Standard Fire Ins. Co. v. City of Fremont

• Decision Date: 14 December 1955
• Docket Number: No. 34301,34301
• Citation: 131 N.E.2d 221,58 O.O. 130,164 Ohio St. 344
• Parties: , 58 O.O. 130 The STANDARD FIRE INS. CO., Appellee, v. CITY OF FREMONT, Appellant.
• Court: Ohio Supreme Court

Page 344

164 Ohio St. 344

131 N.E.2d 221, 58 O.O. 130

The STANDARD FIRE INS. CO., Appellee, v. CITY OF FREMONT, Appellant.

No. 34301.

Supreme Court of Ohio.

Dec. 14, 1955.

Syllabus by the Court.

1. Except as provided by statute, municipal corporations enjoy immunity or freedom from liability for negligence in the performance or nonperformance of their governmental functions.

2. Streets and highways are public and governmental instrumentalities maintained for the free use of all citizens of the state; and municipalities in improving or repairing streets, for whose condition for travel they are made responsible, are engaged in a governmental function.

3. Section 3714, General Code, Section 723.01, Revised Code, providing that municipal corporations shall have special power to regulate the use of streets, and that the legislative authority of a municipal corporation shall have the care, supervision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the corporation, and shall cause them to be kept open, in repair, and free from nuisance, is in derogation of the common law and must be strictly construed; and the scope and application of such statutory provisions to streets or highways are limited to conditions affecting the actual physical structure of the streets or highways and to the physical obstructions or hindrances to travel thereon.

4. Where, during the paving of a street within a municipality, the roots of a tree standing within the platted area but outside the curb line of the street are cut off by the municipality in order to insert curbing at the side of the street and, thereby, the tree is weakened, with the result that during a windstorm about 12 months later the tree falls upon and damages a house located on a lot adjacent to the point where the tree stood, the municipality is not liable in damages to the owner of such house either under the municipality's duty imposed by Section 3714, General Code, Section 723.01, Revised Code, to keep its streets open, in repair, and free from nuisance, or under its common-law duty to remove the weakened tree as a hazardous and dangerous instrumentality.

The plaintiff is a Connecticut insurance company doing business in the state of Ohio, and prior to April 1, 1950, insured the premises of J. C. Smith, located on Jackson Street in the city of Fremont, Ohio, against loss or damage resulting from windstorm with the right of subrogation to the rights of the insured as to any claim which they might have for loss or damage to the property within the insurance coverage.

Prior to April 1, 1950, there stood in front of the Smith premises between the sidewalk and the street proper a large elm tree. Several months prior to such date, the defendant, city of Fremont, undertook the project of widening and paving Jackson Street in front of the Smith property through an independent contractor. The independent contractor, in prosecuting the work as planned by the city, cut off some of the roots of the tree in question on the side next to the curb line of the street in order to insert curbing, which cutting weakened the stability of the tree. During the winter months following, the tree began to lean away from the paved street toward the Smith house. An officer of the City of Fremont was notified of the condition of the tree and ordered it removed, but before its removal, during a light windstorm on April 1, 1950, the tree fell upon and damaged the Smith house.

The plaintiff paid the Smiths the sum of $2,220 for the loss under the terms of the policy and brought this action, as subrogee of the insured, charging the defendant with negligently maintaining a nuisance as to the leaning tree.

The defendant defended on the ground that, in the fulfillment of its governmental function, it engaged an independent contractor to improve the street, which required the cutting of the roots of the tree in question, as a result of which it incurred no liability.

At the close of plaintiff's case, the trial court, on motion of defendant, directed a verdict, upon which judgment was entered.

On appeal to the Court of Appeals that judgment was reversed and the cause remanded.

The defendant filed a motion to certify the record and the cause is now in this court by reason of the allowance of that motion.

Thomas C. Stout, City Sol., and Leo W. Kenny, Fremont, for appellant.

Smith & Lehrer, Sandusky, for appellee.

HART, Judge.

The question here presented is whether in this state a municipal corporation is liable for injuries, suffered as a result of its negligent acts in the construction and maintenance of a public street, to persons other than those using such street in the ordinary modes of travel.

In the first place, this court has held repeatedly that 'streets and highways are public and governmental institutions, maintained for the free use of all citizens of the state and municipalities while engaged in the improvement of streets are engaged in the performance of a governmental function.' City of Wooster v. Arbenz, 116 Ohio St. 281, 156 N.E. 210, 52 A.L.R. 518; Taylor v. City of Cincinnati, 143 Ohio St. 426, 55 N.E.2d 724, 155 A.L.R. 44; Davis v. Charles Shutrump & Sons Co., 140 Ohio St. 89, 42 N.E.2d 663; Larson v. Cleveland Ry. Co., 142 Ohio St. 20, 50 N.E.2d 163.

In this state, except as provided by statute, municipal corporations enjoy immunity or freedom from liability for negligence in the performance or nonperformance of their governmental functions. Of course, this common-law immunity has no application where the municipal functions are of a proprietary or private nature. It must follow that, in the absence of statute, a municipality is not liable for harm caused by the fall of a tree if its fall is the result of municipal operations of a governmental nature such as the construction or repair of streets and public ways.

Section 3714, General Code, Section 723.01, Revised Code, provides as follows:

'Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.' (Italics supplied.)

The provisions of section 3714, General Code, are in derogation of the common-law rule of nonliability and, for that reason, are subject to strict construction. City of Wooster v. Arbenz, supra. And their scope and application have been generally limited to conditions affecting the actual physical structure of the streets or highways and to the physical obstructions or hindrances to travel thereon. 28 Ohio Jurisprudence, 971, Section 612; City of Dayton v. Glaser, 76 Ohio St. 471, 81 N.E. 991, 12 L.R.A.,N.S., 916; Drake v. City of East Cleveland, 101 Ohio St. 111, 127 N.E. 469; Black v. City of Berea, 137 Ohio St. 611, 613, 32 N.E.2d 1, 132 A.L.R. 1391.

A brief analysis of the scope and purpose of the statute is appropriate. The subject matter of the statute--'public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts'--relates specifically to traditional areas used only for the purpose and means of travel. The term, 'public grounds,' contemplates areas to which the public may resort and within which it may walk, drive or ride, etc. It is apparent also that the terms, 'street' and 'sidewalk,' have the connotation, not of platted street areas, but of areas actually used by the public in travel. Next, it is appropriate to note the scope and character of the duties imposed on a municipality by the statute--to keep these travel areas named 'open' to public travel; 'in repair,' so as to accommodate and make safe travel over such areas; and 'free from nuisance', which must relate back and be confined to the travel areas specifically named in the statute.

This interpretation of the statute, confining the subject matter to travel areas and municipal responsibility to the care of them to facilitate travel over them, is reflected in the expressions of the courts of this state when construing the terms of the statute. Over and over again the courts have declared that such areas shall be the responsibility of the municipalities, to the extent named in the statute, to persons traveling upon the streets 'in the usual modes of travel.' City of Dayton v. Glaser, supra; Gibbs v. Village of Girard, 88 Ohio St. 34, 102 N.E. 299; City of Troy v. Brady, 67 Ohio St. 65, 69, 65 N.E. 616; Drake v. City of East Cleveland, supra; Taylor v. City of Cincinnati, supra; Deckant v. City of Cleveland, 155 Ohio St. 498, 99 N.E.2d 609; City of Wooster v. Arbenz, supra.

This interpretation of the statute is emphasized by the position taken by the courts when a traveler on a street abandons the traveled portion and is injured while using a platted but unimproved portion of the street. This court has held that, where a pedestrian departs from a sidewalk upon which he would have received no injury and crosses the street intersection diagonally and is injured by slipping into a catch basin, he must be held to have assumed the risk which lay in the path he chose. City of Dayton v. Taylor's Adm'r, 62 Ohio St. 11, 56 N.E. 480. It has also been held by this court that the statute in question has no application to an unimproved pathway located upon premises dedicated and accepted for highway purposes, but which has never been open to public travel, although it has been used as a public way for an extended period of time. The statutory duty under such circumstances is not imposed upon a municipality until it opens the area to public travel or otherwise invites the public to use it. City of Dayton v. Rhotehamel, 90 Ohio St. 175, 106 N.E. 967; Dering v. City of Cleveland, 102 Ohio St. 94,...