Heckert v. Patrick

• Decision Date: 31 December 1984
• Docket Number: No. 84-337,84-337
• Citation: 15 Ohio St.3d 402,473 N.E.2d 1204
• Parties: , 15 O.B.R. 516 HECKERT et al., Appellants, v. PATRICK et al., Appellees.
• Court: Ohio Supreme Court

Page 402

15 Ohio St.3d 402

473 N.E.2d 1204, 15 O.B.R. 516

HECKERT et al., Appellants, v. PATRICK et al., Appellees.

No. 84-337.

Supreme Court of Ohio.

Dec. 31, 1984.

Syllabus by the Court

1. Although there is no duty imposed upon the owner of property abutting a rural highway to inspect trees growing adjacent to the roadway or to ascertain defects which may result in injury to a traveler on the highway, an owner having actual or constructive knowledge of a patently defective condition of a tree which may result in injury to a traveler must exercise reasonable care to prevent harm to a person lawfully using the highway from the falling of such tree or its branches. (Hay v. Norwalk Lodge No. 730, B.P.O.E., 92 Ohio App. 14, 109 N.E.2d 481 , approved and followed.)

2. A board of county commissioners is not liable under R.C. 305.12 for damages caused by the falling of a tree or its branches onto a county roadway.

This matter involves a negligence action brought by appellants, Melvin J. and Mary L. Heckert, for personal injuries and property damage against appellees, the Stark County Board of Commissioners (hereinafter "commissioners") and Mary L. Weinman. The complaint stated that appellants were injured when a limb of a tree growing upon Weinman's property adjoining a public highway fell into the immediate path of appellants, who were riding a motorcycle. The complaint alleged that Weinman breached her common-law duty of properly maintaining the tree, part of which was overhanging the roadway. It was further alleged that the county commissioners breached their statutory and common-law duties of maintaining the highway in a proper condition for public travel. The trial court granted summary judgment in favor of all appellees.

The facts before the trial court are not subject to controversy. On July 10, 1982, appellants were riding their motorcycle on a county highway known as Sherman Church Road in rural Stark County. This portion of the county consists mainly of farmland and forest areas. Without warning, a large tree limb fell in front of appellants' bike, and the bike collided with the limb, thereby resulting in severe personal injuries to appellants and property damage to the motorcycle.

At her deposition, Weinman stated that she had inherited the property from her mother and that it had been split by the county for highway appropriation. Weinman further stated that she had visited the property only once in recent years due to the fact that she lived in another county, and that she was not aware of any previous incidents concerning limbs falling onto the roadway. There was also an affidavit of a horticulturist, Thomas Riccardi, as to his examination of the tree in question. His study revealed that some of the limbs were indeed rotten, and the deteriorated condition of this particular tree's interior was visible. He stated that several limbs from the tree had already fallen and that, in his opinion, the tree had been in a stressful state for several years prior to the accident.

There was also an affidavit in the record of Joseph Lorenzo, road supervisor with the Stark County Engineer's office. Lorenzo stated that his duties were to patrol a portion of the county highways in Stark County, including Sherman Church Road, and look for conditions which would impair the safety of the roads. He indicated that during the immediate years prior to the accident he had patrolled Sherman Church Road at least twice a week, and that the tree was in a green leafy condition and appeared to be in full health. He was also of the opinion that there was no danger of the tree limb falling onto Sherman Church Road. The deposition of appellant Melvin J. Heckert, as well as photographs within the record, further support the notion that the fallen limb had green foliage growing on it.

The trial court granted summary judgment upon this evidence. The appellate court affirmed its ruling, and appellants sought this court's review of the matter.

This cause is now before the court pursuant to the allowance of a motion to certify the record.

Blakemore, Rosen, Meeker & Varian Co., L.P.A., and Patrick J. Hart, Akron, for appellants.

James R. Unger, Pros. Attorney, and David M. Bridenstine, Massillon, for appellee bd. of county com'rs.

Vogelgesang, Howes, Lindamood & Brunn and Richard S. Milligan, Canton, for appellee Weinman.

Anthony J. Celebrezze, Jr., Atty. Gen., Stephen P. Samuels and John Alberty, Columbus, urging affirmance for amici curiae Ohio Dept. of Transp. and the Ohio County Engineers Assn.

HOLMES, Justice.

Two issues are presented for review by this appeal with the initial query being one of first impression. We must initially determine the duty of care owed to the traveling public by a property owner whose land abuts a highway and contains growing trees with limbs overhanging the traveled portion of the roadway. The second question is whether a statutory or common-law duty exists in a board of county commissioners to remove a tree or its limbs which overhang a county road.

I

Generally, one may use his land as he sees fit, providing that his use does not invade the rights of others. In assessing the liability of a landowner for injuries to others, the law in this country, including Ohio, has in some respects viewed the passive use of one's land differently than an active use. A passive use includes the use and enjoyment of the natural growth on the land.

Accordingly, the Restatement of the Law of Torts sets forth the general rule that "[n]either a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land." 2 Restatement of the Law 2d, Torts (1965) 258, Section 363(1). This is contrasted with the principle applied to structures or objects placed upon the property by owners which occasion an injury to others outside the land. Section 364 of the Restatement of Torts 2d, supra, at 259, states that a possessor of land is subject to liability to others outside the land for physical harm caused by a structure or artificial construction on the land which the possessor realizes or should realize will involve an unreasonable risk of harm. A typical example of such artificial structure is a sign which overhangs a street or sidewalk that falls, thereby causing injuries to passing pedestrians. See Annotation (1957), 55 A.L.R.2d 178, 190; 39 American Jurisprudence 2d (1968), Highways, Streets and Bridges, Section 453, and cases cited therein.

There is an exception to the general rule, however, concerning the duty of a property owner relating to the natural condition of and growth upon his land. This exception relates to growing trees with limbs overhanging a public street or highway. The law encompassing this exception varies rather markedly throughout the United States. ¹ However, it is generally stated that an owner of land abutting a highway may be held liable on negligence principles under certain circumstances for injuries or damages resulting from a tree or limb falling onto the highway from such property. Hensley v. Montgomery Cty. (1975), 25 Md.App. 361, 334 A.2d 542; Carver v. Salt River Valley Water Users' Assn. (1969), 104 Ariz. 513, 456 P.2d 371; Albin v. Natl. Bank of Commerce (1962), 60 Wash.2d 745, 375 P.2d 487; Lemon v. Edwards (Ky.1961), 344 S.W.2d 822; and Hay v. Norwalk Lodge No. 730, B.P.O.E. (1951), 92 Ohio App. 14, 109 N.E.2d 481 .

Section 363(2) of the Restatement of Torts 2d, supra, at 258, specifically provides that a possessor of land in an urban area is subject to liability to persons using a public highway for physical harm arising from the condition of trees near the highway. The use of the term "urban" in this section of the Restatement introduces yet a further variation in the application of the rules concerning a property owner's duty or responsibility. In addition, a caveat following Section 363(2) states that the drafters express no opinion as to whether the rule would apply to a possessor of land in a rural area. Accordingly, there appears to have developed a distinction throughout the United States that there is a lesser standard of care with reference to rural, farm, timber, or little used land as opposed to strictly urban property. ²

In the main, the cases applying the distinction often state that the urban owner has a duty of reasonable care relative to the tree, including inspection to make sure that it is safe. The duty placed upon the urban landowner, who has only a few trees, is not a heavy burden. This is in contrast to the rural landowner who may have trees of forest dimensions which would impose a duty of immense proportions, and constitute an onerous burden. Hensley, supra, 334 A.2d at 545.

The leading case in Ohio discussing the urban-rural distinction is Hay, supra. In that case, the Court of Appeals for Huron County held as follows:

"Although there is no duty imposed upon the owner of property abutting a rural highway to inspect growing trees adjacent thereto or to ascertain defects which may result in injury to a traveler on the highway, an owner having knowledge, actual or constructive, of a patently defective condition of a tree which may result in injury to a traveler must exercise reasonable care to prevent harm to a person lawfully using the highway from the falling of such tree or its branches." Id. at paragraph three of the syllabus.

It should be noted that where negligence revolves around the question of the existence of a hazard or defect, the legal principle prevails that notice, either actual or constructive, of such hazard or defect is a prerequisite to the duty of reasonable care. See 54 Ohio Jurisprudence 3d (1984) 540, Highways and Streets, Section 416, and cases cited therein. Furthermore, constructive notice may be imputed to the one sought to be held responsible if the hazard or defect complained of is deemed patent.

We adopt the law set...