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Barnett v. Carr9/17/2001
oulder "directly adjacent to and in direct line with a known dangerous intersection, knowing that it was prone to be 'run,' is an intentional and culpable act, resulting at least in unintended and accidental harm, although foreseeable." We disagree.
As already noted, an absolute nuisance consists of (1) a culpable and intentional act resulting in harm, (2) an act involving culpable and unlawful conduct causing unintentional harm, or (3) a nonculpable act resulting in accidental harm, for which, because of the hazards involved, absolute liability attaches notwithstanding the absence of fault. Metzger, 146 Ohio St. 406, at paragraph one of the syllabus. There is no evidence that appellees unlawfully placed the boulder on their property in a direct line with Sycamore Street or that its placement was in violation of a statute. As a result, the placement of the boulder is neither a culpable and intentional act nor an act involving culpable and unlawful conduct.
To constitute an absolute nuisance, appellees' conduct must therefore involve using their property for activities which are unreasonably hazardous, Taylor, 143 Ohio St. at 434, "and no matter how careful one is, such activities are inherently injurious and cannot be conducted without damaging another's property or rights." State ex rel. R.T.G., Inc. v. State (Mar. 8, 2001), Franklin App. No. 98AP-1015, 2001 Ohio App. LEXIS 967, at *28, unreported. We cannot say that the placement of a boulder on one's property off the roadway and which does not interfere with the regularly traveled portion of the roadway is an inherently dangerous activity to which strict liability should apply. We therefore find that appellants failed to raise a genuine issue of material fact as to whether appellees' conduct of placing the boulder on their property constituted an absolute public nuisance. Appellants' sixth issue for review is overruled.
In light of all of the foregoing, we find that the trial court did not err by granting appellees' motion for summary judgment. Appellants' second assignment of error is overruled.
Judgment affirmed.
YOUNG, P.J., and WALSH, J., concur.
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