CHURCH v. WHIRLPOOL CORP. No. C 88-7065.
727 F.Supp. 355 (1989)
Darrol R. CHURCH, et al., Plaintiffs, v. WHIRLPOOL CORPORATION, Defendant.
United States District Court, N.D. Ohio, W.D.
February 28, 1989.
Terry V. Hummel, Gahanna, Ohio, for plaintiffs.
Jack Zouhary, Toledo, Ohio, for defendant.
OPINION AND ORDER
JOHN W. POTTER, District Judge:
This cause is before the Court on defendant's motion for summary judgment, plaintiffs' opposition, plaintiffs' supplemental memorandum and defendant's reply. The Court has also heard oral argument.
Ralph Shrader, Inc. v. Diamond International Corp., 833 F.2d 1210, 1213 (6th Cir. 1987).
The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any' which [he] believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The substantive law of the case identifies which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Therefore, only disputes of facts affecting the outcome of the suit under the applicable substantive law will preclude the entry of summary judgment. Id. A moving party may discharge its burden "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 324-325, 106 S.Ct. at 2553-54. Where the moving party has met its initial burden, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. "[P]laintiff, to survive the defendant's motion, need only present evidence from which a jury might return a verdict in his favor." Id. at 257, 106 S.Ct. at 2514.
There is no dispute as to the following material facts. Plaintiff was employed by the Signal Delivery Company, a subcontractor engaged by defendant to supply semi-tractors and drivers at its Clyde, Ohio distribution center. On the date of the accident, December 10, 1986, plaintiff was working at the defendant's facility in Clyde as a spotter, moving semi-trailers from place to place at the facility at the direction of defendant's dispatchers. Weather conditions of rain and freezing temperatures the previous night resulted in icy conditions throughout the local area. Plaintiff was aware of the ice frozen on the concrete apron where he was required to work. The icy spot on which plaintiff fell had been caused by the rain and freezing temperature. Prior to his fall, plaintiff worked on the icy lot for approximately 2-½ hours. Plaintiff fell as he stepped down out of a truck onto the ice.
Eicher v. United States Steel Corp., 32 Ohio St.3d 248, 249, 512 N.E.2d 1165 (1987).
It is conceded that plaintiff was well aware of the obvious natural accumulation of ice in his work area. Plaintiffs' argument that defendant had a duty to make reasonable efforts to remove ice and snow from the parking and loading dock areas is contrary to existing law.
The Court has considered plaintiffs' contention at oral argument that Hirschbach v. Cincinnati Gas & Electric Co., 6 Ohio St.3d 206, 452 N.E.2d 326 (1983), imposes a duty on defendant in this case. Hirschbach is distinguishable on its facts as imposing liability on one who engages the services of an independent contractor where he actually participates in the job operation performed by the contractor's employee and thereby fails to eliminate a hazard which could have been eliminated in the exercise of ordinary care. Id. at 208, 452 N.E.2d 326. The hazard in this case was the natural accumulation of ice and snow, which defendant had no duty to remove under Sidle, or which constitutes a hazard inherently and necessarily present because of the nature of the work performed under Eicher. In either case, defendant is not liable to plaintiffs for any injury cased thereby. Accordingly, defendant is entitled to judgment as a matter of law.
THEREFORE, for the foregoing reasons, good cause appearing, it is
ORDERED that defendant's motion for summary judgment be, and hereby is, GRANTED.
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