Motorists Mut. Ins. v. Flynn , 2013 Ohio 1501 ( 2013 )

[Cite as Motorists Mut. Ins. v. Flynn, 2013-Ohio-1501.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
MOTORISTS MUTUAL INSURANCE
COMPANY, : Case No. 11CA28
Plaintiff-Appellant, :
vs. : DECISION AND JUDGMENT ENTRY
KATHRYN M. FLYNN, :
Defendant-Appellee. : RELEASED: 03/28/13
_______________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Steven J. Zeehandelar, 471 East Broad Street, Suite 1200,
Columbus, Ohio 43215
COUNSEL FOR APPELLEE: Kevin R. Whitmer, 105 East Fourth Street, Suite 1400,
Cincinnati, Ohio 45202
________________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED:
MCFARLAND, P.J.
{¶1} This is an appeal from a Highland County Common Pleas Court summary judgment
in favor of Kathryn M. Flynn, defendant below and appellee herein. The trial court determined
that appellee is not liable for damages that resulted when a tree fell on neighboring property. We
disagree and reverse the trial court’s decision.
{¶2} Motorists Mutual Insurance Company, plaintiff below and appellant herein, assigns
the following errors for review:
FIRST ASSIGNMENT OF ERROR:
Highland App. No. 28 2
“THE TRIAL COURT ERRED WHEN IT GRANTED
DEFENDANT-APPELLEE’S MOTION FOR SUMMARY
JUDGMENT AS GENUINE ISSUES OF MATERIAL FACT ARE
IN DISPUTE.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT FAILED TO
CONSTRUE THE EVIDENCE MOST STRONGLY IN FAVOR
OF PLAINTIFF-APPELLANT, THE NON-MOVING PARTY.”
{¶3} On February 18, 2009, a tree situated on appellee’s property fell onto her neighbor’s
(Anita O’Connor) property. Appellant, O’Connor’s insurer, subsequently filed a complaint against
appellee and alleged that appellee was negligent for failing to have the tree removed.
{¶4} Subsequently, appellee requested summary judgment and asserted that appellant could
not demonstrate that appellee had actual or constructive notice that the tree constituted a patent
danger. Appellee submitted an affidavit in which she stated that she “did not know, * * * nor * * *
have any reason to know, that there was any defect or dangerous condition associated with the
tree.” She further stated that “[a]t the time the tree fell, it appeared healthy and was green in
color.” She also stated that no one had told her that the tree was “defective, rotten or otherwise
dangerous.”
{¶5} Appellant responded that genuine issues of material fact remained as to whether
appellee knew, or should have known, that the tree posed a danger. Appellant presented
O’Connor’s affidavit wherein she stated that she had spoken with appellee’s relatives, who helped
care for appellee’s property, and “notified each of them on several occasions that the tree needed to
come down.” Appellant then stated:
“It is difficult, if not impossible to believe that at least one of the
aforementioned relatives did not pass along Ms. O’Connor’s concerns to the
Highland App. No. 28 3
Defendant. Whether or not such communications were discussed with Defendant
constitute material questions of fact and should be left to be heard by the trier of
fact.”
Appellant further asserted that the photographs show the tree perilously close to O’Connor’s
property and in danger of falling. Appellant argues that the photographs of the leaning tree, at the
very least, raise a genuine issue of material fact as to whether a reasonable person would have been
placed on notice of the dangerous condition of the tree and would have taken steps to remove the
danger it posed to appellant’s residence.
{¶6} After considering the evidentiary materials, the trial court awarded appellee summary
judgment. This appeal followed.
{¶7} Appellant’s two assignments of error challenge the trial court’s summary judgment.
Because the same standard of review governs both assignments of error, we have combined them.
{¶8} In its first assignment of error, appellant asserts that genuine issues of material fact
remain as to whether appellee had actual or constructive notice that the tree posed a danger of
falling onto O’Connor’s property. Appellant argues that the tree’s “position and posture” indicated
that the tree posed a patently dangerous hazard. Appellant claims that the photographs depict the
tree as “over two-stories in height, with its trunk growing at an unusual angle out of the ground,
and its highest point looming toward Ms. O’Connor’s home” and, thus, establish that appellee had
actual or constructive notice “of the patent defect with the tree.” Appellant contends that even if
the tree appeared green and healthy to appellee, “it was not going to defy gravity and * * * it was
going to fall at some point in time.” Appellant asserts that appellee “should have been on notice of
this fact, or she should have had the tree inspected on its leaning posture.” Appellant further
argues, without citation to authority, that “[i]t is common knowledge that trees that lean with such
intensity in urban areas are typically removed or replanted because there is a rational and
Highland App. No. 28 4
reasonable fear that they will fall.”
{¶9} Additionally, appellant complains that the trial court improperly discredited
O’Connor’s affidavit. Appellant contends that O’Connor was competent to offer her opinion that
the tree posed a danger:
“A reasonable person, based on lay-person’s perceptions and knowledge of
basic physics and gravity could determine that a tree, that is as massive as the one at
issue herein and that is towering towards a neighbor’s home, would likely fall, and
that the landowner should have been well aware of this fact.”
{¶10} In its second assignment of error, appellant argues that the trial court failed to
construe the evidence most strongly in its favor. Appellant asserts that the trial court failed to
construe the photographic evidence of the leaning tree most strongly in her favor as the non-
moving party.
I
STANDARD OF REVIEW
{¶11} When appellate courts review trial court summary judgment decisions, the appellate
court conducts a de novo review. E.g., Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671
N.E.2d 241 (1996). Accordingly, appellate courts must independently review the record to
determine whether summary judgment is appropriate and need not defer to the trial court. Brown
v. Scioto Cty. Bd. of Commrs., 87 Ohio App. 3d 704, 711, 622 N.E.2d 1153 (1993); Morehead v.
Conley, 75 Ohio App. 3d 409, 411-412, 599 N.E.2d 786 (1991). Thus, to determine whether a trial
court properly granted summary judgment, an appellate court must review the Civ.R. 56 standard
for granting a summary judgment motion, as well as the applicable law. Civ.R. 56(C) provides:
Summary judgment shall be rendered forthwith if the pleadings, depositions,
Highland App. No. 28 5
answers to interrogatories, written admissions, affidavits, transcripts of evidence in
the pending case, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. No evidence or stipulation may be
considered except as stated in this rule. A summary judgment shall not be rendered
unless it appears from the evidence or stipulation, and only from the evidence or
stipulation, that reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary judgment
is made, that party being entitled to have the evidence or stipulation construed most
strongly in the party’s favor.
{¶12} Accordingly, courts may not grant summary judgment unless the evidentiary
materials demonstrate that (1) no genuine issue as to any material fact remains to be litigated, (2)
after construing the evidence most strongly in the nonmoving party’s favor, reasonable minds can
come to but one conclusion, which is adverse to the nonmoving party, and (3) the moving party is
entitled to judgment as a matter of law. E.g., Vahila v. Hall, 77 Ohio St. 3d 421, 429-30, 674
N.E.2d 1164 (1997).
{¶13} In responding to a motion for summary judgment, a nonmoving party may not rest
on “unsupported allegations in the pleadings.” Harless v. Willis Day Warehousing Co., 54 Ohio
St.2d 64, 66, 375 N.E.2d 46 (1978). Rather, Civ.R. 56 requires a nonmoving party to respond with
competent evidence to demonstrate the existence of a genuine issue of material fact. Civ.R. 56(E)
provides:
* * * * When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or
denials of the party’s pleadings, but the party’s response, by affidavit or as
otherwise provided in this rule, must set forth specific facts showing that there is a
genuine issue for trial. If the party does not so respond, summary judgment, if
appropriate, shall be entered against the party.
{¶14} Consequently, once a moving party satisfies its Civ.R. 56 burden, the nonmoving
party must demonstrate, by affidavit or by producing Civ.R. 56(C) evidence, that a genuine issue
of material fact remains for trial. A trial court may grant a properly supported motion for summary
Highland App. No. 28 6
judgment if the nonmoving party does not respond, by affidavit or as otherwise, with specific facts
to show that a genuine issue exists for trial. Dresher v. Burt, 75 Ohio St. 3d 280, 293, 662 N.E.2d
264 (1996); Jackson v. Alert Fire & Safety Equip., Inc., 58 Ohio St. 3d 48, 52, 567 N.E.2d 1027
(1991). Additionally, when ruling on a summary judgment motion, a trial court may not weigh the
evidence or choose among reasonable inferences. Dupler v. Mansfield Journal, 64 Ohio St. 2d 116,
121, 413 N.E.2d 1187 (1980); Johnson v. Pohlman, 162 Ohio App. 3d 240, 2005-Ohio-3554, 833
N.E.2d 313, ¶37.
{¶15} We further note that “simply because resolution of a question of law involves a
consideration of the evidence does not mean that the question of law is converted into a question of
fact or that a factual issue is raised.” Ruta v. Breckenridge-Remy Co., 69 Ohio St. 2d 66, 68, 430
N.E.2d 935 (1982). As stated in O’Day v. Webb, 29 Ohio St. 2d 215, 219, 280 N.E.2d 896 (1972):
“[A] review of the evidence is more often than not vital to the resolution of a
question of law. But the fact that a question of law involves a consideration of the
facts or the evidence does not turn it into a question of fact.”
Accord Henley v. Youngstown Bd. Zoning Appeals, 90 Ohio St. 3d 142, 148, 735 N.E.2d 433
(2000).
II
NEGLIGENCE
{¶16} A negligence action requires a plaintiff to establish that (1) the defendant owed the
plaintiff a duty of care, (2) the defendant breached the duty of care, and (3) as a direct and
proximate result of the defendant’s breach, the plaintiff suffered injury. E.g., Texler v. D.O.
Summers Cleaners, 81 Ohio St. 3d 677, 680, 693 N.E.2d 217 (1998); Jeffers v. Olexo, 43 Ohio
St.3d 140, 142, 539 N.E.2d 614 (1989); Menifee v. Ohio Welding Products, Inc., 15 Ohio St. 3d 75,
Highland App. No. 28 7
472 N.E.2d 707 (1984). If a defendant points to evidence illustrating that the plaintiff will be
unable to prove any one of the foregoing elements and if the plaintiff fails to respond as Civ.R. 56
provides, the defendant is entitled to judgment as a matter of law. See Feichtner v. Cleveland, 95
Ohio App. 3d 388, 394, 642 N.E.2d 657 (1994); Keister v. Park Centre Lanes, 3 Ohio App. 3d 19,
443 N.E.2d 532 (1981).
{¶17} “In order for a plaintiff to establish the duty element in a negligence action arising
from a fallen tree, the evidence must establish that the landowner had actual or constructive notice
of a patent danger that the tree would fall.” Wertz v. Cooper, 4th Dist. No. 06CA3077, 2006-Ohio-
6844, ¶12,1 citing Heckert v. Patrick, 15 Ohio St. 3d 402, 405, 473 N.E.2d 1204 (1984); Bertram v.
Ohio Dept. of Transp., Court of Claims No.2002-7924-AD, 2003-Ohio-2608. If the landowner
does not have actual or constructive notice of a tree’s defective condition that may result in injury
to others, the landowner will not be liable. Heckert, 15 Ohio St. 3d at 405; Stevens v. Jeffrey Allen
Corp., 131 Ohio App. 3d 298, 302-303, 722 N.E.2d 533 (1997). The Heckert court explained a
landowner’s liability for a fallen tree as follows:
“Generally, one may use his land as he sees fit, providing that his use does
not invade the rights of others. In assessing the liability of a landowner for injuries
to others, the law in this country, including Ohio, has in some respects viewed the
passive use of one’s land differently than an active use. A passive use includes the
use and enjoyment of the natural growth on the land.
Accordingly, the Restatement of the Law of Torts sets forth the general rule
that ‘[n]either a possessor of land, nor a vendor, lessor, or other transferor, is liable
for physical harm caused to others outside of the land by a natural condition of the
land.’ 2 Restatement of the Law 2d, Torts (1965) 258, Section 363(1). This is
contrasted with the principle applied to structures or objects placed upon the
property by owners which occasion an injury to others outside the land. Section
364 of the Restatement of Torts 2d, supra, at 259, states that a possessor of land is
1
Because the case sub judice involves the same legal
principles as Wertz, we have liberally quoted Wertz throughout the
remainder of this opinion.
Highland App. No. 28 8
subject to liability to others outside the land for physical harm caused by a structure
or artificial construction on the land which the possessor realizes or should realize
will involve an unreasonable risk of harm. A typical example of such artificial
structure is a sign which overhangs a street or sidewalk that falls, thereby causing
injuries to passing pedestrians.
See Annotation (1957), 55 A.L.R. 2d 178, 190; 39 American Jurisprudence 2d
(1968), Highways, Streets and Bridges, Section 453, and cases cited therein.
There is an exception to the general rule, however, concerning the duty of a
property owner relating to the natural condition of and growth upon his land. This
exception relates to growing trees with limbs overhanging a public street or
highway. The law encompassing this exception varies rather markedly throughout
the United States. However, it is generally stated that an owner of land abutting a
highway may be held liable on negligence principles under certain circumstances
for injuries or damages resulting from a tree or limb falling onto the highway from
such property. Hensley v. Montgomery Cty., 25 Md.App. 361,
334 A.2d 542 (1975); Carver v. Salt River Valley Water Users’ Assn., 104 Ariz.
513, 456 P.2d 371 (1969); Albin v. Natl. Bank of Commerce, 60 Wash.2d 745, 375
P.2d 487 (1962); Lemon v. Edwards, 344 S.W.2d 822 (Ky.1961); and Hay v.
Norwalk Lodge No. 730, B.P.O.E., 92 Ohio App. 14, 109 N.E.2d 481 [49 Ohio Op. 189]
(1951).
Section 363(2) of the Restatement of Torts 2d, supra, at 258, specifically
provides that a possessor of land in an urban area is subject to liability to persons
using a public highway for physical harm arising from the condition of trees near
the highway. The use of the term ‘urban’ in this section of the Restatement
introduces yet a further variation in the application of the rules concerning a
property owner’s duty or responsibility. In addition, a caveat following Section
363(2) states that the drafters express no opinion as to whether the rule would apply
to a possessor of land in a rural area. Accordingly, there appears to have developed
a distinction throughout the United States that there is a lesser standard of care with
reference to rural, farm, timber, or little used land as opposed to strictly urban
property.
In the main, the cases applying the distinction often state that the urban
owner has a duty of reasonable care relative to the tree, including inspection to
make sure that it is safe. The duty placed upon the urban landowner, who has only
a few trees, is not a heavy burden. This is in contrast to the rural landowner who
may have trees of forest dimensions which would impose a duty of immense
proportions, and constitute an onerous burden. Hensley, supra, 334 A.2d at 545.
The leading case in Ohio discussing the urban-rural distinction is Hay,
supra. In that case, the Court of Appeals for Huron County held as follows:
‘Although there is no duty imposed upon the owner of property abutting a
rural highway to inspect growing trees adjacent thereto or to ascertain defects which
may result in injury to a traveler on the highway, an owner having knowledge,
actual or constructive, of a patently defective condition of a tree which may result in
injury to a traveler must exercise reasonable care to prevent harm to a person
Highland App. No. 28 9
lawfully using the highway from the falling of such tree or its branches.’ Id. at
paragraph three of the syllabus.
It should be noted that where negligence revolves around the question of the
existence of a hazard or defect, the legal principle prevails that notice, either actual
or constructive, of such hazard or defect is a prerequisite to the duty of reasonable
care. See 54 Ohio Jurisprudence 3d (1984) 540, Highways and Streets, Section
416, and cases cited therein. Furthermore, constructive notice may be imputed to
the one sought to be held responsible if the hazard or defect complained of is
deemed patent.”
Id. at 403-405 (footnotes omitted).
{¶18} In Wertz, we relied upon the foregoing principles and determined that the plaintiff
failed to establish that the defendant knew or should have known that the tree posed a danger. In
Wertz, the only evidence the plaintiff offered was her own opinion that the tree was dead or dying.
We concluded that the plaintiff’s own opinion was not sufficient to demonstrate that the defendant
had actual or constructive knowledge that the tree was dead or dying. Id. at ¶13. We observed that
the plaintiff’s allegation was conclusory and that she presented no evidence to support it. Id.
Moreover, photographs of the tree failed to show any evidence that the tree was rotten and there
was no other visible conditions to give a reasonable person actual or constructive notice of the
tree’s defective condition.
{¶19} By contrast, in Levine v. Brown, 8th Dist. No. 92862, 2009-Ohio-5012, the court
determined that the plaintiff demonstrated that the defendant should have known that the dead tree
that fell on the plaintiff’s property posed a danger. In Levine, the plaintiff presented photographs
that showed that the tree was dead and “riddled with termite holes, with no live branches, bark, or
green leaves.” Id. at ¶25. Moreover, the “plaintiff testified that the tree had been dead for at least
a year, and that it was easily visible.” Id.
{¶20} In the case at bar, as in Levine, we believe that the photographs appellant presented
showing the large tree significantly and unusually leaning over towards the direction of appellant’s
Highland App. No. 28 10
house raises a genuine issue of material fact as to whether a reasonable person would have cause to
believe the tree was dangerous and likely to cause harm to others. Unlike the plaintiff in Wertz,
who presented photographic evidence of a healthy tree, appellant in the case sub judice presented
several photographs showing the tree to be large and leaning significantly over to one side and
directly towards appellant’s residence. We believe the photographs raise a genuine issue of
material fact as to whether such significant and unusual leaning would give a reasonable person
actual or constructive notice that the tree was dangerous and likely to cause harm to others.
{¶21} Additionally, we accept appellant’s complaint that the trial court failed to construe
the photographs most strongly in appellant’s favor. A court that is considering a summary
judgment need not afford the non-moving party every inference to be drawn from the evidence, but
only every reasonable inference. See Colville v. Meijer Stores Ltd., 2nd Dist. No. 2011-CA-011,
2012-Ohio-2413, ¶37 “Undoubtedly, when considering a motion for summary judgment, the court
must construe the evidence and pleadings ‘most strongly’ in that party’s favor. Civ.R. 56(C). We
agree with appellant that the photographs show a large tree leaning significantly and unusually
towards appellant’s house. Appellant is entitled to a reasonable inference from the photographs.
The photographs of the leaning tree leads to a reasonable inference that a reasonable person knew
or should have known that the tree posed a danger. The trial court erred when it failed to afford the
appellant this reasonable inference.
{¶22} A summary judgment shall not be rendered unless it appears from the evidence that
reasonable minds can come to but one conclusion in favor of the moving party. Here the
photographic evidence of a leaning tree can lead reasonable minds to more than one conclusion: It
can lead reasonable people to conclude that the leaning was significant enough to put a reasonable
Highland App. No. 28 11
person on notice that the tree posed a danger.
{¶23} Accordingly, based upon the foregoing reasons, we grant appellant’s two
assignments of error and hereby reverse the trial court’s judgment and remand.
JUDGMENT REVERSED AND REMANDED.
Harsha, J., Concurring:
{¶24} As the dissent points out, Ms. Flynn had a duty to inspect her property and the
evidence reveals she failed to do that. I conclude the photograph of the tree would allow a
reasonable person to conclude that the angle of the tree and its proximity to an adjacent structure
presented an unreasonable risk of harm to that structure. Whether a jury would ultimately reach
such a conclusion after a trial is not the issue before us. Rather, our task is to look at the evidence
in a light most favorable to Ms. Flynn and determine whether reasonable minds could differ on that
issue on the basis of the photograph and Ms. O’Connor’s affidavit. Because the summary
judgment evidence produced by the appellant satisfies that test, I agree summary judgment was
improper.
Highland App. No. 28 12
Abele, J., Dissenting:
{¶25} I respectfully dissent.
{¶26} The central issue in this case is whether the lean of a tree, with nothing more, should
give a tree owner actual or constructive notice of the tree's defective condition. For the reasons set
forth below, I disagree with the principal opinion in this case and believe that the tree's owner did
not have actual or constructive notice of a defective condition and that the trial court correctly
granted summary judgment in favor of the appellee.
{¶27} In the case sub judice, it is important to note that the only evidence submitted in
support of summary judgment is a photograph that depicts a large tree leaning at an undetermined
angle and for no discernable reasonable reason. The principal opinion cites Levine v. Brown, 8th
Dist. No. 92862, 2009-Ohio-5012, for the proposition that the defendant should have known that a
dead tree that fell on the plaintiff’s property posed a danger. In Levine, the plaintiff submitted
photographs that showed the dead tree “riddled with termite holes, with no live branches, bark, or
green leaves.” Id. at ¶25. Moreover, the “plaintiff testified that the tree had been dead for at least
a year, and that it was easily visible.” Id. The principal opinion then states that "the case at bar, as
in Levine" shows a "significant and unusual" lean toward appellant's home and raises a genuine
issue of material fact as to whether a reasonable person would have cause to believe the tree was
dangerous and likely to cause harm to others. However, unlike the tree in the case sub judice, the
photographs of the tree in Levine showed a dead tree riddled with termite holes, with no live
branches, bark or green leaves. Additionally, in Levine the plaintiff testified that the tree had been
dead for at least a year and that this fact was easily visible. Thus, it appears that the only common
factor these two trees shared was a lean. No evidence was submitted in the case at bar to establish
Highland App. No. 28 13
that the tree at issue had any defect, including disease, termite holes, dead or fallen branches or
trunk, holes, exposed roots, lack of bark, lack of leaves or needles or any fact other than the lean of
the tree.
{¶28} Here, the appellee land owner is an elderly woman who, it is conceded, did not
inspect her property, even though she had the duty to do so. Nevertheless, I believe that even if
appellee had personally inspected the tree, the record contains no evidence to establish that
appellee would have had either actual or constructive notice of a defective condition. Appellant
asserts that the tree's lean constitutes a patent defect of which appellee had either actual or
constructive notice. However, I do not believe that appellant presented any competent evidence to
show that the lean actually constitutes a defect. Instead, appellant offers the assertion that the tree
leaned “excessively,” and thus was defective. The appellant may believe that the lean constitutes a
defect, but many trees lean, at least some extent, and not every lean necessarily constitutes a patent
defect. Here, the photographs do not indicate a partial uprooting or other defects that would create
cause for immediate concern. Compare Levine (noting that photographs obviously showed a dead
tree).
{¶29} Although appellant stated in her affidavit that the leaning tree presented an obvious
danger of falling, I believe that her allegation is conclusory and self-serving. Wertz v. Cooper, 4th
Dist. No. 06CA3077, 2006-Ohio-6844, Wertz at ¶13, citing Evans v. Jay Instrument & Specialty
Co., 889 F. Supp. 302, 310 (S.D.Ohio 1995) (“bald self-serving and conclusory allegations are
insufficient to withstand a motion for summary judgment”), cited in Means v. Cuyahoga Cty.
Dept. of Justice Affairs, Cuyahoga App. No. 87303, 2006-Ohio-4123; accord McCartney v.
Oblates of St. Francis deSales, 80 Ohio App. 3d 345, 609 N.E.2d 216 (1992) (stating that a trial
court ruling on a summary judgment motion is not required to accept conclusory allegations that
Highland App. No. 28 14
are devoid of any evidence to create an issue of material fact). Further, simply because appellant
believed that the lean constituted a defect does not establish that appellee knew or should have
known that the lean constituted a defect. Nationwide Ins. Co. v. Jordan, 64 Ohio Misc.2d 30, 32,
639 N.E.2d 536 (1994) (refusing to find the landowner had constructive notice of the tree’s
condition when the only person who testified that the tree was rotten and likely to fall was the
plaintiff, and stating “[h]ad the plaintiff conveyed this knowledge to her neighboring landowner,
the danger might well have been obviated, or, alternatively, the plaintiff’s hands would be clean
and the defendant would have been on notice and resultantly liable for the fall”).
{¶30} If courts are to employ appellant’s logic that appellee knew, or should have known,
that the tree posed a danger because “it was going to fall at some point in time,” courts would be
required to impose liability on every landowner who has a tree on his or her property. Such a rule
now seemingly requires prudent landowners to remove all trees near their property line regardless
of the tree's health because all trees will fall at some point.
{¶31} Therefore, I agree with appellant that the photographs show a leaning tree, but I do
not agree that this leads to the inescapable inference that a reasonable person would know or
should know that the tree posed a danger. Appellant’s inference drawn from the photographs is
not reasonable. Rather, it is based upon appellant's speculation that because the tree leaned, it was
in imminent danger of falling. Once again, nearly all trees lean to some extent. Here, appellant
did not present any evidence regarding the extent of a tree lean that poses a danger. It is not
enough for appellant to allege that because the tree leaned, appellee must have known that it was
going to fall. Once again, to hold otherwise would be to impose liability on every landowner with
a leaning tree.
Highland App. No. 28 15
{¶32} The standard the principal opinion appears to articulate is that a landowner will be
deemed to have actual or constructive notice that a tree is dangerous and likely to cause harm if the
tree's lean is "significant and unusual." I fear, however, that this standard is as amorphous as the
evidence appellant submitted in support of summary judgment. As noted previously, all trees lean
to a certain extent. However, without additional evidence to describe the tree's condition and
likelihood of falling, landowners must now assume that any leaning tree poses a hazard and must
be removed because it is likely to fall sometime in the future (as all trees, straight or leaning, will
eventually do). This is tantamount to a strict liability standard.
{¶33} In short, I have no difficulty with the concept that a landowner must remove any tree
that poses a danger. The question, however, is when does a specific tree constitute a danger. I
believe that a photograph of an apparently heathy, but leaning, tree, without any additional
evidence, is not sufficient to meet the movant's burden in a summary judgment proceeding. I
believe that other evidence relating to the tree's health or concerning the angle element of the lean
should be required.
Highland App. No. 28 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED.
Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County
Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
Harsha, J: Concurs with Concurring Opinion.
Abele, J: Dissents with Dissenting Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.