Opinion
C. A. 29669
06-30-2021
ERIK THORNTON, JR., et al. Appellants v. JOSHUA S. BORSTEIN Appellee
ROBERT C. MEEKER, Attorney at Law, for Appellants. JAY S. HANSON, Attorney at Law, for Appellee.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2019-05-1923
ROBERT C. MEEKER, Attorney at Law, for Appellants.
JAY S. HANSON, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
JENNIFER HENSAL, PRESIDING JUDGE
{¶1} Erik Thornton, Jr. and Crashawn Williams appeal from the judgments of the Summit County Court of Common Pleas that granted Joshua Borstein's motion for summary judgment, and denied their amended motion for relief from judgment. This Court affirms.
I.
{¶2} Mr. Thornton and Mr. Williams ("Appellants") filed a complaint against Mr. Borstein, claiming they suffered bodily injuries and property damage when a tree on Mr. Borstein's property fell over and struck their car while they were driving past Mr. Borstein's house. Mr. Thornton was the driver, and Mr. Williams was the front-seat passenger. Their complaint set forth two negligence claims: one under premises liability, and another under res ipsa loquitur.
Appellants acknowledge on appeal that res ipsa loquitur is an evidentiary rule, not a substantive rule of law furnishing an independent ground for recovery. Jennings Buick, Inc. v. City of Cincinnati, 63 Ohio St.2d 167, 169 (1980).
{¶3} Several months later, Mr. Borstein moved for summary judgment, arguing that: (1) he had neither actual nor constructive knowledge that the tree in his yard was defective, in need of maintenance, or would likely fall, and (2) the doctrine of res ipsa loquitur does not apply because that doctrine is limited to man-made items, not a naturally occurring tree. Mr. Borstein attached an affidavit to his motion, averring that he had no notice or knowledge that the tree was unsafe or in need of maintenance.
{¶4} Appellants opposed Mr. Borstein's motion, arguing that, as an urban landowner, he had an affirmative duty to inspect the trees on his property, that he was aware that the tree's limbs hung over the roadway to a substantial degree, that he was aware that some of the limbs lacked leaves, suggesting that the tree was in an unhealthy condition, and that the doctrine of res ipsa loquitur did apply. Appellants attached an affidavit from Mr. Thornton to their brief. Mr. Thornton averred, in part, that immediately prior to the incident, he observed that a substantial portion of the tree's limbs hung over the roadway, and that some of the limbs on the other side of the tree lacked leaves. Appellants also attached photographs to their brief that showed the tree on top of Mr. Thornton's car, and the damage to the car's front passenger side.
{¶5} In his reply, Mr. Borstein did not dispute that he is an urban landowner. He argued that Appellants produced no evidence indicating that he had actual or constructive knowledge that the tree on his property was unhealthy, nor any evidence from an expert opining that the tree was in poor condition or fell due to lack of maintenance. He argued that Appellants' assertion that some of the limbs lacked leaves did not, by itself, show that the tree was unhealthy, and that the pictures Appellants incorporated into and attached to their brief showed a tree that appeared green, full of leaves, and healthy. Additionally, he again asserted that the doctrine of res ipsa loquitur applies to man-made items, not a naturally occurring tree.
{¶6} The trial court granted Mr. Borstein's motion for summary judgment, determining that he met his initial burden under Civil Rule 56, and that Appellants failed to meet their reciprocal burden. To that end, the trial court determined that Appellants did not produce evidence to support their assertion that the tree was unhealthy and/or in danger of falling, or that Mr. Borstein had actual or constructive knowledge that the tree was unhealthy and/or in danger of falling.
{¶7} About one month later, Appellants moved for relief from judgment under Rule 60(B)(5), and later requested leave to file an amended motion for relief from judgment. In their amended motion, Appellants argued that: (1) the trial court incorrectly applied the general duty of reasonable care applicable to rural landowners instead of the heightened duty of care applicable to urban landowners; (2) the photographs they submitted with their summary-judgment briefing showed that a substantial portion of the tree's limbs hung over the roadway, and that limbs on the opposite side of the tree lacked leaves, resulting in a weight imbalance that caused the tree to fall, and providing Mr. Borstein with constructive - if not actual - notice that the tree posed an unreasonable risk of harm to motorists; and (3) several news articles were published in local papers prior to the incident regarding the condition of the trees in the area, indicating that some of the trees were infected by the emerald ash borer, which could result in the death of a tree within a few years, thereby providing Mr. Borstein with constructive - if not actual - notice that the tree posed an unreasonable risk of harm to motorists.
{¶8} The trial court granted Appellants' request for leave to file an amended motion for relief from judgment, but ultimately denied that motion. Appellants now appeal, raising two assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF APPELL[EE].
{¶9} In their first assignment of error, Appellants argue that the trial court erred by granting summary judgment in favor of Mr. Borstein because they presented evidence demonstrating that Mr. Borstein had actual or constructive notice that the tree was in a hazardous or dangerous condition, creating an affirmative duty on his part to inspect the tree. Appellants cite the photographs they submitted with their summary-judgment briefing, which - according to Appellants - showed that the tree lacked leaves on one side, creating a weight imbalance that caused the tree to fall onto the roadway. Appellants also cite Mr. Borstein's affidavit, pointing out that he did not aver that he inspected the trees on his property during his 7-year ownership of that property.
{¶10} Appellants also argue that res ipsa loquitur applies. They argue that they presented evidence indicating that Mr. Borstein had exclusive management and control of the tree, that the tree was in a hazardous or defective condition, and that Mr. Borstein did nothing to maintain the tree during his ownership of the property.
{¶11} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civil Rule 56(C), summary judgment is proper if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶12} The party moving for summary judgment bears the initial burden of demonstrating the absence of genuine issues of material facts concerning the essential elements of the non-moving party's case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in Civil Rule 56(C). Id. at 292-293. If the moving party satisfies this burden, then the non-moving party has the reciprocal burden to demonstrate a genuine issue for trial remains. Id. at 293. The non-moving party may not rest upon the mere allegations or denials in her pleadings, but must point to or submit evidence of the type specified in Civil Rule 56(C). Id; Civ.R. 56(E). We now turn to the relevant negligence law.
{¶13} "In order to establish an actionable claim of negligence, a plaintiff must show the existence of a duty, a breach of that duty, and an injury that was proximately caused by the breach." Rieger v. Giant Eagle, Inc., 157 Ohio St.3d 512, 2019-Ohio-3745, ¶ 10. "The failure to prove any one of these elements is fatal to a claim of negligence." Id.
{¶14} Regarding Mr. Borstein's duty, Appellants cite the Ohio Supreme Court's decision in Heckert v. Patrick for the proposition that urban landowners, as opposed to rural landowners, have a heightened duty to inspect the trees on their property. 15 Ohio St.3d 402, 405 (1984). In Heckert, the Court addressed the distinction between the duty owed by rural landowners and the duty owed by urban landowners, adopting the Sixth District's conclusion that:
Although there is no duty imposed upon the owner of property abutting a rural highway to inspect growing trees adjacent thereto or to ascertain defects which may result in injury to a traveler on the highway, an owner having knowledge, actual or constructive, of a patently defective condition of a tree which may result in injury to a traveler must exercise reasonable care to prevent harm to a person lawfully using the highway from the falling of such tree or its branches.Id. at 405, quoting Hay v. Norwalk Lodge No. 730, B.P.O.E, 92 Ohio App. 14 (6th Dist.1951), paragraph three of the syllabus. More succinctly, "[i]f the danger is apparent to a rural property owner, he must take precautions to protect the traveling public." Id. The Court emphasized that, "where 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." Id
{¶15} The Sixth District later applied Heckert in Woods v. Blodgett, which involved an urban landowner, holding that "a landowner in an urban area has a duty to exercise reasonable care to prevent an unreasonable risk of harm to adjoining neighbors from decaying, defective or unsound trees of which such landowner has actual or constructive notice." 6th Dist. Erie No. E-85-35, 1986 WL 5583, *3 (May 16, 1986). This Court followed Woods in Estate of Durham v. City of Amherst, holding that "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." 51 Ohio App.3d 106, 110 (9th Dist.1988). Consistent among these cases is the fact that actual or constructive notice of the hazard or defect is a prerequisite to the duty of reasonable care.
{¶16} Here, after Mr. Borstein met his initial burden under Rule 56(C), Appellants bore the burden of establishing that a genuine issue of material fact remained regarding whether Mr. Borstein had actual or constructive notice of the tree's allegedly hazardous condition, thereby triggering his "duty to exercise reasonable care to prevent an unreasonable risk of harm to others from [the] decaying, defective, or unsound tree[.]" Estate of Durham at 110. A person has constructive notice of a hazard "if it was of a nature that it could or should have been discovered, if it existed long enough to have been discovered, and its discovery would have created a reasonable apprehension of danger." Davis v. Akron, 9th Dist. Summit No. 27014, 2014-Ohio-2511, ¶ 16.
{¶17} As previously noted, in their brief in opposition to Mr. Borstein's motion for summary judgment, Appellants submitted photographs of the fallen tree, as well as an affidavit from Mr. Thornton wherein he averred that, prior to the tree falling on his vehicle, he observed that a substantial portion of the tree's limbs hung over the roadway, and that some of the limbs on the other side of the tree lacked leaves. Appellants also cited Mr. Borstein's own affidavit, pointing out that Mr. Borstein did not aver that he ever inspected the tree.
{¶18} Having reviewed the photographs and affidavits, this Court finds no error in the trial court's conclusion that Appellants did not produce evidence to support their assertion that the tree was unhealthy and/or in danger of falling. The tree in the photographs appears green, full of leaves, and not patently unhealthy. See Wertz v. Cooper, 4th Dist. Scioto No. 06CA3077, 2006-Ohio-6844, ¶ 13, 17 (affirming summary judgment in favor of the landowner when photographs indicated that the tree appeared healthy before falling); compare Levine v. Brown, 8th Dist. Cuyahoga No. 92862, 2009-Ohio-5012, ¶ 25-26 (affirming a judgment against a landowner, in part, because photographs of the "dead tree" showed that it was "riddled with termite holes, with no live branches, bark, or green leaves[, ] and was "sick enough that a reasonable person viewing it would notice that it was dangerous"); Motorists Mut. Ins. v. Flynn, 4th Dist. Highland No. 11CA28, 2013-Ohio-1501, ¶ 20 (reversing summary judgment in favor of the landowner when photographs indicated that, prior to falling, the tree was "significantly and unusually leaning" in one direction). Additionally, Appellants' own assertion that the tree was unhealthy or in danger of falling did not create a genuine issue of material fact regarding whether Mr. Borstein had actual or constructive notice that the tree was unhealthy or in danger of falling. See Wertz at ¶ 13 (noting that "simply because appellant believed that the tree was dead or dying does not establish that appellee knew or should have known that the tree was dead or dying."); Hooks v. Ciccolini, 9th Dist. Summit No. 20745, 2002-Ohio-2322, ¶ 12 (noting that self-serving affidavits, standing alone, will not defeat summary judgment). Simply put, Appellants produced no evidence of the type listed in Rule 56(C) to establish that a genuine issue of material fact existed as to whether the tree was unhealthy or in danger of falling, or whether Mr. Borstein had actual or constructive notice that the tree was unhealthy or in danger of falling. Moreover, while Appellants assert that the trial court used the standard applicable to rural landowners as opposed to urban landowners, actual or constructive notice is a prerequisite to the duty of care under either standard, and nothing in the trial court's order indicates that it used the wrong standard.
{¶19} In light of the foregoing, we reject Appellants' argument that the trial court erred by granting summary judgment in favor of Mr. Borstein because they presented evidence demonstrating that Mr. Borstein had actual or constructive notice that the tree was in a hazardous or dangerous condition, creating an affirmative duty on his part to inspect the tree. We now turn to Appellants' argument that the trial court erred by granting summary judgment in favor of Mr. Borstein despite their assertion of res ipsa loquitur.
{¶20} The doctrine of res ipsa loquitur is a method of proving a defendant's negligence through the use of circumstantial evidence. Jennings Buick, Inc., 63 Ohio St.2d at 170. It is an evidentiary rule that allows the trier of fact to draw an inference of negligence. Id. at 169. "To warrant application of the rule a plaintiff must adduce evidence in support of two conclusions: (1) That the instrumentality causing the injury was, at the time of the injury, or at the time of the creation of the condition causing the injury, under the exclusive management and control of the defendant; and (2) that the injury occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed." Hake v. George Wiedemann Brewing Co., 23 Ohio St.2d 65, 66-67 (1970). The doctrine of res ipsa loquitur "allows a common sense appraisal of the circumstances surrounding an unusual accident, permitting a jury to draw the obvious conclusion that the accident was the defendant's fault and requiring the defendant to explain why the accident was not his fault." Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St.3d 300, 2010-Ohio-1041, ¶ 17. Whether it applies is determined on a case-by-case basis, and is subject to de novo review on appeal. Jennings Buick, Inc. at 171.
{¶21} Even assuming that the doctrine of res ipsa loquitur can apply to a fallen tree, which Mr. Borstein disputes, Appellants failed to raise a genuine issue of material fact as to whether it applied in this case. See Gschwind v. Viers, 21 Ohio App. 124, 128 (6th Dist.1925) (addressing a fallen tree limb and noting that "[t]here would seem to be a distinction in applying the doctrine of res ipsa loquitur between the falling of that which grows naturally and that which is the work of man."); but see Pomersky v. Gaia, 8th Dist. Cuyahoga No. 41548, 1980 WL 355102, *2 (June 5, 1980) (addressing res ipsa loquitur in the context of a fallen tree, but concluding that it did not apply because the circumstances "point[ed] as much to the intervention of an outside force as to the absence of ordinary care[.]"). The tree in this case appeared green, full of leaves, and not patently unhealthy. Given the evidence before the trial court, common sense did not dictate that the tree must have fallen as a result of Mr. Borstein's negligence. See id.; Wertz, 2006-Ohio-6844, at ¶ 13, fn. 2 ("High winds, a shallow or sparse root system and saturated soil can apparently result in a tree uprooting. Thus, a dead or rotten tree is not the only explanation for such an event."); Jennings Buick, Inc. at 171 ("[W]here the trier of the facts could not reasonably find one of the probable causes more likely than the other, the instruction on the inference of negligence may not be given"). Appellants' first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANTS' MOTION FOR RELIEF FROM JUDGMENT OR ORDER.
{¶22} In their second assignment of error, Appellants argue that the trial court abused its discretion when it denied their amended motion for relief from judgment. They argue that the articles attached to their motion regarding general dieback of trees and the presence of emerald ash borer in the local area provided additional evidence showing that Mr. Borstein had actual or constructive notice of the unsound tree on his property, triggering his duty to inspect the tree.
{¶23} This Court reviews a trial court's decision to grant or deny a motion for relief from judgment under Civil Rule 60(B) for an abuse of discretion. Smith v. Smith, 9th Dist. Summit No. 28961, 2019-Ohio-129, ¶ 6. As this Court has explained:
Id. A Rule 60(B) motion cannot be used as a substitute for an appeal, and it cannot be used to simply reargue the merits of a summary-judgment motion. Yakubik v. Yakubik, 9th Dist. Summit No. C.A. 19587, 2000 WL 327229, *2 (Mar. 29, 2000) ("Civ.R. 60(B) may not be used as a substitute for a direct appeal."); Wells Fargo Bank, N.A. v. Smith, 10th Dist. Franklin No. 09AP- 559, 2009-Ohio-6576, ¶ 12 ("[Appellants' use of Civ.R. 60(B) was nothing more than an attempt to reargue the merits of the summary judgment motion and not a proper use of Civ.R. 60(B).")."To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving party must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken." Hughes at ¶ 10, quoting GTE Automatic Elec, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.
{¶24} Rule 60(B)(5), under which Appellants filed their motion, is a catch-all provision that permits relief for "any other reason justifying relief[.]" "The 'catch-all' language of Civ.R. 60(B)(5) reflects 'the inherent power of a court to relieve a person from the unjust operation of a judgment.'" Chuck Oeder Inc. v. Bower, 9th Dist. Summit No. 23785, 2007-Ohio-7032, ¶ 10, quoting State ex rel Gyurcsik v. Angelotta, 50 Ohio St.2d 345, 346 (1977). It is reserved for extraordinary and unusual cases when the interests of justice necessitate it, and only applies if the provisions of Rule 60(B)(1) through Rule 60(B)(4) do not. Smith at ¶ 9. "The grounds for relief should be substantial." Id.
{¶25} In Appellants' amended motion for relief from judgment, Appellants essentially reargued the merits of their brief in opposition to Mr. Borstein's motion for summary judgment, and attached articles that were released prior to the incident to support their position that Mr. Borstein had actual or constructive notice of the allegedly unsound tree on his property. Those articles, without more, did not establish that the tree on Mr. Borstein's property was in a hazardous or dangerous condition, or that Mr. Borstein had actual or constructive notice that the tree was in a hazardous or dangerous condition. This Court concludes that Appellants' motion was an attempt to reargue the merits of their brief in opposition to Mr. Borstein's motion for summary judgment, and was used as a substitute for an appeal. It did not set forth substantial grounds for relief under Rule 60(B)(5). The trial court, therefore, did not abuse its discretion when it denied their motion. Appellants' second assignment of error is overruled.
III.
{¶26} Appellants' assignments of error are overruled. The judgments of the Summit County Court of Common Pleas are affirmed.
Judgments affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
CARR, J. TEODOSIO, J. CONCUR.