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A Tree May Constitute a Physical Defect That May Uproot Statutory Immunity

In the case of Korengel v. Little Miami Golf Ctr., 2019-Ohio-3681, an Ohio appellate court held that a tree may constitute a physical defect sufficient to remove statutory immunity from a political subdivision.

In this case, a 12-year old boy was injured by a tree branch that fell during a windstorm while the boy was playing golf at a county park. The boy’s family brought legal action against the county park district arguing that the park’s employees were negligent for failing to properly maintain the trees around the golf course. In response, the county park district sought to dismiss the claims arguing that the county park district was entitled to statutory immunity under R.C. Chapter 2744. The boy’s family countered by arguing that statutory immunity should not apply as the tree was a physical defect and was negligently maintained – which is an exception to statutory immunity under R.C. 2744.02(B)(4).

The Ohio appellate court agreed with the boy’s family and held that an unhealthy or poorly maintained tree could be a “physical defect” under R.C. 2744.02(B)(4) sufficient to remove statutory immunity. The Ohio appellate court further held that a “force of God” – such as the heavy windstorm in this case – could not overrule the physical defect argument so long as the physical defect of a tree was part of the reason for the injury.

Please note that the Ohio appellate court did not determine if the tree in this case was a physical defect – the Ohio appellate court only determined that it could be.  Please check our blog regularly for updates to this case.

To read this case, click here.

Authors: Matthew John Markling and the McGown & Markling Team.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is always changing like the Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

 

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