Background

• Lori Kish, administrator of the estate of Lawrence Kish, sued Frank Scrocco, Jr. and Amanda Scrocco for injuries and death arising from a tree on the Scroccos' property that fell during a storm and killed Kish on Shields Road in 2007.
• Kish asserted two causes of action: negligence (premises owner duty to maintain the tree in a reasonably safe condition) and wrongful death (damages from the Scroccos' alleged negligent, willful, wanton and/or reckless conduct).
• The Scroccos moved for summary judgment; the trial court initially denied, finding a genuine issue of material fact, then later granted summary judgment after reconsideration and depositions.
• Key evidentiary materials: Rosemary Scrocco’s affidavit stating no knowledge of the tree’s defective condition prior to the fall; Tim Leyden’s report and deposition suggesting possible decay signs but lacking proper summary-judgment evidentiary form.
• Leyden admitted he did not observe prior signs of decay on the tree, did not notice the tree as hazardous, and could not offer a hazard rating from the available information.
• The trial court ultimately granted summary judgment in favor of the Scroccos; Kish appeals, arguing there is a genuine issue about whether the Scroccos had actual or constructive knowledge of the tree’s condition.

Issues

Key Cases Cited

• Heckert v. Patrick, 15 Ohio St.3d 402 (Ohio Supreme Court, 1984) (owner must exercise reasonable care when aware of a defective condition of a tree to prevent harm to travelers)
• Piqua v. Morris, 98 Ohio St. 42 (Ohio Supreme Court, 1918) (act of God doctrine explained)
• Mussivand v. David, 45 Ohio St.3d 314 (Ohio Supreme Court, 1989) (duty and proximate cause; elements of negligence)
• Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75 (Ohio Supreme Court, 1984) (duty, breach, causation elements in negligence)
• Parenti v. Goodyear Tire & Rubber Co., 66 Ohio App.3d 826 (9th Dist. 1990) (summary judgment standard; de novo review)