COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71246 ANN M. KURZENBERGER : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION BENNETT/DOVER HOMES, INC., ET : AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : MAY 29, 1997 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-294780 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: WALTER F. EHRNFELT, ESQ. JOHN J. SPELLACY, ESQ. GEORGE W. SCHMEDLEN, ESQ. 633 Leader Building 1991 Crocker Road, #550 536 Superior Avenue, N.E. Westlake, OH 44145 Cleveland, OH 44114 KEVIN C. ALEXANDERSEN, ESQ. 7th Floor, Bulkley Bldg. 1501 Euclid Avenue Cleveland, OH 44115 - 2 - PATTON, J. Plaintiff Ann Kurzenberger filed this negligence action against defendant Bennett Enterprises ("Bennett") alleging that she suffered injuries when she tripped over tree branches that covered a sidewalk on Bennett property. The trial court granted Bennett's motion for summary judgment and this appeal followed. The three assigned errors collectively raise the issue whether the tree branches posed an unreasonable risk of harm to plaintiff. The underlying facts are undisputed. Plaintiff, in her late 1 sixties at the time of her fall, had almost completed her regular two-mile walk when she came upon some dead branches covering the sidewalk. The branches, apparently fallen off a dead tree adjacent to the sidewalk, were approximately six inches high. Exhibits showed that at that point on the sidewalk, wooded growth abutted one side, and a two to three foot wide tree lawn bordered a major thoroughfare on the other side. Rather than cross onto the busy street in order to pass the branches, plaintiff decided to step through the branches. As she crossed over the branches, she caught her foot and fell, injuring her wrist. Plaintiff argues the trial court erred by granting summary judgment because material issues of fact existed as to whether 1 On brief and at oral argument, plaintiff's counsel represented that plaintiff was in her "seventies." At deposition, however, plaintiff stated she had been born on April 6, 1925. Hence, on the day of her fall in 1993, she was sixty- eight years old. - 3 - Bennett breached a duty to keep the sidewalk clear of impediments and whether Bennett negligently failed to remove the tree branches. To establish actionable negligence, one must show the existence of a duty, a breach of that duty and injury proximately caused by the breach of the duty. Mussivand v. David (1989), 45 Ohio St.3d 314, 318. We note at the outset that Bennett has incorrectly characterized this as a premises liability action by assuming that plaintiff was an invitee upon its property. Brief of Appellee at 5, fn.1. Nothing in the record, however, shows that Bennett owned the sidewalk abutting its property. "Unless otherwise shown by evidence, a sidewalk on a public street is presumed to be within the limits of the public street and under the control of the municipality or public authority." Eichorn v. Lustig's, Inc.(1954), 161 Ohio St. 11, 13. Because no evidence suggests that Bennett in fact owned the property, the trial court could not have based its summary judgment on that legal ground. Nevertheless, we review summary judgments de novo; therefore, we apply the same summary judgment standard as the trial court and must affirm the trial court's judgment if we find any valid grounds to support the judgment, regardless whether the trial court considered those grounds. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41-42. This matter is governed by the law relating to the duty of abutting property owners. As a general rule, an owner of property - 4 - abutting a sidewalk is not liable for injuries sustained by users of that sidewalk unless the injuries are caused by a condition that 2 is brought about by the landowner's wrongful conduct. Eichorn, supra, at 13-14. 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 the owner has actual or constructive notice. Estate of Durham v. Amherst (1988), 51 Ohio App.3d 106, 100, citing Woods v. Blodgett (May 16, 1986), Erie App. No. E-85-35, unreported at 4; cf. Heckert v. Patrick (1984), 15 Ohio St.3d 402 (addressing liability of rural landowner). Construing the facts in a light most favorable to plaintiff, Civ.R. 56(C), we find the trial court did not err by granting summary judgment. Clearly, Bennett knew that the tree had died, but this fact alone is not dispositive of liability. The issue is not whether Bennett had either actual or constructive notice of the dead tree; the issue is whether Bennett exercised reasonable care to prevent an unreasonable risk of harm from the dead tree. Reasonable minds could only conclude that the branches lying across the sidewalk did not present an unreasonable risk of harm to 2 Exceptions to this general rule exist when (1) a statute or ordinance imposes on the landowner a specific duty to keep the sidewalk in good repair; (2) by affirmative acts the landowner created or negligently maintains the dangerous condition; or (3) the landowner negligently permits the dangerous condition to exist for some private use or benefit. Crowe v. Hoffman (1983), 13 Ohio App.3d 254, 255-266. Plaintiff does not specifically argue that any of these exceptions apply. - 5 - plaintiff. The branches were not hidden -- they were open and obvious. As plaintiff approached them, she saw they were only six inches high. She testified at deposition that she decided to walk around the branches because she did not want to trip over them. She conceded that she could normally lift her foot up over six inches and would expect to cross over them. She could not explain why she fell. At deposition, plaintiff conceded she had several options available to her other than stepping over the branches. She admitted she could have moved the branches. Although the street carried heavy traffic, plaintiff admitted that she could have waited for traffic to clear and then walk briefly on the street to bypass the branches. Additionally, she could have turned back and crossed the street to go around the branches. None of these options would have been unreasonable under the circumstances. Plaintiff now argues that her age would have prevented her from moving the branches out of her way, but plaintiff's own deposition testimony contradicts this point. By her own admission, plaintiff is a physically active person who took regular walks and played golf several times a week. Exhibits submitted with the evidentiary materials showed the dead branches were not so unwieldy or cumbersome that a person with plaintiff's activity level could not be expected to lift the branches. Likewise, she could have turned around and avoided the branches, but her deposition - 6 - testimony suggested that she wanted to hurry home because she had dinner cooking on the stove. These undisputed facts show that the branches did not pose an unreasonable risk of harm to plaintiff. She fell because she failed to exercise due care in crossing over the branches. The assigned errors are overruled. Judgment affirmed. - 7 - It is ordered that appellees recover of appellant their 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 Court of Common Pleas 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. JAMES D. SWEENEY, C.J. PATRICIA BLACKMON, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .