Tauchert v. Rumpke Sanitary Landfill, Inc. ( 2024 )

[Cite as Tauchert v. Rumpke Sanitary Landfill, Inc., 2024-Ohio-4551.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
AMBER TAUCHERT, Personal : APPEAL NO. C-230566
Represenative and Adminstrator of the TRIAL NO. A-2202471
Estate of Carl Minton Tauchert, Jr., :
Plaintiff-Appellant, : O P I N I O N.
vs. :
RUMPKE SANITARY LANDFILL, INC., :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: September 18, 2024
O’Connor, Acciani, & Levy and Robert B. Acciani, for Plaintiff-Appellant,
Michael T. Cappel, Keating, Muething & Klekamp PLL, Sarah V. Geiger, Reminger
Co., LPA, and Michael J. Caligaris, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Plaintiff-appellant Amber Tauchert, in her capacity as personal
representative and administrator of the estate of Carl Tauchert, Jr., (“Tauchert”)
appeals the judgment of the Hamilton County Court of Common Pleas granting
summary judgment in favor of defendant-appellee Rumpke Sanitary Landfill, Inc.,
(“Rumpke”) on her survivorship and wrongful-death claims. For the reasons that
follow, we sustain the sole assignment of error, reverse the judgment of the trial court,
and remand the cause for further proceedings consistent with this opinion and the law.
I. Facts and Procedural History
{¶2} On the evening of October 28, 2018, Carl Tauchert, Jr., was driving his
vehicle on Buell Road in Colerain Township, Hamilton County, Ohio. When he
reached the area of 3200 Buell Road, a tree located on Rumpke’s adjacent land fell on
top of his vehicle, crushing the vehicle and resulting in severe injury that ultimately
led to his death several months later.
{¶3} Tauchert, Carl’s daughter, filed this survivorship and wrongful-death
action against Rumpke, asserting that Rumpke’s negligence in maintaining and
inspecting its property in the area of 3200 Buell Road was the cause of the accident
and resulting injury that led to Carl’s death.
{¶4} After discovery, Rumpke moved for summary judgment on Tauchert’s
claims, arguing that, because 3200 Buell Road was rural and Rumpke had no actual
or constructive knowledge of any patently defective condition of any tree in the area,
Tauchert could not show that Rumpke breached any duty of care as Rumpke had no
duty to inspect its trees along the roadway to discover any defects. Further, Rumpke
argued that, even if 3200 Buell Road was urban, Tauchert still could not show that it
breached any duty of care as, based on the evidence in the record, the stump identified
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OHIO FIRST DISTRICT COURT OF APPEALS
by Tauchert’s expert could be conclusively excluded as the subject stump and the only
evidence of the condition of the tree at the time of the accident showed that the tree
was bark covered and contained no apparent signs of decay.
{¶5} Tauchert responded in opposition to summary judgment, arguing that
issues of material fact remained as to whether 3200 Buell Road was rural where the
evidence showed that the land was not expressly classified as rural by Hamilton
County or Colerain Township, and as to whether Rumpke lacked constructive notice
of the defective condition of the subject tree where the record contained evidence that
Rumpke should have observed that the tree was dead and in a hazardous condition
prior to the accident.
{¶6} The trial court ultimately agreed with Rumpke and granted summary
judgment in favor of Rumpke, finding that the evidence and the law “demands that the
Court find the accident area to be a rural area,” and no evidence indicates that Rumpke
had actual or constructive knowledge of any patently defective condition of the subject
tree prior to the accident.
{¶7} Tauchert now appeals from the trial court’s judgment, arguing in a
single assignment of error that the trial court erred in granting summary judgment in
favor of Rumpke where the evidence in the record does not show as a matter of law
that the area was rural, and the trial court improperly weighed the competing expert
opinions when reaching its conclusion that Rumpke lacked constructive notice.
II. Law and Analysis
A. Standard of Review
{¶8} “To obtain summary judgment, the moving party must show that (1)
there are no genuine issues of material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) it appears from the evidence that reasonable
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minds can come to but one conclusion when reviewing the evidence in favor of the
nonmoving party, and that conclusion is adverse to the nonmoving party.” Midland
Credit Mgmt., Inc. v. Naber, 2024-Ohio-1028, ¶ 6 (1st Dist.), citing Grafton v. Ohio
Edison Co., 1996-Ohio-336. “The moving party has the initial burden of informing the
trial court of the basis for the party’s motion and identifying those portions of the
record that demonstrate the absence of a genuine issue of material fact on the essential
elements of the nonmoving party’s claim.” Id., citing Dresher v. Burt, 1996-Ohio-107.
“If the moving party meets this initial burden, the nonmoving party then bears the
burden of setting forth ‘specific facts showing that there is a genuine issue for trial.’”
Id., citing Civ.R. 56(E). “If the nonmoving party does not do so, then summary
judgment is appropriate and must be entered against the nonmoving party.” Id.{¶9} “This court reviews a trial court’s grant of summary judgment de novo.”
Id., citing Mid-Century Ins. Co. v. Stites, 2021-Ohio-3839, ¶ 10 (1st Dist.).
B. Summary Judgment was Improperly Granted in Rumpke’s Favor
{¶10} When determining the duty of a landowner in relation to trees abutting
a public highway, a distinction has arisen in the law between urban and rural
landowners. See Heckert v. Patrick, 15 Ohio St.3d 402, 403-406 (1984).
{¶11} Under this distinction, a rural landowner does not have a duty “to
inspect trees growing adjacent to the roadway or to ascertain defects which may result
in injury to a traveler on the highway.” Heckert at paragraph one of the syllabus. This
lack of duty arises from the general principle that landowners are not liable to others
outside of the land for physical harm caused by a natural condition of the land. Id. at
404. An exception exists, however, if a rural landowner “has actual or constructive
knowledge of a patently defective condition of a tree which may result in injury to a
traveler.” Id. at paragraph one of the syllabus and 405. In such a situation, the rural
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landowner “must exercise reasonable care to prevent harm to a person lawfully using
the highway from the falling of such tree or its branches.” Id.{¶12} On the other hand, an urban landowner has “a duty of reasonable care
relative to the tree, including inspection to make sure that it is safe.” See id. at 405.
This is because, unlike a rural landowner, an urban landowner “is subject to liability
to persons using a public highway for physical harm arising from the condition of trees
near the highway.” (Emphasis sic.) See id. at 404, citing 2 Restatement of the Law 2d,
Torts, § 363(2), at 258 (1965). The duty of an urban landowner “requires no more
than reasonable care on the part of the [landowner] to prevent an unreasonable risk
of harm to those in the highway, arising from the condition of the trees.” 2
Restatement, § 363(2), Comment e. This duty of reasonable care “may” require the
urban landowner “to inspect all trees which may be in such dangerous condition as to
endanger travelers.” Id. “It will at least require [the landowner] to take reasonable
steps to prevent harm when [the landowner] is in fact aware of the dangerous
condition of the tree.” Id.
{¶13} The rationale for this distinction between rural and urban landowners
relates to the disproportionate burden that was thought to be placed on rural
landowners to inspect and improve land that, in the early days, largely remained in a
primitive state. Heckert, 15 Ohio St.3d at 405, fn. 2; see also generally Estate of
Durham v. City of Amherst, 51 Ohio App.3d 106, 109 (9th Dist. 1988), quoting Woods
v. Blodgett, 1986 Ohio App. LEXIS 6800 (6th Dist. May 16, 1986) (“‘[T]he distinction
made between rural and urban landowners and the greater duty placed on urban
landowners [to inspect their property] reflects a recognition of the fact that it is not
excessively burdensome to impose the duty of reasonable care to prevent injury from
trees on urban landowners who typically hold small parcels of land.’”). Thus, a lesser
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standard of care was developed “with reference to rural, farm, timber, or little used
land as opposed to strictly urban property.” Heckert at 404-405.
{¶14} However, when adopting the distinction between urban and rural
landowners, the Ohio Supreme Court recognized that “the distinction becomes a more
difficult application with the rapid development of our suburban areas, and the
increased amount of vehicular traffic in what might be considered the gray areas lying
somewhere between the city and the more remote farm or rural area.” Id. at 405.
Accordingly, the court set forth factors that should be considered by the trier of fact in
determining the law that is to be applied to an abutting landowner: the location of the
highway, its size and type, as well as the number of people utilizing it. Id. at 406.
{¶15} Thus, in suburban areas, the determination of a landowner’s duty in
relation to trees abutting a public highway is an issue of fact to be determined based
on the characteristics of the highway in question and whether these attributes warrant
treating the highway as an urban or a rural highway. See id.
{¶16} Tauchert first argues that the trial court erred in determining, as a
matter of law, that 3200 Buell Road was rural in nature where competing evidence
was offered in the record as to whether the area was urban or rural.
{¶17} In moving for summary judgment, Rumpke argued that the “undisputed
facts” demonstrate that the accident occurred in a rural area. In support of its
assertion, it pointed to aerial and street view photographs in the record that
purportedly revealed the “rural nature” of the road, and the zoning classification set
forth by Colerain Township, R-2, which is limited to “development consistent with the
rural character of Colerain Township.”
{¶18} In responding in opposition to summary judgment, Tauchert pointed to
the fact that the Hamilton County Auditor has assigned a land use code of 500 to the
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parcel, which is the classification for “Residential Vacant Land.” Tauchert then
pointed to the other potential land-use categories, such as forestland, for Hamilton
County that were more akin to rural uses and suggested that the failure to assign the
land a rural-natured use code was evidence that the land was urban in nature, and not
rural. She similarly pointed out that Colerain Township zoned the land R-2, the
classification for “Estate Residential District,” rather than R-1, the classification for
“Rural Residential District.”
{¶19} In reply, Rumpke pointed to depositional testimony in the record of
various witnesses that cumulatively described the area as scenic and wooded with lots
of wildlife, and no sidewalks or mailboxes and not a lot of houses. Most particularly,
Rumpke’s expert described the area as steep, densely wooded hillsides, surrounded by
320 forested acres and approximately 48,000 trees.
{¶20} The trial court relied on the evidence put forth by Rumpke and found,
as a matter of law, that the area was rural in nature. In doing so, the trial court
explicitly gave “little significance” to the Hamilton County Auditor’s designated land-
use code. Tauchert argues that this was error as the failure of Hamilton County and
Colerain Township to use expressly rural classifications for Rumpke’s land creates a
genuine issue of material fact as to whether Buell Road is rural or urban in nature.
{¶21} However, rather than reach this issue, we hold that we need not decide
whether the property is rural or urban on summary judgment as genuine issues of
material fact remain under either standard. Consequently, we leave the urban versus
rural determination for the trier of fact to decide.
{¶22} First, even if 3200 Buell Road is rural in nature, genuine issues of
material fact remain as to whether Rumpke had constructive notice of the asserted
patently defective condition of the subject tree.
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{¶23} “A person has constructive notice of a hazard ‘if it was of a nature that it
could or should have been discovered, if it existed long enough to have been
discovered, and its discovery would have created a reasonable apprehension of
danger.’” Thorton v. Borstein, 2021-Ohio-2231, ¶ 16 (9th Dist.), citing Davis v. Akron,
2014-Ohio-2511, ¶ 16 (9th Dist.).
{¶24} Rumpke moved for summary judgment, arguing that no genuine issue
of material fact remained for trial where there was no evidence to show that it knew or
should have known of the defective condition of the subject tree. In support of its
assertion, Rumpke pointed to evidence to show that its employees who did “drive-by
inspections” of the roads surrounding the landfill failed to identify the tree as
hazardous and pointed to photographs of the fallen tree taken the night of the accident
to show that the bark was still intact on the tree and there were no apparent signs of
fungus or decay.
{¶25} Larry Riddle, who was Rumpke’s landfill manager at the time of the
accident, testified in his deposition that, as part of his responsibilities, he would “drive
around the perimeter of the landfill downwind” to check for nuisances from the
landfill. He said, over the years, he would “observe things like trees that were on or
close to the roadway that [he] would report that [they] could have somebody come out
and look at.” He said this was “not something that happens every day,” but there were
“several occasions” where they took trees down. He testified, “Over the years we’ve
had a lot of Ash trees that have failed with the Emerald Ash Borer. So there’s been a
lot of trees taken down basically out of just—it was the right thing to do.” He said he
would notice if a tree was leaning or diseased, didn’t have any leaves in the
summertime, or the bark was sloughing. If he found a tree that “didn’t look right,” he
would contact the facilities manager, Dave Ferrier, and let him know. However, he
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denied “driving down the road and looking at trees as [he] goes,” or “specifically
looking for hazardous trees.” Instead, he described it as paying attention to his
surroundings as he’s driving down the road. He said, “[M]y eyes aren’t focused on the
canopy, but if there’s something that I observed then I would report it to Dave Ferrier.”
He denied having any qualifications to assess a tree for risks or hazards.
{¶26} Dave Ferrier, who was Rumpke’s corporate facilities maintenance
manager at the time of the accident, testified in his deposition that he drove down
Buell Road daily as part of his position and, as he was driving through, he would check
for anything out of the ordinary. This included checking for obviously dead trees and
checking for any obvious concerns in areas where branches were lying in the road. The
signs he looked for were no leaves, missing bark, or dead limbs on the ground. He
denied having any qualifications to assess a tree for risks or hazards. However, once
he or Mr. Riddle identified an “obvious tree,” he would call a tree service to come out
and look at the tree. He testified that, a lot of time, the tree service, “saw more that I
didn’t see, because that’s his job, that’s his profession[.]”
{¶27} John Butler, who was Rumpke’s area engineer at the time of the
accident, denied that Rumpke had any actual or constructive knowledge that the
subject tree was defective or would otherwise cause harm to motorists along Buell
Road.
{¶28} Rumpke’s expert, Mark Webber, opined in his report that the subject
ash tree did not have a defective condition that would be readily apparent to a property
owner where photographs from the scene of the accident show that the tree was bark-
covered and “contained no apparent sings of decay like fungal fruiting bodies.” He
further opined that a reasonable landowner would not have constructive knowledge of
a defective condition of an ash tree based only on three small ash borer holes.
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{¶29} In her response in opposition to summary judgment, Tauchert argued
that issues of fact remained for trial where the evidence in the record showed that
Rumpke should have observed the hazardous tree where, according to the opinion of
her expert, Gregory Forrest Lester, the tree had visible signs that it was dead and was
a hazard to the public where it lacked any real branch structure or leaves.
{¶30} In his report, Mr. Lester opined that the tree was “clearly rotted,” lacked
any smaller branch structure, had no leaves on it for several years, had three small
emerald ash borer holes, and had fungus on the stump that had likely been present for
at least three years. From this, he opined, “Given that the tree was dead for several
years, its size, the hillside it was on and its location near the road, this tree was easily
discoverable as a known hazard to any lay person and it should have been removed
before it fell so that it did not fall onto the roadway as it did on October 28, 2018.”
{¶31} When granting summary judgment in favor of Rumpke, the trial court
relied on Heckert, 15 Ohio St.3d 402, to find, as a matter of law, that Rumpke did not
have constructive notice of the defective condition of the subject tree where, “in light
of the overwhelming evidence to the contrary,” Mr. Lester’s opinion did “not create a
genuine issue of material fact.” In other words, the trial court completely discounted
Mr. Lester’s opinion relying on the authority of Heckert.
{¶32} In Heckert, the complainants were injured when a tree limb fell from an
adjoining property into their path while they were traveling on a motorcycle on a
public highway. Id. at 402. The accident occurred in a rural county, in an area
consisting mainly of farmland and forests areas. Id. The landowner testified that she
had only been to the property once in recent years and was not aware of any previous
incidents concerning limbs falling onto the roadway. Id. at 402-403. A horticulturist
examined the tree and found that some of the limbs were rotten, and the deteriorated
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condition of the tree’s interior was visible. Id. at 403. He said that several limbs from
the tree had already fallen and opined that the tree had been “in a stressful state for
several years prior to the accident.” Id. Conversely, a road supervisor with the county
engineer’s office, whose duties included patrolling a portion of the county highways
and looking for conditions that would impair the safety of the roads, said that he had
patrolled the highway in question at least twice a week in the immediate years prior to
the accident, and the tree was in a green leafy condition and appeared to be in full
health. Id. Further, the plaintiff’s depositional testimony and the photographs in the
record supported that the fallen limb had green foliage growing on it. Id.
{¶33} The Ohio Supreme Court held, as a matter of law, that the landowner
did not have constructive notice of the defective condition of tree because, “[w]hile
there was evidence by way of the horticulturist’s affidavit that the tree had been dying
for some time, this observation was made of the tree’s interior after the limb had fallen.
The affidavit provided no evidence that the condition could have been observed prior
to the accident.” Id. at 406.
{¶34} Here, unlike Heckert, Mr. Lester’s opinion was not derived solely from
observations made of the tree’s interior after the tree fell. Rather, Mr. Lester’s opinion
was based on the stump he identified as belonging to the subject tree and conditions
that purportedly existed and were visible on the exterior of the tree (lack of leaves, lack
of smaller branch structure, fungus, and ash borer holes) at the time of the accident.
Additionally, Mr. Webber admitted in his deposition that there was evidence of other
ash trees in the area that had “succumbed” to an emerald ash borer infestation.
{¶35} Nevertheless, Rumpke argues that Mr. Lester’s opinion, that was based
on conditions that existed on the identified stump, should not be considered where
Mr. Webber opined that, based on certain measurements of the stump and the subject
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tree, the identified stump could not be the stump of the subject fallen tree. However,
Mr. Lester responded to this assertion in an affidavit and explained his own opinion
for why these measurements did not exclude the identified stump as the stump of the
subject tree. This affidavit was sufficient to create an issue of fact for trial as to whether
the identified stump was the stump belonging to the subject tree. It is not appropriate
for a court to weigh the credibility of the evidence at the summary-judgment stage.
See, e.g., Environmental Solutions and Innovations, Inc. v. Edge Eng. & Science, LLC,
2023-Ohio-2605, ¶ 8 (1st Dist.). Consequently, we hold that, even if 3200 Buell Road
is rural in nature, genuine issues of material remain as to whether Rumpke had
constructive notice of the defective condition of the subject tree.
{¶36} Second, even if 3200 Buell Road is urban in nature, genuine issues of
material fact remain as to whether Rumpke met its duty of reasonable care.
{¶37} Rumpke moved for summary judgment arguing that, even if the
property was urban, Rumpke “still would not be liable” because Tauchert failed to
identify the stump of the subject fallen tree and there is no evidence to show that the
fallen tree had any defective conditions. However, for the reasons already stated
above, a genuine issue of material fact remains as to whether the stump identified by
Tauchert was the stump of the subject fallen tree.
{¶38} Beyond that, when moving for summary judgment, Rumpke further
argued that both experts agreed that it met its duty of reasonable care where Rumpke
inspected and removed hazardous trees along Buell Road once a year. However, this
assertion is not supported by the record.
{¶39} In his report, Mr. Webber stated that, based on conversations with
Rumpke personnel, he learned that Rumpke hires a tree service “to perform drive-by
inspections of the densely forested area along Buell Road where the accident
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happened,” and that receipts from the tree service show that it “routinely removed any
trees that were identifiably hazardous or conspicuous,” removing approximately 112
trees along Buell Road in a five-year period prior to the accident. From this
information, he opined that Rumpke’s actions in hiring the tree service complied with
the “local standards of care as stated in Ohio law for landowners in this type of area
(isolated or rural).”
{¶40} Additionally, Mr. Lester, in his deposition, agreed that Rumpke would
be acting as a reasonable property owner by hiring a tree service once a year to inspect
and cut down hazardous trees along Buell Road.
{¶41} Thus, if Rumpke did in fact have such a policy in place, then summary
judgment may have been appropriate since both experts agreed that such actions
would suffice to fulfill Rumpke’s duty of care in relation to the hazardous trees
abutting the road. However, there appears to be an uncorrected misunderstanding by
Mr. Webber as Rumpke never asserted that it had such a policy in place. Instead, the
evidence shows that Mr. Riddle and Mr. Ferrier would look for obvious dangers within
the trees as they were driving through the area and then contact the tree service if they
noticed an obvious concern. Then, the tree service would look at the identified tree
and remove any hazardous trees in that area. No evidence was provided to show where
this tree service had performed these limited assessments along Buell Road. Thus,
this evidence does not equate to Rumpke routinely hiring a tree service “to perform
drive-by inspections of the densely forested area along Buell Road where the accident
happened.” In fact, in his deposition, Mr. Ferrier—who admitted to being primarily
responsible for tree removal—specifically denied that he ever called a tree service to
inspect for any hazardous trees and denied any knowledge of anyone else ever calling
a tree service to do any risk assessments. He further denied any knowledge that
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OHIO FIRST DISTRICT COURT OF APPEALS
Rumpke had “any other project or initiative to assess trees” for risks or hazards. Mr.
Riddle also denied, in his deposition, being aware of Rumpke doing anything other
than his drive-bys to assess the risks of trees on its property.
{¶42} Consequently, Rumpke failed to meet its burden to show that it met its
duty of reasonable care as a matter of law.
{¶43} Accordingly, because summary judgment was improper under either
the rural or urban standard, we sustain the assignment of error and remand the cause
for determination at trial.
III. Conclusion
{¶44} Having sustained the assignment of error, we reverse the judgment of
the trial court and remand the cause for further proceedings consistent with this
opinion and the law.
Judgment reversed and cause remanded.
BERGERON, J., concurs separately.
WINKLER, J., dissents.
BERGERON, J., concurring separately.
{¶45} I concur in the lead opinion’s conclusion reversing the trial court’s grant
of summary judgment and remanding the cause for a jury to decide whether the tree
that killed Mr. Tauchert fell in an urban or rural area and the issues of fact that remain
under whichever standard applies. But I write separately to take an axe to the
outmoded and unworkable liability system that calls for judges and juries to determine
what legal standard applies depending on the density of forests, to speculate about
traffic flow based on the vibe of a particular street and its surroundings, and ultimately
to draw rather arbitrary conclusions on the categorical urban versus rural distinction
for tree-fall liability. Simply put, this subjective, malleable inquiry can lead to widely
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variable outcomes, and the original justification for the distinction in the context of
tort law makes less and less sense as our cities and suburbs continue to sprawl. I thus
believe it is time to abolish the categorical urban-rural distinction in this context.
{¶46} According to the Restatement of Law 2d, Torts, § 363 (1965), in cases
where the natural conditions of a possessor’s land causes an injury to someone outside
of that land, the possessor is generally not liable for that physical harm, with one big
exception—“A possessor of land in an urban area is subject to liability to persons using
a public highway for physical harm resulting from his failure to exercise reasonable
care to prevent an unreasonable risk of harm arising from the condition of trees on the
land near the highway.” (Emphasis added.) Restatement, § 363(1)-(2). In a comment,
the Restatement authors justify the urban tree exception as follows:
In an urban area, where traffic is relatively frequent, land is less heavily
wooded, and acreage is small, reasonable care for the protection of
travelers on the highway may require the possessor to inspect all trees
[that] may be in such dangerous condition as to endanger travelers. It
will at least require him to take reasonable steps to prevent harm when
he is in fact aware of the dangerous condition of the tree.
Restatement, § 363, Comment e. Notably, the Restatement left open whether rural
landowners should be held to the same standard, but it excluded them from the
exception.
{¶47} Forty years ago, the Supreme Court of Ohio essentially adopted the
Restatement rule and its categorical urban-rural distinction, holding that an “urban
landowner, who has only a few trees,” has a duty to inspect his trees near public roads
for potential hazards to passersby, while a rural landowner has a duty of reasonable
care to prevent harm to a lawful user of the road only if the owner has “‘knowledge,
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OHIO FIRST DISTRICT COURT OF APPEALS
actual or constructive, of a patently defective condition of a tree which may result in
injury to a traveler.’” Heckert v. Patrick, 15 Ohio St.3d 402, 404-405 (1984), quoting
Hay v. Norwalk Lodge No. 730, 92 Ohio App. 14, 14 (6th Dist. 1951). Our court has
since dutifully applied that distinction. See, e.g., R&R Family Invests. v. Plastic
Moldings Corp., 2016-Ohio-8125 (1st Dist.). But even in its own decision, the
Supreme Court seemed to portend the future unworkability of the standard it was
adopting: “In so doing, we recognize that the [urban-rural] distinction becomes a more
difficult application with the rapid development of our suburban areas, and the
increased amount of vehicular traffic in what might be considered the gray areas lying
somewhere between the city and the more remote farm or rural area.” Heckert at 405.
Those predicted problems come to light in the case before us.
{¶48} To first set the stage a bit further—the Tauchert estate’s appeal is one of
many tree cases we have recently heard in this court. See, e.g., Chapel v. Wheeler
Growth Co., 2023-Ohio-3988 (1st Dist.); Fry v. City of Cincinnati, 2022-Ohio-1248(1st Dist.); Korengel v. Little Miami Golf Ctr., 2019-Ohio-3681 (1st Dist.). No
wonder—trees are (thankfully) present all over the First District and our state,
covering about eight million acres, or about 30 percent of the Buckeye state’s land.
Ohio Department of Natural Resources Division of Forestry, Ohio Statewide Forest
Resource Assessment – 2020, at 4 (2020),
https://dam.assets.ohio.gov/image/upload/ohiodnr.gov/documents/forestry/plans/
OhioForestActionPlan-Forest-Resource-Assessment-2020.pdf (accessed August 6,
2024) [https://perma.cc/264E-YPTC]. At the county level, Hamilton County (which
constitutes the entire First Appellate District) is about 32 percent forested, a much
higher percentage than other urban counties like Franklin (10 percent) and Cuyahoga
(19 percent), but significantly less than Ohio’s Appalachian counties like Lawrence (79
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percent) or Monroe (77 percent). See Forest Resource Assessment at 8. And at the
municipality level, the City of Cincinnati, where the tree in this case fell and killed Mr.
Tauchert, boasts a relatively high 38.8 percent tree canopy cover, with goals to grow
that number. Id. at 18.
{¶49} My point is that trees are everywhere—in our densely populated cities,
our sprawling suburbs, and more remote parts of the state. And with modern road
networks widely connecting urban, suburban, and rural areas of our state more than
ever before, unattended, rotting trees along roadways can pose threats to drivers and
pedestrians no matter how densely populated the area may be with trees, buildings, or
people.
{¶50} Nonetheless, as the law currently stands in Ohio, a landowner is held to
a different tort liability standard depending on whether a judge or jury categorizes a
specific spot on a road where an injury takes place as “urban” or “rural.” See Heckert,
15 Ohio St.3d at 404-405. In making that determination, finders of fact have little
guidance from the Supreme Court of Ohio—it loosely suggested several factors,
including “the location of the highway, its size and type, as well as the number of
people utilizing it.” Id. at 406. In my view, that test is vague and subjective, and can
be manipulated to fit whatever outcome the finders of fact may desire based on where
their sympathies may lie. More importantly, the considerations delineated by the
Court largely focus on how busy the particular road is—not the density or number of
trees. As I drive around Hamilton County, I’ve come across many infrequently
traveled roads—are these rural just because not too many people use them?
{¶51} The challenges of applying this test are on vivid display in the case
before us. Mr. Tauchert died after a tree fell and struck the vehicle he was driving at
approximately 3200 Buell Road in Cincinnati. Photos entered into evidence and
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OHIO FIRST DISTRICT COURT OF APPEALS
referenced by the lead opinion in this appeal show the immediate area densely
populated by trees, with no buildings visible in the surrounding area. A quick check
on Google Maps’ Street View feature confirms this generally forested landscape, at
least as of November 2022. The trial court concluded that this spot was rural, and it’s
easy to see the logic in its reasoning (even though, in my view, it usurped the jury’s
role as factfinder here).
{¶52} But drive just a few minutes southeast on Buell Road, and a driver will
reach Interstate 275, the massive highway that encircles much of the Cincinnati
metropolitan area. Past that highway to the south, the driver would reach the densely
populated suburbs of Mt. Healthy Heights, Colerain Township, and Northbrook. And
just a few minutes-drive away from where Mr. Tauchert was struck and killed, drivers
will find the large shopping plazas, dozens of restaurants, and tens of thousands of
homes that populate Cincinnati’s western suburbs. In fact, the same unit of land
owned by Rumpke, on the opposite side from where the tree fell and killed Mr.
Tauchert, abuts one of those large suburban shopping centers and residential areas,
just a few minutes-drive away, at the intersection of Interstate 275 and State Route 27.
You can see the site of the incident and the surrounding area for yourself in the
northwest corner of this Google Maps satellite screenshot below:
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶53} So, while there are admittedly a bunch of trees along that road, the area
is surrounded by an incredibly busy interstate as well as residential and shopping
areas. I’m at somewhat of a loss as to how to draw a line between urban and rural
areas that would approximate justice and satisfy state policy concerns in most cases,
particularly in one of the most urban counties in the state. By leaving these terms
undefined, Ohio’s urban-rural distinction obfuscates what level of generality finders
of fact should key-in on when deciding how responsible landowners need to act
regarding potential hazards to passersby on roads abutting their property. Should
juries rely on photos of the immediate area where the accident took place? Should
they consider whether highly populated areas exist just around the bend? What about
the density of trees in that square mile? Or in that municipality? Should they zoom
out a bit and consider whether the township, city, or county, or region of the state
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OHIO FIRST DISTRICT COURT OF APPEALS
where the injury took place can be classified as “urban” or “rural” as a whole? What
information, public or private, should they rely on in doing so?
{¶54} With all of these open questions and the widespread variety of outcomes
possible from endless permutations of the categorial urban-rural test, courts and
juries will inevitably stray away from our civil legal system’s goals of consistency,
clarity, and reasonableness. In Mr. Tauchert’s case, justice, as much as it can exist for
his family after his tragic death, might depend on each individual juror’s (or judge’s)
hot take on what we mean by “rural” and “urban,” with all the sociological baggage and
linguistic implications that those terms may carry. That is not a system based on
consistency, clarity, and reasonableness—it is one based on randomness, obfuscation,
and subjectivity.
{¶55} I’m certainly not the first to recognize the antiquated notion of the
urban-rural distinction. The Restatement of the Law 3d, Torts: Liability for Physical
and Emotional Harm, § 54 (2012) (replacing § 363 of the Second Restatement)
jettisons this distinction in favor of a test more focused on the commercial or
residential use of the land, and, in general, “courts appear to be moving away from a
strict application of Section 363.” R&R Family Invests., 2016-Ohio-8125, ¶ 16 (1st
Dist.); see Restatement of the Law 3d, Torts: Liability for Physical and Emotional
Harm, § 54, Comment c (“[A] trend exists toward expansion of the duties of land
possessors to a general duty of reasonable care with regard to natural conditions.”);
see also James T.R. Jones, Trains, Trucks, Trees and Shrubs: Vision-Blocking
Natural Vegetation and A Landowner’s Duty To Those Off The Premises, 39
Vill.L.Rev. 1263, 1292 (1994) (arguing against the categorical urban-rural distinction
and advocating for a general standard of reasonable care to all passersby).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶56} Although I do not take a position on the system that should replace the
categorical urban-rural distinction, mainly because it was not briefed here and because
the current system is binding precedent of our higher court, courts in other
jurisdictions show potential ways forward. Most persuasively, some courts refuse to
apply a categorical urban-rural approach (under which the focus of the test is on what
category the land falls into, which in turn determines what legal duty or standard of
care applies) and shift instead to a general standard of reasonable care under which
every landowner has a duty to passersby on roads abutting their land. See, e.g., Gibson
v. Hunsberger, 109 N.C.App. 671, 675 (1993); Willis v. Maloof, 184 Ga.App. 349, 350
(1987); Medeiros v. Honomu Sugar Co., 21 Haw. 155, 158-159 (1912); Brandywine
Hundred Realty Co. v. Cotillo, 55 F.2d 231, 231 (3d Cir. 1931).
{¶57} Under such a system, factors (including some of those pondered by the
Heckert Court decades ago) such as the frequency of travel on the road, the use of the
land, and the number and nature of potential risks facing passersby could help
determine whether the landowner’s care of natural conditions affecting passersby was
reasonable. See Heckert, 15 Ohio St.3d at 406; Jones, 39 Vill.L.Rev. at 1292 (“The
rural/urban distinction drawn by some courts in natural condition duty cases is
unnecessary. Even if a duty exists in rural settings, what is reasonable in an urban
setting may not be reasonable in a rural one.”); Taylor v. Olsen, 282 Or. 343, 348-349
(1978) (applying similar factors to determine reasonableness). This system would
leave room to keep the standard that any landowner with actual or constructive notice
of patently risky conditions could be found liable, see Heckert at 405, while striking a
better, more flexible balance for overall landowner liability.
{¶58} Given the binding precedent of the Supreme Court, I concur in the lead
opinion applying the categorical urban-rural distinction, and I agree that it is a close
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OHIO FIRST DISTRICT COURT OF APPEALS
question of fact that should have been left to the jury rather than being resolved by
summary judgment. I thus concur in the majority opinion, but I strongly encourage
the Supreme Court to reconsider the efficacy and wisdom of this test, decades after it
first warned that it may become unworkable.
WINKLER, J., dissenting.
{¶59} In this negligence action against Rumpke, a tree fell from Rumpke’s
forested property onto the scenic roadway below and struck Mr. Tauchert’s vehicle.
Mr. Tauchert eventually died as a result. In my opinion, Rumpke cannot be held liable
for Mr. Tauchert’s death as a matter of law, because Rumpke does not have a duty to
inspect the thousands of trees on its property, and Rumpke did not have constructive
notice of the defective condition of the particular tree prior to its fall. Therefore, I
would affirm the trial court’s decision granting summary judgment in favor of
Rumpke, and I respectfully dissent.
{¶60} With regard to defective trees, the duty imposed on landowners in Ohio
has remained unchanged in the 40 years since Heckert v. Patrick, 15 Ohio St.3d 402,
404 (1984). In determining a landowner’s duty with respect to the condition of trees,
the law recognizes a distinction between rural landowners and urban landowners. An
urban landowner has a duty to exercise reasonable care to prevent injury to roadway
travelers from defective trees, including a duty to inspect the trees. Id. at 405. By
contrast, a rural landowner has no general duty to inspect trees adjacent to the
roadway, but a rural landowner who has actual or constructive knowledge of the
patently defective condition of a tree, which may result in injury to a roadway traveler,
must exercise reasonable care to prevent the tree from falling. Id. In Heckert, the
court stated that whether an area is rural or urban will depend upon factors such as
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OHIO FIRST DISTRICT COURT OF APPEALS
“the location of the highway, its size and type, as well as the number of people utilizing
it[.]” Id. at 405-406.
{¶61} The trial court determined that Rumpke is a rural landowner under
Heckert, and I agree. Buell Road where the incident occurred is a two-lane road, and
Rumpke owns more than 1,160 acres of land in the area. The photographs and
evidence submitted to the trial court of the area surrounding Buell Road show that the
area is densely forested with few structures, and no sidewalks or mailboxes. Rumpke’s
expert testified that the area near 3200 Buell Road is steep and heavily wooded with
320 forested acres and approximately 48,000 trees. Mr. Tauchert’s former girlfriend
testified that Buell Road is not a main road, it “leads to nothing,” and is a “scenic” road.
After the tree fell on Mr. Tauchert’s vehicle, another passerby did not find him until
approximately 30 minutes later, which suggests that no one else traveled the roadway
during that time. Therefore, the evidence regarding the character of the land near
3200 Buell Road where the incident occurred demonstrates that the land is rural,
which makes Rumpke a rural landowner for purposes of this case.
{¶62} Mr. Tauchert’s representative, the plaintiff in this case, argues that the
trial court erred in determining that the Buell Road area is rural. The plaintiff points
to land-use designations of the area made by Hamilton County and Colerain
Township. Hamilton County has zoned the Buell Road area as “Heavy Industrial” on
one side and “Residential” on the other. The Hamilton County Auditor classifies the
Buell Road area as “Residential Vacant Land,” and Colerain Township classifies the
area as “Estate Residential District.” The land-use designations are not relevant
evidence of how a property is actually used for purposes of the Heckert analysis. For
example, an area could be designated as commercial, but if nothing has been built on
the property, the area surrounding the property is rural, and if very few people ever
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OHIO FIRST DISTRICT COURT OF APPEALS
use the roadways on the property, the area would not be considered urban under
Heckert.
{¶63} Given that no genuine issue of material fact exists as to the rural nature
of Rumpke’s property adjacent to Buell Road, Rumpke had no general duty to inspect
the subject property for defective trees. The question then becomes whether Rumpke
had notice of the defective condition of the tree that fell on Mr. Tauchert’s vehicle. The
parties agree that Rumpke did not have actual notice of any defective condition of the
tree; however, constructive notice of a hazardous or defective tree can be imputed to a
rural landowner if the hazard or defect is patent. Heckert, 15 Ohio St.3d at 405.
“Problems discoverable only upon inspection are not patently obvious.” Ankeny v.
Vodrey, 1999 Ohio App. LEXIS 4553, *13 (7th Dist. Sep. 23, 1999).
{¶64} The hazardous nature of the particular tree that fell on Mr. Tauchert’s
vehicle was not patently obvious. No one observed this particular tree prior to its fall.
This is not surprising, because the area surrounding 3200 Buell Road where the tree
fell is steep and heavily forested. Furthermore, Rumpke’s landfill manager testified
that he performed daily drive-by inspections of the area where the tree fell, and that if
he noticed anything amiss with any of the trees, such as leaning or missing bark,
Rumpke would contact a tree-services company. Finally, the pictures taken by police
the day of the incident show the fallen tree trunk covered by bark.
{¶65} In attempt to demonstrate constructive notice on Rumpke’s part, the
plaintiff relies on expert testimony from arborist Gregory Forrest Lester, who opined
that the defective condition of the tree would have been easily discoverable given its
size and location near Buell Road. Lester’s expert opinion is not relevant evidence as
to whether Rumpke had constructive notice of the defective condition of the tree.
Whether a landowner such as Rumpke had constructive notice of a patent or apparent
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OHIO FIRST DISTRICT COURT OF APPEALS
defective condition of a tree on the property should be viewed from the standpoint of
a reasonable layperson, and not that of an expert arborist. Just because the defective
condition of a tree is “discoverable” according to an expert does not make it patent or
apparent to a layperson on the roadway prior to the tree’s fall.
{¶66} Based on the evidence in the record that Rumpke’s property near 3200
Buell Road where the incident occurred is rural, meaning Rumpke had no general duty
to inspect its property for defective trees, and no one observed the defective tree before
it fell, Rumpke did not have constructive notice that the particular tree that fell on Mr.
Tauchert’s vehicle was a danger to travelers on Buell Road. The conclusory, post-
accident statement from plaintiff’s expert that the defective condition of the tree was
“discoverable” does not, alone, create a genuine issue of material fact as to constructive
notice. Therefore, I would affirm the trial court’s decision granting summary
judgment in favor of Rumpke.
Please note:
The court has recorded its own entry this date.
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