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Pallone v. Ohio Department of Natural Resources

Court of Claims of Ohio

January 30, 2013


To S.C. Reporter August 22, 2013

James P. Dinsmore Assistant Attorney General

Roman J. Pallone



(¶ 1} Plaintiff brought this action alleging negligence. The issues of liability and damages were bifurcated and the case proceeded to trial on the issue of liability.

(¶ 2} In 2005, plaintiff began operating a business which was located on Buckeye Lake State Park and leased from a private landowner. He operated the property and building as a restaurant called "Smitty's on the Lake" (Smitty's). Smitty's is surrounded by property owned by defendant, Ohio Department of Natural Resources (ODNR). On September 14, 2008, the remnants of Hurricane Ike traveled through Ohio. During the storm, a silver maple tree located on defendant's property that was adjacent to Smitty's, split in two, causing a branch with a seven-foot circumference to strike Smitty's roof. Defendant removed the fallen tree on September 15, 2008. Plaintiff testified that as a result of the damage caused by the fallen tree, Smitty's closed for six months, but plaintiff continued to lease Smitty's through 2011.

(¶ 3} Plaintiff alleges that defendant was negligent in maintaining and inspecting the trees located adjacent to Smitty's and that such negligence caused the tree to fall and damage the restaurant on September 14, 2008.

(¶ 4} In order for plaintiff to prevail upon his claim of negligence, he must prove by a preponderance of the evidence that defendant owed him a duty, that defendant's acts or omissions resulted in a breach of that duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 8, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984).

(¶ 5} "[W]here negligence revolves around the question of the existence of a hazard or defect, the legal principle prevails that notice, either actual or constructive, of such hazard or defect is a prerequisite to the duty of reasonable care." Heckert v. Patrick, 15 Ohio St.3d 402, 405 (1984). Actual notice exists where, "from competent evidence, either direct or circumstantial, the trier of the facts is entitled to hold as a conclusion of fact and not as a presumption of law that the information was personally communicated to or received by the party * * *." In re Estate of Fahle, 90 Ohio App. 195, 197 (1950). Constructive notice is that notice which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. Id.

(¶ 6} Plaintiff asserts that defendant had notice that the tree that damaged his restaurant was a potential hazard. On May 23, 2008, plaintiff notified Tim Waln, an ODNR employee at Buckeye Lake, that he was concerned about a tree located next to Smittys. (Plaintiffs Exhibit 10.) On June 4, 2008, a contractor that had been hired by defendant removed the tree that plaintiff was concerned about. Plaintiff testified that between June 4, 2008 and September 14, 2008, he called Waln informing him that tree branches had fallen on Smitty's and that there was another tree that should be removed. However, plaintiff testified that he did not remember when he made those calls and that he kept no record of such calls. Further, he admitted that he never made any written complaint to defendant about trees located near Smitty's after June 4, 2008.

(¶ 7} Plaintiff presented the testimony of Thomas Sydnor, Ph.D., a board-certified master arborist who has recently retired from The Ohio State University. According to Dr. Sydnor, in 2002 he was hired by DLZ Ohio, an environmental engineering group, to inspect the trees located along the four-mile earthen dam at Buckeye Lake. He explained that the state wanted to remove all the trees from the dam, but that private property owners who resided near the dam opposed the recommendation to remove the trees. Dr. Sydnor testified that he tagged and numbered all 318 trees located on the dam and he commented upon their condition. According to Dr. Sydnor, the focus of his inspection was to determine whether the integrity of the dam and its soil would be compromised during a "windfall." (Plaintiffs Exhibit 6.)

(¶ 8} The silver maple that fell onto Smitty's on September 14, 2008, was identified by Dr. Sydnor as tree number 178 and he noted in his 2002 report that the tree had decay in the crown, a "hanger, " and was in "fair" or "average" condition. (Plaintiffs Exhibit 6.) Dr. Sydnor testified that his notes did not pertain to the focus of the study, which was the integrity of the earthen dam. Dr. Sydnor opined that the decay in tree number 178 was sufficient to cause concern, but he explained that most mature trees have some decay. While Dr. Sydnor identified other trees that posed a potential hazard to adjacent buildings, no such notation was made regarding tree number 178, and he did not recommend removing tree number 178.

(¶ 9} Dr. Sydnor testified that his examination of a photograph of tree number 178 showed that the silver maple had a codominate lead, meaning that the tree had two main stems of almost equal size. He explained that a tree with a codominate lead becomes more unstable as the stems grow such that less live wood connects the two stems. Dr. Sydnor testified that on September 14, 2008, the highest recorded wind speed at Heath airport, located 10 miles away from Buckeye Lake, was 34 miles per hour. He explained that a healthy tree is not expected to fall in winds under 50 miles per hour. Dr. Sydnor stated that tree number 178 fell because there was less "holding wood" in the tree due to the codominate lead.

(¶ 10} Bob Cumbow, an employee of ODNR, testified on behalf of defendant. Cumbow testified that he has been employed by defendant for 31 years and that he currently works in ODNR's Division of Parks and Recreation. Cumbow began working for ODNR as a seasonal laborer at Buckeye Lake State Park; he eventually became the Assistant Park Manager at Buckeye Lake; he has held several other jobs with ODNR; ...

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