COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68842 : MARY JACKSON, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION : RUEBEN C. ERVIN : : Defendant-Appellee : : DATE OF ANNOUNCEMENT NOVEMBER 16, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 264280 JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: CHARLES ZAGARA, ESQ. JAMES WERTHEIM, ESQ. 2020 Carnegie Avenue Ulmer & Berne Cleveland, Ohio 44115 1300 E. Ninth Street Cleveland, Ohio 44114 -2- PATRICIA ANN BLACKMON, J.: Plaintiffs-appellants Mary Jackson, Anthony Fuller, Elisha Fuller, and Fred Wright appeal from a summary judgment granted in favor of Rueben C. Ervin and assign the following errors for our review: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHERE PLAINTIFFS-APPELLANTS PROVIDED THE COURT WITH MUNICIPAL ORDINANCE AND CASE CITATIONS WHICH SHOWED THAT DEFENDANT-APPELLEE WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHERE PLAINTIFFS-APPELLANTS PROVIDED THE COURT WITH EVIDENCE THROUGH AFFIDAVITS WHICH SHOWED GENUINE ISSUES OF MATERIAL FACT. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we reverse the decision of the trial court. The apposite facts follow. On the morning of December 12, 1993, a large tree located on the property of Rueben Ervin at 13610 McElhattan Road in the city of Cleveland fell over and onto the abutting property of Mary Jackson at 13602-04 McElhattan Road. The tree landed on and destroyed the garage owned by Mary Jackson, a 1980 Chevy Caprice automobile owned by Fred Wright, a 1989 Hyundai Excel GL and a 1990 Nissan Sentra owned by Anthony and Elisha Fuller, and other miscellaneous property. For some years before the tree fell, it lacked leaves on its branches. As far back as 1986, there were dead branches falling from the tree, which were large enough to cause property damage to -3- Jackson's garage, and for a number of years, prior to the fall, the tree was leaning against Jackson's garage. When the tree fell, there were many large dead branches, a lot of fungi growing on the trunk, and bark missing from the trunk and branches. Neither Mary Jackson, Fred Wright, Anthony Fuller, nor Elisha Fuller ever told Rueben Ervin or the resident of 13610 McElhattan, Audrey Miller, about any concerns they had about the tree. Immediately after the tree fell, Audrey Miller came out of her home and in the presence of several neighbors, said "Oh my god! I am so sorry! Was anybody in the cars? I told Rueben to cut down that tree because it was dead." Ervin, as the owner, maintained the property at 13610 McElhattan Road. In an affidavit, Miller stated as follows: She did not know the tree was dead or in danger of falling. She never said anything to Ervin about the tree. She had no knowledge of the diseased condition of the tree. There were always leaves in the back yard. There had been a severe storm in July of 1993 and the tree was not knocked down as a result. In an affidavit, Ervin stated as follows: He had no knowledge the tree might fall prior to December 12, 1993. He did not reside on the property full time. He occasionally observed the tree and did not know it was dead or in danger of falling. He was not aware of any fungus or the absence of leaves on the tree. No one told him of any problem with the tree when he bought the home. When he was in the yard, he never noticed anything unusual about the tree. After the storm in July of 1993, the tree remained standing and in -4- good condition, and he did not believe that the tree was dangerous because it withstood the storm. Willy Brown, the owner of Brown Tree Service, had over forty- four years experience in tree removal. It was his opinion that the tree was alive but rotted under the ground. He believed the tree was damaged by a prior storm but the damage was not visible. He also opined that Ervin would not have known the tree was rotted in the ground or in danger of falling prior to its fall. Fred J. Robinson is a certified arborist. He reviewed the expert opinion of Willy Brown, the scene where the tree fell, photographs of the tree taken after it fell, the remains of the tree, and interviewed Anthony Fuller. From his investigation and observations, he found evidence of exposed decaying roots, "conks" from wood-destroying fungus growing on the surface of the tree, and an unusually high number of dead branches. The photographs of the tree showed fungi and bark missing from the trunk and limbs which is an unnatural condition for a healthy tree. The photographs also showed the branches had few twigs which indicated they had been dead long enough to become brittle and break off. He learned from Fuller that the tree leaned on the garage so heavily before it fell that the garage was no longer plumb, which indicated the base of the tree had lost its structural strength. He concluded, in his opinion, "A reasonable person viewing the tree should have discovered these signs and been alerted that the tree could have been unsound." -5- Jackson, Anthony and Elisha Fuller, and Fred Wright filed an action for negligence against Ervin. Ervin moved for summary judgment, the motion was granted, and this appeal followed. The standard of review for an appeal from summary judgment is plenary. This court applies the same test as the trial court, which is set forth in Civ.R. 56, and we evaluate the record according to Civ.R. 56. Civ.R. 56 specifically provides before summary judgment may be granted it must be determined that: "(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), 50 Ohio St.2d 317, 327. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmovant. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. Under Civ.R. 56(E) "a nonmovant may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. -6- In the second assignment of error, the issue is whether Ervin breached his duty of care as a landowner in an urban area. "A landowner in an urban area has a duty to exercise reasonable care to prevent an unreasonable risk of harm to others from decaying, defective or unsound trees of which such landowner has actual or constructive notice." Estate of Durham v. Amherst (1988), 51 Ohio App.3d 106 at paragraph two of the syllabus. See, also, Woods v. Blodgett (May 16, 1986), Erie App. No. E-85-35, unreported; G.H. & M. Dev. & Constr. Co. v. Vinton (Jan. 19, 1993), Stark App. No. CA- 9064, unreported; Hynes v. Cleveland (Mar. 17, 1994), Cuyahoga App. No. 66189, unreported. Constructive notice of a defective tree may be imputed to the landowner if the defect complained of is patent. Heckert v. Patrick (1984), 15 Ohio St. 402, 405. In this case, there is no dispute the tree was decayed, defective, or unsound. The primary factual dispute in this case is whether Ervin had actual or constructive notice of the condition of the tree. The statement of Audrey Miller in which she said, "I told Rueben to cut down that tree because it was dead," raises a geniune issue of fact as to whether Ervin had actual notice. Furthermore, Ervin performed his own maintenance at the property at 13610 McElhattan Road and there were numerous visible signs the tree located on the property was decayed, defective, or unsound. The tree had numerous barren branches with neither bark, leaves, nor twigs on them. The trunk of the tree had missing bark and numerous "conks" from wood eating fungus. The tree was also leaning on the garage of the abutting property before it fell. -7- Mary Jackson also stated there were problems with falling branches heavy enough to damage her garage as early as 1986, seven years prior to the tree falling. There were also opposing affidavits of two tree experts as to whether the decaying, defective, or unsound condition of the tree was apparent. Thus, we find ample evidence which raise genuine issues of fact as to whether Ervin had constructive notice of the condition of the tree. Accordingly, summary judgment is reversed and this case is remanded for trial. Ervin, however, argues any breach of his duty of care was not the proximate cause of the tree falling and relies upon Pullins v. Murphy (July 12, 1993), Clark App. Nos. 3017, 3005, unreported. In Pullins, the court found the breach of the duty of care of a landowner with respect to a tree was not the proximate cause of the tree falling and causing damage to the abutting property. Proximate cause was not found in Pullins because the mulberry tree was healthy, full leafed in the growing season with no apparent dead limbs or brown areas and did produce fruit. The clear difference between the tree in Pullins and the tree on Ervins property is evidence of visible signs of decay were produced in this case. Thus, reliance on Pullin is misplaced because the evidence in this case raises genuine issues of fact with respect to proximate cause and notice, actual and constructive. Ervin next argues, for the first time, he had no duty to the plaintiffs because they had a greater appreciation of the dangerous condition and relies upon LaCourse v. Fleitz (1986), 28 Ohio St.3d 209 (held no duty to invitees for natural accumulations of ice and -8- snow). Because a party seeking summary judgment must specifically delineate the basis upon which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond, that party cannot raise a new issue in support of summary judgment for the first time on appeal. Because Ervin did not raise this issue in his motion for summary judgment, he is precluded from raising on appeal from that judgment. Finally, Ervin argues there was no evidence presented upon the claim of punitive damages. Proof of actual malice is necessary for an award of punitive damages. E.g. Preston v. Murty (1987), 32 Ohio St.3d 334. Actual malice "***is (1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm." Construing the statement of Audrey Miller, in which she said, "I told Ervin to cut down that the tree because it was dead," in favor of the non-moving parties, there was evidence tending to show Ervin consciously disregarded the danger that the tree would fall. Accordingly, there is a question of fact as to whether punitive damages are appropriate. Because our disposition of the second assignment of error resolves the case, we reach the first assignment of error only to address the issue of negligence per se. Thus, the issue is whether a violation of Cleveland Codified Ordinance, Section 3101.10(E) constitutes negligence per se. -9- In legislative enactments expressing a rule of conduct for the safety of others, in general or abstract terms, liability must be determined by the application of the test of the care as exercised by a reasonably prudent person under the circumstances of the case. See, e.g., Jaworowski v. Med. Radiation Consultants (1991), 71 Ohio App.3d 320 at 329. (held violation of a statute is not negligence per se unless it imposes a specific duty). See Zimmerman v. St. Peter's Catholic Church (1993), 87 Ohio App.3d 752. Section 3101.10(E) is a general provision that states as follows: "***The premises shall be maintained free of any debris, material or condition which may create a health, accident or fire hazard, or which is a public nuisance.***" Consequently, we conclude proof of a violation of Section 3101.10(E) does not constitute negligence per se, but is admissible into evidence to show a breach of duty of care. Thus, the first assignment of error lacks merit. Judgment reversed and remanded for proceedings consistent with this opinion. -10- This cause is reversed and remanded. It is, therefore, considered that said Appellants recover of said Appellee their costs herein. It is ordered that a special mandate be sent to said 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. Exceptions. JOHN T. PATTON, C.J., and DAVID T. MATIA, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .