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Rossetti v. American Electric Power Co., Inc.

Court of Appeals of Ohio, Fifth District

January 12, 2004

ROSEMARIE ROSSETTI, et al. Plaintiffs-Appellants
v.
AMERICAN ELECTRIC POWER CO., INC., et al. Defendants-Appellees

Civil Appeal From Licking County Court of Common Pleas Case 00CV387

For Plaintiffs-Appellants: MICHAEL S. MILLER, CRAIG P. SCOTT, JANET L. LARKIN, VICTOR D. MERULLO.

For Defendants-Appellees: R. LeLAND Evans, CRAIG R. CARLSON, For Defendant-Appellee Ohio Power.

CHRISTOPHER MULVANEY, For Plaintiff United Healthcare of Ohio.

AMY S. THOMAS, GREGORY D. BRUNTON, For Defendant-Appellee ACRT, Inc.

AMY FULMER STEVENSON D. PATRICK KASSON, For Defendant-Appellee Nelson Tree Service.

JUDGES: W. Scott Gwin, P.J., Sheila Farmer, J., Julie Edwards, J.

OPINION

Edwards, J.

{¶1} Plaintiffs-appellants Rosemarie Rossetti and Michael Leder appeal from the April 9, 2003, Judgment Entry of the Licking County Court of Common Pleas granting the Motions for Summary Judgment filed by defendants-appellees Ohio Power Company, ACRT and Nelson Tree Service.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 13, 1998, appellant Rosemarie Rossetti and her husband, appellant Michael Leder, were riding bicycles on the T.J. Evans Bike Trail in Licking County when a linden tree collapsed and fell into an Ohio Power line and across the bike path. The tree then hit appellant Rossetti, causing serious injuries, including paralysis.

{¶3} The linden tree that fell was located approximately 51 feet off of the bike trail on land owned by Karen Matz and John Skowronski which is adjacent to the bike trail. The tree, which was approximately 80 years old and stood 101 feet tall, leaned over the power lines. According to Dr. Sydnor, appellants' expert, there was a huge cavity in the base of the tree and the "tree was hollow for…three, four feet up." Thomas Sydnor Deposition at 41. The tree had been hollowed out at the base for, at a minimum, in excess of 20 years and there was decay around the base that had existed for almost the entire life of the tree. Both the decay and the hollowed out portion of the base faced away from the bike path. According to Dr. Sydnor, the tree was rooted in the stump and the "root had actually grown through the stump and was growing up the hill. The root is - - the failure of that root was what caused the failure of the tree. That was the only thing that was actually holding the tree up." Id. at 41-42.

{¶4} Appellee Ohio Power had an easement[1] over the property owned by Karen Matz and John Skowronski and the bike trail for the purpose of trimming and/or removing trees along the bike trail that interfered with its power lines. The bike trail and the property owned by Karen Matz and John Skowronski are separated by a wire fence. The linden tree was not located within Ohio Power's easement, but rather was located approximately 51 feet from the bike trail and 20 to 25 feet from the wire fence.

{¶5} Appellee Ohio Power trims and removes the trees in and around its easement on a three to five year trimming cycle. In accordance with such cycle, the trees adjacent to the bike trail were inspected and maintained in 1988-1989, between 1990 and1992 and in 1995. As part of its tree trimming program, appellee Ohio Power contracted with both appellee ACRT and appellee Nelson Tree. Appellee ACRT, pursuant to its contract with appellee Ohio Power, hired work planners who, as part of the 1995 trimming/removing cycle, patrolled the electric lines and identified which trees in the easement needed trimmed or removed. The work planners would mark such trees with paint. While trees that were to be trimmed were marked with a blue dot, trees that were to be removed were marked with red paint. In turn, appellee Nelson Tree Service performed the actual trimming or removal for the 1995 cycle.

{¶6} Subsequently, appellants filed a complaint in the Licking County Court of Common Pleas against appellees, among others.[2] Appellees filed Motions for Summary Judgment. In addition, appellees ACRT and Nelson Tree filed motions to strike the affidavit of Dr. Sydnor, appellants' expert.

{¶7} As memorialized in a Judgment Entry filed on April 9, 2003, the trial court granted the motion to strike Dr. Sydnor's affidavit, finding that the same was not admissible under Civ.R. 56. In addition, the trial court granted appellees' Motions for Summary Judgment, holding that "it was not foreseeable that the Linden tree would fall onto the bicycle path and cause a person physical harm" and that "[g]iven the lack of evidence beyond mere inference indicating the Linden tree was trimmed by the utility-Defendants under the tree-trimming program, Plaintiffs cannot establish proximate cause."

{¶8} It is from the trial court's April 9, 2003, Judgment Entry that appellants now appeal, raising the following assignments of error:

{¶9} "I. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS-APPELLANTS BY GRANTING THE MOTIONS FOR SUMMARY JUDGMENT FILED BY DEFENDANTS-APPELLEES OHIO POWER COMPANY, ACRT, INC. AND NELSON TREE SERVICE, BECAUSE GENUINE ISSUES OF FACT EXIST IN THIS CASE REGARDING WHETHER THOSE DEFENDANTS NEGLIGENTLY TRIMMED THE TREE, AND WHETHER IT WAS FORESEEABLE THAT THE TREE WOULD FALL ON SOMEONE, SUCH AS THE PLAINTIFF-APPELLANTS [SIC] ROSEMARIE ROSSETTI, WHO WAS USING THE BIKE PATH.

{¶10} "II. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS-APPELLANTS BY STRIKING THE AFFIDAVIT OF PLAINTIFFS-APPELLANTS' EXPERT, DR SYDNOR."

I

{¶11} Appellants, in their first assignment of error, argue that the trial court erred in granting appellees' Motions for Summary Judgment. We disagree.

{¶12} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As such, we must refer to Civ.R. 56 which provides, in pertinent part:

{¶13} "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 as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * 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 party being entitled to have the evidence or stipulation construed most strongly in the party's favor ."

{¶14} Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, 674 N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107, 662 N.E.2d 264. It is based upon this standard that we review appellants' first assignment of error.

{¶15} At issue in the case sub judice is whether appellees were negligent. In a negligence case, a plaintiff must prove that: (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; (3) the plaintiff suffered harm; and (4) the harm was proximately caused by defendant's breach of duty. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265. The existence of a duty depends on the foreseeability of the injury. Id . at 320-321, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 472 N.E.2d 707. "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.

{¶16} Appellants, in the case sub judice, specifically argue that there is a genuine issue of material fact with respect to whether it was foreseeable that the linden tree would fall on someone using the bike path. We, however, concur with the trial court that it was not reasonably foreseeable that the tree would fall onto the bicycle path and cause a person physical harm.[3] John Skowronski, who owned the private property on which the tree was located, testified during his deposition that there was no reason to notice the tree before it fell because "it looked healthy. I mean, there was no reason to notice it. It wasn't as if the crown was brown or the bark was peeling." Deposition of John Skowronski at 27. Dr. Sydnor, appellants' own expert, agreed during his deposition that "[e]arlier on in the growth of this tree it would have been more readily identified as a hazard tree than later on." Deposition of Dr. Sydnor at 126. While he testified that the tree would have been identified as a hazard in the 1980's, Dr. Sydnor further testified that it was not reasonably foreseeable in 1980 that the linden tree was going to fall within the next 18 years. Thus, as noted by appellee Nelson Tree in its brief, "[w]hen the tree was in its most dangerous state, in the 1980's, it was not reasonably foreseeable that it would fall within the next eighteen years." In addition, as noted by the trial court, according to Dr. Sydnor, appellants' own expert, it was not reasonably foreseeable that the tree would fall on appellant Rossetti in 1998. The following is an excerpt from Dr. Sydnor's deposition testimony:

{ΒΆ17} "Q. Okay. Say you looked at this tree in the summer of 1995. Would you be able to say it was reasonably foreseeable that it was ...


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