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Harp v. City of Cleveland Heights8/6/1998
safety, not on the nature of the particular obstruction. Id. at 208.
The cases on which plaintiff relies all deal with fact situations in which it is clear that the condition obstructed safe travel on the streets. A permanent obstruction to sight line, integral to safe travel, can be a nuisance which a political subdivision would be obligated to abate. See Manufacturer's Nat'l. Bank, supra (corn growing in right of way which made it impossible for motorist to see oncoming traffic at intersection can be nuisance for which political subdivision may be liable); Vogel v. Wells (1991), 57 Ohio St.3d 91 (permanent obstruction to sight of stop sign may be nuisance). Bridges, overpasses or overhanging tree limbs which extend over the roadway low enough to touch and cause injury to persons or vehicles using the roadway may be nuisances where they interfere with or make dangerous ordinary travel on the roadway. Yackee v. Village of Napoleon (1939), 135 Ohio St. 344 (railroad overpass that was so low it obstructed travel in the usual mode); Robert Neff and Sons v. City of Lancaster (1970), 21 Ohio St.2d 31. The Supreme Court in Neff applied Yackee and noted:
an overhanging limb could reach down so far as to impede even ordinary vehicular traffic. Such a condition, if allowed to endure, could become a nuisance within the meaning of Section 723.01, Revised Code. Id. at 37.
Contrary to plaintiff's contention, Neff supports the trial court's judgment that the limb in this case, which did not interfere with traffic, was not a nuisance.
Therefore, we hold, as a matter of law, that the limb that struck Ms. Brewer did not constitute a nuisance pursuant to R.C. 2744.02(B)(3) and R.C. 723.01. Accordingly, the trial court properly granted summary judgment to the City of Cleveland Heights.
We do not address appellee's contention that it is completely immune to liability pursuant to R.C. 2744.01(C)(2)(u) given the fact the tree was located within a park, as it is moot given our finding that the tree limb was not a nuisance. App.R. 12(A)(1)(c).
Plaintiff's sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LEO M. SPELLACY, J., and MICHAEL J. CORRIGAN, J., CONCUR.
JAMES M. PORTER PRESIDING JUDGE
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