Stevens v. Jeffrey Allen Corp.

• Decision Date: 05 December 1997
• Docket Number: No. C-960248 and C-960264.,C-960248 and C-960264.
• Citation: 722 NE 2d 533,131 Ohio App.3d 298
• Parties: STEVENS, Admr., et al., Appellants, v. JEFFREY ALLEN CORPORATION, Appellee; Bentley Meisner Association, Inc., Appellee and Cross-Appellant.
• Court: Ohio Court of Appeals

131 Ohio App.3d 298

722 NE 2d 533

STEVENS, Admr., et al., Appellants, v. JEFFREY ALLEN CORPORATION, Appellee; Bentley Meisner Association, Inc., Appellee and Cross-Appellant.

Nos. C-960248 and C-960264.

Court of Appeals of Ohio, First District, Hamilton County.

Decided December 5, 1997.

COPYRIGHT MATERIAL OMITTED

Carl W. Zugelter, for appellants.

Thomas Mack, for appellee Jeffrey Allen Corporation.

Ralph F. Mitchell and Michael P. Foley, for appellee Bentley Meisner.

MARIANNA BROWN BETTMAN, Judge.

PROCEDURAL POSTURE

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 6-2 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.

FACTS

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 task, Meisner 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 semi-annual 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 no time before Stevens's death did Meisner provide the information about the failure to inspect the trees to the Public Library, although Meisner did notify the Public Library that the Fall 1992 inspections would be delayed.

On June 10, 1993, a severe thunderstorm accompanied by hail and high winds occurred. At trial, this storm was characterized, without contradiction, by a meteorology expert as having the strength of a weak tornado. It was during this storm that an oak tree on the Norwood Public Library grounds fell onto Shirley Stevens's van.

Expert testimony on the felled tree was based on photographs because the tree was removed before it could be inspected. The expert testimony was in conflict about the extent of pre-existing disease in this tree, and whether it would have fallen without the storm. Immediately after the storm, a companion red oak which was still standing was inspected by the Public Library. Two different certified arborists recommended its prompt removal because it was a hazard.

After hearing all the evidence, the jury found in favor of the defendants. This appeal followed.

ASSIGNMENTS OF ERROR

The first assignment of error contains the underlying complexities of this case. We state the assignment of error verbatim:

"The trial court erred to the prejudice of plaintiffs-appellants in refusing to instruct the jury on negligence, the elements of the act of God defense, by giving an improper instruction on proximate cause, failing to define intervening cause and failing to advise the jurors of the burden of proof in an affirmative defense."

The gravamen of this assignment of error and of this appeal is that negligence principles got lost in the instructions and that contract principles were incorrectly substituted. We agree. This is a tort case. It is not a contract action. The jury instructions and special interrogatories were a confusing and a legally incorrect hybrid of contract and tort principles. A new trial is required, although for the reasons set forth in this analysis, the retrial is ordered only as to Stevens and the Allen Corporation.

TORT LIABILITY

We begin with the basic duty in this case. In the lead case of Heckert v. Patrick (1984), 15 Ohio St.3d 402, 15 OBR 516, 473 N.E.2d 1204, the Ohio Supreme Court considered injuries to a motorcyclist from a tree limb which fell onto a rural highway. The first syllabus paragraph of Heckert reads as follows:

"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 of land 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." Id. at 402, 15 OBR at 516, 473 N.E.2d at 1205.

The court in Heckert went on to state that an urban landowner has a greater duty to inspect its trees than a rural landowner, citing with approval Section 363(2) of the Restatement of Law 2d, Torts (1965):

"A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm arising" from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway. (Emphasis sic. ) Heckert at 404, 15 OBR at 518, 473 N.E.2d at 1207.

The court expressly adopted the distinction between the duties of an urban and a rural landowner, noting:

"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 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." Heckert, supra, at 405, 15 OBR at 518, 473 N.E.2d at 1207. See, also, Estate of Durham v. Amherst (1988), 51 Ohio App.3d 106, 554 N.E.2d 945.

Thus, just like any other urban landowner, the Public Library had a duty in this case to ensure that its trees were not endangering travelers on the highway. The duty only arises when a landowner has actual or constructive knowledge of the defective condition of a tree. See Restatement of the Law 2d, Torts (1965) 259, Section 363, Comment e.

INAPPLICABILITY OF CONTRACT LAW

The issue which became very confused at trial was the legal significance of the Grounds Maintenance Contract. The appellees incorrectly persuaded the trial court that this was a contract case and that the liability of Allen and Meisner was controlled by Hill v. Sonitrol of Southwestern Ohio, Inc. (1988), 36 Ohio St.3d 36, 521 N.E.2d 780.

Sonitrol involved a contract between a business and a security alarm company to protect the business premises with a security system after the business was closed for the day. An employee who had activated the system after closing was forced back into the building and raped. The Ohio Supreme Court held that the security alarm contract was clearly to protect property only, not people, that the employee was only an incidental beneficiary of the contract, and that the security alarm company owed no duty of protection to the employee. The court held that the case was governed by Sections 314 and 315 of the Restatement of the Law 2d, Torts (1965) 116, 122, that hold that unless a special relationship is found to exist, no duty may be imposed upon a defendant to protect third persons.¹

We first hold that Sonitrol has no application to the case at bar. Unlike the contracting parties in Sonitrol, the Public Library, like all landowners, has a common-law duty to prevent harm to the traveling public from...