Newell v. Brookshire , 2015 Ohio 4933 ( 2015 )

[Cite as Newell v. Brookshire, 2015-Ohio-4933.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
FRANK L. NEWELL II : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
:
-vs- : Case No. 2015CA00062
:
DAVID BROOKSHIRE, ET AL :
: OPINION
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2013CV01295
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 23, 2015
APPEARANCES:
For: Plaintiff-Appellant For: Defendants-Appellees
CHRISTOPHER VAN BLARGAN JOSEPH K. OLDHAM
KEITH G. MALICK 759 West Market Street
3412 W. Market Street Akron, OH 44303
Akron, OH 44333
For: City of Canton For: Susan Kahan & David Korman
KEVIN L’HOMMEDIEU THOMAS CABRAL
Canton Law Department Sixth Floor Bulkley Building
218 Cleveland Avenue S.W. 1501 Euclid Avenue
Canton, OH 44701 Cleveland, OH 44115
Stark County, Case No. 2015CA00062 2
Gwin, P.J.
{¶1} Appellant appeals the March 25, 2015 judgment entry of the Stark County
Common Pleas Court granting summary judgment to appellees.
Facts & Procedural History
{¶2} On September 14, 2009, appellant Frank Newell was riding his motorcycle
west on Lawrence Road N.E. in Canton. Appellant was injured when a tree split and fell
on top of him, striking him in the head, and totaling his motorcycle. On May 14, 2013,
appellant filed a negligence complaint against appellees City of Canton (“Canton”),
David Brookshire, Bev Ann Brookshire, Mary Beth Brooks, and the estate of Anne
Freedman. Appellant originally filed the complaint against Candace and Sandra Cain,
the owners of the property at 1219 Lawrence Road N.E.; however, the Cains were
subsequently voluntarily dismissed by appellant. Appellant alleged that the tree was
defective, appellees should have known of the defect, and appellees were negligent in
failing to inspect and remove the tree. The 2013 complaint was a re-filing of a complaint
originally filed in 2011.
{¶3} There is a dispute as to who owned the property where the tree was
located. Appellant named as defendants David and Bev Ann Brookshire, the owners of
the property at 1231 Lawrence Road N.E. and Mary Beth Brooks, the renter of the
property at 1231 Lawrence Road N.E. Appellant also named as defendants Susan
Kahan and David Korman, the co-executors of the estate of Anne Freedman, who
owned the property at 1223 Lawrence Road N.E. Appellants named Canton as a
defendant, alleging that Canton failed to keep the roads free from obstruction.
Stark County, Case No. 2015CA00062 3
{¶4} Appellees each filed a motion for summary judgment. Several affidavits
were submitted in supports of appellees’ motions. Both Candace and Sandra Cain
submitted affidavits stating that they were the owners of 1219 Lawrence Road N.E. and
never noticed any defect in the fallen tree prior to September 14, 2009. Both David
Korman and Susan Kahan submitted affidavits that stated they are co-executors of the
estate of their mother Anne Freedman, at no time prior to the incident involving
appellant was their mother made aware of any information that a tree on her property
was in an obviously defective condition or that there were any problems with any of the
trees on her property. Further, that after she died on July 19, 2011, they reviewed
papers and other documents and none of those papers or documents made any
mention of a defective tree on her property in Ohio.
{¶5} David Brookshire’s affidavit provides that he owns 1231 Lawrence Road
N.E., rented that property to Mary Beth Brooks at the time of the accident, and that he
lives near the subject property. Further, that, prior to the accident involving appellant,
the tree appeared in all respects normal and healthy looking, he had no notice of any
problem with the tree, had no reason to believe that the tree was unsafe, and he
received no complaints related to the tree. Appellees also submitted the deposition
testimony of appellant, who stated that he was familiar with the roadway prior to the
accident and noticed no problem with this particular tree.
{¶6} In appellant’s response to Canton’s motion for summary judgment,
appellant asserted, for the first time, that the tree encroached on Canton’s right of way
and Canton negligently performed a proprietary function. Appellant attached four
handwritten, unauthenticated witness statements to his opposition to appellees’ motions
Stark County, Case No. 2015CA00062 4
for summary judgment. One of the witness statements is dated September 14, 2009
and the other three witness statements are dated September 17, 2009. Appellant also
filed a motion for extension of time to file affidavits authenticating the witness
statements. Appellees opposed appellant’s motion to extend time. Appellant also
submitted in his opposition to the motions for summary judgment photographs taken
after the accident.
{¶7} Appellant filed an authenticated report by Alan Klonowski (“Klonowski”), a
certified arborist. Klonowski performed a visual inspection of the stump of the tree on
July 24, 2013 and prepared his report on October 18, 2013. Klonowski also indicated in
his report that he reviewed photographs taken after the incident. In the “Glossary”
section of his report, Klonowski states that “hazard tree rating” refers to the relative
potential for a tree to become hazardous and that the hazard rating is the sum of three
pieces of information: the failure potential, the size of the defective part, and the
potential target. Klonowski stated that a rating of twelve may require immediate
removal, but a twelve rating does not always require removing the tree.
{¶8} In the “Observations” section of his report, Klonowski stated that: the tree
was not planted as part of the landscape and grew naturally on the site; the tree could
be seen from Lawrence Road N.E., adjacent residences, and residences across the
street; the site is well drained and steeply sloping; the site is well suited for growing
trees; both stems of the tree were alive at the time of the failure of the south trunk; there
is visible evidence of butt rot (decay) at the south tree trunk; the remaining north trunk is
leaning slightly; the photographs show that the failed south trunk had an unbalanced
Stark County, Case No. 2015CA00062 5
crown with branches almost entirely on the south side; and that the south trunk was
approximately 60 feet tall from his review of the photograph.
{¶9} Klonowski concluded the tree had a hazard rating of 12 prior to the failure
of the south trunk. Klonowski based this conclusion on several observations: the large
diameter of the trunk capable of falling into an area of pedestrian and vehicular traffic;
the failed south trunk had an unbalanced crown and a lean to the south, which is a
characteristic of codominant stems; the tree had codominant trunks; the failed south
tree had butt rot (decay); the failed south trunk had little holding wood at its base;
Ailanthus trees are prone to failure; the tree was on unstable, sloping ground; and the
tree was growing out of a stone retaining wall that negatively impacted normal root
development.
{¶10} The trial court issued a judgment entry on March 25, 2015. In the
judgment entry, the trial court denied appellant’s request to file the authenticated
witness statements instanter and granted appellees’ motion to strike the witness
statements. The trial court stated that the witnesses’ identities and statements signed in
2009 were not provided in discovery to appellees in this case or the previously filed
action. The trial court denied appellees’ motion to strike the Klonowski report and
affidavit.
{¶11} Finally, the trial court granted appellees’ motions for summary judgment.
The trial court found that there is no evidence that appellees had actual or constructive
notice that the tree was defective and thus owed no duty to appellant. The trial court
determined that the Klonowski affidavit did not create a genuine issue of material fact as
to actual or constructive notice because the factors contained in his rating report would
Stark County, Case No. 2015CA00062 6
only be known to an expert; Klonowski never says that the observations would alert a
reasonable person that the tree had a defect; and Klonowski never says appellees knew
or should have known that the condition of the tree posed an unreasonable risk of harm
to others. The trial court found that, even if appellees had a duty to inspect, there is no
evidence that, upon inspection, there was actual or constructive notice that the tree was
defective.
{¶12} With regards to Canton, the trial court found that appellant cannot fulfill his
summary judgment burden by asserting new claims (that maintenance of trees on city
property is a proprietary function) in response to a motion for summary judgment. Since
these allegations were not contained in the complaint against Canton, the trial court
struck any argument with regards to Canton negligently performing a proprietary
function. As to appellant’s obstruction argument pursuant to R.C. 2744.03(B)(3), the
trial court found that there was no dispute that, at the time of the accident, the tree was
not in the roadway.
{¶13} Appellant appeals the March 25, 2015 judgment entry of the Stark County
Common Pleas Court and assigns the following as error:
{¶14} “I. THE TRIAL COURT ERRED IN WEIGHING THE EVIDENCE AND
FINDING AS A MATTER OF LAW THAT A REASONABLE PERSON COULD NOT
HAVE APPRECIATED THE TREE WAS DEFECTIVE AND POSED A RISK OF
INJURY TO MOTORISTS ON LAWRENCE ROAD N.E.
{¶15} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
NEWELL’S MOTION FOR LEAVE TO FILE AUTHENTICATED WITNESS
STATEMENTS AND IN STRIKING AND IN REFUSING TO CONSIDER THE
Stark County, Case No. 2015CA00062 7
MCKENDREE AFFIDAVITS FILED BY NEWELL IN RESPONSE TO APPELLEES’
MOTIONS FOR SUMMARY JUDGMENT ON GROUNDS THEY WERE NOT TIMELY
PRODUCED IN RESPONSE TO CANTON’S DISCOVERY REQUESTS WHERE SUCH
OMISSION WAS INADVERTENT AND LESS DRASTIC ALTERNATIVES WERE
AVAILABLE TO SANCTION APPELLANT AND AVOID PREJUDICE, IF ANY, TO
APPELLEES.
{¶16} “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO CANTON, BASED ON POLITICAL SUBDIVISION IMMUNITY WHERE THE
MAINTENANCE OF TREES ON CITY PROPERTY IS A PROPRIETARY FUNCTION
THAT FALLS WITHIN OHIO REVISED CODE SECTION 2744.02(B)(2)’S EXCEPTION
TO IMMUNITY.”
Summary Judgment
{¶17} Civ.R. 56 states, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed
in the action, show that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, 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
Stark County, Case No. 2015CA00062 8
party being entitled to have the evidence or stipulation construed mostly
strongly in the party’s favor. A summary judgment, interlocutory in
character, may be rendered on the issue of liability alone although there is
a genuine issue as to the amount of damages.
{¶18} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311(1981). The court may not resolve any ambiguities in the evidence presented. Inland
Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474
N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the
applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,
733 N.E.2d 1186 (6th Dist. 1999).
{¶19} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review
the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d
1243.
{¶20} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the
record which demonstrates absence of a genuine issue of fact on a material element of
the non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264(1996). Once the moving party meets its initial burden, the burden shifts to the non-
Stark County, Case No. 2015CA00062 9
moving party to set forth specific facts demonstrating a genuine issue of material fact
does exist. Id. The non-moving party may not rest upon the allegations and denials in
the pleadings, but instead must submit some evidentiary materials showing a genuine
dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791(12th Dist. 1991).
I.
{¶21} Appellant first argues that the trial court erred in granting summary
judgment to appellees. Specifically, appellant asserts that he presented sufficient
evidence to permit a jury to reasonably conclude that an average person would have
discovered the tree’s defect upon inspection.
{¶22} In order to sustain a claim of negligence, appellant must show: a duty
owed by appellees to appellant, a breach of that duty, injury or damages, and the
existence of proximate cause between the breach and the injury or damages.
Mussivand v. David, 45 Ohio St.3d 314, 544 N.E.2d 265 (1989). The existence of a
duty depends on the foreseeability of the injury. Id. “The test for foreseeability is
whether a reasonably prudent person would have anticipated that an injury was likely to
result from the performance or nonperformance of an act.” Id.{¶23} A landowner in an urban area has a duty to exercise reasonable care to
prevent an unreasonable risk of harm to others from decaying, defective, or unsound
trees of which such landowner has actual or constructive notice. G.H. & M.
Development & Construction Co. v. Vinton, 5th Dist. Stark No. CA-9064, 1993 WL
35579 (Jan. 19, 1993). Actual notice is defined as “notice given directly to, or received
personally by, a party.” Johnston v. Filson, 12th Dist. Clinton No. CA2014-04-007,
Stark County, Case No. 2015CA00062 10
2014-Ohio-4758. Constructive notice is defined as notice “arising by presumption of law
from the existence of facts and circumstances that a party had a duty to take notice of.”
Id. Further, for a landowner’s duty to be triggered, the landowner must have actual or
constructive knowledge of a “patently defective condition of a tree.” Heckert v. Patrick,
15 Ohio St.3d 402, 473 N.E.2d 1204 (1984). While the Heckert court did not define
“patently defective,” it cited with approval the holding in Hay, wherein the court defined
“patently defective” as “apparent, which a person can see with his own eyes.” Hay v.
Norwalk Lodge no. 730, 92 Ohio App. 14, 109 N.E.2d 481 (6th Dist. Huron 1951).
{¶24} In this case, there is no evidence that appellees had actual notice of the
tree’s condition prior to the accident. Thus, the question is whether appellees had
constructive notice of a patently defective condition of the tree.
{¶25} Appellees, in support of their motions for summary judgment, submitted
affidavits by the Cains stating that they never noticed a defect in the tree prior to
September 14, 2009. They also submitted the affidavit of appellee David Brookshire
stating that the tree appeared normal and healthy looking, he had no notice of any
problems with the tree, and he had no reason to believe the tree was unsafe.
Additionally, appellees submitted the deposition testimony of appellant in which he
stated that he was familiar with the road and that, prior to the accident, he noticed no
problems with the tree.
{¶26} In order to rebut this testimony, appellant submitted the affidavit and report
of Klonowski and argues the affidavit and report create a genuine issue of material fact.
We disagree. First, Klonowski did not see any pictures of the tree before it fell.
Additionally, Klonowski inspected only the stump of the tree and did not do so until
Stark County, Case No. 2015CA00062 11
approximately four (4) years after the accident. He makes no assertion as to what the
tree would have looked like or what was visible as to the tree at the time of the accident.
As stated by the Ohio Supreme Court in Heckert, “while there was evidence by way of
the horticulturists’ affidavit that the tree had been dying for some time, this observation
was made of the tree’s interior after the limb had fallen. This affidavit provides no
evidence that the condition could have been observed prior to the accident.” 15 Ohio
St.3d 402, 473 N.E.2d 1204 (1984).
{¶27} Klonowski’s affidavit and report do not indicate what the tree looked like
on the outside in 2009 or that the condition could have been observed prior to the
accident. While the information contained in the report to determine a “hazard rating,”
such as the failure potential, size of defective part, and potential target might be intuitive
to a trained arborist, the expert gives no indication in his report what would be
“apparent” or what someone could “see with one’s own eyes” in 2009. Klonowski refers
to rot on the interior of the stump but does not state it was visible on the outside of the
tree in 2009.
{¶28} Appellant contends that the “apparent” or “visible” items listed in
Klonowski’s report of the large diameter of the tree and the lean of the tree was
sufficient to provide appellees with constructive notice of a patent defect and thus a
genuine issue of material fact exists. However, Klonowski’s report also includes the
“visible” items that there was sound wood above the decayed wood, the site was well-
suited for growing trees, and both stems were alive at the time of the accident.
Klonowski does not state how appellees, as lay people, could have calculated the
hazard rating of twelve in 2009 based upon the tree’s large diameter and a lean.
Stark County, Case No. 2015CA00062 12
Klonowski stated that a rating of twelve may require immediate removal, but a twelve
rating does not always require removing the tree. While a certified arborist certainly
could have noticed the tree’s condition given his expertise and experience, given the
affidavits and deposition testimony submitted by appellees and the lack of other
evidence in the record, the record does not establish that the large diameter of the tree
and the lean alone creates a genuine issue of material fact concerning constructive
knowledge of a patent defect in the tree to a lay person. Johnston v. Filson, 12th Dist.
Clinton No. CA2014-04-007, 2014-Ohio-4758; Kish v. Scrocco, 7th Dist. Mahoning No.
11 MA 197, 2013-Ohio-899.
{¶29} Appellant argues that, even if the Klonowski affidavit does not create a
genuine issue of material fact, the photographs submitted in his response to appellees’
motions for summary judgment are sufficient to create a genuine issue of material fact.
However, unlike in Levine v. Brown, 8th Dist. Cuyahoga No. 92862, 2009-Ohio-5012, in
which a plaintiff submitted photographs of the tree before the accident that showed a
dead tree with termite holds, no live branches, bark, or green leaves, or in Motorists
Mut. Ins. v. Flynn, 4th Dist. Highland No. 11CA28, 2013-Ohio-1501, in which
photographs of the tree before the accident showed a high tree growing at an unusual
angle and leaning over a house, in this case, appellant submitted no photographs of the
tree prior to the incident to show what the visible condition of the tree was prior to the
incident. Further, the pictures submitted after the accident do not show holes in the
tree, showed live branches and bark on the tree, along with green leaves. As noted by
Klonowski, both stems were alive at the time of the accident. Thus, the photographs do
Stark County, Case No. 2015CA00062 13
not create a genuine issue of material fact that the tree was in a patently defective
condition visible to appellees.
{¶30} Based on the foregoing, we find the trial court did not err in granting
appellees’ motions for summary judgment as there is no genuine issue of material fact
as to appellees actual or constructive notice of a patent defect in the tree. Appellant’s
first assignment of error is overruled.
II.
{¶31} Appellant, in his response to the motions for summary judgment,
submitted unauthenticated witness statements asserting that trees regularly fell on
appellees’ property prior to the accident and that a Canton van had stopped in front of
the tree before the accident after a truck struck the tree’s branches that morning. The
trial court struck the affidavits. Appellant argues the trial court abused its discretion in
striking the affidavits which were attached to his summary judgment response. We
disagree.
{¶32} A trial court’s decision to grant or deny a motion to strike will not be
overturned on appeal absent an abuse of discretion. State ex rel. Mora v. Wilkinson,
105 Ohio St.3d 272, 2005-Ohio-1509, 824 N.E.2d 1000. An abuse of discretion means
the decision is unreasonable, arbitrary, or unconscionable. State ex rel. Crawford v.
Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, 814 N.E.2d 1218.
{¶33} If a document does not fall within one of the categories of materials
specifically listed in Civ.R. 56(C) of materials a trial court may consider when deciding a
motion for summary judgment, it can be introduced as evidentiary material only through
incorporation by reference in a properly framed affidavit. Martin v. Central Ohio Transit
Stark County, Case No. 2015CA00062 14
Authority, 70 Ohio App.3d 83, 590 N.E.2d 411 (10th Dist. Franklin 1990). "Documents
which are not sworn, certified, or authenticated by way of affidavit have no evidentiary
value and shall not be considered by the trial court." Mitchell v. Ross, 14 Ohio App.3d
75, 470 N.E.2d 245 (8th Dist. Cuyahoga 1984). In this case, appellant filed handwritten
witness statements in response to appellees' motions for summary judgment that were
not authenticated. As such, the witness statements had no evidentiary value and could
not be considered by the trial court. Mason v. Guerard, 5th Dist. Holmes No. 07CA009,
2008-Ohio-5550.
{¶34} Appellant further contends that the trial court's granting of the motion to
strike was an improper discovery sanction due to his failure to provide the identity of the
witnesses or the existence of the witness statements. Even if we construe the trial
court's decision as a discovery sanction, we find the trial court did not abuse its
discretion.
{¶35} A trial court has the discretion to determine what sanction should be
imposed for a discovery violation, and a reviewing court may reverse only on a finding
of abuse of discretion. Nakoff v. Fairview General Hospital, 75 Ohio St.3d 354, 662
N.E.2d 1 (1996). The trial court may exclude the testimony of an undisclosed witness
as a sanction when the failure to disclose caused unfair surprise with prejudice to the
opposing party. Anderson v. Lorain County Title Co., 88 Ohio App.3d 367, 623 N.E.2d
1318 (9th Dist. Lorain 1993).
{¶36} In this case, Canton propounded interrogatories on appellant on June 6,
2013, asking him to identify any witnesses with information concerning appellant’s
allegations. Appellant did not provide the names of the witnesses that filled out the
Stark County, Case No. 2015CA00062 15
witness statements or identify the statements themselves. Neither the identity of the
witnesses or their actual written statements were provided to appellees in this re-filed
action or in the previously filed action until his response to the motions for summary
judgments, despite the fact that appellees served written discovery upon appellant
which called for their identification or production. Accordingly, we find the trial court did
not err in striking the witness statements. Though appellant argues the witness
statements were work product, they are dated contemporaneous to the incident and do
not constitutes counsel’s mental impressions, opinions, conclusions, judgments, legal
theories, or strategies; further, they are not notarized or authenticated. Squire, Sanders
& Dempsey v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937
N.E.2d 533.
{¶37} Appellant’s second assignment of error is overruled.
III.
{¶38} Appellant argues the trial court erred in granting summary judgment to
Canton based upon political subdivision immunity. We utilize a three-tiered analysis to
determine whether a political subdivision is immune from tort liability. First, we begin
with the understanding that political subdivisions are not liable generally for injury or
death to persons in connection with a township’s performance of a governmental or
proprietary function. R.C. 2744.02(A)(1). Second, we consider whether an exception to
that general rule of immunity applies. R.C. 2744.02(B). If an exception to immunity
does apply, Canton has the burden and ability to reinstate immunity by demonstrating
another statutory defense applies. R.C. 2744.03. Howard v. Miami Twp. Fire Division,
119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311.
Stark County, Case No. 2015CA00062 16
{¶39} Neither party disputes that Canton is a political subdivision as defined in
R.C. 2744. Consequently, the general grant of immunity accorded to Canton under
R.C. 2744.02(A)(1) applies in the instant case and will preclude liability unless appellant
can show that an exception under R.C. 2744.02(B) applies. At issue in this case are
two exceptions contained in R.C. 2744.02(B)(2) and R.C. 2744.02(B)(3).
{¶40} Appellant alleged in his complaint that Canton had the duty of keeping its
roads within the municipality in repair and free from obstructions and Canton failed to do
so. R.C. 2744.02(B)(3) imposes liability upon a political subdivision for “injury, death, or
loss to person or property caused by [its’] negligent failure to keep public roads in repair
and other negligent failure to remove obstructions from public roads.” The Ohio
Supreme Court has held that, for the purposes of R.C. 2744.02(B)(3), an “obstruction”
must be an obstacle that impedes the use of the roadway. Howard v. Miami Twp. Fire
Division, 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311. A thing or condition that
has the potential or threat to impede the use of the roadway is not an “obstruction” for
purposes of R.C. 2744.02(B)(3). Id. In this case, there is no dispute that, at the time of
the accident, the tree was not in the roadway. Rather, it fell on appellant as he was
riding his motorcycle. Accordingly, the exception contained in R.C. 2744.02(B)(3) does
not apply to abrogate Canton’s general grant of immunity.
{¶41} R.C. 2744.02(B)(2) provides that “political subdivisions are liable for injury,
death, or loss to person or property caused by the negligent performance of acts by
their employees with respect to proprietary functions of a political subdivision.” For the
first time in the case, appellant, in his memorandum in opposition to Canton’s motion for
summary judgment, asserts the argument that the maintenance of trees on city property
Stark County, Case No. 2015CA00062 17
is a proprietary function. Specifically, appellant argued in his memorandum in
opposition that Canton’s duty to inspect and remove defective trees from its right of way
was a proprietary function and thus Canton could be held liable for negligently
performing that task.
{¶42} We agree with the trial court that appellant cannot assert a new theory in
his response to a properly supported motion for summary judgment. Appellant did not
allege a proprietary function claim or argument in his first complaint filed in 2011 or in
his re-filed complaint in 2013. Appellant first raised his proprietary function theory/claim
in his response to Canton’s motion for summary judgment. With regards to Canton,
appellant, in his complaint, alleged only that Canton had the duty of keeping its roads
within the municipality in repair and free from obstructions and that Canton failed to do
so. At no time between the filing of the complaint and the filing of the memorandum in
opposition to summary judgment did appellant give any indication that he was pursuing
any claims or theories other than those stated in his original complaint.
{¶43} A plaintiff cannot fulfill his burden to show a triable issue of fact by
asserting new claims or theories in response to a properly supported motion for
summary judgment. Greene v. Whiteside, 181 Ohio App.3d 253, 2009-Ohio-741, 908
N.E.2d 975 (1st Dist. Hamilton). This tactic would permit every non-moving party
plaintiff to avoid summary judgment by simply asserting different claims based on
different substantive law with different material facts. Bradley v. Sprenger Enterprises,
Inc., 9th Dist. Lorain No. 07CA009238, 2008-Ohio-1988; Scassa v. Dye, 7th Dist.
Carroll No. 02CA0779, 2003-Ohio-3480. Canton’s motion for summary judgment was
based on the claims presented in the complaint and appellant was required to respond
Stark County, Case No. 2015CA00062 18
to the motion for summary judgment based on the claims already presented. Scassa v.
Dye, 7th Dist. Carroll No. 02CA0779, 2003-Ohio-3480.
{¶44} Further, even if we were to consider appellant’s proprietary function
argument, the body of law from other courts supports the conclusion that a political
subdivision’s responsibility for maintaining trees adjacent to public roads is a
governmental function. In Laurie v. Cleveland, the court held that tree trimming is a
governmental function under the general definition set forth in R.C. 2744.01(C)(1)
because it is an obligation imposed upon the city as a sovereign under R.C. 732.01. 8th
Dist. Cuyahoga No. 91665, 2009-Ohio-869. In Seikel v. Akron, a tree fell on a vehicle,
injuring the passenger. 191 Ohio App.3d 362, 2010-Ohio-5983, 946 N.E.2d 250 (9th
Dist. Summit). The passenger sued and claimed that tree maintenance is a proprietary
function because it is not a governmental function and because it is a function that
promotes the public peace or is an activity that is customarily performed by non-
governmental persons. Id. The court found that a political subdivision’s responsibility
for maintaining trees adjacent to public grounds is a governmental function. Id.; see
also Harp v. Cleveland Heights, 87 Ohio St.3d 506, 2000-Ohio-467, 721 N.E.2d 1020(analyzing any potential for an exception to immunity under R.C. 2744.02(B)(3) as a
governmental function, not under R.C. 2744.02(B)(2) as a proprietary function).
{¶45} The trial court did not err in granting summary judgment to Canton based
upon political subdivision immunity. Appellant’s third assignment of error is overruled.
Stark County, Case No. 2015CA00062 19
{¶46} Based upon the foregoing, we overrule appellant’s assignments of error.
The March 25, 2015 judgment entry of the Stark County Common Pleas Court is
affirmed.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur