Charles L. Richards, The First Place, #300, 159 East Market Street, Warren, Ohio 44481, (For Plaintiffs-Appellants).

Thomas G. Carey, Jr., 500 Second National Tower, Warren, Ohio 44481, (For Defendants-Appellees).

Judith A. Christley, P.J., Joseph E. Mahoney, J., Robert A. Nader, J.

NADER, J.

This appeal has been placed upon the court's accelerated calendar and has been submitted to the court upon briefs of counsel.

This appeal is from the granting of a motion for summary judgment in favor of appellees, The Warren-Trumbull County Public Library and the Warren Library Association, hereinafter referred to as appellee, against appellant, Mercedes Sutyak. (Appellant's husband, Donald Sutyak, also brought a claim for loss of consortium and also appeals; however, appellants hereinafter will be referred to as appellant.) The action arose upon the complaint filed by appellant, praying for damages arising from a slip and fall accident on the sidewalk of the appellee. Appellant was on the premises to attend a free concert of the Cincinnati Percussion Group. Appellant allegedly fell on a patch of snow covered ice on an otherwise dry sidewalk.

Appellee filed a motion for summary judgment asserting that there was no breach of any duty owed to appellant. Appellee argued that appellant was a licensee and there exists no evidence of willful or wanton conduct by appellee. A property owner owes a licensee no duty except to refrain from willfully or wantonly injuring him. Wieber v. Rollins (1988), 55 Ohio App.3d 106, 107, 562 N.E.2d 908. Alternatively, the motion argued that there was no unnatural accumulation of snow and ice, resulting in liability, as ordinarily a landowner is not liable for injuries resulting from natural accumulation of snow and ice. Lopatkovich v. Tiffin (1986), 28 Ohio St.3d 204, 503 N.E.2d 154.

Attached to the motion were excerpts from appellant's deposition and the affidavit of Robert Briell, the director of appellee library.¹  Appellant opposed the motion arguing that there were genuine issues of material fact as to appellant's status, the accumulation of snow, and the unreasonably dangerous condition of the premises. The deposition of Robert Briell and the affidavit of appellant's daughter were filed in support of the appellant's opposition with regard to her status as an invitee and the condition of the premises.

On July 13, 1992, the trial court relied upon Provencher v. Ohio Dept. of Transp. (1990), 49 Ohio St.3d 265, 551 N.E.2d 1257; and Light v. Ohio University (1986), 28 Ohio St.3d 66, 502 N.E.2d 611, found appellant to be a licensee, and granted appellee summary judgment, stating that there was no allegation of any willful or wanton misconduct. The trial court further found that, if it were necessary to determine the issue, there was no unnatural accumulation of snow.

It is from this decision that appellant now appeals.

In its motion for summary judgment, appellee asserted that appellant enjoyed only the status of a licensee, and that there was no allegation of appellee's conduct being willful or wanton. Alternatively, appellee argued that there was no unnatural accumulation of snow. Wing v. Anchor Media, Ltd. of Texas (1990), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095, states:

"A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Celotex v. Catrett (1986), 477 U.S. 317, 322-323."

The parties have focused most of their attention upon appellant's status as either an invitee or a licensee. In her opposition to the motion for summary judgment, appellant relied upon the common definition of a licensee "not by invitation." From this appellant argued that her status as an invitee was established through the invitation extended by appellee to the public to attend the free concert. An invitation alone does not bestow the status of an invitee. Provencher, 49 Ohio St.3d, 265-266, 551 N.E.2d 1257, rejecting the public invitee doctrine, stated:

"This court has defined an 'invitee' as '* * * a business visitor [or business invitee], that is, one rightfully on the premises of another for purposes in which the possessor of the premises has a beneficial interest.'" (Citations omitted.)

The court continued on to state:

"The economic (or tangible) benefit test has long been recognized in this court in order to distinguish the status of an invitee from that of a licensee."

Appellant relies upon Brinkman v. Ross (July 21, 1992), Franklin App. No. 91AP-1510, unreported, in support of her argument that an "express invitation" creates an invitee status upon the visitor. Brinkman, at page two of the opinion, states:

"* * * If a homeowner is aware of a hazardous condition on his or her premises in an area within the unique control of the homeowner, the homeowner has a duty both to take reasonable steps to warn those who are expressly invited to visit the premises while the hazardous condition exists, and to take reasonable steps to remove the hazard. * * *."

We do not believe Brinkman to be dispositive of the matter before us, despite the recent decision by the Ohio Supreme Court to hear the appeal of Brinkman. Brinkman relies upon authority from other jurisdictions to reach a decision which runs contrary to controlling, and well established, precedent of the Ohio Supreme Court.

Moreover, the opinion in Brinkman may speak at great lengths on the creation of a new standard, but at the end of the opinion states: "The trier of fact must also consider, in light of the Rosses' knowledge, whether their failure to act constituted willful and wanton conduct." Thus, despite the lengthy discussion, Brinkman ultimately applies the willful and wanton standard applicable to licensees. As set forth in appellee's motion for summary judgment, there has been no allegation of willful or wanton behavior on the part of appellee.

Additionally, we will not address appellant's argument contending that appellee was tangibly benefitted by her presence at the concert, except to say that we believe appellant's argument is too attenuated to create the status of an invitee under Provencher. We further believe that, regardless of appellant's status, either invitee or licensee, the action turns upon the lack of any evidence indicating an unnatural accumulation of ice and snow.

LaCourse v. Fleitz (1986), 28 Ohio St.3d 209, 210, 503 N.E.2d 159, states:

"This court has repeatedly held that an owner of property is not liable for injuries to business invitees who slip and fall on natural accumulations of ice and snow. See, e.g., Debie v. Cochran Pharmacy-Berwick, Inc. (1967), 11 Ohio St.2d 38, 227 N.E.2d 603 * * *. The common thread running through these cases is the principle that the owner or occupier has a right to assume that his visitors will appreciate the risk and take action to protect themselves accordingly. See Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 233 N.E.2d 589, * * *, Paragraphs one and two of the syllabus; Jeswald v. Hutt (1968), 15 Ohio St.2d 224, 227, 239 N.E.2d 37 * * *; Mikula v. Slavin Tailors (1970), 24 Ohio St.2d 48, 56-57, 263 N.E.2d 316 * * *. It is only where it is shown that the owner had superior knowledge of the particular danger which caused the injury that liability attaches, because in such a case the invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate. Debie, supra, at 40; Mikula, supra, at 57." (Parallel citations omitted.)

Porter v. Miller (1983), 13 Ohio App.3d 93, 95, 468 N.E.2d 134, states: "by definition, then, the 'unnatural' is the man-made, the man-caused * * *." Appellant's opposition to the motion for summary judgment relies upon appellees' use of salt on the sidewalk to establish appellee's knowledge of the hazardous condition. The application of salt does not by itself establish knowledge of the existence of a remaining patch of ice, or any ice caused by the re-freezing of a salted sidewalk, nor does it establish any knowledge superior to that of appellant. Further, appellee's use of salt on the sidewalk does not create an unnatural accumulation of ice or snow. See, Stair v. Dairy Mart Convenience Stores of Ohio (Aug. 19, 1992), Summit App. No. 15473, unreported; Brigner v. Jewett's IGA Foodliner (July 20, 1992), Madison App. No. 3736, unreported; and Hill v. Avery (Mar. 14, 1991), Cuyahoga App. No. 58110, unreported. But Cf. France v. Sandy Valley Local School Dist. (Jan. 30, 1989), Tuscarawas App. No. 88AP090068, unreported.

It should also be noted that the averment of appellant's daughter, that the ice did not appear to be a natural accumulation, does not create a genuine issue of material fact precluding summary judgment. The averment is nothing more than a conclusion without any supporting facts. Civ.R. 56 requires more in order to create a genuine issue of fact.

Based upon the reasons set forth above, the appellant's assignment of error is without merit, and the decision of the trial court is hereby affirmed.

JUDGE ROBERT A. NADER

CHRISTLEY, P.J., MAHONEY, J., Concur.

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