Harp, Admr., Appellant, v. City of Cleveland Heights, Appellee, 87 Ohio St. 3d 506

Alice Robie Resnick, J. In order to determine whether

summary judgment was appropriately granted in this case, we must first decide whether a political subdivision can be held liable under R.C. 2744.02(B)(3) for injuries that result when a tree limb falls upon a public road from adjacent land that is also within the political subdivision’s control. In particular, we are asked to decide whether a defective tree limb that threatens to fall onto a public road, but does not physically obstruct traffic, can constitute a nuisance for purposes of R.C. 2744.02(B)(3).

R.C. 2744.02(A)(1) provides that a political subdivision is generally not liable for injury, death, or loss to persons or property incurred in connection with the performance of a governmental or proprietary function. R.C. 2744.02(

B) sets forth several exceptions to this broad grant of sovereign immunity.

As relevant here, R.C. 2744.02(B)(3) provides that “political subdivisions are liable for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, [and] streets ** * * within the political subdivisions open, in repair, and free from nuisance.” (Emphasis added.) In determining when a political subdivision may be held liable under R.C. 2744.02(B)(3) for failing to keep its roadways free from nuisance, we have deemed it appropriate to consider prior case law interpreting R.C. 723.01, which requires municipal corporations to keep their highways and streets “open, in repair, and free from nuisance.” See Franks v.

Lopez (1994), 69 Ohio St.3d 345, 348, 632 N.E.2d 502, 505; Manufacturer’s Natl. Bank of Detroit v. Erie Cty. Rd. Comm. (1992), 63 Ohio St.3d 318, 321, 587 N.E.2d 819, 822. Although the court has decided cases under R.C. 723.01 involving trees or tree limbs, none of these cases involves injury or damage caused by a tree or tree limb falling onto a roadway. See Robert Neff & Sons v. Lancaster (1970), 21 Ohio St.2d 31, 50 O.O.2d 80, 254 N.E.2d 693 (a municipality can be held liable for injuries resulting from a collision with a tree limb overhanging a public street); Std. Fire Ins. Co. v.

Fremont (1955), 164 Ohio St. 344, 58 O.O. 130, 131 N.E.2d 221 (a municipality cannot be held liable for damages caused by the falling of a tree on a house adjacent to where the tree stood); Taylor v. Cincinnati (1944), 143 Ohio St. 426, 28 O.O. 369, 55 N.E.2d 724 (a municipality can be held liable for injuries resulting from a collision with a tree standing close to the paved portion of a highway). However, in addressing a municipality’s liability for damages to persons other than those using a public street, the court in Std.

Fire reasoned: “In several cases outside Ohio, under statutes similar to that of Ohio requiring municipalities to keep their streets in repair, it has been held that there can be no liability upon a municipality even to travelers upon the street or highway, and the same would be true as to those not on the highway, for injuries from falling trees or falling limbs from trees standing upon or adjacent to the traveled highway.” (Emphasis added.) Id., 164 Ohio St. at 350, 58 O.O. at 133, 131 N.E.2d at 226. In support, the court relied primarily on two cases involving falling trees or tree limbs, Miller v.

Detroit (1909), 156 Mich. 630, 121 N.W. 490, and Dyer v. Danbury (1911), 85 Conn. 128, 81 A. 958, which held that a municipality’s statutory duty to keep its roads “in repair” extends only to defects in the road itself or physical obstructions to travel thereon. The flaw in this analysis lies in the court’s comparison of essentially dissimilar statutes.

As applied to falling trees or tree limbs, there is a critical difference between a statute that requires a public authority to keep its streets “in repair” and a statute that requires a public authority to keep its streets in repair and also “free from nuisance.” In Dyer, the court actually agreed that an overhanging tree limb that endangered travel by reason of its likelihood to fall upon a highway but did not obstruct traffic could constitute a nuisance.

However, the court held that since the overhanging limb did not constitute a defect in the highway or obstruct travel thereon, the city was not bound to remove it as part of its statutory duty to keep its roads “in repair.” Id., 85 Conn. at 130-131, 81 A. at 959. It is difficult to conceive how something that constitutes a nuisance by virtue of the danger it poses to highway travel would fall beyond the reach of a statute requiring a municipality also to keep its highways “free from nuisance.” In Heckert v.

Patrick (1984), 15 Ohio St.3d 402, 15 OBR 516, 473 N.E.2d 1204, paragraph two of the syllabus, this court held that “[a] board of county commissioners is not liable under R.C. 305.12 for damages caused by the falling of a tree or its branches onto a county road.” Former R.C. 305.12 was similar to the statute considered in Dyer, but dissimilar to R.C. 723.01 or R.C. 2744.02(B)(3), because it required a public authority to keep its roads “in proper repair” but not also “free from nuisance.” 1953 H.B. No. 1.

Relying on this very distinction, we explained: “While it is clear that the commissioners do not have a statutory duty pursuant to R.C. 305.12 to trim or remove tree limbs which overhang a county road, appellants focus attention on cases decided under R.C. 723.01 in an effort to place liability on the commissioners. These cases, however, are not applicable here. R.C. 723.01 contains the language ‘and free from nuisance,’ which has been interpreted by this court to include more than just conditions of the roadway.

The failure of the General Assembly to place this language in R.C. 305.12 clearly indicates its intention not to impose liability on the commissioners in matters unrelated to actual roadway conditions.” (Footnote omitted.) Id., 15 Ohio St.3d at 407, 15 OBR at 520, 473 N.E.2d at 1209. Thus, the theoretical construction underlying Std. Fire is formulated from an erroneous attempt to coordinate dissimilar statutes, which should yield dissimilar results.

Under this construction, a nuisance that creates a danger for ordinary traffic on a public road is not a nuisance under R.C. 723.01 unless it obstructs travel or exists in the roadway itself.

The essential supporting logic is that since a municipality’s duty under a statute requiring public roads to be kept “in repair” is limited to obstructions and roadway defects, the same limitation must prevail under a statute requiring municipalities to keep its roads “in repair, and free from nuisance.” Under this reasoning, the term “free from nuisance” is essentially removed from R.C. 723.01 as mere surplusage or, at best, changed to read “free from obstructions to travel thereon.” Thus, what began as a duty to keep public roads free from nuisance becomes a duty to remove obstructions from public roads, and a nuisance that creates a danger to ordinary traffic is said to fall beyond the scope of a statute requiring a municipality to keep its roads free from nuisance.

In Manufacturer’s, supra, 63 Ohio St.3d at 322, 587 N.E.2d at 823, we rejected the view that liability under R.C. 723.01 or 2744.02(B)(3) is limited to physical conditions in the roadway itself and does not extend to adjacent property.

After construing prior case law, we decided that the proper focus in determining a political subdivision’s duty under R.C. 2744.02(B)(3), or a municipality’s under R.C. 723.01, “should be on whether a condition exists within the political subdivision’s control that creates a danger for ordinary traffic on the regularly travelled portion of the road.” Applying this analysis to a cornfield growing within the highway right-of-way, we reasoned that “[a] visibility obstruction can be as hazardous to the highway’s safety as a malfunctioning traffic light, a pothole in the roadway, or a rut in shoulder. * * * The relevant focus is on the effect of the obstruction on the highway’s safety, not on the nature of the particular obstruction.” (Emphasis sic.) Id., 63 Ohio St.3d at 323, 587 N.E.2d at 823-824.

In Franks, supra, 69 Ohio St.3d at 348, 632 N.E.2d at 505, we applied the same analysis and found that “[a] sign which has lost its capacity to reflect is as much an impediment to the safe flow of traffic as a malfunctioning traffic light, overhanging branches or foliage obstructing a driver’s view.” Clearly, an unsound tree limb that threatens to fall onto a public road from adjacent property can be a nuisance that makes the usual and ordinary course of travel on the roadway unsafe.

Although not physically obstructing or impeding the flow or visibility of traffic, a tree limb threatening to fall upon a public road can be just as dangerous to the highway’s safety as one that obstructs a driver’s vision, obscures a stop sign, or hangs over the roadway low enough to strike traffic. Contrary to the holdings below, R.C. 2744.02(B)(3) contains no language that limits a political subdivision’s duty to the removal of obstructions from public roads. See fn. 1.

Accordingly, we hold that a political subdivision can be held liable under R.C. 2744.02(B)(3) for injuries that result when a tree limb falls upon a public road from adjacent land that is also within the political subdivision’s control. “This does not end the analysis however. In Vogel v. Wells (1991), 57 Ohio St.3d 91, 97, 566 N.E.2d 154, 160, a nuisance case decided in part under R.C. 723.01, we reiterated that the political subdivision must have had ‘either actual or constructive knowledge of the nuisance’ before liability can be imposed.

There is constructive knowledge if ‘such nuisance existed in such a manner that it could or should have been discovered, that it existed for a sufficient length of time to have been discovered, and that if it had been discovered it would have created a reasonable apprehension of a potential danger * * *.’ Beebe v. Toledo (1958), 168 Ohio St. 203, 207, 6 O.O.2d 1, 3, 151 N.E.2d 738, 741.” Franks, supra, 69 Ohio St.3d at 349, 632 N.E.2d at 505. Appellant contends that the city had both actual and constructive notice of the nuisance in this case. We disagree as to actual notice.

Although Arendec acknowledged that the general purpose of appellee’s inspection program was to locate and identify trees that could fall on a road and injure a motorist, he did not specifically choose to inspect the tree at issue out of any suspicion that it posed a potential danger to traffic on Lee Boulevard. Instead, he chose to inspect it because it was one of the larger trees in the area.

While Arendec observed some deadwood on the tree at the time of his inspection, he testified that this deadwood was on the side of the tree facing away from the roadway and that he observed no damage at the v-crotch where the tree eventually failed. Having marked the tree for priority pruning, he had no intention of pruning the limb that overhung the road. Construing this evidence most strongly in appellant’s favor, we find that reasonable minds could not conclude that appellee had actual knowledge prior to September 12, 1995, that the tree limb in question posed a danger to traffic on Lee Boulevard.

However, despite the lack of evidence to suggest that appellee had any reason to suspect that the tree endangered travel on southbound Lee Boulevard prior to Arendec’s inspection, Arendec did in fact inspect the tree. Regardless of how or why Arendec came to inspect this specific tree, the purpose of his inspection was, at least in part, to ascertain the condition of the tree and its potential to cause injury.

Gerlach testified that the crack that formed at the v-crotch would have been visible from the ground at the time of Arendec’s inspection, and that anyone with Arendec’s background would have been able to see it. In Gerlach’s opinion, Arendec’s inspection should have revealed that the tree presented a danger to traffic on Lee Boulevard.

If the jury believes Gerlach’s testimony, it could reasonably conclude that appellee could or should have discovered the condition of the limb six months prior to the accident, and that the discovery would have created a reasonable apprehension of a danger to traffic on Lee Boulevard. Thus, we find that a question of fact remains as to whether appellee had constructive notice of the nuisance. Appellee contends that even if questions of fact remain as to whether it breached its duty under R.C. 2744.02(B)(3), it is nevertheless immune from liability because R.C. 2744.01(C)(2)(

u) defines a “governmental function” to include “[t]he design, construction, reconstruction, renovation, repair, maintenance, and operation of any park.” Appellee makes the same contention with regard to R.C. 2744(C)(2)(p), which defines a “governmental function” to include “[t]he provision or nonprovision of inspection services of all types.” These contentions reflect a persistent misunderstanding that the designation “governmental function” is enough to confer immunity. For the reasons stated in Cater v.

Cleveland (1998), 83 Ohio St.3d 24, 697 N.E.2d 610, we reject these contentions and find that these functions, although defined as “governmental functions” in R.C. 2744.01(C)(2), are subject to the exception to immunity set forth in R.C. 2744.02(B)(3). In order to assuage any fear that municipalities and political subdivisions will now be required to inspect all the trees within their limits that stand alongside public roads, we find it necessary to stress the limits of our decision. Actual or constructive notice remains a prerequisite to liability under R.C. 2744.02(B)(3) or 723.01.

Nothing that we have said today requires a municipality or political subdivision to inspect any tree solely because of its proximity to a public road. The fact that a tree stands close to a public road, or that its limbs overhang the roadway, is not in itself sufficient for purposes of actual or constructive notice. Nor are municipalities or political subdivisions required to develop and maintain any additional inspection program, since we do not find fault with the inspection program used by appellee.

We have determined only that the evidence in this case shows that there is a genuine issue of fact as to whether appellee, upon inspection of the offending prunus serótina, could or should have discovered and appreciated the danger it posed to ordinary traffic on Lee Boulevard. Based on all of the foregoing, we find that

summary judgment was inappropriately granted. The decision of the court of appeals is reversed, and the cause is remanded to the trial court for further proceedings. Judgment reversed and cause remanded. Moyer, C.J., Douglas, F.E. Sweeney and Pfeifer, JJ., concur. Douglas, J., concurs separately. Cook and Lundberg Stratton, JJ., dissent. . The General Assembly attempted to amend R.C. 2744.02(B)(3) as part of Am.Sub.H.B. No. 350, 146 Ohio Laws,

Part II, 3867, 3987, effective January 27, 1997. The amendment was to change a political subdivision’s duty with respect to the care of public roads by deleting the language “open * * * and free from nuisance,” and replacing it with the provision that a political subdivision may be held liable for its “negligent failure to remove obstructions from public roads,” and retaining the duty to keep public roads in repair.

Normally, when the operative facts of a particular case predate the effective date of an amended statute, we would refer to the applicable statute in its preamended form as “former R.C.__” This designation will not be used in the present case, however, since we have recently found Am.Sub.H.B. No. 350 to be unconstitutional in its entirety. State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 715 N.E.2d 1062. The foregoing also applies to references made to R.C. 723.01 throughout this opinion. See 146 Ohio Laws,

Part II, 3870.