Zupancic v. City of Cleveland

• Decision Date: 06 July 1978
• Citation: Zupancic v. City of Cleveland, 389 N.E.2d 861, 58 Ohio App.2d 61 (Ohio App. 1978)
• Parties: , 12 O.O.3d 213 ZUPANCIC et al., Appellants, v. CITY OF CLEVELAND, Appellee.
• Court: Ohio Court of Appeals

Page 61

58 Ohio App.2d 61

389 N.E.2d 861, 12 O.O.3d 213

ZUPANCIC et al., Appellants, v. CITY OF CLEVELAND, Appellee.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

July 6, 1978.

Syllabus by the Court

Tall weeds and grass on a treelawn which obstruct the vision of travelers on a street do not constitute a defect or nuisance in the paved portion of the street itself within the meaning of R.C. 723.01.

Edward J. Kirk, Cleveland, for appellants.

Jack M. Schulman and Thomas A. Smith, Cleveland, for appellee.

PARRINO, Presiding Judge.

James Zupancic, age two and one-half, was struck by an automobile near 15247 Saranac Road, Cleveland, on June 9, 1969. The automobile was driven by Sandra Leibnitzer Essick. ¹

Plaintiffs-appellants, James and his father Lawrence Zupancic, filed a complaint for damages in the Cuyahoga Court of Common Pleas on March 18, 1975. Named as defendants were the city of Cleveland and the Penn-Central Railroad.

Appellants alleged in their complaint, in part, as follows:

"2. That the negligent conditions of the weeds and grass on the treelawn were the direct and proximate result (Sic ) of the accident herein in that because of the tall weeds and grass on said treelawn, a driver of a motor vehicle could not see the presence of a child two and one-half (21/2) years of age who was only thirty six (36) inches tall (the plaintiff, James Zupancic herein) and whereas the height of the weeds and grass on the treelawn bordering said street did obscure the vision of an operator of a motor vehicle of a small child and more specifically the plaintiff, James Zupancic, on said street.

"3. That the defendant, The City of Cleveland, negligently permitted the tall grass and weeds to grow to such a height after having due notice thereof and knew, or should have known, that such condition would be hazardous to small children crossing said Saranac Road and more specifically the plaintiff, James Zupancic, herein.

"4. That the defendant, Penn-Central Railroad, owned the property fronting on said Saranac Road and was responsible for the maintenance of said treelawn in front of said property; * * *."

Penn-Central Railroad was dismissed from the case without prejudice on July 24, 1975, for reasons that do not concern us here.

On April 7, 1976, the city of Cleveland filed a motion for summary judgment. Said motion, which was in effect a motion for judgment on the pleadings since it was not accompanied by any evidence permissible under Civil Rule 56(C), was granted by the trial court in an entry dated September 1, 1976, and filed September 8, 1976.

Appellants appeal from the order of the court assigning one error for review:

"The trial court erred in sustaining defendants' motion for summary judgment, as said ruling is contrary to law."

Because of the nature of the proceedings below, we assume that the city of Cleveland had notice of the condition of the treelawn on Saranac Road.

The determinative issue in this appeal is whether high weeds and grass on a treelawn which obscure the presence of a child who is crossing a public street are a nuisance within the meaning of R.C. 723.01 for which a municipality may be held liable in damages.

R.C. 723.01 provides:

"Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of such municipal corporation shall have the care, supervision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and shall cause them to be kept open, in repair, and free from nuisance."

Although the "treelawn," "parkstrip," "parking," "parkway," and "grassplot" are not specifically mentioned in R.C. 723.01, it is clear that the treelawn is an area within the scope of the statute. ² Joseph v. Portsmouth (1975), 44 Ohio St.2d 155, 156, 339 N.E.2d 622, Citing Village of Barnesville v. Ward (1911), 85 Ohio St. 1, 96 N.E. 937; Hubler v. Dayton (1938), 26 Ohio Law Abs. 679.

A holding that the treelawn is an area within the contemplation of R.C. 723.01 does not end our inquiry. R.C. 723.01 being in derogation of the common law principle that the state or its political subdivisions when in the exercise of a governmental function are immune from suit, must be strictly construed in favor of a governmental entity. Geideman v. Bay Village (1966), 7 Ohio St.2d 79, 218 N.E.2d 621 (paragraph 2 of syllabus); Gabris v. Blake (1967), 9 Ohio St.2d 71, 223 N.E.2d 597 (paragraph 4 of syllabus); Lovick v. Marion (1975), 43 Ohio St.2d 171, 173, 331 N.E.2d 445. Moreover, municipal corporations are not insurers of the safety of their public ways. Taylor v. Cincinnati (1944), 143 Ohio St. 426, 55 N.E.2d 724 (paragraph 5 of syllabus); Yackee v. Napoleon (1939), 135 Ohio St. 344, 349, 21 N.E.2d 111.

Our analysis of past cases in Ohio leads us to conclude that a "nuisance," within the meaning of R.C. 723.01, must be the product of "a condition of the street itself" or of "a defective condition thereof." Wooster v. Arbenz (1927), 116 Ohio St. 281, 156 N.E. 210 (paragraph 3 of syllabus). The scope and application of R.C. 723.01 to streets and highways are limited to "the actual physical structure of the streets or highways and to the physical obstructions or hindrances to travel thereon." Standard Fire Ins. Co. v. Fremont (1955), 164 Ohio St. 344, 131 N.E.2d 221 (paragraph 3 of syllabus); Gabris v. Blake, supra, (paragraph 3 of syllabus); Lohmann v. Cincinnati (1960), 113 Ohio App. 353, 355, 173 N.E.2d 690.

A "defect" in the street refers to the actual physical conditions existing "in or on" the street itself, Gabris v. Blake, supra, and to the actual physical conditions "upon" and "above" the surface of the street. Robert Neff & Sons v. Lancaster (1970), 21 Ohio St.2d 31, 254 N.E.2d 693 (syllabus).

Thus, a railroad bridge that provided a vertical clearance of only ten feet above the surface of a street was held to be a nuisance within the meaning of G.C. 3714 (R.C. 723.01). Yackee v. Napoleon, supra. When a livestock trailer collided with a tree limb that hung low over a street, the Supreme Court held that an actionable nuisance existed under R.C. 723.01. Robert Neff & Sons v. Lancaster, supra. In both Yackee and Neff, the flow of traffic was hindered by a physical structure or obstacle that was situated above the surface of the paved, traveled portion of the street.

While we assume that the overhanging limb in Neff was part of a tree that was growing in a treelawn adjacent to the street the Supreme Court found the existence of a nuisance not because the tree was part of the treelawn, but because the limb interfered with the movement of tall vehicles. The tree limb was found to be a nuisance because it physically hindered the flow of traffic and not because it obscured the vision of the trailer driver.

To recover under R.C. 723.01 for injuries caused by a nuisance in the street, the nuisance must be a defective condition of the street itself. In Lovick v. Marion, supra, the plaintiff was walking on the paved portion of the street. As he approached a friend's automobile, his right foot slipped off the edge of the street and he fell down a gradually sloping apron which connected the edge of the street with a catch basin located about six feet from the edge of the pavement. In upholding the denial of a recovery to the plaintiff, the Supreme Court stated in its Per curiam opinion at 43 Ohio St.2d at 174, 331 N.E.2d at 448:

"In the case at bar, the catch basin, and drainage slope were Not part of the paved or traveled portion of the street ; they did not render the street unsafe for customary vehicular or pedestrian travel * * *." (Emphasis added.)

Similarly, in Standard Fire Ins. Co. v. Fremont, supra, the roots of a tree growing in a treelawn were damaged during the course of street repairs. Subsequently, the tree fell and damaged a house. In denying the municipality's liability for the damage to the house under R.C. 723.01, the Supreme Court noted at 164 Ohio St. 349-350, 131 N.E.2d 225:

"The duty to remove the tree in question as an unsafe instrumentality, Located as it was outside the area of the 'street' itself and not affecting travel on the street, continued to be a common law duty within a governmental function." (Emphasis added.)

In the present case, the tall weeds and grass on the Saranac treelawn near appellants' home were not part of the surface of the street. As a consequence, the tall weeds and grass were not an actual physical defect of the street itself.

Several reported cases describe defects in a treelawn which have subjected a municipal corporation to liability for personal injuries. In Village of Barnesville v. Ward, Supra, ³ the plaintiff was held to have a valid cause of action where he tripped over a sagging wire barrier placed in the treelawn by the municipality.

The plaintiff in Joseph v. Portsmouth, supra, was injured by an iron stake which protruded three inches above the surface of the ground. The stake's presence was obscured from view apparently by tall grass.

In Hubler v. Dayton, supra, the plaintiff's foot was caught in a hole left by a broken and open tile. She was injured when she walked across the treelawn.

The above three cases indicate that liability under R.C. 723.01 attaches to a municipal corporation for a defect in a treelawn when the injury to the plaintiff occurs "on," "in," or "above" the treelawn itself.

The appellants did not allege in their complaint that Saranac Road was itself defective. Rather, the appellants only alleged that tall weeds and grass on the treelawn were the proximate cause of the injuries to James Zupancic. We hold that tall weeds and grass on a treelawn which obstruct the vision of travelers on a street do not constitute a defect or nuisance in the paved portion of the street itself within the meaning of R.C. 723.01. The trial court properly entered judgment for the...