2013 Ohio 1501
Ohio Ct. App.2013Background
- On Feb 18, 2009 a tree on Flynn's property fell onto neighboring O’Connor's property.
- O’Connor’s insurer sued Flynn, alleging negligence for failing to remove the tree.
- Flynn moved for summary judgment, arguing lack of actual or constructive notice of a patent danger.
- Flynn submitted an affidavit claiming she did not know of any defect and the tree appeared healthy.
- O’Connor submitted an affidavit claiming Flynn’s relatives were told the tree needed to come down and photographs showed the tree leaning toward O’Connor’s property.
- The trial court granted Flynn summary judgment; the Court of Appeals reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Flynn had actual or constructive notice of a patent danger | Flynn; tree leaning and photographs show danger, notice presumed | Flynn; no proof of notice or defect beyond leaning; no patent danger | Yes, reversal; genuine issues of material fact exist |
| Whether the trial court properly construed evidence in the plaintiff’s favor | Appellant; court failed to construe photos in favor of nonmoving party | Flynn; court properly weighed evidence and inferences | Yes, reversal; require remand for fact-finding |
Key Cases Cited
- Wertz v. Cooper, 4th Dist. No. 06CA3077, 2006-Ohio-6844 (4th Dist. 2006) (no constructive knowledge shown by plaintiff’s mere opinion)
- Levine v. Brown, 8th Dist. No. 92862, 2009-Ohio-5012 (8th Dist. 2009) (dead tree with visible defects supported notice)
- Hay v. Norwalk Lodge No. 730, B.P.O.E., 92 Ohio App. 14, 109 N.E.2d 481 (1951) (urban vs rural duty to inspect trees; patently defective condition exception)
- Heckert v. Patrick, 15 Ohio St.3d 402, 473 N.E.2d 1204 (1984) ( Restatement-based duty distinction for trees and structures)
- O’Day v. Webb, 29 Ohio St.2d 215, 280 N.E.2d 896 (1972) (evidence review not converting questions of law to fact)