Unpersuaded by the arguments of a Westerville man who appealed the judgment in his personal injury claim against Kroger, a shopping center owner and a snow-removal company, a Franklin County Appeals Court panel affirmed the lower court ruling.

The Tenth District Court of Appeals panel determined that the Franklin County Common Pleas Court was neither mistaken to strike portions expert witness testimony nor did it misapply the “no-duty winter rule” in consideration of John Ball’s claim, relative to a fall on a slippery Kroger parking lot at the Westerville Plaza Shopping Center Jan. 25, 2019.

“In this case there is no evidence that the natural accumulation of ice on which Bell fell was substantially more dangerous than a business invitee should have anticipated under the circumstances,” Tenth District Judge Julia Dorrian wrote for the 3-0 panel. “Bell was a long-time resident of central Ohio and was familiar with the risks of ice and snow. Thus, in this case, the record lacks evidence that the natural accumulation of ice that Bell fell upon was substantially more dangerous than a business invitee should reasonably have anticipated.”

According to case summary, Bell parked in the first unoccupied parking space he encountered in the lot.

He stated that the area in which he parked was dark and that the pavement looked clear and safe to step onto.

As Bell stepped out of his vehicle, his foot slipped and he fell, landing partially under a neighboring car. He got up and back into his vehicle, then called his family before emergency medical services were summoned.

His daughter arrived shortly after his fall to take a photograph of the area. The photograph depicted slush and ice in the area between Bell’s vehicle and the adjacent vehicle, testimony provided.

Bell was then transported from the scene for medical treatment.

He filed a complaint in the Franklin County Court of Common Pleas against Kroger, shopping center owner Casto and the snow-removal firm contracted to treat the parking lots, Rocky Fork. Bell asserted their negligence caused his fall and the injuries he suffered.

Rocky Fork’s snow-removal records indicated that the lot had been treated with salt the mornings of Jan. 24 and 25, 2019, as a follow up to plowing the morning of the most recent snow event two days earlier, summary provided.

Bell submitted a report from an expert witness, Richard Zimmerman, who concluded that appellees did not meet the appropriate standard of care which resulted in an unnatural accumulation of ice in the parking lot that created a hazardous condition.

The defendants moved to strike Zimmerman’s testimony, asserting it was based on impermissible legal conclusions, was not based on professional education, experience or testing and would not be helpful to the finder of fact.

Kroger and Casto then moved for summary judgment, asserting they lacked notice of any dangerous condition beyond typical snowy conditions, that Bell slipped and fell on a natural accumulation of ice and lacked any evidence that it was an unnatural accumulation, and that the icy condition was open and obvious.

Rocky Fork also moved for summary judgment, asserting the company owed no duty to Bell and that, even if a duty existed, Bell failed to establish a breach of that duty.

The trial court granted the motions to strike Zimmerman’s expert opinions in part and also granted the defendant’s motions for summary judgment, concluding that under the no-duty winter rule, they had no duty to Bell.

Bell subsequently appealed.

“Even when considering all portions of Zimmerman’s expert report and deposition testimony, we conclude that the trial court did not err by granting summary judgment in favor of appellees,” Dorrian wrote.