HARP, ADMR., APPELLANT, v. CITY OF CLEVELAND HEIGHTS, APPELLEE.
No. 98-2010
Supreme Court of Ohio
January 19, 2000
87 Ohio St.3d 506 | 2000-Ohio-467
Submitted September 21, 1999
APPEAL from the Court of Appeals for Cuyahoga County, No. 73171.
{¶ 1} This matter involves a negligence action brought by appellant, Malinda D. Harp, administrator of the estate of Ruth L. Brewer, for wrongful death and conscious pain and suffering against appellee, city of Cleveland Heights. The complaint states that Brewer was fatally injured when the limb of a tree located on city property adjacent to a public roadway fell and struck her motor vehicle. The complaint alleges that appellee breached its statutory duty to keep public roads free from nuisance. The trial court granted summary judgment in favor of appellee.
{¶ 2} The relevant facts that were before the trial court are as follows. On September 12, 1995, Brewer was driving south on Lee Boulevard in the city of Cleveland Heights about a mile north of where Lee Boulevard intersects Mayfield Road. Without warning, a forty-three-to-forty-five-foot section of a prunus serotina, or black cherry tree, crashed through her windshield, causing her death.
{¶ 3} The tree in question was located within a wooded area at the northeast corner of the Cleveland Heights portion of Forest Hills Park, which adjoins the west side of Lee Boulevard. Various measurements or estimates placed the base of the tree between sixteen and thirty feet from the curb of Lee Boulevard. The section of the tree that broke away includes a limb approximately twenty-five feet in length
{¶ 4} Prior to the accident, the limb was joined to the tree 24.6 feet above the ground at a “v-crotch.” From there, it extended in a northeasterly direction, generally toward oncoming southbound traffic on Lee Boulevard, to a crown height of fifty to sixty feet above the ground. The evidence is conflicting as to whether and to what extent the limb was actually overhanging the roadway prior to the accident. However, no one claims that the limb hung so low as to obstruct the flow or visibility of traffic on Lee Boulevard.
{¶ 5} On March 14, 1995, six months before the accident, the tree at issue was inspected by David Arendec, a certified arborist employed by appellee in its forestry department. Arendec’s inspection was conducted as part of a computer inventory and inspection program started by appellee in 1993 or 1994. At his deposition, Arendec testified that he was instructed to pick out target trees around roads or pathways in order to ensure that they were safe. He acknowledged that his concern was whether those trees could fall on a path or road and injure a pedestrian or motorist. He stated that he chose to inspect the tree because it was one of the larger trees in the area.
{¶ 6} During his inspection, Arendec observed that the tree “had a little bit of deadwood on it,” which led him to mark it for “priority pruning.” Arendec explained that there are four pruning designations, which, in order of priority, include immediate prune, priority prune, training prune, and routine prune. He stated that priority prune “means it needs to be pruned sometime, put in your priority. * * * Put it on the list, get to it when we are in that area or if we are prioritizing with the other prunes in the city, behind immediate prunes.”
{¶ 7} Daniel Krizner, who was also employed in appellee’s Forestry Department, testified at his deposition that the reason for paying closer attention to a tree marked for priority pruning than to one that is healthy is to prevent a situation
{¶ 8} The parties’ experts generally agree that the tree originally fractured at the v-crotch during a storm on July 28, 1993. This fracture or crack, which appellee’s expert describes as “a splitting between the branch and the trunk,” began to open up over time as a result of certain naturally occurring phenomena, eventually causing the limb to give way on September 12, 1995.
{¶ 9} The experts disagree, however, whether Arendec should have perceived a danger of the tree limb falling onto Lee Boulevard at the time of his inspection. Appellee’s expert, Fred J. Robinson, testified that “[t]he crack was certainly not obvious from the ground.” He did not think that “the split between the branch and the trunk would have been open enough [for Arendec] to see from being down at the bottom of the tree where he is close enough to estimate the size of it.” In Robinson’s opinion, there was no reason for appellee to suspect that the tree presented any danger to traffic on Lee Boulevard.
{¶ 10} Appellant’s expert, John R. Gerlach, testified that the crack would certainly have been visible from the ground at the time of Arendec’s inspection. He stated that “[a]nyone with Mr. Arendec’s background and training * * * would have been able to see it.” In Robinson’s opinion, appellee should have known that the tree presented a danger to traffic on Lee Boulevard.
{¶ 11} In granting summary judgment upon this evidence, the trial court found that “[t]he deteriorating tree limb in question is not a nuisance which the city had a duty to abate under
{¶ 12} The court of appeals affirmed the trial court’s decision, holding that trees growing along the side of a roadway are not nuisances within the meaning of the statute unless their limbs hang over the roadway low enough to touch and cause injury to persons or vehicles traveling thereon.
{¶ 13} This cause is now before the court pursuant to the allowance of a discretionary appeal.
Nurenberg, Plevin, Heller & McCarthy Co., L.P.A., Richard L. Demsey and Kathleen J. St. John, for appellant.
Weston, Hurd, Fallon, Paisley & Howley, L.L.P., John M. Baker and Hilary S. Taylor; John H. Gibbon, Director of Law, City of Cleveland Heights, and Laure A. Wagner, Assistant Director of Law, for appellee.
Barry M. Byron, Stephen L. Byron and John Gotherman, urging affirmance for amicus curiae, Ohio Municipal League.
ALICE ROBIE RESNICK, J.
{¶ 14} In order to determine whether summary judgment was appropriately granted in this case, we must first decide whether a political subdivision can be held liable under
{¶ 15}
{¶ 16} In determining when a political subdivision may be held liable under
{¶ 17} However, in addressing a municipality’s liability for damages to persons other than those using a public street, the court in Std. Fire reasoned:
“In several cases outside Ohio, under statutes similar to that of Ohio requiring municipalities to keep their streets in repair, it has been held that there can be no liability upon a municipality even to travelers upon the street or highway, and the same would be true as to those not on the highway, for injuries from falling trees or falling limbs from trees standing upon or adjacent to the traveled highway.” (Emphasis added.) Id., 164 Ohio St. at 350, 58 O.O. at 133, 131 N.E.2d at 226.
{¶ 18} In support, the court relied primarily on two cases involving falling trees or tree limbs, Miller v. Detroit (1909), 156 Mich. 630, 121 N.W. 490, and Dyer v. Danbury (1911), 85 Conn. 128, 81 A. 958, which held that a municipality’s statutory duty to keep its roads “in repair” extends only to defects in the road itself or physical obstructions to travel thereon.
{¶ 19} The flaw in this analysis lies in the court’s comparison of essentially dissimilar statutes. As applied to falling trees or tree limbs, there is a critical difference between a statute that requires a public authority to keep its streets “in repair” and a statute that requires a public authority to keep its streets in repair and also “free from nuisance.”
{¶ 20} In Dyer, the court actually agreed that an overhanging tree limb that endangered travel by reason of its likelihood to fall upon a highway but did not obstruct traffic could constitute a nuisance. However, the court held that since the overhanging limb did not constitute a defect in the highway or obstruct travel thereon, the city was not bound to remove it as part of its statutory duty to keep its
{¶ 21} In Heckert v. Patrick (1984), 15 Ohio St.3d 402, 15 OBR 516, 473 N.E.2d 1204, paragraph two of the syllabus, this court held that “[a] board of county commissioners is not liable under
“While it is clear that the commissioners do not have a statutory duty pursuant to
R.C. 305.12 to trim or remove tree limbs which overhang a county road, appellants focus attention on cases decided underR.C. 723.01 in an effort to place liability on the commissioners. These cases, however, are not applicable here.R.C. 723.01 contains the language ‘and free from nuisance,’ which has been interpreted by this court to include more than just conditions of the roadway. The failure of the General Assembly to place this language inR.C. 305.12 clearly indicates its intention not to impose liability on the commissioners in matters unrelated to actual roadway conditions.” (Footnote omitted.) Id., 15 Ohio St.3d at 407, 15 OBR at 520, 473 N.E.2d at 1209.
{¶ 22} Thus, the theoretical construction underlying Std. Fire is formulated from an erroneous attempt to coordinate dissimilar statutes, which should yield dissimilar results. Under this construction, a nuisance that creates a danger for ordinary traffic on a public road is not a nuisance under
{¶ 23} In Manufacturer’s, supra, 63 Ohio St.3d at 322, 587 N.E.2d at 823, we rejected the view that liability under
{¶ 24} In Franks, supra, 69 Ohio St.3d at 348, 632 N.E.2d at 505, we applied the same analysis and found that “[a] sign which has lost its capacity to reflect is as much an impediment to the safe flow of traffic as a malfunctioning traffic light, overhanging branches or foliage obstructing a driver’s view.”
{¶ 25} Clearly, an unsound tree limb that threatens to fall onto a public road from adjacent property can be a nuisance that makes the usual and ordinary course of travel on the roadway unsafe. Although not physically obstructing or impeding
{¶ 26} Accordingly, we hold that a political subdivision can be held liable under
{¶ 27} “This does not end the analysis however. In Vogel v. Wells (1991), 57 Ohio St.3d 91, 97, 566 N.E.2d 154, 160, a nuisance case decided in part under
{¶ 28} Appellant contends that the city had both actual and constructive notice of the nuisance in this case. We disagree as to actual notice. Although Arendec acknowledged that the general purpose of appellee’s inspection program was to locate and identify trees that could fall on a road and injure a motorist, he did not specifically choose to inspect the tree at issue out of any suspicion that it posed a potential danger to traffic on Lee Boulevard. Instead, he chose to inspect it because it was one of the larger trees in the area. While Arendec observed some deadwood on the tree at the time of his inspection, he testified that this deadwood was on the side of the tree facing away from the roadway and that he observed no
{¶ 29} However, despite the lack of evidence to suggest that appellee had any reason to suspect that the tree endangered travel on southbound Lee Boulevard prior to Arendec’s inspection, Arendec did in fact inspect the tree. Regardless of how or why Arendec came to inspect this specific tree, the purpose of his inspection was, at least in part, to ascertain the condition of the tree and its potential to cause injury. Gerlach testified that the crack that formed at the v-crotch would have been visible from the ground at the time of Arendec’s inspection, and that anyone with Arendec’s background would have been able to see it. In Gerlach’s opinion, Arendec’s inspection should have revealed that the tree presented a danger to traffic on Lee Boulevard. If the jury believes Gerlach’s testimony, it could reasonably conclude that appellee could or should have discovered the condition of the limb six months prior to the accident, and that the discovery would have created a reasonable apprehension of a danger to traffic on Lee Boulevard. Thus, we find that a question of fact remains as to whether appellee had constructive notice of the nuisance.
{¶ 30} Appellee contends that even if questions of fact remain as to whether it breached its duty under
{¶ 31} In order to assuage any fear that municipalities and political subdivisions will now be required to inspect all the trees within their limits that stand alongside public roads, we find it necessary to stress the limits of our decision. Actual or constructive notice remains a prerequisite to liability under
{¶ 32} Based on all of the foregoing, we find that summary judgment was inappropriately granted. The decision of the court of appeals is reversed, and the cause is remanded to the trial court for further proceedings.
Judgment reversed and cause remanded.
MOYER, C.J., DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS, J., concurs separately.
COOK and LUNDBERG STRATTON, JJ., dissent.
{¶ 33} While I concur in the judgment of the majority, I do so while continuing to adhere to my dissent in Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 323, 662 N.E.2d 287, 296.
COOK, J., dissenting.
{¶ 34} Where there once was liability under
{¶ 35} Today’s decision expands an exception to sovereign immunity in two steps: first, the majority broadens the definition of “nuisance” under
1. Expanding the Definition of “Nuisance”
{¶ 36} The majority’s decision reverses two lower courts and denies immunity to the city here even though the city enjoys broad immunity. See
{¶ 37} In one of the principal cases relied upon by the majority, this court held that a “permanent obstruction to visibility, within the highway right-of-way, which renders the regularly travelled portions of the highway unsafe for the usual and ordinary course of travel, can be a nuisance for which a political subdivision may be liable under
{¶ 38} Both of these cases centered on the physical location of a dangerous condition for purposes of nuisance liability. Both simply stand for the proposition that “nuisance” may indeed include a dangerous condition that exists outside the physical confines of the roadway itself, yet still obstructs the flow or visibility of traffic on the roadway. Today, however, the majority defines nuisance to include a “threatened” condition, not directly connected to the roadway, that never obstructed or impeded the flow or visibility of traffic until the very moment that an accident occurred.
{¶ 39} In Manufacturer’s, a cornfield growing in the right-of-way affected the safety of ordinary traffic by continually impairing drivers’ sightlines around the corner at an intersection. The Manufacturer’s court explicitly stressed the limits of its decision, noting that “[o]ur decision today does not imply that a political subdivision may be held liable for a temporary obstruction to visibility such as an illegally parked car.” (Emphasis added.) Manufacturer’s, 63 Ohio St.3d at 323, 587 N.E.2d at 823, fn. 2.
{¶ 40} In Franks too, we expressly restricted the scope of nuisance liability for purposes of
{¶ 41} Thus, Manufacturer’s and Franks were both cases that defined “nuisance” under the immunity exception as an existing obstruction or condition that actually impeded the safe flow of traffic before the accident in question occurred. Just recently, we reaffirmed this position when we held that nuisance has most often been defined to include “physical obstructions that interfere with visibility and create an unsafe condition.” Cater v. Cleveland (1998), 83 Ohio St.3d 24, 30, 697 N.E.2d 610, 616.
{¶ 42} In this case, however, the majority uses Manufacturer’s and Franks as springboards for its much broader holding that a tree limb—which prior to the accident in question did not obstruct or interfere with visibility or traffic in any way—may qualify as a nuisance under
2. Expanding the Concept of Constructive Notice
{¶ 43} Even if this tree limb could properly qualify as a nuisance under broadly worded dicta culled from Franks and Manufacturer’s, the city could not properly be charged with having constructive notice on these facts. Though the majority recites the three elements of constructive notice, the majority appears to focus on the third — that the city’s reasonable apprehension of “potential danger” is required in order to charge it with constructive notice. But this strategy glosses over the two additional requirements for constructive notice: that constructive
{¶ 44} The Franks court’s interpretation of constructive notice in the context of a roadway nuisance would absolve the city here. The tree branch in this case, like all tree branches that grow over public roads, posed only a potential to become a nuisance. This road was “free from nuisance” until this branch fell. Since the branch did not become a nuisance until it fell, there is no constructive-notice issue. That is, it cannot be said that the city failed to remedy the potentially dangerous condition (the fallen branch) within a reasonable time. The branch did not obstruct or impede the flow or visibility of traffic until it fell.
{¶ 45} The majority stresses the limits of its decision, noting that actual or constructive notice remains a prerequisite to liability under
{¶ 46} For the foregoing reasons, I would affirm the judgment of the court of appeals.
LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.