[Cite as Wade v. Summit Behavioral Healthcare, 2011-Ohio-3778.]




                                     Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us




KEVIN P. WADE

       Plaintiff

       v.

SUMMIT BEHAVIORAL HEALTHCARE

       Defendant


        Case No. 2010-12460-AD


Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


                                   MEMORANDUM DECISION
        {¶ 1} On December 7, 2010, plaintiff, Kevin P. Wade, filed this claim alleging that
on October 25, 2010, at approximately 2:00 p.m., a tree fell onto his property pulling
down power lines which snapped, shattering plaintiff’s glass door and damaging
plaintiff’s gutter. The tree which caused plaintiff's property damage was growing on
property owned by defendant, Summit Behavioral Healthcare.
        {¶ 2} Plaintiff filed this complaint seeking to recover $1,000.00, his insurance
coverage deductible for repair costs. The filing fee was paid.
        {¶ 3} Plaintiff submitted photographic evidence depicting the tree which damaged
his home along with photographs of the shattered glass door and the downed power
lines. After review of the photographs, the trier of fact is not convinced the tree that fell
upon plaintiff's property was dead or dying. The evidence presented is inconclusive to
prove the tree limb in its state on October 25, 2010, presented a particular hazardous
condition.
      {¶ 4} Defendant denied plaintiff's property damage was caused by any negligent
act or omission on the part of its employees. Defendant asserted plaintiff's property was
damaged as a result of a wind and hail storm as referenced in plaintiff’s insurance claim
forms. Defendant argued plaintiff's damage was attributable solely to an "Act of God"
with no negligence involved. Defendant denied having any knowledge the tree
presented a danger before the October 25, 2010 storm.
      {¶ 5} In order for plaintiff to prevail upon his claim of negligence, he must prove
by a preponderance of the evidence that defendant owed him a duty, that defendant’s
acts or omissions resulted in a breach of that duty, and that the breach proximately
caused his injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 81, 2003-
Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77.
      {¶ 6} In addition, “to recover upon a theory of negligence arising out of a tree's
falling, the evidence must establish that the defendant had actual or constructive notice
of a patent danger that the tree would fall. Heckert v. Patrick (1984), 15 Ohio St.3d 402,
405, 15 OBR 516, 518, 473 N.E.2d 1204, 1207-1208; see, also, Brown v. Milwaukee
Terminal Ry. (1929), 199 Wis. 575, 589-590, 224 N.W. 748, 227 N.W. 385, 386.”
Nationwide Ins. Co. v. Jordan (1994), 64 Ohio Misc. 2d 30, 32, 639 N.E.2d 536.
      {¶ 7} Defendant was charged with a duty to exercise ordinary care for the safety
and protection of plaintiff's property which included maintaining its premises in a
reasonably safe condition and warning of known concealed defects or correcting such
defects.     In the instant claim, defendant has insisted no duty owed to plaintiff was
breached and plaintiff's injury was not caused by any defective condition. Defendant has
asserted plaintiff's property damage was solely caused by an "Act of God."
      {¶ 8} It is well-settled under Ohio law that if an "Act of God" is so unusual and
overwhelming as to do damage by its own power, without reference to and
independently of any negligence by defendant, there is no liability. City of Piqua v.
Morris (1918), 98 Ohio St. 42, 49, 120 N.E. 300. The term "Act of God," in its legal
significance, means irresistible disaster, the result of natural causes, such as
earthquakes, violent storms, lightning and unprecedented floods. Piqua at 47-48.
      {¶ 9} However, if proper care and diligence on the part of defendant would have
avoided the act, it is not excusable as an "Act of God." Bier v. City of New Philadelphia
(1984), 11 Ohio St. 3d 134, 11 OBR 430, 464 N.E.2d 147.
      {¶ 10} In City of Piqua, the court stated in paragraph one of the syllabus:
      {¶ 11} "The proximate cause of a result is that which in a natural and continued
sequence contributes to produce the result, without which it would not have happened.
The fact that some other cause concurred with the negligence of a defendant in
producing an injury, does not relieve him from liability unless it is shown such other
cause would have produced the injury independently of defendant's negligence."
      {¶ 12} Plaintiff has failed to produce sufficient evidence to establish defendant
acted in a negligent manner or that defendant committed a breach of any duty owed to
plaintiff. Therefore, the court concludes no liability shall attach to defendant for damage
done by an "Act of God." Wright v. Ohio Dep't of Natural Res., Ct. of Cl. No. 2003-
11755-AD, 2004-Ohio-3581.




                               Court of Claims of Ohio
                                                                        The Ohio Judicial Center
                                                                65 South Front Street, Third Floor
                                                                           Columbus, OH 43215
                                                                 614.387.9800 or 1.800.824.8263
                                                                            www.cco.state.oh.us




KEVIN P. WADE

      Plaintiff

      v.

SUMMIT BEHAVIORAL HEALTHCARE

      Defendant

      Case No. 2010-12460-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION


      Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.



                                                ________________________________
                                                DANIEL R. BORCHERT
                                                Deputy Clerk

Entry cc:

Kevin P. Wade                                   Marc Baumgarten, Chief
1402 Beaverton Avenue                           Office of Legal Services
Cincinnati, Ohio 45237                          Ohio Department of Mental Health
                                                30 East Broad Street, 8th Floor
                                                Columbus, Ohio 43266-0414
SJM/laa
3/24
Filed 4/13/11
Sent to S.C. reporter 7/29/11
