COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68268 LOLA WEBER, ET AL. : : Plaintiffs-appellees/ : cross-appellants : : JOURNAL ENTRY -vs- : AND : OPINION PATRICIA CONDREN, ET AL. : : [Appeal by the city of Berea]: : Defendant-appellant/ : cross-appellee : DATE OF ANNOUNCEMENT : OF DECISION : SEPT. 21, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-252899 JUDGMENT : Reversed; final judgment entered for defendant, city of Berea. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLEES/ FOR DEFENDANT-APPELLANT/CROSS- CROSS-APPELLANTS: APPELLEE, THE CITY OF BEREA: James L. Major, Esq. Edward G. Kagels, Esq. Major & Associates Edward G. Kagels & Associates 1801 E. 9th Street 14701 Detroit Avenue, #555 Cleveland, Ohio 44114 Lakewood, Ohio 44107 Daniel J. McGuire, Esq. Daniel J. McGuire Co., L.P.A. 140 Public Square, #602 Cleveland, Ohio 44114 -2- -3- HARPER, J.: Lola Weber, individually and as administratrix of the estate of Robert K. Peterson, Jr. ("the decedent"), filed a wrongful death action pursuant to R.C. 2125.02 in the Court of Common Pleas of Cuyahoga County on May 28, 1993. She alleged therein that the negligence of the city of Berea ("the city") and Patricia Condren proximately caused the death of the decedent on May 29, 1991. Specifically, Weber charged that Condren permitted a nuisance to exist on her real property, and the city, in violation of its municipal ordinances, failed to abate the nuisance, thereby proximately causing the automobile collision which ultimately took 1 the life of decedent, Weber's only child. Condren and the city filed answers to Weber's complaint, both adding cross-claims against one another. All parties subsequently filed motions for summary judgment, said motions being denied by the trial court. A jury trial commenced on November 2, 1994. The jury rendered a verdict in favor of Weber and against the city in the amount of $625,000; the award was reduced to $318,750 since the jury found the decedent's comparative negligence to be 49 percent. As to Weber's nuisance and negligence claims against Condren, the jury found in favor of Condren and against Weber. 1 Weber did not name Catherine Smith, the driver of the vehicle which struck the decedent, as a defendant in the action as the facts failed to show the driver to be at fault. -4- The trial court's final judgment of December 12, 1994 awarded $319,487.71 to Weber, representing the $318,750 jury award and 51 percent of the total funeral costs of $1,446.55 or $737.74. The entry also indicated judgment was rendered in favor of Condren on 2 Weber's complaint and the city's cross-claims, and in favor of the city as to Condren's cross-claims. Weber meanwhile filed a motion for prejudgment interest on November 10, 1994. The motion was partially heard at a December 22, 1994 hearing, and the parties thereafter filed additional briefs. The trial court denied the motion on January 13, 1995, reasoning that neither Weber nor the city made a good faith effort to settle the case. The city appeals from the verdict rendered in favor of Weber on the wrongful death complaint, and assigns five errors for 3 review. Weber, in her cross-appeal, assigns three errors for 4 review. II. The decedent was thirteen years old at the time of his death. He attended classes for severely behaviorally handicapped students in the Berea City School District. The decedent was also developmentally handicapped, meaning he had a mild mental retardation. 2 Weber dismissed her appeal from the judgment entered in favor of Condren on June 20, 1995. 3 See Appendix I. 4 See Appendix II. -5- Catherine Smith testified that on May 29, 1991, she drove east on Sheldon Road, a two-lane, paved roadway, at approximately twenty-five m.p.h. It was early morning and sunny. Smith was a frequent traveller on the road. Homes were located on the left side of the road and undeveloped land was present on the right side of the road. Smith recalled that she observed a group of children on the left side of the street; they appeared to be just waiting. She also remembered seeing a school bus and a dump truck approaching her on the opposite side of the road. Smith testified further that while she watched the road, "something came at my car and hit my car" from the right side. She thought it was an animal, but when she exited her vehicle to investigate, Smith discovered that a boy came into contact with her vehicle. Smith immediately sought help, and by the time she returned to her vehicle, an ambulance was on the scene. The decedent was transported to Southwest General Hospital where he died approximately nineteen hours later. Smith testified that a berm consisting of about twelve inches of cinder or stones existed along the right side of Sheldon Road. Grass and trees were beyond the berm. Smith could not specifically recall the height of the grass, but she "looked at it after trying to figure out why I didn't see anything over there. If he was over there, I noticed how tall it was." However, she testified that the grass did not look like it was cut. With regard to the full grown trees, Smith testified that "[t]hey hang low and hang over the -6- road." She, however, testified that the trees and grass did not block her view of the road, just the view to the right of the road. Robert Surgenor, a city of Berea police officer, testified that he arrived at the scene to assist in the accident's investigation. He had his personal video camera with him and used it to shoot footage of the accident area; the tape was played at trial. The videotape also contained footage that was filmed by Surgenor within a few days of the accident. This portion of the tape recreated how the right side of Sheldon Road looks when travelling east at twenty-five m.p.h. at about the same time in the morning as the accident. Surgenor testified that he never considered the grass and trees on the south side of Sheldon Road as a problem, and that the grass and trees did not obstruct the roadway. The officer, after viewing the videotape, estimated that the grass was approximately eighteen to twenty-four inches tall, i.e., knee high. Surgenor testified, therefore, that if someone was standing in the grass, he or she would be able to see over the grass and to the road. Conversely, if the individual in the grass was over two feet tall, a person driving down Sheldon Road would be able to see that person. Furthermore, none of the tree branches at the road area hung lower than ten to twenty feet off the road; some of the tree branches off the road hung lower than that distance. Timothy Milter, a police officer with the city, prepared the police report on the accident. He requested that Smith prepare a statement, and then spoke with the group of children on the left -7- side of the road. Milter returned to the scene of the accident the next day to take measurements. Milter testified that the berm on the right side of Sheldon Road measured approximately two to three feet from the edge of the roadway. He testified further that tall uncut grass, approximately knee high, was present two to three feet from the edge of the roadway. The grass was never measured for an accurate height. Trees and a pathway into the woods were located just to the right of the tall grass. Milter testified that the trees were located a little over thirteen feet from the roadway; some branches were lower, some higher, depending on the type of the tree. The officer opined that a person standing in the woods would not be visible to a driver on the road. However, if the person was standing forward of the tree line, he or she would be visible. Moreover, the trees did not obstruct Milter's vision of the road when he travelled it following the accident. Milter's police report contained the conclusion that the decedent slipped out of the grass as he came onto Sheldon Road. Milter explained that the witnesses to the accident related this information to him. Moreover, Milter learned from the school bus driver and the children waiting for the bus that the decedent generally liked to wait in the woods for the bus, and then run out of the woods upon the bus' arrival. However, Milter's investigation of the automobile accident never revealed an exact point of impact. -8- 5 Colleen Weber testified that she and Lola Weber visited the scene shortly after the accident to take photographs and measure the grass. Colleen and her husband subsequently returned to take additional photographs. All of the photographs were admitted into evidence at trial. Colleen stated that the grass was "taller than a yard stick" a few feet off the street. She described the trees and foliage in the area as "really overgrown," explaining that you could not see the street until you were actually on it when walking from the woods. Later examination revealed that this was not an accurate description of the whole area. Moreover, according to Colleen, the tree branches were untrimmed and hanging to her eye-level; she was five feet two inches tall, nearly the same height as the decedent. Therefore, only about a foot of visibility existed between the hanging branches and the grass. Pertaining to the pathway, Colleen testified that the path was well-worn, muddy, and strewn with debris. Colleen described the photographs taken of the surrounding area. Some of the photographs depicted the overall area, including Sheldon Road and an intersecting street. Other photographs attempted to show that an individual is not visible while standing in the trees and/or bushes, but this was when the person was about eighteen feet from the roadway. When either Lola or Colleen was photographed to show that a person standing in certain areas was 5 Lola Weber is the ex-wife of Michael Weber, Colleen Weber's husband. -9- not visible, the photograph was marked with an "x" to identify it. Finally, other photographs showed the height of the grass in comparison to a yard stick. Gregg Michelich, an auto claims representative with Smith's insurance company, went to the scene within two days of the accident. The purpose of his visit was to "get a feel for" the surrounding area. The photographs taken by Michelich were described by him, shown to the jury, and later admitted into evidence. One photograph which depicted the area where the decedent ran from, contained a person who, according to Michelich, stood approximately eight feet off the road; the person was clearly visible in the photograph. Michael Weber testified that he visited the scene of the accident with his wife, Colleen, within days of it as well. He described the area south of Sheldon Road and near the accident as "[a] wooded area that was intensely overgrown with grass, weeds, trees, bushes." Michael estimated that the grass was approximately one foot from the roadway, and three to four feet in height. He then offered testimony relating to the photographs of the general area, including photographs depicting a visible Colleen standing in the grass. Patricia Condren testified that she became the owner of the property in question, i.e., two undeveloped parcels of property abutting Sheldon Road on the south side, following her father's death in 1989. Condren, a resident of California, first viewed the property in July 1989, and returned on several occasions in 1990 -10- and 1991. She testified that a young man looked after the property for her, but this man was not required to cut the grass or trim the trees. Condren thought the foliage was beautiful, and considering the property's undeveloped condition and the absence of sidewalks, did not feel it necessary to take care of the property in that respect. Paul McCumbers, the Director of Public Service for the city of Berea at the time of the accident, first testified with regard to the city's Codified Ordinances ("C.O."). C.O. 973.02 characterizes grass or weeds exceeding twelve inches as a nuisance because of their susceptibility to catch fire and then spread the fire to other property. This ordinance also declares weeds which are spreading seeds or about to do so, and ragweed, golden rod, poison ivy or poison oak, as nuisances. C.O. 949.01 sets forth that when the director of public service or director of public safety "finds" a nuisance, the director who learns of the nuisance, must cause its abatement. Finally, C.O. 943.03 charges the director of public service with the enforcement of the provisions pertaining to the trimming and/or removal of trees, plants, shrubbery, weeds, grass, or vines, and/or the authorization of the trimming or removal of the foliage. McCumbers testified that he was unaware of any violations of the foregoing ordinances existing on Condren's property at or prior to the time of the accident. Moreover, he testified that to the best of his knowledge, the city never received a complaint about -11- the condition of Condren's property prior to the time of the accident either from its citizens or the police department. Regarding tree branches, McCumbers testified that the relevant ordinance in force at the time of the accident, C.O. 327.18, required that branches be nine feet from the roads in the city as well as from the pedestrian sidewalks. However, he explained that not all low hanging branches had to be trimmed to nine feet over the road. The ordinance was subsequently amended to require the branches to be trimmed to seven feet over the roadway. McCumbers testified that the trees on Condren's property did not violate either the old nine feet standard, or the new seven feet standard. III. Initially, we refer the city's counsel to the appellate rules of procedure, and specifically to the rules which relate to brief preparation. App.R. 16(A)(3) and (A)(4) set forth that the appellant's brief shall contain assignments of error and a statement of the issues. App.R. 16(A)(7) then sets forth that the brief shall contain an argument which relates to a particular assignment of error. See, also, Loc.App.R. 6. A review of the city's brief and Appendix I reveals non-compliance with the rules. For example, though the city submits assignments of error regarding the trial court's instructions to the jury, the brief fails to contain any argument in this regard. Additionally, the brief combines different combinations of the assignments of error, and, therefore, fails to present a separate argument on each assignment of error as required by the rules. Nonetheless, in the interest of -12- justice, this court will attempt to analyze the city's arguments based upon our interpretation of them without requiring the city to compile a brief in compliance with the appellate rules. See, Loc.App.R. 6(7). The city basically submits in its first argument that it is entitled to the immunity afforded by R.C. Chapter 2744, the Political Subdivision Tort Liability Act ("the Act"), because its actions and/or omissions with regard to Condren's property and the effect of its conditions on Sheldon Road were "governmental 6 functions" as defined in R.C. 2744.01(C)(2)(e) , and that the "discretion" defenses contained in R.C. 2744.03(A)(3) and (A)(5) are applicable. The city, therefore, argues, that the trial court erred in not granting its motion for summary judgment. The granting of summary judgment is only appropriate if there is no genuine issue of material fact, and reasonable minds can come to but one conclusion which is adverse to the nonmoving party. Toledo's Great Easter Shoppers City, Inc. v. Abde's Black Angus Steak House No. III, Inc. (1986), 24 Ohio St.3d 198, 201; Civ.R. 56(C). An order granting summary judgment will, therefore, only be upheld where the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law when construing the evidence most strongly in favor of the 6 R.C. 2744.01(C)(2)(e) includes the following definition of "governmental" function: "The regulation of the use of, and the maintenance and repair of roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds." -13- nonmoving party. Wooster v. Graines (1990), 52 Ohio St.3d 180, 184-185; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. Summary judgment is a procedural device which is used to terminate litigation and, therefore, must be awarded with caution with all doubts resolved in favor of the nonmoving party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 333; see, Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 359. However, it "forces the nonmoving party to produce evidence on any issue for which that party bears the production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, citing Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. A political subdivision is generally not liable for damages for injury, death, or loss to persons or property incurred in connection with the performance of either a governmental or proprietary function of the political subdivision. R.C. 2744.02 (A)(1). There are several exceptions, however, to this grant of sovereign immunity. See, generally, R.C. 2744.02(B). The subsection which is relevant to the instant case, R.C. 2744.02 (B)(3), charges political subdivisions with liability for injury or death caused "by their failure to keep public roads, highways, [and] streets *** within the political subdivisions open, in repair, and free from nuisance ***." (Emphasis added.) Notwithstanding that a political subdivision may be liable for injury or death under R.C. 2744.02(B)(3), the Act lists defenses which can be asserted to avoid this liability. See, generally, -14- R.C. 2744.03(A). The city submits that subsections (A)(3) and (A)(5) of R.C. 2744.03 are pertinent to this appeal. Pursuant to R.C. 2744.03(A)(3), the city is immune from liability if the act or failure to act by an employee was within the employee's discretion as to "policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee." Immunity is also bestowed upon the city under R.C. 2744.03(A)(5) "if the injury [or] death *** resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources, unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner." In light of R.C. Chapter 2744's relative recency, the Supreme Court of Ohio first addressed a political subdivision's duty to keep roads free from nuisances in Manufacturer's Natl. Bank of Detroit v. Erie Cty. Road Comm. (1992), 63 Ohio St.3d 318, by 7 referencing case law stemming from R.C. 732.01 . The court held that a permanent obstruction to visibility in the right-of-way 7 R.C. 723.01 reads as follows: Municipal corporations shall have special power to regulate the use of the streets. Except as provided on section 5501.49 of the Revised Code, the legislative authority of a municipal corporation shall have the care, supervision, and control of the public highways, streets, avenues, alleys, sidewalks, public grounds, aqueducts, and viaducts within the municipal corporation, and the municipal corporation shall cause them to be kept open, in repair, and free from nuisance. -15- which renders the regularly traveled portions of the highway unsafe for the usual and ordinary course of travel can be a nuisance which imposes liability on a political subdivision under R.C. 2744.02 (B)(3). Id., paragraph one of the syllabus; see, Franks v. Lopez (1994), 69 Ohio St.3d 345, 348; Valescu v. Cleveland Metroparks Sys. (1993), 90 Ohio App.3d 516, 521. It is thus apparent that in determining a political subdivision's liability for a nuisance, the focus is on whether a permanent obstruction to visibility exists within the subdivision's control that "creates a danger for ordinary traffic on the regularly travelled portion of the road." Manufacturer's Natl. Bank, 322; Valescu, 521. In Palko v. Elyria (1993), 86 Ohio App.3d 211, the Court of Appeals of Lorain County considered whether the condition of land located eight to twelve feet from the end of a sidewalk can be a nuisance. The court recognized that analogous situations existed in which a municipality was not held responsible for particular conditions under R.C. 723.01, beginning with a light pole located adjacent to the shoulder of a roadway, (Strunk v. Dayton Power & Light Co. [1983], 6 Ohio St.3d 429); a catch basis located adjacent to the roadway, (Lovick v. Marion [1975], 43 Ohio St.2d 172); and illegally parked cars along the side of a highway, (Williamson v. Pavlovich [1989], 45 Ohio St.3d 179). On the other hand, a municipality has been held responsible under the same statute for a park strip located between a sidewalk and streets, (Joseph v. Portsmouth [1975], 44 Ohio St.2d 155); excavation areas which are unguarded as a result of the continual disappearance of lanterns -16- and barricades, (Hunter v. Cleveland [1976], 46 Ohio St.2d 91); and regularly travelled shoulders of highways, (Dickerhoof v. Canton [1983], 6 Ohio St.3d 128). Based upon its analyses of all of these case, the Palko court concluded that "[t]he common ground to all these cases is that municipal liability is limited to those conditions which render a street or sidewalk unsafe for usual and ordinary modes of travel." Palko, 215. In the instant case, Weber sought to impose liability on the city based upon the city's failure to either direct Condren to cut back foliage, or to do so on its own. The foliage allegedly prevented Smith, the driver of the automobile which came into contact with decedent, from seeing the decedent on the side of the road. There is, however, no dispute that the foliage did not obstruct the roadway at all, just Smith's ability to see through the foliage to the right of the roadway. The foliage, therefore, as a matter of law, did not create a danger for traffic on the road as it is the traffic on the road which is at the heart of the liability imposed by R.C. 2744.02(B)(3). While we are sensitive to the tragic loss of Weber's son, Weber nonetheless misconstrues the purpose behind R.C. 2744.02(B)(3) which is directed to traffic on the regularly travelled portion of the road. As stated in Manufacturer's Natl. Bank, "[a] permanent obstruction to a driver's visibility can be a nuisance which makes the usual and ordinary course of travel on the roadway unsafe[,]" and, therefore, the "relevant focus is on the effect of the obstruction on the highway's safety, not on the nature of the particular obstructon." -17- (Emphasis sic.) Id., 323. In other words, Smith's ability to drive on Sheldon Road was not obstructed by anything, and, therefore, the condition of Condren's property did not render the regularly travelled portion of the road unsafe for Smith's usual and ordinary course of travel. Additionally, before liability can be imposed upon a political subdivision under R.C. 2744.02(B)(3), the party asserting liability must show that the subdivision had "either actual or constructive knowledge of the nuisance" in order to withstand a motion for summary judgment. See, Franks, 349, citing Vogel v. Wells (1991), 57 Ohio St.3d 91, 97 (nuisance case decided in part on R.C. 723.01). Constructive knowledge arises if "'such nuisance existed in such a manner that it could or should have been discovered, that it existed for a sufficient length of time to have been discovered, and that if it had been discovered it would have created a reasonable apprehension of a potential danger ***.'" Franks, 349, quoting Beebe v. Toledo (1958), 168 Ohio St. 203, 204. In the present case, there was absolutely no evidence that the city had actual knowledge of any potential danger existing on Condren's property. There is no indication that even if the city discovered a questionable condition on Condren's property, the discovery "would have created a reasonable apprehension of a potential danger," i.e. someone running from the woods toward the street was not visible to drivers on the road. Weber, therefore, failed to demonstrate that the city had either actual or constructive knowledge of a nuisance. Franks. -18- Reasonable minds can come to but one conclusion that R.C. 2744.02(B)(3) was not implicated under the facts of this case, and liability cannot be imposed upon the city thereunder. The trial court thus erred in denying the city's motion for summary judgment based upon Weber's failure to demonstrate a nuisance as defined by the Supreme Court of Ohio. Manufacturer's Natl. Bank; Wooster; Civ.R. 56(C). Compare, Franks, (political subdivision has duty to abate overhanging branches and foliage which obscure traffic signs); Valescu (wearing of the chip and seal berm and lower level of sloping gravel embankment beyond berm on highway were not "nuisances" that rendered highway unsafe for usual and ordinary course of travel when motorcyclist left roadway); Anderson v. CSX Transp., Inc. (1991), 74 Ohio App.3d 365 (city had no duty to remove a condition constituting alleged nuisance wholly located on property adjacent to roadway because condition failed to affect physical condition of roadway); Sanchez v. Clark Cty. (1988), 44 Ohio App.3d 97 (county liable for failing to remove branches from tree located on private property when branches obscured stop sign for which county was required to install and maintain); Thomas v. Board of County Commissioners (Sept. 30, 1993), Cuyahoga App. No. 62949, unreported (median barrier not an actionable nusiance creating liability for defendant under R.C. 2744.02(B)(3) as barrier not designed to be driven upon and did not create danger for ordinary traffic on regularly travelled portion of road). We acknowledge Weber's attempt to impose liability on the city based upon its codified ordinances, i.e., that the city waived the -19- protections afforded by Chapter R.C. 2744 through its enactment of 8 certain ordinances. However, R.C. 2744.02(B)(5) specifically states that liability is not to be premised upon a responsibility which is imposed upon the political subdivision under a separate code section. Rather, the statute must expressly impose liability. Zellman v. Kenston Bd. of Edn. (1991), 71 Ohio App.3d 287; see, Amborski v. Toledo (1990), 67 Ohio App.3d 47 (appellee city has blanket statutory immunity from liability for its actions with the exception of the five situations enumerated in R.C. 2744.02[B]). None of the ordinances cited by Weber expressly provide that a violation of any of them forms a basis for a civil action against the city for damages. Therefore, for the same reasoning expressed in Zellman, none of them state an exception to the immunity of a political subdivision. Zellman, 290. The city's first "assignment of error" is sustained. As a result of our ruling in the city's first "assignment of error," its remaining "assignments of error" are rendered moot. We thus need not review them. Furthermore, Weber's cross-assignments of error pertaining to comparative negligence, damages and prejudgment interest are likewise rendered moot since we reverse the jury's verdict in favor of Weber. App.R. 12(A)(1)(c). Judgment reversed; final judgment entered in favor of the city of Berea. 8 See Appendix III. -20- APPENDIX I 9 The city of Berea, in its brief, first sets forth : AS TO ASSIGNMENTS OF ERROR 1, 2, AND 3; AND ISSUE 1: APPELLANT BEREA IS A POLITICAL SUBDIVISION ENTITLED TO THE IMMUNITY PROTECTIONS AFFORDED BY O.R.C. 2744.02(A) AND O.R.C. 2744.03(B)(3) AND (5) [SIC]. THE CONDUCT OF APPELLANT BEREA WHICH APPELLEE WEBER ASSERTS TO BE NEGLIGENT IS GOVERNMENTAL CONDUCT CONTEMPLATED BY O.R.C. 2744.02 AND O.R.C. 2744.03. THEREFORE APPELLANT BEREA IS IMMUNE TO LIABILITY BASED UPON THE FACTS AND APPLICABLE LAW ASSERTED BY APPELLEE WEBER TO SUPPORT LIABILITY, AND REASONABLE MINDS CAN ONLY SO CONCLUDE. THEREFORE THE COURT BELOW COMMITTED PREJUDICIAL ERROR WHEN IT OVERRULED APPELLANT BEREA'S MOTION FOR SUMMARY JUDGMENT AND DIRECTED VERDICTS IN THIS ACTION. A. Defendant Berea is entitled to the immunity protection provided at R.C. 2744.02(A)(1). B. Ohio Revised Code Section 2744.03(A)(3) and (5) afford immunity for any liability for damages arising from the claimed culpable conduct. AS TO ASSIGNMENTS OF ERROR 1, 2, 3, 4, AND 5; AND ISSUE 2: THERE IS AND CAN BE NO DISPUTE ABOUT AND THE EVIDENCE CLEARLY ESTABLISHES THAT THE FOLIAGE INVOLVED IN APPELLEE WEBER'S CLAIMS FOR RELIEF DID NOT OBSTRUCT OR OTHERWISE AFFECT TRAFFIC ON THE TRAVEL PORTION OF THE INVOLVED ROADWAY. THEREFORE THE FOLIAGE CONDITION CLAIMED TO BE A NUISANCE BY APPELLEE WEBER IS NOT CONTEMPLATED BY O.R.C. 2744.02(B)(3). THEREFORE THIS EXCEPTION TO IMMUNITY DOES NOT APPLY IN THIS ACTION. THEREFORE APPELLEE BEREA [SIC] IS IMMUNE TO THE LIABILITY IMPOSED UPON IT BY THE COURT BELOW AND REASONABLE MINDS CAN ONLY SO CONCLUDE. AS TO ASSIGNMENTS OF ERROR 4, 5, AND 6; AND ISSUE 3: APPELLANT BEREA'S IMMUNITY IN THIS MATTER IS NOT ABROGATED BY THE EXISTENCE OF ITS MUNICIPAL ORDINANCES ASSERTED TO IMPOSE PERTINENT DUTIES BECAUSE THERE WAS NO 9 Though the city sets forth "five assignments of error," infra, the argument portion of its brief conforms to this arrangement which combines assignments of error and issues. -21- SHOWING OF A CONSCIOUS OR INTENTIONAL WAIVER OF THE IMMUNITY. AS TO ASSIGNMENTS [SIC] OF ERROR 6, AND ISSUE 4: BEFORE AN OHIO POLITICAL SUBDIVISION CAN BE LIABLE FOR ITS FAILURE TO ABATE A NUISANCE IT MUST FIRST BE ESTABLISHED THAT IT HAD NOTICE OF THE CONDITION AND THEREAFTER FAILED TO ACT APPROPRIATELY. CASUAL KNOWLEDGE OF THE COMPLAINED ABOUT CONDITION BY POLICE OFFICERS DOES NOT SATISFY THIS REQUIREMENT. AS TO ASSIGNMENT [SIC] OF ERROR 2 AND 3; AND ISSUE 5: APPELLEE WEBER'S EVIDENCE DID NOT ESTABLISH THAT THE FOLIAGE CONDITION COMPLAINED OF WAS A PROXIMATE CAUSE OF THE OCCURRENCE. The city's "five assignments of error" are: 1. The trial court committed prejudicial, reversible error, as a matter of law, when it overruled Appellant Berea's Motion for Summary Judgment. 2. The trial court committed prejudicial, reversible error, as a matter of law, when it overruled Appellant Berea's Motion for a Directed Verdict at the close of the plaintiff's evidence in the trial of this action. 3. The trial court committed prejudicial, reversible error, as a matter of law, when it overruled Appellant Berea's Motion for Directed Verdict at the conclusion of all of the evidence in the trial of this action. 4. The trial court committed prejudicial, reversible error, as a matter of law, when it instructed the jury as follows (at record pages 640-648): *** 5. The trial court committed prejudicial, reversible error [sic] as a matter of law, when it instructed the jury as follows (at record pages 649-656): *** The five issues presented by the city are as follows: 1. Where malicious purpose, bad faith or wanton or -22- reckless conduct are not alleged or proved, can an Ohio political subdivision be liable for negligence on the basis that it failed to remove or cause the removal of foliage adjoining a roadway, which foliage did not obstruct or affect traffic on the travel portion of the roadway, but which foliage is asserted to be a proximate cause of a collision between a pedestrian who is asserted to be obscured by such foliage and who negligently proceeded from such foliage into a collision with a legally proceeding vehicle in the roadway, notwithstanding the existence of O.R.C. [Section] 2744.02(A) and O.R.C. [Section] 2744.03(A)(3) and (5)? 2. Does the exception to the immunity of a political subdivision established by O.R.C. [Section] 2744.02 (B)(3) apply to a foliage condition alleged to be a nuisance which nuisance does not obstruct or otherwise affect traffic on the travel portion of the roadway? 3. Can ordinances of a political subdivision impose a duty upon that entity to abate a nuisance, and thereby impose liability upon that entity for negligence where the political subdivision would otherwise be immune to liability pursuant to O.R.C. [Section] 2744 [sic under the circumstances? 4. Is the requirement of notice of the existence of a nuisance to a political subdivision satisfied where the only evidence of notice is the casual observation of the condition by police officers, who do not perceive the condition to be a nuisance, and who are not charged with the enforcement of the ordinances and are in the course of their routine patrol duties when they make the observation? 5. Must the trial court direct a verdict for the defendant based upon the failure of the plaintiff to present evidence of proximate cause where it is alleged that the presence of foliage was a proximate cause of a pedestrian-motor vehicle collision, where the record is void as to any evidence as to whether a motorist could or could not see the subject pedestrian approaching the roadway, and were there is evidence that such pedestrian could see the roadway, and there was evidence that the deceased pedestrian was seen immediately before the collision by a bystander standing across the road? -23- APPENDIX II Weber's assignments of error in her cross-appeal are: A: First Assignment of Error The Trial Court Abused Its Discretion By Excluding Evidence At Trial Relative To The Hedonic Damages Suffered By The Plaintiffs B: Second Assignment of Error The Trial Court Abused Its Discretion By Allowing The Jury To Reduce The Plaintiffs' Damage Award by 49% C: Third Assignment of Error The Trial Court Abused Its Discretion When It Denied Plaintiffs' Motion For Prejudgment Interest -24- APPENDIX III 1) 327.02 CONTROL OF TREES. The Director of Public Service is given full jurisdiction, authority, control, supervision and direction of all trees which now or which may hereafter exist upon any public place in the City when, in his opinion, such trees constitute a menace to public property, public safety or public welfare of the City. *** In the exercise of any or all of the powers herein granted, the Director shall have the authority to delegate all or such part of his powers and duties with respect to supervision and control of trees to his subordinates and assistants. 2) 327.18 TREE PRUNING; PRIVATE PROPERTY. The owner of every lot or parcel of land within the City upon which a tree, plant or shrubbery stands with part thereof upon or overhanging a public street or sidewalk shall conform to the regulations herein provided. Otherwise, the City shall cause the trees to be trimmed or cut down and removed in accordance with the regulations and assess the cost thereof against the owner of the lot or parcel of land. (A) The owner shall trim or cause to be trimmed the tree, plant or shrubbery so that a clear height of nine feet between the lowest branches of the same and the street, and clear height of seven feet between the lowest branches of the same and the sidewalk is maintained. (B) The owner shall trim or remove, as the case may require, every dead, decayed or broken tree, plant or shrubbery, or part thereof, so that the same shall not fall to the street or sidewalk. (C) The owner shall cut down and remove any tree, plant or shrubbery, or any part thereof, as may be necessary to provide a clear and unob- structed view of traffic from all directions at any street intersection, or to abate any nuisance necessary to protect life, limb or property of persons, drivers of any vehicles or pedestrians using the street or sidewalk. -25- 3) 943.03 REMOVAL OF TREES, WEEDS, GRASSES BY CITY In the event the owner does not trim or remove any tree, plant or shrubbery, or any part thereof, or any weeds, vines or grasses in accordance with the provisions of this chapter, then the Director of Public Service is authorized and it is declared to be his duty to have enforced the provisions of this chapter, and to cause to be trimmed or removed the tree, plant or shrubbery, or part thereof, and cut and remove all grass and weeds. 4) 949.01 AUTHORITY OF SERVICE DIRECTOR AND SAFETY DIRECTOR TO ABATE NUISANCE Whenever the Director of Public Service or Director of Public Safety finds that there is done or exists within the City any act, thing or condition of a kind which has been or may hereafter be defined by ordinance as a nuisance, the Director of Public Service and the Director of Public Safety, or either of them, are authorized and directed promptly to cause its abatement, as hereinafter provided. 5) 973.02 Grass and Weeds The existence, upon any lot or parcel of land within the City, of grass or weeds likely to catch fire and spread such fire to other property, or of weeds which are spreading seeds or about to do so, or of ragweed, goldenrod, poison ivy or poison oak, is declared to be a nuisance. Any grass or weeds growing to a height of twelve inches or more shall be prima facie deemed to be likely to catch fire and spread such fire to other property. No person who is the owner, occupant or person in possession of any lot or parcel of land within this City shall permit a nuisance as herein defined to exist or continue thereon. -26- It is ordered that appellant recover of appellees its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA ANN BLACKMON, P. J. ANN DYKE, J., CONCUR JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza-tion, .