Tree (or House) falls on Motorist (or Witch); Act of God or Negligence?

In the Land of Oz, the issue was clear. “The house began to pitch. The kitchen took a slitch. It landed on the Wicked Witch in the middle of a ditch.” No negligence or other fault on the part of Dorothy.  In the case of falling trees in the land of Ohio, the issue is not so clear. The relatively recent case of Kish v. Scrocco, 2013-Ohio-899 (7th Dist. Ct. of App., Mahoning Cty.), however sheds a little light on the subject.

As the court in Kish recognized, falling tree cases are often “sad and tragic”. We agree and our sympathies go out to the Kish family.

The facts of the case are relatively simple. On April 16, 2007, Lawrence Kish was driving on Shields Road in Mahoning County when a tree on the Scroccos’ property fell onto Kish’s vehicle and killed him. A bad storm blew the tree over, but the tree was later found to have been significantly diseased and partially hollowed-out.  The Kish Estate filed a wrongful death claim, claiming negligence on the part of the Scroccos for failure to cut down the tree when it became diseased. The trial court granted (summary) judgment for the Scroccos. The 7th District Court of Appeals affirmed the trial court’s decision.

In analyzing the case, the court of appeals first summarized the common law requirements to establish negligence. To sustain a claim of negligence, Kish would need to show: a duty owed by the defendants to the deceased, a breach of that duty, injury or damages, and the existence of proximate cause between the breach and the injury or damages. A full analysis of all of the factors was not necessary, however, as the court found there was no duty owed by the defendants to the deceased.

Using prior case law as precedent, the court reasoned that the Scroccos would have a duty if they had actual or constructive knowledge of the diseased condition of the tree that fell and killed Kish. However, if there is no knowledge of the tree’s condition, either actual or constructive, then the landowner would not be liable.
 The Kish Estate claimed the Scroccos had constructive knowledge (that they should have known) of the diseased condition because an examination of the tree after its fall showed loose and missing bark, no leaves, and the lack of structural integrity to the inside of the tree. Mrs. Scrocco had testified that she was a frequent visitor to her property, but the tree did not exhibit any signs of disease or decay until after it fell. She further
stated that the tree did not have any leaves on it before it fell because it was too
early in the year and that other neighborhood trees did not have any leaves at
that time. Experts at trial bolstered the Scrocco’s claims. While reports did show a lack of structural integrity inside the tree, i.e. it was hollow; the experts could not confirm that such evidence was visible from the outside of the tree before it fell.

The appellate court contrasted the facts of the Kish case with that of Levive v. Brown, an 8th District Court of Appeals case. In Levine, the tree that fell was riddled with termite holes, with no live branches, bark, or green leaves. Additionally, evidence presented in that case demonstrated that the tree that caused damage (to the Levine’s property) had been dead for at least a year, that it was easily visible, and that the Browns (defendants) had a history of refusing to remove trees and trim branches on their property that Levine felt may be a danger to his property.

The Scroccos also argued that the falling of the tree was an “Act of God”, and accordingly, they should not be liable for same. The court recognized the “Act of God Defense” and cited previous authority holding that if an Act of God is “so unusual and overwhelming as to do damage by its own power, without reference to and independent of any negligence by defendant, there is no liability”.  An Act of God has been defined by Ohio courts as: “any irresistible disaster, the result of natural causes, such as earthquakes, violent storms, lightening and unprecedented floods. It is such a disaster arising from such causes, and which could not have been reasonably anticipated, guarded against or resisted. It must be due directly and exclusively to such a natural cause without human intervention”.

The court in Kish, noted, however that it did not need to apply the “Act of God defense” in its case, because the court had already concluded that there was no negligence because there was no duty (because there was no actual or constructive knowledge of the tree’s diseased condition).

The moral of this story is don’t wait for your municipality, the electric company or a court action to examine and remove dead or diseased trees on your property. If you know or should know of a problem, the cost to remove same, sooner, will always be cheaper than the potentially costly and sometimes deadly consequences, later.

If the evidence showed Dorothy’s house was more susceptible to “twitch” because she used substandard construction materials, there would have been a completely different ending.

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