Kathleen Hoenigman v. McDonald's Corp.
| Decision Date | 11 January 1990 |
| Docket Number | 90-LW-0007,56010 |
| Parties | Kathleen HOENIGMAN, et al., Plaintiffs-appellees, v. McDONALD'S CORPORATION, et al., Defendant-appellants. |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court Case No. 123,395.
Alfred J. Tolaro, Rockefeller Building, Cleveland, for plaintiff-appellees.
Jeffrey L. Tasse, Mansour, Gavin, Gerlack & Manos Co., L.P.A Cleveland, for defendant-appellants.
JOURNAL ENTRY and OPINION
Plaintiffs sought damages from a restaurant chain and its local franchisee for personal injuries sustained by a minor who fell while leaving the restaurant. At the close of plaintiffs' evidence and at the close of all evidence, the trial court denied defendants' motions for a directed verdict. The jury found the restaurant liable and assessed damages to be $7,415.42 for medical expenses and $14,400.00 for pain and suffering.
Defendants appeal claiming that the trial court erred by (1) not granting their motion for directed verdict and (2) entering judgment for plaintiffs since the verdict was clearly against the manifest weight of the evidence presented. We agree that a directed verdict should have been granted at the close of plaintiffs' case and that the judgment was clearly against the manifest weight of the evidence; therefore we reverse and enter judgment for defendants.
The trial transcript indicates that Jerome Hoenigman, minor son of Kathleen Hoenigman, entered McDonald's parking lot as a passenger in a friend's automobile on January 21, 1986 at approximately 7:30 a.m. The temperature was about 30 degrees fahrenheit. After the car was parked, Jerome walked without incident through the parking lot and entered McDonald's where he purchased two items. Carrying an item in each hand Jerome exited the restaurant from the same door from which he entered. Wearing tennis shoes, he walked outside and fell after taking about four steps, thereby injuring his ankle. Although he traversed the same path entering the restaurant, Jerome did not notice the patch of ice on which he fell.
Plaintiffs argued that the slip and fall resulted from an unnatural accumulation of snow and ice. The fall occurred close to an island on which snow was deposited after being plowed. The plaintiffs also argued that cars passing through the parking lot/drive-in created slush which accumulated and refroze into the patch of ice on which Jerome fell. Plaintiffs further asserted that an unnatural accumulation of ice was created by water dripping from the allegedly gutterless roof of the restaurant. Plaintiffs' final contention was that a nonnatural accumulation of ice formed as a result of an improperly working drain located near the patch of ice on which Jerome slipped.
Defendants' two assignments of error will be addressed together. They are:
I.THE COURT OF COMMON PLEAS ERRED IN FAILING TO DIRECT A VERDICT IN FAVOR OF DEFENDANTS-APPELLANTS PURSUANT TO RULE 50(A) OF THE OHIO RULES OF CIVIL PROCEDURE AT THE CLOSE OF PLAINTIFFS'-APPELLEES' CASE AS WELL AS AT THE END OF ALL EVIDENCE.
II.THE COURT OF COMMON PLEAS ERRED IN ENTERING JUDGMENT FOR THE PLAINTIFFS-APPELLEES SINCE SUCH DECISION WAS CLEARLY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED.
When considering a directed verdict motion, the trial court must construe the evidence most strongly in favor of the party against whom the motion is asserted. Civ.R. 50(A)(4). The court should not consider the weight of the evidence or the credibility of the witnesses. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 423 N.E.2d 467.
Jerome was a business invitee for the defendant restaurant. This is not in dispute. Therefore, the restaurant owed him a duty to exercise reasonable care in making the premises safe for his use. Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51, 52-53, 372 N.E.2d 335; Busse v. Grand Finale, Inc. (1981), 3 Ohio App.3d 65, 443 N.E.2d 1011.
The restaurant's duty did not extend to protection against hazards from natural accumulations of ice and snow which are similar to surrounding conditions. Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, 227 N.E.2d 603. Sidle v. Humphrey (1968), 13 Ohio St.2d 45, paragraphs two and three of the syllabus, 233 N.E.2d 589. Such conditions are so obvious that occupiers of premises may reasonably expect that a business invitee will discover them and protect against them. Sidle, 13 Ohio St.2d at 48.
Ice and snow is not an unusual occurrence in Ohio during the winter months. The Supreme Court of Ohio has stated that:
[S]now and ice are part of wintertime life in Ohio. As we noted in Norfolk v. Tuttle (1906), 73 Ohio St. 242, 245, * * * [i]n a climate where the winter brings frequently recurring storms of snow and rain and sudden and extreme changes in temperature, those dangerous conditions appear with frequency and suddenness which defy prevention and, usually, correction * * *. To hold that a liability results from these actions of the elements would be the affirmance of a duty which would often be impossible, and ordinarily impracticable to perform.
Lopatcovich v. Tiffen (1986), 28 Ohio St.3d 204, 206-07, 503 N.E.2d 154. Therefore, in Ohio, as a general rule, no duty is owed, even to an invitee, to remove natural accumulations of ice and snow. If snow and ice is removed, one must use ordinary care in its removal. Porter v. Miller (1983), 13 Ohio App.3d 93, 468 N.E.2d 134; Kinkey v. Jewish Hospital Association (1968), 16 Ohio App.2d 93, 242 N.E.2d 352.
Plaintiffs contend that the patch of ice on which Jerome fell was an unnatural accumulation of ice and snow from a variety of sources. We agree with the Lucas County Court of Appeals when it stated that:
"Unnatural" accumulation must refer to causes and factors other then the inclement weather conditions of low temperature, strong winds and drifting snow, i.e. to causes other than by the meteorological forces of nature. By definition, then, the "unnatural" is the man-made, the man-caused * * *.
* * * [S]ince the build-up of snow and ice during winter is regarded as a natural phenomenon, the law requires, at the very least, some evidence of an intervening act by the landlord (or a property owner) that perpetuates or aggravates the pre-existing, hazardous presence of ice and snow.
Porter v. Miller (1983), 13 Ohio App.3d 93, 95, 468 N.E.2d 134.
Notwithstanding four separate allegations of the origin of an unnatural accumulation of ice in defendants' parking lot on January 21, 1986, plaintiffs failed to produce any evidence to support those allegations. Plaintiffs maintained that a nonnatural accumulation of ice and snow was created because removal of snow from the restaurant parking lot was negligently done. There was no evidence of this. McDonald's manager at the time of the accident testified as to the restaurant's snow removal practices. The restaurant had a snow removal contract with an independent company which removed snow when there was an excess of two inches. The manager testified that there were less than two inches accumulated on the day of the accident. Furthermore he testified that he saw no ice in the parking lot, although there was a light snow...
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