Harp v. City of Cleveland Heights

87 Ohio St.3d 506 (2000)

Ruth Brewer was driving her car southbound on Lee Blvd. in Cleveland Heights when a 43-to-45 foot section of a black cherry tree crashed through her windshield without warning, killing her. The tree grew some 16-30 feet from the curb of Lee Blvd. in Forest Hills Park, a wooded area owned and maintained by the City of Cleveland Heights.

The administratrix of Ms. Brewer’s estate filed a wrongful death action against the city alleging that the tree constituted a nuisance to the motoring public which the city knew or should have known about, and which the City should have gotten rid of prior to this accident. The evidence revealed that the limb fell due to a rotting condition that had been progressing for more than 2 years. Additionally, the city’s forestry department workers inspected the tree 6 months prior to the accident and marked it as a “priority prune.”

The plaintiff’s expert witness testified that city forestry workers should have detected the condition that caused the limb to fall at the time of that inspection, and should have removed the limb so that Ms. Brewer’s death would have never occurred.

Despite this evidence, the trial court granted the city’s motion for summary judgment on the ground that the city was “immune” from liability because a deteriorating tree not affecting traffic on the roadway before it comes crashing down cannot constitute a “nuisance” for purposes of the governing statute, Ohio Revised Code 2744.02 (B) (3).

The Supreme Court of Ohio reversed the decision on appeal. The court found that a damaged or diseased tree limb that overhangs the roadway and presents a hazard to the motoring public can constitute a nuisance. A municipality may be liable if they fail to remove the limb within a reasonable time after the hazardous condition is discovered or should have discovered.