this Court's discretionary jurisdiction. This Court, long ago, established the

parameters and application of the open and obvious doctrine. The various courts of appeals have

analyzed the facts at issue in this case and have determined that the natural accumulation of ice alid

snow, alleged violations of the building code, and the inlrerent nature of sloped wheelchair ramps

are open and obvious conditions. Larrick has submitted no argument or case law to change the

11


analysis or to suggest that an exception to the well-established open and obvious doctrine should be

recognized by this Court. Therefore, this Court should decline Larrick's invitation to exercise

discretionary jurisdiction in this case.

evin C. Connell (#0063817)FREUND, FREEZE & ARNOLD1800 One Dayton CentreOne Dayton Centre, Suite 1800

Dayton, Ohio 45402-2017Telephone: (937) 222-2424Fax: (937) 222-5369Email: lcconnell a,ffalaw.comAttorney for Defendant-Appellant,Woodland Plaza Associates, LLC

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and accurate copy of the fore oing has beenserved, by first-class mail, postage prepaid, upon the following, this ( day of 2007:

Ronald J. Maurer, EsquireWilliam G. Knapp, IIi, EsquireThomas J. Manning, Esquire800 East Franklin StreetCenterville, Ohio 45459Attorneys for Appellant

Shawn M. Blatt, EsquireFreund, Freeze & Arnold1800 One Dayton CentreOne Dayton Centre, Suite 18001 South Main StreetDayton, Ohio 45402-2017Attomey for Appellee, J.B.T. Ltd.

vin C Connell (0063817)

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in the supreme court of ohio in the supreme court of ohio charles w. larrick appellant, vs. j.b.t....

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