Hallowell v. County of Athens, 2004 Ohio 4257 (OH 8/10/2004), Case No. 03CA29.
| Decision Date | 10 August 2004 |
| Docket Number | Case No. 03CA29. |
| Citation | 2004 Ohio 4257 |
| Parties | Brooke Hallowell, et. al., Plaintiffs-Appellants, v. The County of Athens, et. al., Defendants-Appellees. |
| Court | Ohio Supreme Court |
Robert J. Shostak and Melinda K. Bradford, Shostak Law Office, Athens, Ohio, for Appellants.
Douglas P. Holthus and Paul-Michael LaFayette, Reminger & Reminger, Columbus, Ohio, for Appellees Edgar and Larue Albaugh.
Douglas C. Boatright, Isaac, Brant, Ledman & Teetor, Columbus, Ohio, for Appellee Athens County.
DECISION AND JUDGMENT ENTRY
{¶1} Appellants Brooke Hallowell, Richard Linn, Nicholas Linn, and Elizabeth Linn sued Edgar and Larue Albaugh and Athens County after a tree limb from the Albaughs' property hit the mirror of Richard Linn's vehicle, which was traveling on an Athens County road. After the trial court granted summary judgment to the defendants, appellants filed this appeal and contend the court erred in concluding that Athens County did not have actual knowledge of the tree branch. They argue that Joe Kasler's knowledge of the branch can be imputed to Athens County since he works for the county. However, because maintenance and inspection of county roads is beyond the scope of Mr. Kasler's employment, his knowledge is not imputed to the county. Appellants also argue that there is a genuine issue as to whether appellees had constructive knowledge of the tree branch. Viewing the evidence in a light most favorable to appellants, we agree. If Mr. Kasler's testimony is believed, the tree branch was present for more than three months and was "very visible". Thus, a reasonable trier of fact could conclude appellees had constructive knowledge of the branch.
{¶2} However, that conclusion does not automatically require reversal here because the "open and obvious" doctrine may negate the existence of a duty owed to the appellants. Appellants contend the court erred in concluding that the tree branch was an open and obvious danger since that doctrine is inapplicable where the plaintiff is not an invitee who is injured while on the defendant's premises. However, because appellants failed to raise this argument in the lower court, they have waived it for purposes of appeal. Appellants also argue that there is a genuine factual issue as to whether the tree branch was an open and obvious danger. Whether a danger is open and obvious is a question of law for the court to decide. After reviewing Mr. Kasler's testimony, we conclude as a matter of law, that the tree branch constituted an open and obvious danger. Thus, appellees did not owe a duty to appellants and summary judgment for the appellees was appropriate.
{¶3} Edgar and Larue Albaugh are the owners of property that abuts County Road 36 in Athens County, Ohio. On April 30, 2000, Richard Linn was driving a U-Haul truck on County Road 36. Mr. Linn's son, Nicholas, was sitting in the passenger seat of the truck. As Mr. Linn drove past the Albaughs' property, a branch from a fallen tree caught the extended mirror on the passenger side of the truck causing either the mirror and/or the branch to crash through the window and strike Nicholas in the head. Nicholas suffered serious injury as a result of being struck by the mirror and/or branch.
{¶4} The branch that caught the truck's mirror came from a tree that had fallen from the Albaughs' property. The tree had fallen across a fence located on the Albaughs' property and into the right-of-way of County Road 36. The tree's branch was approximately 0-18 inches from the paved portion of the road and 4-6 feet above the road's surface.
{¶5} In January 2002, appellants filed suit against Edgar and Larue Albaugh, Athens County, and U-Haul Company of Massachusetts, Inc.1 Appellants alleged that the Albaughs were negligent for failing to maintain their property so as to prevent injury to travelers on the roadway. In addition, appellants alleged that Athens County was negligent for failing to keep County Road 36 free from nuisance. Subsequently, the Albaughs and Athens County filed motions for summary judgment, arguing that they had neither actual nor constructive knowledge of the fallen tree. In response, appellants argued that Joe Kasler's deposition, which was taken after appellants filed their motions, created a genuine factual issue concerning whether appellees had constructive knowledge of the tree branch. Appellees replied that the tree branch was an open and obvious hazard and therefore, they did not owe a duty to appellants.
{¶6} In October 2003, the trial court granted the Albaughs' and Athens County's motions for summary judgment after it concluded that neither the Albaughs nor Athens County had actual knowledge of the tree branch.
Furthermore, the court concluded: Appellants now appeal the trial court's decision and raise the following assignments of error:
{¶7} In reviewing a summary judgment, the lower court and appellate court utilize the same standard, i.e., we review the judgment independently and without deference to the trial court's determination. Midwest Specialties, Inc. v. Firestone Tire & Rubber Co. (1988), 42 Ohio App.3d 6, 8, 536 N.E.2d 411. Summary judgment is appropriate when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence construed most strongly in its favor. Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46. Cf., also, State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14, 577 N.E.2d 352; Civ.R. 56(C). The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting summary judgment. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. If the moving party satisfies this burden, "the nonmoving party then has a reciprocal burden under Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial, and if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 145, 1997-Ohio-219, 677 N.E.2d 307, citing Dresher v. Burt (1996), 75 Ohio St.3d 280, 295, 662 N.E.2d 264.
{¶8} For the sake of convenience, we will address appellants' assignments of error in reverse order. In their second assignment of error, appellants contend the court erred in granting Athens County's motion for summary judgment. Appellants argue the evidence establishes that Athens County had actual knowledge of the tree branch. They also argue that if Athens County did not have actual knowledge of the tree branch, there is a genuine issue as to whether they had constructive knowledge of the branch. In addition, appellants contend the open and obvious doctrine does not apply to the present situation.
{¶9} Generally, political subdivisions are immune from liability for acts or omissions connected with governmental or proprietary functions. R.C. 2744.02(A)(1). However, R.C. 2744.02(B) provides several exceptions to this general grant of immunity. Under R.C. 2744.02(B)(3), political subdivisions are liable for injury or death "caused by their failure to keep roads, highways, [and] streets * * * within the political subdivision open, in repair, and free from nuisance * * *."2 This exception imposes a duty on political subdivisions to keep the roads in their control free from conditions that create a danger for ordinary traffic on the regularly traveled portion of the road. See Manufacturer's Natl. Bank of Detroit v. Erie Cty. Road Comm. (1992), 63 Ohio St.3d 318, 321, 587 N.E.2d 819; Haynes v. Franklin, 95 Ohio St.3d 344, 2002-Ohio-2334, 767 N.E.2d 1146, at ¶13. In order to impose liability under R.C. 2744.02(B)(3), "the political subdivision must have had `either actual or constructive knowledge of the nuisance.'" Harp v. Cleveland Heights, 87 Ohio St.3d 506, 512, 2000-Ohio-467, 721 N.E.2d 1020, quoting Vogel v. Wells (1991), 57 Ohio St.3d 91, 97, 566 N.E.2d 154.
{¶10} Athens County does not dispute that the tree branch constituted a nuisance. Rather, Athens County argues that it had neither actual nor constructive knowledge of the nuisance. Appellants, on the other hand, argue that Joe Kasler's testimony establishes that Athens County had actual knowledge of the nuisance. They note that at the time Mr. Kasler observed the branch, he was an employee of Athens County. They argue that Mr. Kasler's knowledge of the tree branch is imputed to his employer and thus, Athens County had actual knowledge of the branch.
{¶11} Archie Stanley, the Athens County Engineer, testified that the Engineer's Office is responsible for the maintenance of county roads. Mr. Kasler's testimony indicates that he works for the Athens-Hocking Solid Waste District, not the Engineer's Office. Thus, inspection and maintenance of county roads is beyond the scope of Mr. Kasler's duties. An employee's knowledge is imputed to his employer only if the...
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