389 N.E.2d 861 | Ohio Ct. App. | 1978
James Zupancic, age two and one-half, was struck by an automobile near 15247 Saranac Road, Cleveland, on June 9, 1969. The automobile was driven by Sandra Leibnitzer Essick.1
Plaintiffs-appellants, James and his father Lawrence Zupancic, filed a complaint for damages in the Cuyahoga Court of Common Pleas on March 18, 1975. Named as defendants were the city of Cleveland and the Penn-Central Railroad.
Appellants alleged in their complaint, in part, as follows:
"2. That the negligent conditions of the weeds and grass on the treelawn were the direct and proximate result [sic] of the accident herein in that because of the tall weeds and grass on said treelawn, a driver of a motor vehicle could not see the presence of a child two and *62 one-half (2 1/2) years of age who was only thirty six (36) inches tall (the plaintiff, James Zupancic herein) and whereas the height of the weeds and grass on the treelawn bordering said street did obscure the vision of an operator of a motor vehicle of a small child and more specifically the plaintiff, James Zupancic, on said street.
"3. That the defendant, The City of Cleveland, negligently permitted the tall grass and weeds to grow to such a height after having due notice thereof and knew, or should have known, that such condition would be hazardous to small children crossing said Saranac Road and more specifically the plaintiff, James Zupancic, herein.
"4. That the defendant, Penn-Central Railroad, owned the property fronting on said Saranac Road and was responsible for the maintenance of said treelawn in front of said property; * * *."
Penn-Central Railroad was dismissed from the case without prejudice on July 24, 1975, for reasons that do not concern us here.
On April 7, 1976, the city of Cleveland filed a motion for summary judgment. Said motion, which was in effect a motion for judgment on the pleadings since it was not accompanied by any evidence permissible under Civil Rule 56(C), was granted by the trial court in an entry dated September 1, 1976, and filed September 8, 1976.
Appellants appeal from the order of the court assigning one error for review:
"The trial court erred in sustaining defendants' motion for summary judgment, as said ruling is contrary to law."
Because of the nature of the proceedings below, we assume that the city of Cleveland had notice of the condition of the treelawn on Saranac Road.
The determinative issue in this appeal is whether high weeds and grass on a treelawn which obscure the presence of a child who is crossing a public street are a nuisance within the meaning of R. C.
R. C.
"Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of such municipal corporation shall have the care, supervision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts and viaducts within the municipal corporation, and shall cause them to be kept open, in repair, and free from nuisance."
Although the "treelawn," "parkstrip," "parking," "parkway," and "grassplot" are not specifically mentioned in R. C.
A holding that the treelawn is an area within the contemplation of R. C.
Our analysis of past cases in Ohio leads us to conclude that a "nuisance," within the meaning of R. C.
A "defect" in the street refers to the actual physical conditions existing "in or on" the street itself, Gabris v.Blake, supra, and to the actual physical conditions "upon" and "above" the surface of the street. Robert Neff Sons v.Lancaster (1970),
Thus, a railroad bridge that provided a vertical clearance of only ten feet above the surface of a street was held to be a nuisance within the meaning of G. C. 3714 (R. C.
While we assume that the overhanging limb in Neff was part of a tree that was growing in a treelawn adjacent to the street, the Supreme Court found the existence of a nuisance not because the tree was part of the treelawn, but because the limb interfered with the movement of tall vehicles. The tree limb was found to be a nuisance because it physically hindered the flow of traffic and not because it obscured the vision of the trailer driver.
To recover under R. C.
"In the case at bar, the catch basin and drainage slope werenot part of the paved or traveled portion of the street; they did not render the street unsafe for customary vehicular or pedestrian travel * * *." (Emphasis added.)
Similarly, in Stanadard Fire Ins. Co. v. Fremont, supra, the roots of a tree growing in a treelawn were damaged during the course of street repairs. Subsequently, the tree fell and damaged a house. In denying the municipality's liability for the damage to the house under R. C.
"The duty to remove the tree in question as an unsafe instrumentality, located as it was outside the area of the`street' itself and not affecting travel on the street, continued to be a common law duty within a governmental function." (Emphasis added.)
In the present case, the tall weeds and grass on the Saranac treelawn near appellants' home were not part of the surface of the street. As a consequence, the tall weeds and grass were not an actual physical defect of the street itself.
Several reported cases describe defects in a treelawn which have subjected a municipal corporation to liability for personal injuries. In Village of Barnesville v. Ward, supra,3 the plaintiff was held to have a valid cause of action where he tripped over a sagging wire barrier placed in the treelawn by the municipality.
The plaintiff in Joseph v. Portsmouth, supra, was injured by an iron stake which protruded three inches above the surface of the ground. The stake's presence was obscured from view apparently by tall grass.
In Hubler v. Dayton, supra, the plaintiff's foot was caught in a hole left by a broken and open tile. She was *66 injured when she walked across the treelawn.
The above three cases indicate that liability under R. C.
The appellants did not allege in their complaint that Saranac Road was itself defective. Rather, the appellants only alleged that tall weeds and grass on the treelawn were the proximate cause of the injuries to James Zupancic. We hold that tall weeds and grass on a treelawn which obstruct the vision of travelers on a street do not constitute a defect or nuisance in the paved portion of the street itself within the meaning of R. C.
In Wall v. Cincinnati (1948),
Plaintiff passed into the cloud of steam believing that the cloud had been emitted by a railroad engine beneath the viaduct. He collided with the steamer's truck and was injured. In denying plaintiff a recovery for his injuries, the Supreme Court held in paragraph 3 of its syllabus:
"A qualified nuisance is not shown by the allegations of a petition from which it appears that a municipality was engaged in the performance of its statutory duty of caring for its streets and there is no allegation showing a defective conditionin the street itself. (Paragraph three of the syllabus in the case of City of Wooster v. Arbenz,
The Supreme Court continued at
"Furthermore, as stated by the Court of Common *67 Pleas, the nuisance complained of in the plaintiff's petition does not relate to a condition or defect in the street itself. * * *
"Hence, in the instant case this court is in agreement with the lower courts that the particular circumstances alleged in the plaintiff's petition do not show a qualified nuisance."
We cannot hold that the tall weeds and grass on the Saranac treelawn are a nuisance within the meaning of R. C.
Our reasoning finds support in 42 A. L. R. 2d 817, where it states that "[a] mere obstruction of the view of a traveler by some object, substance, or condition has been held not to constitute a defect in the way within the operation of the rules and provisions imposing liability for injuries caused by defects. 25 Am Jur 784, Highways § 500."
The above annotation quotation is further supported by cases from other jurisdictions.
The following cases held that a growth of weeds, brush, and small trees which obstructed the vision of vehicular drivers on public roads was not a "defect" in the road itself for purposes of attaching liability for damages to a governmental entity.Bradshaw v. City of Seattle (Wash. 1953),
In Bohm v. Racette (1925),
"Plaintiffs argue that the high hedge was a defect in the highway within the meaning of that statute. With that argument the court cannot agree. The hedge was no part of the highway. So far as the highway was concerned it did not matter whether there was a hedge there or not. *68 * * * A defect in a highway is something that interferes with movement over it. Roads in good condition made dangerous by something on the sides of them are not for that reason defective within the meaning of the statute on which the plaintiffs rely. * * *"
Similarly, in Stanley v. South Carolina State Highway Dept.
(S.C. 1967),
"The broad general rule may therefore be deduced from our cases that a defect in a highway, within the meaning of the statute, is any physical condition of the improved portion thereof, or the existence of such condition on or overhanging the right of way, which makes the use of the improved portion of the highway unsafe and dangerous to a traveler exercising due care.
"The complaint alleges no defect or obstruction in the traveled portion of the State highway or that there was any condition existing therein that in any way affected the normal operation of vehicles over it. * * *"
To allow recovery to appellants in the present case might subject governmental entities to numerous suits for damages where a driver's vision had been obstructed by an object or thing found in or on a treelawn, such as a tree, a telephone pole, a pile of snow or dirt, or even a garbage can. The above objects, as well as parked vehicles, can easily obscure the presence of a small child who attempts to cross the street. To require a muncipal corporation to eradicate all obstruction to drivers' vision would impose an impracticable burden on it.4Cf. McCave v. Canton *69
(1942),
The courts of appeals have discussed several of the above obstructions to vision. In Galluppi v. Youngstown (1936),
"The mere parking of a municipally owned motor truck by an employee of the municipality so that it obstructs the view of a pedestrian in crossing a street does not constitute a nuisance within the meaning of Section 3714, General Code. * * *
"* * * Whether the truck with the water tank thereon had been placed in the street by the city or by some private individual, we can not see how the placing of a truck at the place alleged in the petition could possibly be construed as a nuisance in the street. * * *"
In Johnson v. Wooster (1967),
The injuries sustained by James Zupancic are unfortunate. But under our reasoning above, the city of Cleveland is not liable to appellants in damages because the tall weeds and grass on the treelawn near 15247 Saranac Road are not a defect or nuisance within the meaning of R. C.
The judgment of the trial court sustaining the city's motion for summary judgment is affirmed.
Judgment affirmed.
JACKSON and KRUPANSKY, JJ., concur.
"The trees, grass and flowers growing [on treelawns] and proper barriers placed around the same to protect them, are not obstructions or nuisances within the meaning of the statute requiring the city council to keep the streets of the municipality open, in repair and free from nuisance."