[Cite as Scott v. Great Seal State Park, 2011-Ohio-7058.]



                                       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




BRANDI SCOTT

        Plaintiff

        v.

GREAT SEAL STATE PARK

        Defendant

        Case No. 2011-09331-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     On July 11, 2011, plaintiff, Brandi Scott, filed this claim alleging that on
May 23, 2011, at approximately 9:30 p.m., a tree fell onto her property damaging a
fence and a strip of siding at the back of her house. The tree which caused plaintiff's
property damage was growing on property owned by defendant, Great Seal State Park.
        {¶2}     Plaintiff filed this complaint seeking to recover $757.00, for repair costs.
The filing fee was paid.
        {¶3}     Plaintiff submitted a copy of an incident report that states, “a dangerous
thunderstorm with high winds went through Great Seal State Park causing tree damage
through out the park. Some of the trees fell onto private property causing damage to
residents properties namely chain link fence.”
        {¶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 rain storm as referenced in plaintiff’s complaint.
Defendant argued plaintiff's damage was attributable solely to an "Act of God" with no
negligence involved. Defendant submitted photographs depicting the tree in question
evidencing that the tree appears to have been healthy. Defendant denied having any
knowledge the tree presented a danger before the May 23, 2011 storm.
      {¶5}    In order for plaintiff to prevail upon her claim of negligence, she must
prove by a preponderance of the evidence that defendant owed her a duty, that
defendant’s acts or omissions resulted in a breach of that duty, and that the breach
proximately caused her 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 207.
      {¶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} After review of the photographs, the trier of fact is not convinced the tree
that fell upon plaintiff's property was dead or dying. In addition, 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




BRANDI SCOTT

        Plaintiff

        v.

GREAT SEAL STATE PARK

        Defendant

        Case No. 2011-09331-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:

Brandi Scott                                     Charles G. Rowan
116 Reo Drive                                    Deputy Chief Counsel
Chillicothe, Ohio 45601                          Department of Natural Resources
                                                 2045 Morse Road, D-3
                                                 Columbus, Ohio 43229-6693
SJM/laa
10/20
Filed 11/2/11
Sent to S.C. reporter 3/30/12
