Opinion
No. 90-01893.
Decided February 15, 1991.
Thomas M. Tepe, for plaintiff.
Lee I. Fisher, Attorney General, and Sheryl Creed Maxfield, Assistant Attorney General, for defendant.
Plaintiff, Arianna J. Newman, is a fourth-year student at the defendant Ohio State University ("OSU"), where she attends the College of Nursing. On the morning of March 10, 1989, plaintiff left her dormitory and walked to nearby Baker Hall, which housed the student dining facilities. After breakfast, and sometime between 7:30 a.m. and 8:00 a.m., plaintiff exited Baker Hall through doors located on the northeast side of the building. As she stepped upon the first step, plaintiff slipped and fell, thereby incurring serious injuries. The cause of her fall was a sheet of ice that had accumulated upon the steps.
On February 5, 1990, plaintiff filed a cause of action against OSU by which she alleged that defendant was negligent in failing to remove the ice from the steps and also for failing to warn plaintiff of the existence of a hazardous condition. The matter was tried on January 28, 1990, and is determined as set forth hereinafter upon the evidence adduced by the parties.
It being virtually admitted that plaintiff was an invitee of defendant, the applicable legal standard, long established in Ohio jurisprudence, is that: "Ordinarily, an owner and occupier has no duty to his business invitee to remove natural accumulations of snow and ice from private walks and steps on his premises. (Paragraph two of the syllabus in Debie v. Cochran Pharmacy-Berwick, Inc., 11 Ohio St.2d 38 [40 O.O.2d 52, 227 N.E.2d 603], approved and followed.)" Sidle v. Humphry (1968), 13 Ohio St.2d 45, 42 O.O.2d 96, 233 N.E.2d 589, paragraph three of the syllabus. The rationale for this rule is set forth in Norwalk v. Tuttle (1906), 73 Ohio St. 242, 245, 76 N.E. 617, 618:
"In a climate where the winter brings frequently recurring storms of snow and rain and sudden and extreme changes in temperature, these dangerous conditions appear with a frequency and suddenness which defy preventions and, usually correction. * * * To hold that a liability results from these actions of the elements would be the affirmance of a duty which it would often be impossible, and ordinarily impracticable * * * to perform."
The evidence at trial did not indicate any particular date that precipitation may have formed into ice. Nevertheless, the parties acted upon the reasonable premise that the ice upon which plaintiff slipped had naturally occurred, and that it had done so sometime during the preceding week. Since the accumulation was a natural one, defendant was under no obligation to remove it under ordinary circumstances.
Plaintiff argues further that defendant's obligation to remove the ice derives from two sources. First, it is pointed out that there is an exception to the above law. As set forth in the paragraph one of the syllabus of Debie v. Cochran Pharmacy-Berwick, Inc., supra:
"Where the owner or occupier of business premises is not shown to have notice, actual or implied, that the natural accumulation of snow and ice on his premises has created there a condition substantially more dangerous to his business invitees than they should have anticipated by reason of their knowledge of conditions prevailing generally in the area, there is a failure of proof of actionable negligence." (Emphasis added.)
Despite the existence of the exception to the general rule, plaintiff was not able to show, by a preponderance of the credible evidence, that the ice at issue was in any way "substantially more dangerous." As a factual matter, it appears that the ice had not been altered from its naturally occurring state. Also, its existence and location upon the steps was not different in severity or form from a natural accumulation upon the steps. Therefore, it is concluded that the ice upon the steps was not a substantially more dangerous condition than plaintiff should have anticipated.
Additionally, plaintiff contends that she was entitled to rely upon the fact that defendant customarily removed the ice and snow from its sidewalks and steps. Along this line of reasoning, plaintiff pointed to the work order issued to those employees of defendant charged with the duty of removing ice and snow from the campus walkways. This order was issued on March 8, 1989, and was not performed until March 11, which was the day after plaintiff's fall.
The fact that defendant sought to render its many miles of walkways and innumerable steps more passable for its invitees does not give rise to a higher duty than that set forth in the above cases. Furthermore, plaintiff did not present any evidence indicating that defendant customarily responded to particular work orders for the removal of ice and snow, or to the mere occurrence of such precipitation, within any set amount of time. Consequently, she has not established any potential standard response time by which defendant's alleged tardiness in the removal of the ice at issue might be measured. Moreover, as set forth in paragraph two of the syllabus of Debie, supra:
"The mere fact standing alone that the owner or occupier has failed to remove natural accumulations of snow and ice from private walks on his business premises for an unreasonable time does not give rise to an action by a business invitee who claims damages for injuries occasioned by a fall thereon." (Emphasis added.)
In conclusion, defendant was under no duty to remove the accumulated ice or snow and, consequently, cannot be made responsible for those injuries suffered by plaintiff.
Assuming that a duty may have existed requiring defendant to remove the ice accumulation, plaintiff still would not prevail due to her own contributory negligence. It is clear from the testimony that plaintiff did not actually observe the ice upon which she fell until after her impact. The law on this issue, however, places a certain responsibility upon plaintiff to account for her own well-being and safety. As stated in paragraph two of the syllabus of Sidle, supra: "The danger from natural accumulations of ice and snow are ordinarily so obvious and apparent that an occupier of premises may reasonably expect that a business invitee on his premises will discover those dangers and protect himself against them."
Nothing in the evidence presented indicates that the ice was somehow hidden from plaintiff's view. The steps were not located immediately adjacent to the doorway, but were separated from the doorway by a wide landing, upon which plaintiff might reasonably have paused to observe the condition of the steps. Further, the accumulation had apparently existed for several days during cold weather, and in a location regularly traversed by students such as plaintiff who took their meals in Baker Hall. Yet, the preponderance of the evidence indicates that plaintiff did not look at the steps prior to stepping on them. It is therefore concluded that plaintiff failed to discover and protect herself from dangers that she was reasonably expected to discover, and that this failure was the proximate cause of the accident. Liability would be apportioned to plaintiff in the amount of eighty-five percent and to defendant in the amount of fifteen percent.
Accordingly, judgment is hereby rendered in favor of defendant and against plaintiff.
Judgment for defendant.