Korengel v. Little Miami Golf Ctr. ( 2019 )

[Cite as Korengel v. Little Miami Golf Ctr., 2019-Ohio-3681.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
RYAN KORENGEL, a Minor, : APPEAL NO. C-180416
Individually and by and TRIAL NO. A-1205105
Through his Parents and Next Friends, :
DONALD KORENGEL and MICHELLE
KORENGEL, : O P I N I O N.
MICHELLE KORENGEL, :
DONALD KORENGEL, :
and :
MEGAN KORENGEL, :
Plaintiffs-Appellees, :
vs. :
LITTLE MIAMI GOLF CENTER, :
HAMILTON COUNTY PARK :
DISTRICT,
:
HAMILTON COUNTY PARK
DISTRICT—SAFETY DIVISION, :
and :
DENNIS WELLS, in his Official :
Capacity,
:
Defendants-Appellants,
:
and
:
DENNIS WELLS, in his Individual
Capacity, et al., :
Defendants. :
OHIO FIRST DISTRICT COURT OF APPEALS
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: September 13, 2019
Rendigs, Fry, Kiely & Dennis, LLP, Peter L. Ney, John F. McLaughlin and Michael J.
Chapman, for Plaintiffs-Appellees,
Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere and Kurt M. Irey,
for Defendants-Appellants.
2
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} This appeal, the second in the case, addresses whether defendants-
appellants Little Miami Golf Center (the “Golf Center”), Hamilton County Park District,
Hamilton County Park District—Safety Division (collectively the “Park District”), and
Dennis Wells, a golf professional at the Golf Center acting in his official capacity
(collectively “Appellants”), are entitled to summary judgment on the basis of immunity
under R.C. Chapter 2744, the Political Subdivision Tort Liability Act, from claims brought
by Ryan Korengel and his family, Michelle, Donald and Megan (collectively “Korengels”).
The claims are for injuries Ryan sustained as a youth from a falling tree limb that struck
him while he was playing golf during a windstorm from Hurricane Ike that overtook the
Park District’s Golf Center. At the time of Ryan’s injury, the Golf Center’s clubhouse was
equipped with a siren to warn golfers of impeding severe storms, but it was not activated
by employees.
{¶2} After a remand by this court in R.K. v. Little Miami Golf Ctr., 2013-Ohio-
4939, 1 N.E.3d 833 (1st Dist.) (“R.K. I”),1 the case proceeded on Ryan’s three claims that
survived a motion for judgment on the pleadings, as well as his family members’ derivative
loss-of-consortium claims. Ryan alleges the Park District is liable to him because his
injury resulted from a defective tree or siren and the Park District employees at the Golf
Center were negligent/reckless in the repair and maintenance of the tree and in the
maintenance of or failure to use the storm siren. He additionally claims the Park District
is liable to him for reckless supervision based on the failure to warn him of the impending
weather, while turning away other golfers because of the weather.
1 In the first appeal, Ryan was a minor and, for that reason, we used initials when making
reference to Ryan and his family.
3
OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} Upon our review, we conclude issues of material fact exist as to whether
the Park District is liable to Ryan under the physical-defect exception to immunity for
negligence in the maintenance of the tree and in failing to activate the storm siren, and
therefore, summary judgment was properly denied as to those claims. Because the record
contains no facts demonstrating that employees turned away golfers due to the weather
before Ryan’s injury, the Park District is entitled to the immunity defense set forth in R.C.
2744.03(A)(5) with respect to that recklessness claim, and we reverse the denial of
summary judgment on that claim.
Background Facts and Procedure
{¶4} Some of the facts in this case are undisputed. These demonstrate that on
September 14, 2008, Ryan, then 12 years old, and three other boys paid to play golf on the
nine-hole, par-three golf course at the Golf Center, which was owned, operated, and
maintained by the Park District. The Golf Center advertises to golfers through signage and
on the scorecard that it will “attempt to notify them of potentially severe weather
conditions” by sounding a siren, communicating the “recommend[ation] [that the golfer]
seek shelter or vacate the course immediately.”
{¶5} When the boys teed off on the 1st hole around 1 p.m., the weather was
warm, sunny, and breezy. As they progressed from hole to hole, the wind continually
increased. The golf course play coordinator told the boys to pick up their pace near the
fourth green, but he never warned them about the approaching storm.
{¶6} As the boys teed off on the sixth hole, the wind became noticeably stronger
and continued to increase. On the seventh hole, the boys began to hear tree limbs
cracking and saw tree limbs breaking and falling from trees in the woods adjacent to the
course.
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} By the time the boys teed off on the eighth hole, they could see trees
swaying and heard more cracking of limbs. At around 2:30 p.m., Ryan was preparing to
putt on the eighth green when tree limbs from a nearby silver maple tree fell towards him.
One struck him in the head, resulting in serious and permanent injury.
{¶8} Before Ryan’s injury, no one from the Golf Center activated the siren
located in the Golf Center’s clubhouse. Undisputedly, the wind was a cause of the branch
failure, and on that same day, the dangerous winds from the unusual wind-only storm
caused much damage in the Greater Cincinnati area, including at the Golf Center, where it
caused other trees to fail and downed power lines.
{¶9} The Korengels filed a complaint against Appellants, and several other
defendants who have been dismissed, alleging multiple claims, including several based on
negligence/recklessness and derivative loss-of-consortium claims. Appellants moved for
judgment on the pleadings on the grounds of political-subdivision immunity for the Park
District and its employee Wells. The trial court denied the motion in its entirety.
Appellants then appealed the denial of the motion to this court.
{¶10} In that appeal, this court reviewed the Korengels’ negligence/recklessness
allegations in light of the statutory analysis for determining whether a political subdivision
is immune from liability. This analysis is three tiered. First, R.C. 2744.02(A)(1) sets forth
the general grant of immunity for political subdivisions for damages in a civil action
allegedly caused by any act or omission of a political subdivision or employee in
connection with a governmental or proprietary function. Second, the immunity afforded
to a political subdivision under R.C. 2744.02(A)(1) is subject to the exceptions to
immunity listed in R.C. 2744.02(B). Third, if any one or more exceptions apply, immunity
5
OHIO FIRST DISTRICT COURT OF APPEALS
can be reinstated if the political subdivision can show that one or more of the defenses
contained in R.C. 2744.03 apply. R.K. I., 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 8.
{¶11} We concluded, based on the allegations, that the Park District was entitled
to the general grant of immunity under R.C. 2744.02(A)(1) because it is a political
subdivision and was engaged in a governmental function—the operation of a golf course—
in connection with Ryan’s injury. Id. at ¶ 14.
{¶12} Next we determined that the negligence/recklessness claims against
Appellants were reinstated because the allegations sufficiently triggered the physical-
defect exception to immunity under R.C. 2744.02(B)(4), which creates liability for political
subdivisions “for injury death, or loss to persons or property that is caused by the
negligence of their employees and that occurs within or on the grounds of, and is due to
physical defects within or on the grounds of, buildings that are used in connection with the
performance of a governmental function * * *.” Of importance to this appeal, we noted
that the Korengels had alleged various theories of employee negligence and that their
allegation of an “unmaintained tree limb” or “[un]maintained” “storm siren[]” may qualify
as a “physical defect” as contemplated by the statute. R.K. I at ¶ 20-22.
{¶13} Finally, we reviewed Appellants’ argument that, based on the allegations,
the defenses in R.C. 2744.03(A)(3) and (5) would apply to reinstate any immunity
removed by an exception. To determine whether Appellants had shown any defenses to
reinstate immunity as a matter of law, we carefully analyzed the specific allegations in the
Korengels’ multiple claims to determine if those allegations impugned the type of
discretionary decisions given protection under R.C. 2744.03(A)(3) and (5).
{¶14} We concluded that the Korengels’ cause of action could proceed on the
theories arising out of the Park District’s employees’ alleged negligent/reckless repair and
6
OHIO FIRST DISTRICT COURT OF APPEALS
maintenance of the tree, negligent/reckless maintenance or use of the storm siren, and
reckless, not just negligent, supervision of Ryan, by failing to warn him or otherwise get
him off of the golf course while at the same time turning away other golfers due to the
weather, as well as the Korengel family members’ derivative loss-of-consortium claims. Id.
at ¶ 35, 37, 39, 41, 51.
{¶15} As a result of our analysis, we directed the trial court on remand to enter
judgment for Appellants as to the allegations that the Park District was negligent and/or
reckless in designing the golf course, negligent and/or reckless in failing to adopt and/or
implement plans for severe weather, monitoring adverse weather, and care for children,
and was negligent and/or reckless in failing to provide staff, such as security patrols or
course rangers before or during the storm, and several other claims not relevant on
appeal. R.K. I., 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 35, 38-42, and 51.
{¶16} On remand, the parties engaged in discovery. Appellants then moved for
summary judgment on all the remaining claims, again claiming that the Park District had
political-subdivision immunity. The Korengels opposed summary judgment. After
allowing additional discovery and ordering supplemental briefing, the trial court denied
the motion for summary judgment, determining that genuine issues of material fact
remained on multiple claims, including claims we held had not survived the motion for
judgment on pleadings.
This Appeal
{¶17} In their sole assignment of error, Appellants argue the trial court erred by
denying their motion for summary judgment. An order denying a political subdivision the
benefit of claimed immunity from liability is a final appealable order under R.C.
2744.02(C) and is immediately appealable. See Sullivan v. Anderson Twp., 122 Ohio
7
 OHIO FIRST DISTRICT COURT OF APPEALS
St.3d 83, 2009-Ohio-1971, 909 N.E.2d 88, ¶ 12-13. Our review of the order is limited to
alleged errors involving the denial of the benefit of an alleged immunity from liability. See
Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St. 3d 123, 2013-Ohio-4530, 998
N.E.2d 437, ¶ 20; Windsor Realty & Mgt., Inc. v. N.E. Ohio Regional Sewer Dist., 2016-
Ohio-4865, 68 N.E.3d 327, ¶ 15 (8th Dist.).
{¶18} Summary judgment may be granted when no genuine issue as to any
material fact remains to be litigated; the moving party is entitled to judgment as a matter
of law; and 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 that party. Civ.R. 56(C); Pelletier v. City of Campbell, 153 Ohio
St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 13.
{¶19} We review the trial court’s order de novo, and may remand the case if a
genuine issue of material fact remains that necessitates further development of the facts
regarding the issue of immunity. Hubbell v. City of Xenia, 115 Ohio St. 3d 77, 2007-Ohio-
4839, 873 N.E.2d 878, ¶ 21.
Analysis
{¶20} There is no question that the Park District is entitled to the first-tier general
immunity for all the remaining claims. See R.K. I, 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 14.
This appeal concerns the second and third tiers of the immunity analysis with respect to
those claims.
{¶21} Initially, we must address the trial court’s failure on remand to enter
judgment for Appellants on the claims that did not survive the motion for judgment on the
pleadings. We have already held that Appellants are entitled to judgment on these claims
based on political-subdivision immunity, including the allegations in Count 5, involving
8
OHIO FIRST DISTRICT COURT OF APPEALS
the failure to adopt or implement a plan to monitor adverse weather. Under the law-of-
the-case doctrine, “legal questions resolved by a reviewing court in a prior appeal remain
the law of that case for any subsequent proceedings at both the trial and appellate levels.”
Giancola v. Azem, 153 Ohio St. 3d 594, 2018-Ohio-1694, 109 N.E.3d 1194, ¶ 1, citing Nolan
v. Nolan, 11 Ohio St. 3d 1, 3, 462 N.E.2d 410 (1984). The trial court erred by failing to
comply with our mandate, as required by the law-of-the-case doctrine.
{¶22} Now we address Appellants’ argument related to the claim of recklessness
in failing to warn Ryan or otherwise get him off of the course while turning away other
golfers due to the weather. Appellants’ position is that, assuming an exception to
immunity applies to reinstate the claim, the defense of R.C. 2744.03(A)(5) applies because
there is no evidence of the predicate reckless conduct.
{¶23} Appellants presented evidence below that no golfers were turned away
before Ryan’s injury due to the weather. This included deposition testimony from both
clubhouse employees who were selling green fees during the relevant time before Ryan’s
injury.
{¶24} In opposing summary judgment on this claim, the Korengels cited
deposition testimony from a bystander and one of the clubhouse employees. The
bystander testified that his daughter had gone into the clubhouse before Ryan’s injury
and, when she returned to the car, she told her father the course was closed. Appellants
maintain, however, and we agree, that the bystander daughter’s statement is hearsay that
cannot be relied upon when ruling on a motion for summary judgment. See Civ.R. 56(E).
{¶25} The testimony from the clubhouse employee indicates only, consistent with
Appellants’ representation, that this employee told two girls who entered the clubhouse
9
OHIO FIRST DISTRICT COURT OF APPEALS
after the accident that they could not golf and the course was closed. He specifically
denied that anyone was turned away before Ryan’s injury.
{¶26} The admissible facts, even when construed in favor of the Korengels, fail to
create a genuine issue of material fact. Because reasonable minds could only conclude
that Park District employees did not turn away other golfers due to the weather before
Ryan’s injury, Appellants were entitled to summary judgment based on the immunity
defense afforded by R.C. 2744.05(A)(5).
{¶27} Next we address whether summary judgment was erroneously denied as to
the claims involving the failure to maintain the tree and the failure to maintain or use the
storm siren. Appellants argue that they are entitled to summary judgment because the
only potentially applicable exception to the Park District’s general immunity is the
physical-defect exception found in R.C. 2744.02(B)(4), and that exception did not remove
immunity, as neither the tree nor the siren had a physical defect and there was no
evidence of employee negligence.
{¶28} Relatedly, Appellants assert that the open-and-obvious doctrine and the
“act of God” defense barred the claims. In the alternative, they argue that, if there is
evidence upon which reasonable minds could differ with respect to whether the physical-
defect exception applied, the Park District’s immunity is reinstated under R.C.
2744.03(A)(3) or (5).
Physical-Defect Exception
{¶29} To establish the physical-defect exception, a plaintiff must show that the
injury, death, or loss (1) resulted from employee negligence, (2) occurred within or on the
grounds of buildings used in connection with a governmental function, and (3) resulted
10
OHIO FIRST DISTRICT COURT OF APPEALS
from a physical defect within or on the grounds of buildings used in connection with a
governmental function. R.C. 2744.02(B)(4).
{¶30} We first address the “physical defect” element of the exception. “Physical
defect” is not defined in R.C. Chapter 2744, but this court in R.K. I defined the term as “ ‘a
perceivable imperfection that diminishes the worth or utility of the object at issue,’ ” a
definition that had been applied by other courts. R.K. I, 2013-Ohio-4939, 1 N.E.3d 833, at
¶ 16, quoting Hamrick v. Bryan City School Dist., 6th Dist. Williams No. WM-10-014,
2011-Ohio-2572, ¶ 25.
{¶31} As we noted in R.K. I, the Korengels allege in the complaint that the
condition of the tree limb and the storm siren constituted physical defects. R.K. I at ¶ 20-
21. Thus, when moving for summary judgment, Appellants presented evidence that the
storm siren and tree limb were not defective, and therefore, summary judgment was
warranted.2
{¶32} With respect to the storm siren, Appellants submitted deposition testimony
and exhibits, including maintenance records, showing only that the siren had been
maintained and the device was functioning as intended on the day of the incident. The
siren was part of the Thorguard Lightening Prediction System, and that system was
designed to automatically predict and alert of imminent lightening in the area. The siren
could be manually activated by staff, but it was undisputed that no one attempted to
activate the siren before Ryan’s injury.
{¶33} The Korengels did not present any facts to rebut Appellants evidence that
the siren had been properly maintained and was working properly. Thus, there was no
2 Appellants additionally argued that there was no evidence that the siren caused the injury, as
required by the statutory language that the injury result from the physical defect. We do not need
to reach this issue because there is no evidence that the siren was defective.
11
OHIO FIRST DISTRICT COURT OF APPEALS
evidence to support their allegation that the condition of the storm siren was a physical
defect within or on the grounds of the Golf Center.
{¶34} Before reviewing Appellants’ evidence with respect to the tree limb, we
must first address Appellants argument that trees, which are living objects, cannot
constitute “physical defects” for purposes of R.C. 2744.02(B)(4). This court rejected that
argument in the first appeal. See R.K. I, 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 19-20. As we
are presented with the same facts and issues, the law-of-the-case doctrine prevents us
from revisiting it. See Farmers State Bank v. Sponaugle, Slip Opinion No. 2019-Ohio-
2518, ¶ 22-23. We will, however, expound upon our prior holding that a tree limb may
constitute a physical defect for purposes of R.C. 2744.02(B)(4).
{¶35} Admittedly, no tree can ever be absolutely safe and immune from branch
failure. Thus, the mere fact that a tree limb fell does not mean the limb had a perceivable
imperfection that diminished the worth or utility of the limb, a requirement for a physical-
defect finding. The United States Forest Service describes “a ‘hazard tree’ [a]s a tree that
has a structural defect that makes it likely to fail in whole or in part.”
https://www.fs.fed.us/visit/know-before-you-go/hazard-trees (accessed Sept. 4, 2019).
Consistent with this description, we conclude that, where a tree has a perceivable
structural defect that makes the tree likely to fail, a falling branch from the tree may be a
physical defect for the physical-defect exception to immunity set forth in R.C.
2744.02(B)(4).
{¶36} In support of their contention that the tree limb was not a “physical defect,”
Appellants submitted the report of their independent expert arborist, Alan Bunker, who,
ten days after the windstorm, had examined the tree in question, and photographs of the
fallen limbs, including the one that had struck Ryan. The photographs had been taken
12
OHIO FIRST DISTRICT COURT OF APPEALS
immediately after the storm. Bunker was not able to inspect the fallen limbs because the
Golf Center had cut and removed them before placing them with other debris from the
storm to clear the eighth green for play two days after the incident. Based on what Bunker
could review, however, he opined that the tree exhibited good health and structure and the
broken branches and remaining stubs, which were large in diameter, did not display any
decayed wood or malformed branch attachments. Bunker also opined that the winds on
September 14, 2008, caused the broken branches, not any condition of the tree.
{¶37} To bolster Bunker’s opinion testimony, Appellants cited deposition
testimony from several employees indicating that the tree had been maintained, subjected
to regular inspections, and had appeared healthy before the storm.
{¶38} The Korengels opposed summary judgment on the issue of whether the
tree limb was a physical-defect, presenting a report and deposition testimony from their
expert arborist Mark Duntemann. Duntemann concluded, to a reasonable degree of
probability, that the tree from which the limb fell had failed because of conditions,
observable with a visual inspection, that showed the tree was not healthy and was a safety
hazard. When making his determination that the tree was obviously in a weakened
condition, Duntemann cited to, among other things, an “excessive” lean, an improper
crown, which was “lion-tailed” and comprised of unhealthy sucker growth, and discolored
leaves. In his opinion, the lean of the subject tree guaranteed a higher likelihood of a
branch failure falling into the high use area of the green apron where Ryan was located at
the time of the injury. Although Duntemann recognized that wind contributed to the
failure, he contended that the tree’s weakened condition also directly contributed to the
failure, noting that other trees at the Golf Center did not fail that day.
13
OHIO FIRST DISTRICT COURT OF APPEALS
{¶39} Duntemann based his opinion on his review of photographs and videos,
taken shortly after the incident, of the tree, the fallen limbs, and the cut up debris; his own
inspection of the tree six years later; and the Golf Center’s maintenance records.
{¶40} The Korengels also attacked Appellants’ evidence in support of summary
judgment, pointing out the absence of any document “specifically” indicating that any
inspection or maintenance work was performed on the subject tree, and any admissible
statement from the Park District’s former in-house arborist, or someone with similar
training, that such act had been performed. Further, they cited deposition testimony from
the manager of the Golf Center who indicated that he did not know of any work that had
been performed on the tree since 2003, when he started in his position.
{¶41} Ultimately, at this stage in the proceedings, we must construe the evidence
in the light most favorable to the nonmoving party—the Korengels—and may not make
credibility determinations. Where, as here, several material facts are in dispute and the
expert witnesses for the parties have presented conflicting opinions, the issue of whether
the tree limb constituted a physical defect is not amenable to summary judgment.
{¶42} Appellants additionally argue the Korengels cannot not show the requisite
causation between any alleged defect in the tree limb and Ryan’s injury because the
Korengels’ weather expert, James Bria, admitted that the wind gusts at the time of the
incident were at least 55-61 m.p.h. and that the wind had caused the branch to break.
{¶43} This argument, however, fails to consider concurrent causation. The
relevant portion of the statutory physical-defect exception to liability requires only that the
injury “is due to physical defects.” R.C. 2744.02(B)(4). This requirement could be met if a
trier of fact were to conclude that a physical defect in the tree limb was a concurrent,
proximate cause of Ryan’s injuries. To what extent the weaknesses found by Duntemann,
14
OHIO FIRST DISTRICT COURT OF APPEALS
the tree expert, contributed to Ryan’s injuries is unclear, but Duntemann’s testimony
creates factual disputes on whether the tree limb was a physical defect and whether it
materially contributed to Ryan’s injuries.
{¶44} We turn next to the Korengels’ argument that another physical defect
should be considered. They contend that weather monitoring equipment in the Golf
Center’s clubhouse known as the Data Transmission Network (“DTN”) Center may not
have been working properly and could be an additional physical defect that would support
the physical-defect exception to immunity. The Korengels, however, did not amend the
complaint to add that allegation. Appellants objected below to the insertion of a new issue
into the case and continue that objection on appeal, and the trial court in its decision made
no mention of the DTN Center, finding only a genuine issue of material fact remained with
respect to whether the tree limb met the physical-defect requirement of the exception. In
light of this record, we conclude that whether the DTN Center was a physical defect is not
an issue in this case, as the Korengels did not actually or constructively amend the
complaint to add this allegation.
{¶45} In sum, we hold there is evidence in the record from which a reasonable
finder of fact might determine that Ryan’s injury was due to a physical defect on the Golf
Center grounds, namely the tree limb that struck him.
Negligence
{¶46} Appellants argue that the Korengels cannot show the negligence element of
the physical-defect exception. Liability for negligence is predicated upon an injury caused
by the failure to discharge a duty owed to the injured party. Here, the Korengels must
show the injury was caused by the negligence of the Park District’s employees. Generally,
when determining the negligence of the Park District’s employees, traditional tort
15
OHIO FIRST DISTRICT COURT OF APPEALS
concepts apply. See, e.g, Kurz v. Great Parks of Hamilton Cty., 2016-Ohio-2909, 65
N.E.3d 96, ¶ 14 (1st Dist.); Rosenbrook v. Bd. of Lucus Cty. Commrs., 2015-Ohio-1793, 33
N.E.3d 562, ¶ 20-21 (6th Dist.); Dynowski v. City of Solon, 183 Ohio App. 3d 364, 2009-
Ohio-3297, 917 N.E.2d 286, ¶ 24 (8th Dist). To establish negligence, a plaintiff must
show a duty owed, a breach of that duty, and an injury proximately caused by that breach.
See, e.g., Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St. 3d 677, 680,
693 N.E.2d 217 (1998).
{¶47} Duty owed to Ryan and breach of duty. The parties do not dispute
that the Park District employees owed Ryan the duty of care owed a business invitee. An
owner of premises owes business invitees a duty of ordinary care in maintaining the
premises in a reasonably safe condition so its customers are not unnecessarily and
unreasonably exposed to danger. See, e.g., Presley v. Norwood, 36 Ohio St. 2d 29, 31, 303
N.E.2d 81 (1973); Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St. 3d 203, 203-204, 480
N.E.2d 474 (1985). This includes an affirmative duty to protect invitees against known
dangers and those with which reasonable care might be discovered. Jackson v. Kings
Island, 58 Ohio St. 2d 357, 359, 390 N.E.2d 810 (1979); Perry v. Evergreen Realty Co., 53
Ohio St. 2d 51, 372 N.E.2d 335 (1978).
{¶48} In this case, the duty of care was heightened because of Ryan’s age of 12
years old on the date of the incident. See Bennett v. Stanley, 92 Ohio St. 3d 35, 39, 748
N.E.2d 41 (2001), citing Di Gildo v. Caponi, 18 Ohio St. 2d 125, 127, 247 N.E.2d 732 (1969)
(observing that “[t]his court has consistently held that children have a special status in tort
law and that duties of care owed to children are different from duties owed to adults.”).
The Park District was required to exercise care commensurate with the foreseeable danger
so as to avoid injury to 12-year-old Ryan.
16
OHIO FIRST DISTRICT COURT OF APPEALS
{¶49} An owner or occupier of land, however, is not an insurer of safety. See
Howard v. Rogers, 19 Ohio St. 2d 42, 47, 249 N.E.2d 804 (1969). Thus, there is no
liability for harm resulting from conditions from which no unreasonable risk was to be
anticipated or from those that the owner did not know about nor could have discovered
with reasonable care. Id.
{¶50} The Korengels’ surviving factual allegations of purported liability are that
the Park District employees failed to exercise due care in the maintenance of the tree,
permitting a hazardous tree to lean directly over the golf course where it was likely to fall
on someone and cause serious injury or death. Second, the employees failed to exercise
due care in the use of the siren, leaving Ryan without warning of the danger from the
approaching storm and the negligently maintained tree on the eighth green.
{¶51} Negligence in connection with tree maintenance. The parties
agree that generally, where premise-liability negligence revolves around the existence of a
hazard or defect, a defendant will not be liable for negligence unless its agents or officers
actively created the faulty condition, or that it was otherwise caused and the defendant
had actual or constructive notice of its existence. See Heckert v. Patrick, 15 Ohio St. 3d
402, 405, 473 N.E.2d 1204 (1984); City of Cleveland v. Amato, 123 Ohio St. 575, 577-578,
176 N.E.2d 227 (1931); Leslie v. City of Cleveland, 2015-Ohio-1833, 37 N.E.3d 745, ¶ 17
(8th Dist.).
{¶52} According to Appellants, the record lacks any evidence of a breach of the
duty of care related to maintenance of the tree. They claim the Park District properly
maintained the tree, as demonstrated by the deposition testimony of several employees
and Bunker’s expert report that the tree was in good health, growing normally, and had no
defects that might have caused the limb that struck Ryan to break on September 14, 2008.
17
OHIO FIRST DISTRICT COURT OF APPEALS
Further, deposition testimony from these same employee witnesses showed that the Park
District never received any prior complaints about the tree, and the tree was routinely
inspected. Thus, Appellants maintain the evidence in support of summary judgment
shows that no Park District employee breached a duty of reasonable care with respect to
the tree.
{¶53} The Korengels argue that there are numerous questions of material fact
raised by both fact and expert witnesses rendering summary judgment inappropriate on
this issue. They mainly point to the same evidence creating a genuine issue of material
fact as to whether the tree limb was a physical defect. This includes the evidence
undermining or contradicting Appellants’ evidence that the tree in question had been
maintained, including inspected, by a qualified individual, and Duntemann’s opinion that
the Park District’s employees’ failure to maintain the tree fell below the standard of care
owed a golf patron, when the condition of the tree was so patently bad, and for such a long
time, that employees should have discovered it and removed the tree.
{¶54} After our review, we conclude the evidence creates a genuine issue
regarding whether the Park District employees fell below the required standard of care in
this case. Ultimately, the credibility of and the weight to be given this conflicting evidence
is for the trier of fact.
{¶55} Open-and-obvious doctrine. Appellants argue that if, as alleged by the
Korengels, the tree was a hazard that should have been discovered before the storm, the
hazardous condition was open and obvious, Ryan should have protected himself against it,
and they owed no duty to Ryan with regard to the tree as a matter of law. In Ohio, if “a
danger is open and obvious, a property owner owes no duty of care to individuals lawfully
on the premises.” Armstrong v. Best Buy Co., Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,
18
OHIO FIRST DISTRICT COURT OF APPEALS
788 N.E.2d 1088, ¶ 14. The issue of whether a risk was open and obvious may be decided
by the court as a matter of law only when one conclusion can be drawn from the
established facts. Dynowski, 183 Ohio App. 3d 364, 2009-Ohio-3297, 917 N.E.2d 286, at
¶ 28.
{¶56} The Korengels, conversely, argue the open-and-obvious doctrine does not
apply under these facts because Ryan was injured by a flying object, not a static condition.
In support of their argument, they cite Wolfe v. Bison Baseball, Inc., 10th Dist. Franklin
No. 09AP-905, 2010-Ohio-1390. In Wolfe, the plaintiff, while standing in foul territory,
was struck by an errant baseball thrown by a player during infield practice. Id. at ¶ 1. The
plaintiff then brought a negligence action against the baseball team. The Tenth District
Court of Appeals upheld the trial court’s grant of summary judgment for the team, based
on the plaintiff’s assumption of the risk, but rejected the trial court’s determination that
the open-and-obvious doctrine should be extended to an object that “is not a ‘static
condition’—its precise location or potential to cause harm cannot be observed prior to its
point of impact.” Id. at. ¶ 14. Compare Hupp v. Meijer Stores Ltd. Partnerships, 5th Dist.
Delaware No. 05CE070047, 2006-Ohio-2051 (open-and-obvious doctrine applied even
though plaintiff shopper was struck by a rug that fell off a display shelf).
{¶57} We reject the Korengels’ argument that, because the limb that injured Ryan
was not a static condition but a flying object, the open-and-obvious doctrine could not
apply in this case as a matter of law. A property owner may reasonably expect that
individuals entering the premises will discover open and obvious dangers and take
appropriate measures to protect themselves. See, e.g., Wolfe at ¶ 11, and cases cited
therein. The Korengels’ position is essentially that the tree was a hazard in its static
condition because it was foreseeable that a limb would break and land on the green on the
19
OHIO FIRST DISTRICT COURT OF APPEALS
eighth hole of the golf course and strike a player at any time. The ensuing wind that
impacted the tree at the time of Ryan’s injury was not caused by any negligence of the Park
District’s employees, and the facts show that the increasingly windy conditions and the
resulting effect on the trees in the area could be observed by the golfers on the course long
before the limb broke and injured Ryan. Because of these distinguishing facts, we reject
the Korengels’ argument that the open-and-obvious doctrine cannot not apply in this case
because Ryan was struck by a flying object.
{¶58} The Korengels argue also that the open-and-obvious doctrine does not
apply because reasonable minds can only conclude that Ryan’s injuries were caused by the
active negligence of the employees. In support, the Korengels cite Simmons v. Am. Pacific
Ents., L.L.C., 164 Ohio App. 3d 763, 2005-Ohio-6957, 843 N.E.2d 1271 (10th Dist.). In
Simmons, the plaintiff delivery person was injured when he fell through a gap between a
loading dock at a warehouse and his truck. Id. at ¶ 3. The trial court granted summary
judgment to the defendant warehouse facility on the plaintiff’s negligence claim after
finding the gap was open and obvious. Id. at ¶ 17. The appellate court reversed because
the facts were in dispute as to when an employee of the defendant removed the plate
covering the gap, and the open-and-obvious doctrine would not apply if the employee’s
active negligent conduct had created the hazardous condition. Id. at ¶ 22-23.
{¶59} We do not find Simmons dispositive. First, the Simmons court did not
hold that the open-and-obvious doctrine did not apply in the case as a matter of law.
Instead, it held only that summary judgment was not warranted for the defendant based
upon the open-and-obvious doctrine because a trier of fact could reasonably determine,
when viewing the evidence in the light most favorable to the plaintiff, that an employee’s
20
OHIO FIRST DISTRICT COURT OF APPEALS
negligence had created a dangerous condition that the plaintiff lacked the ability to
appreciate.
{¶60} Second, in this case, the facts are in dispute as to whether the Park District
employees were negligent with respect to the maintenance of a tree, allegedly obviously
defective in its static condition because it was likely to fail, resulting in a branch striking a
golfer. Further, the instrumentality that caused movement in the limb of the tree was
unquestionably not a human—it was the wind. Thus, the Korengels’ reliance on Simmons
is misplaced.
{¶61} Nonetheless, we cannot agree with Appellants that the facts supporting a
determination that the Park District had constructive notice of a defective tree on a golf
course would also require a finding as a matter of law that the Park District owed no duty
to protect Ryan from the allegedly hazardous tree. The legal standard governing when a
golf course has constructive notice of a defective tree on the course is not the same as the
standard governing what is an open and obvious danger to a lay person 12 years old, who
lacks the same discernment and foresight in discovering defects and dangers as older, and
more experienced golf course landscapers and arborists. See Bennett, 92 Ohio St. 3d at
39, 748 N.E.2d 41, citing Di Gildo, 18 Ohio St. 2d at 127, 247 N.E.2d 732.
{¶62} Thus, we conclude that Appellants were not entitled to summary judgment
based on the open-and-obvious doctrine, which, if established, would eliminate any duty
to protect Ryan from the allegedly hazardous tree and prevent the Korengels from
establishing the negligence requirement of the physical-defect exception to immunity.
{¶63} Negligence in connection with the failure to manually activate
the storm siren. The Korengels alleged that the Park District had a common-law duty
to operate the Golf Center in a reasonably safe and appropriate manner, including to
21
OHIO FIRST DISTRICT COURT OF APPEALS
maintain and use the clubhouse siren to warn Ryan of the storm hazards the employees
knew or should have known were imminent, including hazards from the negligently
maintained tree. And the Korengels took the position that the Park District assumed an
additional duty to protect Ryan from severe weather based on its own policies and
procedures and the advertisements on the course and score card given to Ryan. They
contend a voluntary act, gratuitously undertaken, must be performed with the exercise of
due care under the circumstances. Briere v. Lathrop Co., 70 Ohio St. 2d 166, 172, 258
N.E.2d 597 (1980).
{¶64} The advertisements informed golfers that “The Hamilton County Park
District will attempt to notify golfers of potentially severe weather conditions (severe
storm, lightening, etc.) by sounding one long blast. If you hear the signal, we highly
recommend you seek shelter or vacate the course immediately. Three short blasts indicate
reduced danger.”
{¶65} Related to the duty to warn, the Park District equipped the golf course
clubhouse with the ThorGuard warning system that continually monitored the
atmosphere in the area and would automatically sound a “Red Alert” siren when there was
a 90 percent chance of a lightning strike. But the “Red Alert” siren could be manually
activated if deemed necessary. At the time of Ryan’s injury, the Park District’s Emergency
Procedures handbook given to employees provided “All Hamilton County Park District
clubhouses: Anytime that you feel the weather conditions warrant it, by all means,
manually activate the ‘Red Alert’ on your system. You are always encouraged to err on the
side of caution.”
{¶66} In arguing that summary judgment should have been granted in their
favor, Appellants focus on the scope of the duty owed to Ryan with respect to weather
22
OHIO FIRST DISTRICT COURT OF APPEALS
warnings and the foreseeability of a wind-only violent storm affecting golfers on the
course. They recognize that the par three course was not a play-at-your-own-risk course,
and that employees did not activate the siren to warn Ryan of the impending danger from
the windstorm. They contend, however, the evidence demonstrates there was no
negligence.
{¶67} Citing deposition testimony of several employees, Appellants argue it was
not standard or routine for the employees at the golf course to manually activate the siren
or to otherwise warn for anything other than the threat of undetected lightening. To that
end, Wells, the head golf professional at the Golf Center, testified that in his 27-year career
he had never closed a golf course because of wind nor heard of any golf course closing just
because of dangerous wind.
{¶68} Appellants argue also that the destructive wind-only event on an otherwise
warm and sunny day was unprecedented and had not been experienced by anyone,
including the Park District’s Golf Center employees. They cite the deposition testimony of
their weather expert Stephen Wistar, who noted that the event, caused by remnant winds
from Hurricane Ike, was rare and had been described as a “once-in-100 year event.” They
further contend there was no evidence that the employees inside the clubhouse were
aware of any risk of harm to Ryan. The clubhouse staff on duty at the time of Ryan’s
injury did not start working until after Ryan’s group had teed off and neither knew Ryan
was on the golf course. Further, they had not seen any tree limbs falling before the
incident because of the wind, nor were they aware of any problems with the tree or any
occurrence where a golf patron had been struck by a tree branch. They also were not
aware of any severe warnings concerning the storm.
23
OHIO FIRST DISTRICT COURT OF APPEALS
{¶69} Finally, they argue the evidence showed only that the clubhouse employees
had not turned away any patrons before Ryan’s injury. Thus, Appellants contend as a
matter of law, the employees’ conduct did not fall below the standard of care by failing to
manually activate the siren.
{¶70} The Korengels, however, argue a reasonable trier of fact could conclude
that the scope of the duty assumed and advertised by the Park District and documented in
the employee handbook included a duty to warn of a severe windstorm that caused
employees to fear for their own safety. This was based in part on the deposition testimony
of the assistant golf professional for the Golf Center, who conceded that the handbook
directive did not limit manual use of the siren to lightening-only situations, and agreed
that the siren should be activated if the weather caused employees to seek shelter inside
the clubhouse for their own safety.
{¶71} And the Korengels cite deposition testimony from several employees
working at the time of the incident who had knowledge of the increasingly dangerous
winds. This testimony showed the course starter left his post on the course at 1:30 p.m.
and temporarily entered the clubhouse because he feared the developing winds and felt it
was unsafe to be outside. Further, the testimony showed another employee left his ticket
booth in the Golf Center’s parking lot about ten minutes before the incident and entered
the clubhouse because he was afraid of the wind.
{¶72} A third employee, the play coordinator who had told Ryan and his friends
when they were on the fourth hole to pick up the pace of play, testified in his deposition
that, an hour or two before the incident, he was aware of the trees blowing and that a
branch might fall under those conditions. He specified, however, that he was only
24
OHIO FIRST DISTRICT COURT OF APPEALS
concerned about the trees in the “forest,” which he had to walk through, and not the trees
on the course, which he considered to be well maintained.
{¶73} A fourth employee, who worked at the green-fee desk in the clubhouse,
indicated in her deposition that she could see and hear from inside the clubhouse that the
winds were increasing in strength before Ryan’s injury.
{¶74} In summary, the Korengels argue there is competing evidence in the record
and it is for the trier of fact to weigh it. Upon review of this evidence, we conclude that the
Korengels presented sufficient evidence from which reasonable minds could conclude that
the Park District’s employees had breached a duty to use the siren to warn Ryan of the
dangers from the approaching storm.
{¶75} Proximate cause and “act of God.” Appellants contend that the
Korengels cannot establish the requisite proximate cause, even if they can show employee
negligence with respect to the tree. “The ‘proximate cause’ of a result is that which in a
natural and continued sequence contributes to produce the result, without which it would
not have happened.” Piqua v. Morris, 98 Ohio St. 42, 120 N.E. 300 (1918), paragraph one
of the syllabus, quoted in Bier v. City of New Philadelphia, 11 Ohio St. 3d 134, 135, 464
N.E.2d 147 (1984). The proximate-cause analysis in this case is complicated by the “act of
God” defense, raised and supported by Appellants with respect to alleged negligence
involving maintenance of the tree. This defense initially focuses on the role of the storm in
causing Ryan’s injury.
{¶76} Under Ohio law it is well settled that if an “act of God” is so unusual and
overwhelming as to do damage by its own power, without reference to and independently
of any negligence by the defendant, there is no liability. Morris at syllabus. However,
25
OHIO FIRST DISTRICT COURT OF APPEALS
if the negligence of the defendant concurs with the other cause of the injury
in point of time and place, or otherwise so directly contributes to the
plaintiff’s damage that it is reasonably certain that the other cause alone
would not have sufficed to produce it, the defendant is liable,
notwithstanding he may not have anticipated or been bound to anticipate
the interference of the superior force which, concurring with his own
negligence, produced the damage.
(Internal citation omitted.) Morris at 49; Bier at 136.
{¶77} Strong wind may qualify as an “act of God” that bars a plaintiff’s claim as a
matter of law. See Nackowicz v. Weisman Ents. Holdings, Inc., 12th Dist. Butler No.
CA2010-11-312, 2011-Ohio-3635, ¶ 31 (winds of 50-60 m.p.h.); Wright v. Ohio Dept. of
Natural Resources, Ct. of Cl. No. 2003-11755-AD, 2004-Ohio-3581, ¶ 4 (winds of 50-80
m.p.h.); see also Stevens v. Jeffrey Allen Corp., 131 Ohio App. 3d 298, 306, 722 N.E.2d 533
(1st Dist.1997) (trial court erred by failing to give instruction on “act of God” defense where
evidence demonstrated that tree fell during a storm with winds the strength of a “weak
tornado”). But for Appellants to obtain summary judgment on this issue, there can be no
dispute based on the facts that the high wind was an “act of God” that was the sole cause of
Ryan’s injuries. See Nackowicz at ¶ 12, citing Sutliff v. Cleveland Clinic Found., 8th Dist.
Cuyahoga App. No. 91337, 2009-Ohio-352, ¶ 20. See also Bier, 11 Ohio St. 3d at 136, 464
N.E.2d 147.
{¶78} Here, there was undisputed evidence of a violent windstorm at the Golf
Center at the time of Ryan’s injury, but the actual speed of the wind gusts was in dispute.
According to the Korengels’ weather expert, James Bria, the approximate speed of the
gusts was in the range of 55-61 m.p.h. Appellants’ weather expert, Stephen Wistar, opined
26
OHIO FIRST DISTRICT COURT OF APPEALS
the wind gusts were in the range of 60-75 m.p.h. Further, there was disputed evidence of
negligence that allegedly contributed to the injury. Thus, Appellants were not entitled to
summary judgment on the Korengels’ claims based on the “act of God” defense.
{¶79} Because the Korengels presented some evidence that, if believed, would
allow a reasonable person to find that the Appellants’ negligence, either alone or in
combination with an “act of God,” proximately contributed to Ryan’s injuries, the
Appellants were not entitled to summary judgment on this issue, which would preclude a
finding of liability.
Defenses to Reinstate Immunity
{¶80} Appellants contend that even if the physical-defect exception applies to
impose liability on the Park District for its employees’ negligence, immunity would be
reinstated under R.C. 2744.03(A)(3) or (A)(5). R.C. 2744.03(A)(3) restores immunity for
the political subdivision “if the action or failure to act by the employee involved that gave
rise to the claim of liability was within the discretion of the employee with respect to
policy-making, planning, or enforcement powers by virtue of the duties and
responsibilities of the office or position of the employee.” R.C. 2744.03(A)(5) restores
immunity for the political subdivision “if the injury, death, or loss to person or property
resulted from the exercise of judgment or discretion in determining whether to acquire, or
how to use, equipment, supplies, materials, personnel, facilities, and other resources
unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in
a wanton or reckless manner.” As we explained in the first appeal, these defenses “protect
the exercise of discretion and judgment” and “are not meant to protect conduct in carrying
out an activity.” R.K. I, 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 31.
27
OHIO FIRST DISTRICT COURT OF APPEALS
{¶81} Appellants argue that “decisions regarding inspection and maintenance of
trees are discretionary decisions.” But as we noted in R.K. I, when we rejected the same
argument, decisions regarding routine maintenance and operation such as maintaining a
tree so as not to become a “safety hazard” do not involve the exercise of judgment as
contemplated in R.C. 2744.03(A)(3) and (5). R.K. I at ¶ 32 and 35. See Perkins v.
Norwood City Schools, 85 Ohio St. 3d 191, 707 N.E.2d 868 (1999); Stanfield v. Reading
Bd. of Edn., 2018-Ohio-405, 106 N.E.3d 197, ¶ 18 (1st Dist.) (“the decision by the [School]
Board’s employees to use netting, instead of repairing or replacing the [defective] netting,
does not result from the exercise of discretion and judgment.”).
{¶82} Because of this, the Park District is not entitled to the defenses of R.C.
2744.03(A)(3) and (5) with respect to the claim for liability related to the maintenance of
the tree. R.K. I at ¶ 35. We emphasize, however, that this claim for liability must be
distinguished from the Korengels’ claim based on the design of the golf course, a claim
implicating the planning discretion of the Park District, protected under R.C.
2744.03(A)(3), and for which we have already held immunity applies. Id.
{¶83} Appellants argue also that manually activing the siren, part of the
lightening-detection system, to warn of a windstorm is not routine operation of the
equipment. They claim, instead, that the manual use of the siren involves employee
judgment that triggered the defense of R.C. 2744.03(A)(5) for decisions involving the use
of equipment, and that the defense was not overcome because the Korengels failed to
establish employee recklessness.
{¶84} In our first appeal of this case, we held that the Park District’s decision to
“use” the siren is a decision involving “routine operation” and not the type of decision
protected by the defense of R.C. 2744.03(A)(5). See id. at ¶ 32 and 37. We did not
28
OHIO FIRST DISTRICT COURT OF APPEALS
specifically address, however, whether the manual use of the siren involves the type of
employee judgment protected by R.C. 2744.03(A)(5), an issue developed through
discovery.
{¶85} Our review of the record convinces us that manually activating the siren
also falls under “routine operation.” The employee handbook directs the clubhouse
employees to manually activate the siren when the weather conditions warrant its use, and
“to err on the side of caution” when making the decision. The record demonstrates, thus,
that the Park District installed the siren and directed employees to manually activate it to
warn of certain weather conditions. The decision of how to use equipment has been made
and is immunized under R.C. 2744.05(A)(5). See Hall v. Fort Frye Local School Dist. Bd.
of Edn., 111 Ohio App. 3d 690, 699-670, 676 N.E.2d 1241 (4th Dist.). Once that policy was
put into effect, the Park District’s operational procedures for warning golfers must be
carried out in a reasonably safe manner. Carrying out those procedures is a routine
decision requiring little judgment or discretion, especially when the employees are
directed to act cautiously.
{¶86} If the employees were negligent in failing to manually activate the siren,
then R.C. 2744.03(A)(5) does not reinstate immunity for that negligent operation. See
R.K. I, 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 32, citing McVey v. City of Cincinnati, 109
Ohio App. 3d 159, 163, 671 N.E.2d 1288 (1st Dist.1995).
Conclusion
{¶87} To summarize, we conclude questions of fact remain as to whether the
allegedly unmaintained tree limb that undisputedly struck and injured Ryan during a
windstorm was a “physical defect,” whether the Park District employees were negligent in
the maintenance of the tree and negligent in failing to activate the storm siren, and if such
29
OHIO FIRST DISTRICT COURT OF APPEALS
negligence proximately caused Ryan’s injury along with the windstorm. We further find
there are no facts to support the claim that the Park District employees were reckless in
their supervision of Ryan. Therefore, the Park District is immune from suit for that claim.
The trial court on remand should enter summary judgment for Appellants on the portion
of Count 3 containing that claim, and comply with our prior mandate to enter judgment
on the pleadings for Appellants, and the other defendants, on the claims as specified in
R.K. I. The assignment of error, therefore, is overruled in part and sustained in part.
{¶88} Ryan’s two negligence claims, set forth in Count 2 and the remaining part
of Count 3, and his family’s derivative loss-of-consortium claims, set forth in Counts 7-8,
are still intact and remain to be resolved on remand.
Judgment accordingly.
CROUSE, J., concurs.
MYERS, P.J., concurs in part and dissents in part.
MYERS, P.J., concurring in part and dissenting in part.
{¶89} I concur with the majority that questions of fact remain as to whether the
tree limb was a physical defect, entitling the Korengels the benefit of the physical-defect
exception to immunity found in R.C. 2744.02. I disagree, however, that the Korengels can
avail themselves of this exception as to the warning siren.
{¶90} R.C. 2744.02(B)(4) provides that a political subdivision is liable “for injury,
death, or loss to person or property that is caused by the negligence of their employees and
that occurs within or on the grounds of, and is due to physical defects within or on the
grounds” used in connection with a governmental function. I would find that this statute
requires that the defect and the employee negligence be linked. In other words, the
employee negligence must specifically relate to the defect that caused the injury. Here,
the alleged negligent maintenance of the tree specifically relates to the physical defect in
30
OHIO FIRST DISTRICT COURT OF APPEALS
the tree which caused the injury. Thus, if proven, the Korengels may avail themselves of
the exception.
{¶91} However, the analysis with respect to the siren leads me to a different
conclusion. As the majority correctly found, there is no defect in the siren. I would find
that if there is no defect in the instrumentality (the siren), the physical-defect exception
cannot apply. The siren did not cause the injury. And the employees’ alleged negligent
failure to manually deploy the siren is not related to the physical defect (the tree). Thus,
the failure to warn claim is a negligence claim, with no physical-defect exception to save it.
And, I agree with the majority that there is insufficient evidence of any recklessness on the
part of the employees. I would find that Appellees are entitled to immunity for Appellants’
failure-to-warn/failure-to-activate-the-siren claim.
{¶92} I concur in all other respects with the majority.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
31