Political subdivisions are charged with the responsibility of maintaining trees along public roadways. So what happens if a tree in a lot owned by a political subdivision falls onto the roadway thereby injuring a passenger in a motor vehicle? The Ninth District Court of Appeals answered this question in favor of the political subdivision in the recently published case of Seikel v. City of Akron, 191 Ohio App.3d 362, 2010-Ohio-5983.
In Seikel, a young girl was a passenger in her father’s car traveling along a parkway in Akron. As they were traveling, a tree fell down from a lot adjoining the roadway, striking the car, and seriously injuring the little girl. The trial court denied summary judgment for the City of Akron, holding that maintenance of trees on city-owned property was not a governmental function, but rather a proprietary function for which immunity does not apply. The City of Akron appealed the decision asserting that maintenance of trees in a lot that adjoins the public roadway is a governmental function, that it is entitled to immunity, and that no exceptions to immunity apply.
The Ninth District looked at the history of political subdivision immunity as it relates to maintenance of trees. Specifically, the Court noted the change in the language of ORC § 2744.02(B)(3). The old version required political subdivisions to maintain roadways and public grounds, and keep them “free from nuisance.” Under the new version the legislature removed the reference to ‘nuisance’, which was being interpreted broadly by the courts, and replaced it with language that imposes liability only when a political subdivision “fail[s] to keep public roads in repair and ... fail[s] to remove obstructions from public roads.”
While neither side disputed that the City of Akron was a political subdivision to which a general grant of immunity applied, the key issue was whether the maintenance of the lot from which the tree fell could be categorized as a governmental function or a proprietary function.
The City of Akron argued that it is responsible pursuant to statute to care and maintain public grounds, which includes city-owned lots adjacent to public roadways. The Ninth District agreed with the City of Akron to hold that the maintenance of trees along public roadways, even if they are not on the public roadway but rather on a lot adjacent to the public roadway, is a governmental function. In reaching its decision, the Ninth District considered two Ohio Supreme Court cases involving maintenance of trees, one decided based on the old language of ORC § 2744.02(B)(3) and one decided based on the new language of that statute.
Interestingly, the focus on the older case, which was decided in 2000 against the political subdivision, allowed the Ninth District to reach its decision that maintenance of trees even in lots adjacent to public roadways is a governmental function. Based on the holding of the more recent case, which was decided in 2008, the Ninth District noted that liability against a political subdivision can only be imposed when there is an actual obstruction that leads to injury or death. Based on the analysis, the Ninth District held that the City of Akron met its burden of establishing that tree maintenance was a governmental function, but that the Seikels did not meet their burden of establishing that an exception to immunity applied.
Importantly, one of the three judge panel for the Ninth District dissented. Presiding Judge Eve Belfance wrote a separate opinion setting forth why the City of Akron should not be entitled to immunity. Judge Belfance focused on the definition of ‘public ground’ stating that an empty lot, which is not opened to the public, should not be considered ‘public ground’ for purposes of deciding whether tree maintenance is a governmental function. She explained that all cases cited by the majority involved trees that were either: encroaching on a sidewalk or walkway; in public parks; in a public right of way. Since the tree in this case was on a city owned lot, not open to the public, and was not encroaching on a public right of way, Judge Belfance stated she would have affirmed the lower court’s ruling that maintenance of this tree was a proprietary function.
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