[Cite as Walendzik v. West Branch State Park, 2011-Ohio-3541.]

                                      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




MICHAEL WALENDZIK

       Plaintiff

       v.

WEST BRANCH STATE PARK

       Defendant

        Case No. 2010-10009-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} On July 20, 2010, at approximately 10:00 a.m., a truck and boat owned by
plaintiff, Michael Walendzik, were damaged when they were struck by a falling tree limb.
At the time of the property damage incident, plaintiff's truck and boat were parked in a
parking space in front of plaintiff’s campsite at West Branch State Park, a facility owned
and operated by defendant, Department of Natural Resources (DNR). The tree which
caused plaintiff's property damage was growing on the state park land maintained by
DNR.
        {¶ 2} Plaintiff asserted that the tree limb was dead, and that it had broken off of
a tree located next to the parking space. The tree limb fell across the front of plaintiff's
boat and the back of the truck, damaging the forward area of the boat as well as the
tailgate and the rear quarter panel of the truck. Plaintiff insisted all the damage to his
personal property was proximately caused by negligence on the part of DNR personnel
in not eliminating a dangerous condition (dead tree limb) on park premises. Plaintiff filed
this complaint seeking to recover $795.00, the total cost to repair the damage listed.
The requisite $25.00 filing fee was paid.
        {¶ 3} Plaintiff did not submit any photographic evidence depicting the tree limb
which damaged his truck and boat.
      {¶ 4} Defendant denied plaintiff's property damage was caused by any negligent
act or omission on the part of DNR employees. Defendant asserted the tree was not
marked or scheduled for any trimming or removal by park maintenance and stated that
the tree remains viable. Defendant further denied having any notice, either actual or
constructive, that the limb presented any hazard or that the limb was about to fall.
Defendant submitted photographs depicting the tree in question and asserted that the
tree appears to be alive and healthy.
      {¶ 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,
15 OBR 179, 472 N.E. 2d 707. Defendant was charged with a duty to exercise ordinary
care for the safety and protection of plaintiff's property which included maintaining the
DNR premises in a reasonably safe condition and warning of known concealed defects
or correcting such defects.
      {¶ 6} "The trier of fact is precluded from making an inference of defendant's
constructive notice unless evidence is presented in respect to the time the [defect]
appeared." Bull v. Ohio Dept. of Transp., 123 Ohio Misc.2d 77, 2003-Ohio-2611, ¶12,
citing Spires v. Ohio Hwy. Dept. (1988), 61 Ohio Misc.2d 262, 577 N.E.2d 458. After
review of the photographs, the trier of fact is not convinced the tree limb that fell upon
plaintiff's truck and boat was dead or dying. The evidence presented is inconclusive to
prove the tree limb in its state on July 20, 2010 presented a particular hazardous
condition. The file lacks sufficient evidence to show actual or constructive notice on the
part of defendant and the trier of fact is precluded from making an inference of
defendant's constructive notice. Shupe v. Ohio DOT, 127 Ohio Misc. 2d 8, 2004-Ohio-
644 ¶2.


                               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




MICHAEL WALENDZIK

        Plaintiff

        v.

WEST BRANCH STATE PARK

        Defendant

         Case No. 2010-10009-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:

Michael Waldendzik                                Charles G. Rowan
4764 Burleigh Road                                Department of Natural Resources
Garfield Hts., Ohio 44125                         2045 Morse Road, D-3
                                                  Columbus, Ohio 43229-6693
SJM/laa
3/21
Filed 4/5/11
Sent to S.C. reporter 7/8/11
