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Harp v. City of Cleveland Heights8/6/1998
Judgment: Affirmed
Plaintiff-appellant Malinda D. Harp, Administratrix of the Estate of Ruth Brewer, Deceased, appeals from the summary judgment entered in favor of the defendant-appellee City of Cleveland Heights on plaintiff's claim for wrongful death resulting from a tree limb falling from the City's park into the roadway and striking decedent's car. Plaintiff claims the trial court erred because disputed issues of material fact precluded summary judgment. We find no error and affirm.
The accident in question occurred on the perimeter of Forest Hills Park which is owned and maintained by, and located within, the City of Cleveland Heights, Ohio. The park is bounded on one side by Lee Boulevard. On September 12, 1995, a limb from a black cherry tree within Forest Hills Park suddenly split away from the tree and fell, landing across a car being driven on Lee Boulevard by decedent, Ruth L. Brewer. Ms. Brewer died from her injuries.
The base of the tree at issue was located inside the park behind a fence, approximately 16 feet from the curb of Lee Boulevard. The limb which fell and struck Ms. Brewer's automobile was 50-60 feet above the ground. It is undisputed that before the accident the limb did not impede or interfere with the traffic on Lee Boulevard.
Plaintiff contends that the tree limb must have extended over the roadway before the accident because it landed in the roadway. There is contrary evidence. Cleveland Heights' expert tree witness testified that, based on his inspection of the tree, that the tree limb did not extend over the roadway before the accident. Instead, the scar, the nineteen foot long piece of the trunk of the tree that pulled away with the limb, extended the limb into the roadway when it fell.
Early in 1995, pursuant to a Cleveland Heights tree inspection program, the tree had been inspected by an employee of the City's Forestry Department. He evaluated trees and classified each tree in one of four categories: routine prune, training prune, priority prune, or immediate prune. The tree at issue was classified as priority prune which the employee described as meaning that the tree needs to be pruned sometime and that it would be on the list of trees to be pruned when the employees were in the area. (Arendec Depo. 28). The employee testified that as of the date of the inspection, the tree at issue had a little bit of dead wood on it. He further testified that the part of the tree he would have pruned was not the part facing the road; the dead wood was on the other side of the tree. Regardless of any dispute concerning the condition of the tree at the time of the inspection, as stated previously, it is undisputed that before the accident, neither the tree nor any of its limbs impeded the flow of traffic on Lee Boulevard.
Plaintiff filed this action against the City in the Court of Common Pleas seeking damages for wrongful death and pain and suffering. The City's answer asserted the affirmative defense of immunity pursuant to R.C. Chapter 2744. Following discovery, the City moved for summary judgment. The trial court granted summary judgment holding that the tree at issue was not a nuisance which the City had a duty to abate because prior to the accident the tree did not impede traffic. This timely appeal ensued.
Plaintiff's sole assignment of error states as follows:
I. THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT WHEN THE DEFENDANT BREACHED A DUTY OWED TO PLAINTIFF BY FAILING TO MAINTAIN OR REMOVE A KNOWN HAZARD FROM ABOVE THE TRAVELED PORTION OF A PUBLIC HIGHWAY WHICH PROXIMATELY CAUSED THE DEATH OF PLAINTIFF'S DECEDENT.
Under Civ.R. 56, summary judgment is
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