Johnston v. Filson
2014 Ohio 4758
Ohio Ct. App.2014Background
- Johnston and Malott, tenants, were injured when a large white pine on the Filsons' rental property fell during a 2012 wind storm.
- Tree stood 30-40 feet tall, 40-50 years old, with a codominant leader; decay was later found in the v-crotch area after the incident.
- Plaintiffs filed negligence and negligence per se claims, later adding two counts of negligent infliction of serious emotional distress.
- Filsons moved for summary judgment on all claims, which the trial court granted after reviewing depositions and evidence.
- Appellants appeal arguing genuine issues of material fact exist, including notice of the dangerous condition and the tree’s actual state.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper on the negligence claims | Filsons had actual or constructive notice of a hazardous tree condition. | No notice; tree appeared healthy and no danger was evident. | No genuine issue; Filsons not liable as to the tree's condition and notice. |
| Whether negligence per se applies under the housing-code standard | Defendants violated R.C. 5321.04(A)(2) by failing to keep premises safe. | Statutory breach does not prove proximate cause or liability without notice. | No liability based on lack of notice and causation; no triable issue. |
| Whether constructive notice of a hazardous tree can be established | Discoloration/decay indicators and expert opinion should have put Filsons on notice. | No signs of decay or danger observable; tree was alive with green needles before collapse. | Constructive notice not shown; no genuine dispute on this element. |
| Whether expert testimony creates a factual issue about the tree's hazard | Arborist testimony suggested codominant trees are hazardous and prone to failure. | Expert opinions do not establish actual knowledge or breach by Filsons given the lack of outward signs. | Experts’ opinions do not raise material fact; summary judgment affirmed. |
Key Cases Cited
- Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266 (Ohio 2002) (negligence per se requires proximate causation and notice)
- Swader v. Paramount Property Mgt., 2012-Ohio-1477 (12th Dist. 2012) (negligence per se requires notice and causation; not automatic liability)
- Patterson v. Ahmed, 2010-Ohio-4160 (6th Dist. Lucas 2010) (constructive notice analysis for hazardous conditions guided by existence and discovery)
- Sikora v. Wenzel, 88 Ohio St.3d 493 (Ohio 2000) (actual notice defined; constructive notice framework)
- Kish v. Scrocco, 2013-Ohio-899 (7th Dist. Mahoning 2013) (breach analysis for trees with codominant trunks and lack of outward signs)
- Levine v. Brown, 2009-Ohio-5012 (8th Dist. Cuyahoga 2009) (habits of inspection and signs of decay in trees examined)
- Jeffers v. Olexo, 43 Ohio St.3d 140 (1989) (duty and breach elements in tort analysis)
- Lombardi, Inc. v. Smithfield, 11 A.3d 1180 (Del. 1989) (contextual note (not specifically applied here but cited for injunctive considerations))