In the case of Estate of Cook v. Montville Twp., 2023-Ohio-3002, an appellate court affirmed the trial court’s denial of a motion for summary judgment filed by the Defendant-Township, finding that genuine issues of material fact remained as to whether the failure to maintain a tree on Township property which fell onto decedent’s vehicle was within the exception to immunity found under Ohio Revised Code 2744.02(B)(4). Under this exception, a political subdivision does not have the benefit of immunity for injury, death, or loss that was (1) caused by employee negligence; (2) on the grounds or buildings used in connection with the performance of a governmental function; and (3) due to a physical defect on or within those grounds or buildings.
The Township argued that the exception did not apply because the tree which fell, which was only partially located on its property, fell onto the decedent’s vehicle as it traveled on a roadway owned by the County, not the Township, and thus the injury did not occur on the “grounds or buildings in connection with the performance of a governmental function” as required by the exception. The Court rejected this argument, noting that after the tree fell onto the decedent’s vehicle on the County-owned roadway, her car came to a rest in the park owned by the Township and there was evidence that she died while trapped in her vehicle on Township property, thus satisfying the requirement that the location of the death or loss occurred on the grounds of the Township property.
The Court also reasoned that the allegedly defective tree, which was dead and infested with insects, could be a defect on or within the grounds or buildings of the Township because the Township maintained covered shelters on the park, which were logically connected to the performance of the operation and maintenance of the park given that they were available for public use, kept the public safe from falling railroad debris, provided shelter in storms, and were subject to maintenance and inspection by the Township. The Court did not believe, for purpose of summary judgment, that the fact that the tree was not readily accessible from the shelters altered the analysis regarding immunity.
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Authors: Matthew John Markling and the McGown & Markling Team.
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