COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73171 MALINDA D. HARP, ADMINISTRATRIX : OF THE ESTATE OF RUTH L. BREWER, : DECEASED : : JOURNAL ENTRY Plaintiff-Appellant : : AND -vs- : : OPINION CITY OF CLEVELAND HEIGHTS : : Defendant-Appellee : Date of Announcement of Decision: AUGUST 6, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 397169 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellant: RICHARD L. DEMSEY, ESQ, JOHN P. SCHLOSS, ESQ. Nurenberg, Plevin, Heller & McCarthy Co., L.P.A. 1379 Ontario St., 1st Floor Cleveland, Ohio 44113 For Defendant-Appellee: JOHN M. BAKER, ESQ. Weston, Hurd, Fallon, Paisley & Howley, L.L.P. 2500 Terminal Tower 50 Public Square Cleveland, Ohio 44113 [continued on next page] For Defendant-Appellee: JOHN H. GIBBON, ESQ. Director of Law LAURE A. WAGNER, ESQ. Asst. Director of Law City of Cleveland Heights 40 Severance Circle Cleveland Hts., Ohio 44118 -3- JAMES M. PORTER, P.J.: Plaintiff-appellant Malinda D. Harp, Administratrix of the Estate of Ruth Brewer, Deceased, appeals from the summary judgment entered in favor of the defendant-appellee City of Cleveland Heights on plaintiff's claim for wrongful death resulting from a tree limb falling from the City's park into the roadway and striking decedent's car. Plaintiff claims the trial court erred because disputed issues of material fact precluded summary judgment. We find no error and affirm. The accident in question occurred on the perimeter of Forest Hills Park which is owned and maintained by, and located within, the City of Cleveland Heights, Ohio. The park is bounded on one side by Lee Boulevard. On September 12, 1995, a limb from a black cherry tree within Forest Hills Park suddenly split away from the tree and fell, landing across a car being driven on Lee Boulevard by decedent, Ruth L. Brewer. Ms. Brewer died from her injuries. The base of the tree at issue was located inside the park behind a fence, approximately 16 feet from the curb of Lee Boulevard. The limb which fell and struck Ms. Brewer's automobile was 50-60 feet above the ground. It is undisputed that before the accident the limb did not impede or interfere with the traffic on Lee Boulevard. Plaintiff contends that the tree limb must have extended over the roadway before the accident because it landed in the roadway. There is contrary evidence. Cleveland Heights' expert tree witness testified that, based on his inspection of the tree, that the tree -4- limb did not extend over the roadway before the accident. Instead, the scar, the nineteen foot long piece of the trunk of the tree that pulled away with the limb, extended the limb into the roadway when it fell. Early in 1995, pursuant to a Cleveland Heights tree inspection program, the tree had been inspected by an employee of the City's Forestry Department. He evaluated trees and classified each tree in one of four categories: routine prune, training prune, priority prune, or immediate prune. The tree at issue was classified as priority prune which the employee described as meaning that the tree needs to be pruned sometime and that it would be on the list of trees to be pruned when the employees were in the area. (Arendec Depo. 28). The employee testified that as of the date of the inspection, the tree at issue had a little bit of dead wood on it. He further testified that the part of the tree he would have pruned was not the part facing the road; the dead wood was on the other side of the tree. Regardless of any dispute concerning the condition of the tree at the time of the inspection, as stated previously, it is undisputed that before the accident, neither the tree nor any of its limbs impeded the flow of traffic on Lee Boulevard. Plaintiff filed this action against the City in the Court of Common Pleas seeking damages for wrongful death and pain and suffering. The City's answer asserted the affirmative defense of immunity pursuant to R.C. Chapter 2744. Following discovery, the City moved for summary judgment. The trial court granted summary -5- judgment holding that the tree at issue was not a nuisance which the City had a duty to abate because prior to the accident the tree did not impede traffic. This timely appeal ensued. Plaintiff's sole assignment of error states as follows: I. THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT WHEN THE DEFENDANT BREACHED A DUTY OWED TO PLAINTIFF BY FAILING TO MAINTAIN OR REMOVE A KNOWN HAZARD FROM ABOVE THE TRAVELED PORTION OF A PUBLIC HIGHWAY WHICH PROXIMATELY CAUSED THE DEATH OF PLAINTIFF'S DECEDENT. Under Civ.R. 56, summary judgment is proper when: (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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. 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 nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, -6- 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. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. The City is immune from liability for injury, death or loss to persons or property allegedly caused by any act or omission of the City or one of the City's employees in connection with a -7- governmental or proprietary function. R.C. 2744.02(A)(1). The immunity granted to political subdivisions pursuant to R.C. 2744.02(A)(1) is broad. Adams v. Willoughby (1994), 99 Ohio App.3d 367, citing Wilson v. Stark County Department of Human Services (1994), 70 Ohio St.3d 450, 452. The trial court entered judgment finding, as a matter of law, that the tree limb at issue was not a nuisance, that the City had a duty to abate, which would trigger the limited exception to the City's immunity set forth in R.C. 723.01 and in R.C. 2744.02(B)(3) as it was written at the time of the accident. We hold that the trial court's finding on this issue was correct. Generally, a municipality is granted immunity for the governmental function of owning and maintaining public roadways. R.C. 2744.01(C)(2). However, R.C. 2744.02(B)(3) (as it was written at the time of the accident) and R.C. 723.01 grant a limited exception to municipal immunity for injuries relating to failure of political subdivisions to keep roadways within the political subdivision open, in repair, and free from nuisance. This exception extends to circumstances when the municipality negligently fails to remedy conditions affecting the actual physical structure of the streets or highways and to the physical obstructions or hindrances to travel thereon. The provisions of R.C. 723.01 are in derogation of the common law and must be strictly construed against a finding of municipal liability. Standard Fire Insurance Co. v. City of Fremont (1955), 164 Ohio St. 344, 346. -8- Plaintiff argues that the City's obligation under R.C. 723.01 and 2744.02(B)(3) imposes a duty to keep the airspace over roadways within the City clear of any object which could possibly fall onto the roadway. However, we find no evidence that the General Assembly or the courts have imposed such a burden. The current version of R.C. 2744.02(B)(3) sets forth explicitly the General Assembly's intent to abrogate a municipality's immunity in only two limited circumstances: political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads ***. R.C. 2744.02(B)(3) effective January 27, 1997. Thus, a municipality will be liable only when it (1) negligently fails to keep roads in repair or (2) negligently fails to remove obstructions from the road. This case does not involve allegations that the City failed in either of these respects. Even prior to amendment of R.C. 2744.02(B)(3), the courts interpreted the nuisance required to impose liability on a political subdivision as an obstruction or condition which necessarily interfered with or inhibited safe travel. Plaintiff has not pointed to any Ohio authority which has imposed liability upon a political subdivision for injuries allegedly caused by a falling tree or an overhanging tree limb which, prior to the accident, did not interfere with traffic. Trees growing along the side of the street are not obstructions or nuisances within the meaning of the statute. Estate of Durham v. City of Amherst -9- (1988), 51 Ohio App.3d 106, 108; Reynolds v. City of Oakwood (1987), 38 Ohio App.3d 125, 128. In Durham, the appeals court affirmed summary judgment in favor of the City, finding that the City was immune from liability for the death of motorist killed when a large tree on a tree lawn fell onto his automobile, even though the City may have marked the tree for removal prior to the plaintiff's accident. Because the tree did not obstruct the physical condition of the roadway, the tree did not constitute a nuisance pursuant to R.C. 723.01. Id. at 108. Plaintiff attempts to compare this case with Richards v. Rubicon Mill Condominium Association (1995), 100 Ohio App.3d 264. Such a comparison is unwarranted and misleading. In Richards, the court reversed a Civ.R. 12(B)(6) dismissal where the plaintiff had alleged that the branches of a visibly diseased and decayed tree extended into the air space immediately above the city street. The court held that, making inferences in favor of plaintiffs, it was possible that plaintiffs could prove that the diseased state of the tree rendered the street unsafe for ordinary travel, i.e., that the branches hung so low as to interfere with the traffic on the city street. See Richards, 100 Ohio App.3d at 269. In fact, the Richards Court, citing the recent Ohio Supreme Court case on nuisance, Manufacturer's Nat'l. Bank v. Erie Cty. Road Comm. (1992), 63 Ohio St.3d 318, 322-23, even stressed that the relevant focus is on the effect of the obstruction on the highway's safety, not on the nature of the particular obstruction. Id. at 208. -10- The cases on which plaintiff relies all deal with fact situations in which it is clear that the condition obstructed safe travel on the streets. A permanent obstruction to sight line, integral to safe travel, can be a nuisance which a political subdivision would be obligated to abate. See Manufacturer's Nat'l. Bank, supra (corn growing in right of way which made it impossible for motorist to see oncoming traffic at intersection can be nuisance for which political subdivision may be liable); Vogel v. Wells (1991), 57 Ohio St.3d 91 (permanent obstruction to sight of stop sign may be nuisance). Bridges, overpasses or overhanging tree limbs which extend over the roadway low enough to touch and cause injury to persons or vehicles using the roadway may be nuisances where they interfere with or make dangerous ordinary travel on the roadway. Yackee v. Village of Napoleon (1939), 135 Ohio St. 344 (railroad overpass that was so low it obstructed travel in the usual mode); Robert Neff and Sons v. City of Lancaster (1970), 21 Ohio St.2d 31. The Supreme Court in Neff applied Yackee and noted: an overhanging limb could reach down so far as to impede even ordinary vehicular traffic. Such a condition, if allowed to endure, could become a nuisance within the meaning of Section 723.01, Revised Code. Id. at 37. Contrary to plaintiff's contention, Neff supports the trial court's judgment that the limb in this case, which did not interfere with traffic, was not a nuisance. Therefore, we hold, as a matter of law, that the limb that struck Ms. Brewer did not constitute a nuisance pursuant to R.C. -11- 2744.02(B)(3) and R.C. 723.01. Accordingly, the trial court properly granted summary judgment to the City of Cleveland Heights. We do not address appellee's contention that it is completely immune to liability pursuant to R.C. 2744.01(C)(2)(u) given the fact the tree was located within a park, as it is moot given our finding that the tree limb was not a nuisance. App.R. 12(A)(1)(c). Plaintiff's sole assignment of error is overruled. Judgment affirmed. -12- It is ordered that appellee recover of appellant 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 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. LEO M. SPELLACY, J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE 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 .