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Stevens v. Jeffrey Allen Corp.12/5/1997
MARIANNA BROWN BETTMAN, Judge.
This is a wrongful death action brought by Ronald Stevens as personal representative of the estate of his wife, Shirley. Shirley Stevens was killed when, during a severe thunderstorm, a large oak tree on the grounds of the Norwood Public Library fell onto the van she was driving. Stevens brought an action against the Board of Trustees of the County Library District of Hamilton County, Ohio ("Public Library"), Bentley Meisner ("Meisner"), a landscape architecture firm, and the Jeffrey Allen Corporation ("Allen Corporation"), a grounds maintenance contractor. The Public Library was dismissed with prejudice during trial. After hearing the evidence, the jury returned a 62 verdict in favor of Meisner and the Allen Corporation. Stevens appeals from the judgment entered on the jury's verdict. Meisner purports to file a cross-appeal, which we consider to be an assignment of error to prevent reversal, as Meisner prevailed below. R.C. 2505.22; Seringetti Constr. Co. v. Cincinnati (1988), 51 Ohio App.3d 1, 553 N.E.2d 1371.
In 1990, the Public Library decided it needed help managing lawns and trees at all of its branch libraries. In December 1990, Meisner submitted a proposal to the Public Library. Under the proposal, which was accepted, Meisner was to perform three tasks: site assessment, development of a site improvement plan with recommendations for the resolution of maintenance issues, and development of contracts to be bid for various maintenance tasks. As part of the third tasksMeisner developed a grounds maintenance program. In July 1992, the contract to carry out the grounds maintenance program ("Grounds Maintenance Contract") was awarded to the Allen Corporation. The parties to the Grounds Maintenance Contract are the Public Library and the Allen Corporation.
One of the provisions of the Grounds Maintenance Contract is a Tree Maintenance Program, which required a semiannual inspection by a certified arborist. The inspection was to include the following:
1. general health of the trees;
2. disease and insect infestations and recommendations for control;
3. recommendations for remedial measures for nutrient deficiencies;
4. identification of trees in deteriorating condition and recommendations for remedial measures to improve their health;
5. identification of trees which are dead or dying for which no remedial action is possible, and the reasons, if possible.
The Allen Corporation had the responsibility, pursuant to its contract with the Public Library, to hire the certified arborist to conduct the tree inspections required under the contract.
At the same time that the Grounds Maintenance Contract was awarded to the Allen Corporation, the Public Library Board approved a separate contract in which it agreed to pay Meisner to monitor the work to be done under the Grounds Maintenance Contract and to provide six-month status reports to the Public Library about the grounds maintenance work. Each month, the Allen Corporation submitted applications for payment to Meisner, which certified that the work had been completed. Meisner then forwarded the payment request to the Library, which disbursed the funds directly to the Allen Corporation.
Before Shirley Stevens's death, two tree inspections should have been performed by a certified arborist under the terms of the Grounds Maintenance Contract between the Library and the Allen Corporation. Neither occurred. The Allen Corporation did not hire an arborist until one month after Shirley Stevens's death. At n
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