Lead Opinion
{¶ 1} Dеfendant-appellant, the city of Akron, appeals from the decision of the Summit County Court of Common Pleas denying its motion for summary judgment. This court reverses and remands the matter.
I
{¶ 2} On May 20, 2006, Shannon Seikel, the nine-year-old daughter of Thomas and Kelly Seikel (collectively, “the Seikels”), was injured when a tree fell upon the vehicle in which she was traveling while on Memorial Parkway in Akron. Shannon sustained serious and debilitating medical injuries as a result. The tree that struck the vehicle fell from a lot that is оwned by Akron.
{¶ 3} On January 18, 2008, the Seikels filed a personal-injury suit against Akron, alleging that it was negligent in maintaining the trees in the lot adjacent to Memorial Parkway, which resulted in a tree falling on the vehicle in which Shannon was riding. Akron answered and, following further discovery, filed a motion for summary judgment, arguing that it was immune from liability pursuant to R.C. 2744.02(A)(1), which provides blanket immunity to political subdivisions in connection with any governmental functions they perform. The Seikels filed a brief in opposition, arguing that the maintenance of the lot and its attendant trees was a proprietary function to which immunity does not attach. The trial court denied Akron’s motion for summary judgment, having concluded that the care of trees located on city-owned property is a proprietary function. Akron timely appealed and asserts one assignment of error for our review.
II
Assignment of Error
The trial court erred in denying defendant-appellant the city of Akron’s motion for summary judgment on its defense of sovereign immunity.
{¶ 4} In its sole assignment of error, Akron asserts that the trial court erred by denying its motion for summary judgment because it is statutorily immune from liability for the injuries caused by the tree that fell onto Memorial Parkway, injuring Shannon. We agree.
{¶ 5} An appellate court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996),
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc. (1977),
{¶ 6} In its motion for summary judgment, Akron argues that it is a political subdivision and, therefore, the statutory protections established under the Political Subdivision Tort Liability Act found in R.C. 2744 et seq. bar it from any liability in this case. Specifically, Akron argues that the care and maintenance of the trees that are located on city-owned property adjacent to a roadway is a governmental function. Consequently, Akron allegеs that it is absolutely immune from liability because none of the five enumerated exceptions to liability set forth in R.C. 2744.02(B) apply to this case. Akron further asserts, in the alternative, that if an exception to governmental immunity does exist, it can reestablish immunity based on the defenses available to it in R.C. 2744.03.
{¶ 7} The Supreme Court recently reiterated the three-tiered analysis that a court must undertake to determine whether a political subdivision is immune from liability under R.C. 2744 et seq. See Lambert v. Clancy,
A general grant of immunity is provided within the first tier, which states that “a political subdivision is not hable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of*365 the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” R.C. 2744.02(A)(1).
The second tier in the immunity analysis focuses on the five exceptions to this immunity, which are listed in R.C. 2744.02(B). Elston [v. Howland Local Schools ],113 Ohio St.3d 314 ,2007-Ohio-2070 ,865 N.E.2d 845 , ¶ 11. If any of the exceptions to immunity are applicable, therеby exposing the political subdivision to liability, the third tier of the analysis assesses whether any of the defenses to liability contained in R.C. 2744.03 apply to reinstate immunity. Id. at ¶ 12.
Id. at ¶ 8-9. Neither party disputes that Akron is a political subdivision as defined by R.C. 2744.01(F). Consequently, the general grant of immunity accorded to Akron under R.C. 2744.02(A)(1) applies in the instant case and will preclude liability unless the Seikels can show that an exception under R.C. 2744.02(B) applies. It is at this juncture where the parties disagree as to whether maintaining the lot and its attendant trees constitutes a governmental or proprietary function and, therefore, what exceptions to immunity might apply.
{¶ 8} The term “governmental function” for the purposes of immunity is defined in both general and specific terms. See R.C. 2744.01(C)(1) and (2). Akron argued in its summary-judgment motion that the general definition of “governmental function” includes “[a] function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislаtive requirement.” R.C. 2744.01(C)(1)(a). To that end, Akron argues that because R.C. 723.01 imposes an obligation upon cities to “care, supervis[e], and control * * * public highways, streets, avenues, alleys, sidewalks, [and] public grounds, * * * within the municipal corporation,” the care and maintenance of the trees, located on public ground and adjacent to the street, is a governmental function pursuant to R.C. 2744.01(C)(1)(a). R.C. 723.01. Additionally, Akron argues that under the more specified responsibilities of a political subdivisiоn, the term “governmental function” includes “[t]he regulation of the use of, and the maintenance and repair of, roads, highways, streets, avenues, alleys, sidewalks, * * * and public grounds.” R.C. 2744.01(C)(2)(e). Akron relies on authority from two other districts to support its claim that maintenance of trees located on public ground near a public road constitutes a governmental function for purposes of sovereign-immunity analysis. See Featherstone v. Columbus, 10th Dist. No. 06AP-89,
{¶ 9} Akron further asserts that its immunity remains intact because none of the exceptions to immunity set forth in R.C. 2744.02(B) apply to the case at bar. Akron notes that the only possible exception to immunity that could apply is the provision under R.C. 2744.02(B)(3), which imposes liability upon a political subdivision for “injury, death, or loss to person or proрerty caused by [its] negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads.” Akron argues that there is no evidence that the road was in disrepair or that, until the tree at issue had actually fallen into the road, it could be negligent in failing to remove such an obstruction. Again, Akron relies upon the Eighth District’s decision in Laurie v. Cleveland as authority for its assertion that “a city cannot be held liable for injuries caused by a tree that is adjacent to a public road because a roadside tree is not an ‘obstruction’ ” under the revised terms of R.C. 2744.02(B)(3).
{¶ 10} In Laurie v. Cleveland,
{¶ 12} In Howard, the Supreme Court specifically noted that the General Assembly had amended R.C. 2744.02(B)(3) with the intent of narrowing the exceptions to immunity for political subdivisions. Id. at ¶ 26. Under the prior version of R.C. 2744.02(B)(3), the statute provided an exception to immunity for an injury or death that was caused by a political subdivision’s “ ‘failure to keep public roads, highwаys, streets, avenues, alleys, sidewalks, * * * or public grounds within the political subdivisions open, in repair, and free from nuisance.’ ” (Emphasis sic.) Id. at ¶ 24, quoting former R.C. 2774.02(B)(3). The Howard court noted, however, that with the enactment of S.B. 106 in April 2003, the statute was amended to impose liability only in circumstances when a political subdivision “ ‘fail[s] to keep public roads in repair and * * * fail[s] to remove obstructions from public roads.’ ” Id. at ¶ 19, quoting current R.C. 2744.02(B)(3). In considering this change to the language of the statute, the Howard court concluded that “the legislature’s action in amending R.C. 2744.02(B)(3) was not whimsy[,] but a deliberate effort to limit political subdivisions’ liability for injuries and deaths on their roadways.” Id. at ¶ 26. The court acknowledged that in the past, it and other courts had “interpret[ed] the term ‘nuisance’ broadly to reach an array of acts or omission[s] that endanger life or health.” Id. at ¶ 27. In essence, the Supreme Court acknowledged having denied immunity to political subdivisions in situations when there was merely a threat of harm to the roadway, or when safety might be in jeopardy, even though the condition did not actually “appear on the roadway itself.” Id.
{¶ 13} The Howard court specifically noted that when it last addressed exceptions to immunity in Harp v. Cleveland Hts. (2000),
{¶ 14} In response to Akron’s assertion that maintaining the trees in an area adjacent to a public road is a governmental function to which none of the exceptions to immunity apply, the Seikels argue that the location of this incident does not support such a conclusion. Specifically, they argue that the land where the tree fell does not meet any of the specific definitions of public highways, streets, avenues, alleys, sidewalks, public grounds, or bridges as set forth in R.C. 723.01, and therefore, does not qualify as an obligation imposed by statute pursuant to the general definition of a “gоvernmental function.” See R.C. 2744.01(C)(1). They further argue that maintenance of the tree at issue would not fall under the specific definition of “governmental function” found in R.C. 2744.01(C)(2)(e) either. The Seikels assert that the foregoing statutes should be strictly construed, and because there is no sidewalk or tree lawn near where the tree fell, maintenance of the trees cannot be considered a governmental function under either provision. The Seikels assert that the area is surrounded by privately owned lots, so that it is difficult to tell where Akron’s property actually begins or ends. They also argue that the catchall term “public grounds” as used in those statutes was meant to apply only to areas that are used by the public for travel or invited for use by the public, citing Std. Fire Ins. Co. v. Fremont (1955),
{¶ 15} Instead, the Seikels assert that the tree maintenance at issue in this case satisfies the statutory definition of a proprietary function because it (1) is not
{¶ 16} The Seikels, however, do not direct this court to, nor is this court able to find, any authority to support the Seikels’ claim that even if the foregoing facts are true, they support a finding under the relevant law that the care and maintenance of the tree at issue constitutes a proprietary function. Though they attempt to factually distinguish the Laurie decision, the body of law supports the cоnclusion that a political subdivision’s responsibility for maintaining trees adjacent to public roads is a governmental function. Laurie,
{¶ 17} In particular, we note that when the Supreme Court in Harp looked at the issue of sovereign immunity, it did so under facts nearly identical to those in the case at bar. In Harp, the tree that fell was located approximately 16-30 feet from the curb in a “wooded area” adjacent to a public road, with no mention of a sidewalk. Harp at 507. Similar to this case, there were no assertions in Harp that the tree that gave way and fell onto the motorist had caused a visual obstruction or was hanging low enough to obstruct traffic on the road. Id. The Supreme Court, however, implicitly considered the issue of tree maintenance in
{¶ 18} Furthermore, the Seikels did not assert at any point in their opposition brief what exception to immunity is applicable to their suit under R.C. 2744.02. While they argue that the exceptions to immunity should be narrowly defined, and presumably seek to apply R.C. 2744.02(B)(2) as the exception to immunity, they have failed to offer any argument or proper Civ.R. 56(C) evidence in support of the same. See Civ.R. 56(C) (providing as an exclusive list of evidentiary materials for consideration on summary judgment “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidеnce, and written stipulations of fact”). See also Wolford v. Sanchez, 9th Dist. No. 05CA008674,
{¶ 19} Based on the foregoing authority and analysis, we conclude that Akron satisfied its burden of establishing that maintenance of the tree at issue was a governmental function. The Seikels, however, have failed to sustain their reciprocal burden of establishing that an exception to immunity under R.C. 2744.02 applies. Because none of the exceptions to immunity are applicable, this court need not engage in the third tier of the immunity analysis. See S.H.A.R.K. v. Metro Parks Serving Summit Cty., 9th Dist. No. 24443,
{¶ 20} The trial court erred in denying Akron’s motion for summary judgment because Akron is entitled to immunity as a matter of law. Accordingly, Akron’s assignment of error is sustained.
Ill
{¶ 21} Akron’s sole assignment of error is sustained. The judgment of the Summit County Court of Common Pleas is reversed, and the cause is remanded for entry of judgment in favor of Akron.
Judgment reversed and cause remanded.
Dissenting Opinion
dissenting.
{¶ 22} I respectfully dissent. Based upon the particular facts of this case, I would conclude that Akron is not entitled to the benefit of immunity at this point in the proceedings. Thus, I would affirm the judgment of the trial court.
{¶ 23} As noted by the majority, a three-tiered analysis applies in determining whether a political subdivision is entitled to the benefit of immunity. See Cater v. Cleveland (1998),
{¶ 24} In the instant matter, the Seikels contended in their brief in opposition to Akron’s motion for summary judgment that the exception stated in R.C. 2744.02(B)(2) applies, rendering Akron liable. R.C. 2744.02(B)(2) provides that “[ejxcept as otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.” The Supreme Court of Ohio has interpreted the statutory language to allow liability “for injury, death, or loss to persons or property caused by an act or omission of the political subdivision or any of its employees in connection with the performance of a proprietary function.” Hill v. Urbana (1997),
{¶ 25} The dispute centers on whether maintaining the trees at issue constitutes a proprietary or governmental function. Clearly, if it is a governmental function, by its very terms, R.C. 2744.02(B)(2) would not apply. The Seikels assert that it is a proprietary function, while Akron maintains that it is a governmental function.
{¶ 26} The definition of the term “governmental function” that Akron believes is applicable requires it to establish that the area where the trees were located constituted a “public ground.” However, there is no evidence in the record that establishes that the trees were located on а public ground. The Supreme Court of Ohio has stated:
The subject matter of the statute — “public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts” — relates specifically to traditional areas used only for the purpose and means of travel. The*372 term, “public grounds,” contemplates areas to which the public may resort and within which it may walk, drive or ride, etc.
Std. Fire Ins. Co. v. Fremont (1955),
{¶ 27} The majority maintains that “the body of law supports the conclusion that a political subdivision’s responsibility for maintaining trees adjacent to public roads is a governmental function.” (Majority opinion at ¶ 16.) However, the case law relied on by the majority to reach this conclusion is clearly distinguishable. Each case relied on by the majority that concluded that tree-trimming was a governmental function involved an area that could be classified as a public ground. Laurie v. Cleveland, 8th Dist. No. 91665,
{¶ 28} Thus, Akron cannot fit the instant situation, maintenance of trees not located in the tree law, near a sidеwalk, or in a public park, within the definition of governmental function that it believes applies. Moreover, the factual situation at issue fits squarely within the general definition of proprietary function: (1) it does not fit within the governmental-function definitions and (2) it “promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons.” R.C. 2744.01(G)(1). Therefore, I would conclude that the exception contained within R.C. 2744.02(B)(2) is available to the Seikels should they demonstrate that Akron or its employees were negligent. Further, in viewing the facts in a light most favorable to the Seikels, genuine issues of material fact exist with respect to whether Akron was negligent in maintaining the trees. Moreover, I cannot conclude that Akron met its summary-judgment burden with respect to the defenses contained in R.C. 2744.03(A), because it did not submit sufficient evidence to establish the absence of a genuine dispute of material fact on this point. Thus, because I agree with the trial court’s finding that Akron was not entitled to summary judgment, I would affirm its judgment.