Kwait v. John David Management Co.

• Decision Date: 19 December 1974
• Citation: 42 Ohio App.2d 63,329 N.E.2d 702
• Parties: , 71 O.O.2d 425 KWAIT et al., Appellants, v. JOHN DAVID MANAGEMENT CO. et al., Appellees.
• Court: Ohio Court of Appeals

Page 63

42 Ohio App.2d 63

329 N.E.2d 702, 71 O.O.2d 425

KWAIT et al., Appellants, v. JOHN DAVID MANAGEMENT CO. et al., Appellees.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 19, 1974.

Syllabus by the Court

1. The granting of a motion for summary judgment is proper when there are no material facts at issue and the moving party is entitled to judgment as a matter of law.

2. The party against whom a motion for summary judgment is made is entitled to have the evidence construed most strongly in its favor.

3. When a defendant's motion for summary judgment alleges that the facts at issue will not support a legal basis for liability even if proven, a motion for summary judgment is akin to motion to dismiss for failure to state a cause of action upon which relief can be granted.

4. Where a landlord undertakes to clear ice and snow from the common walkway of an apartment, he must do so with ordinary care which includes the duty to take into account dangerous conditions caused by the subsequent thawing and freezing of snow placed near the walkway. When injuries to a tenant are alleged to have been caused by such conditions due to the landlord's lack of ordinary care in performing his undertaking, a jury question is presented.

Stewart & DeChant, Cleveland, for appellants.

John A. Murphy, Jr., Lakewood, for appellees.

DAY, Judge.

Plaintiff-appellants, Mae Kwait and Ralph Kwait (plaintiffs), allege that Mae Kwait was a tenant in an apartment complex owned and operated by defendant-appellees, John David Management Company and others (defendants) during the winter months of 1972-1973.

On March 23, 1973, plaintiff, Mae Kwait, was returning from a shopping trip when she slipped and fell on a walkway surrounding one of the buildings within the complex. She alleges that the fall was caused by an accumulation of ice which was hidden under the wet surface of the walkway and there was a duty on the part of the defendants to remove the ice.

Each party propounded interrogatories to the other. Defendants moved for summary judgment alleging there was no duty on their part to plaintiffs. Plaintiffs responded alleging that defendants in the past had cleared accumulations of snow and kept equipment for that purpose and, thereby, established a course of conduct giving rise to a duty. Additionally, appellant alleged by way of exhibit from the United States Department of Commerce, National Oceanic and Atmospheric Administration, that the last 'trace' ¹ of precipitation was over 20 hours previous to the fall and the last measurable snowfall was five days previously. There was also an allegation that the way in which the snow was removed and piled along the sidewalk was negligent because with a change of temperature the snow would melt onto the sidewalk and then freeze, as it subsequently did, when the temperature dropped.

On the basis of the pleadings, the interrogatories, briefs, the affidavit and exhibit of plaintiffs the trial court granted summary judgment for defendants from which appellant appeals assigning as error:

'Trial court erred in sustaining defendants' motion for summary judgment.' A successful motion for summary judgment rests on two foundations. There must be 'no genuine issue as to any material fact' and 'the moving party (must be) entitled to judgment as a matter of law.'

In the present case these twin considerations are intertwined. The complaint alleges that the defendants 'caused' the fall and injury to Mae Kwait giving rise to causes of action in her and her husband. If this 'cause' is 'legal' cause generated by facts either established or subject to proof, then summary judgment for the defendant is inappropriate. On the other hand, if there is no genuine issue of material fact and the established facts will not support legal cause as a 'matter of law', summary judgment is proper.

The 'facts' underlying the 'cause' must be gleaned from the pleadings, answers to interrogatories, the weather report, and the affidavit of Mae Kwait. The plaintiffs are the parties moved against and are entitled to have the evidence construed most strongly in their favor (Civ.Rule 56(C)).

Following the 'most strongly' rule of construction, the plaintiffs have alleged and attempted to support their case by showing:

(1) That an icy condition in a common way was caused by the landlords (defendants) undertaking to clear the walks of snow and doing so without the application of ordinary care. The fault lay in the piling of the removed snow and failing to take account of the consequences of thawing and freezing to form ice endangering users of the common way, and

(2) that the landlords' (defendants') business office was in sight of the place of the fall so that the defendants knew or should have known from observation that the sequence of events from the piling of frozen snow to thaw, freeze and covering with water would create the condition which caused Mae Kwait's injury. ²

Clearly, there are factual questions with respect to the defendants' actions, lack of action and notice. These alone would justify denying summary judgment if the claimed action or inaction of the defendants were of sufficient legal import to pose a question for a jury. However, the defendants' motion for summary judgment raises the further question whether there is any basis for legal liability justifying submission of issues to a jury even if the plaintiff could prove what they allege in their complaint and attempt to support by other documents in the case relevant to factual questions. In this sense the motion for summary judgment has a kinship to a motion to dismiss.

The Ohio law on the legal issues is much clearer than its application is easy. For example, it is quite clear in Ohio that a natural accumulation of ice and snow without more, will not found liability in a negligence action by a tenant against a landlord, Turoff v. Richman (1944), 76 Ohio App. 83, 87-89, 61 N.E.2d 486; cf. Straley v. Keltner (1959), 109 Ohio App. 51, 56, 164 N.E.2d 186; DeAmiches v. Popczun (1973), 35 Ohio St.2d 180-184, 299 N.E.2d 265; or a customer against a storekeeper, Martinelli v. Cua (1962), 115 Ohio App. 151, 152, 184 N.E.2d 514; see Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, at 41, 227 NE.2d 603 at 606, where it is said:

'The mere...