Case of the Day – Thursday, September 19, 2019

“THE BEST GAME OF MY LIFE”

In Caddyshack – arguably the greatest movie ever made (besides Gone With the Wind and Attack of the Killer Tomatoes) – there is a memorable scene in which Assistant Greenskeeper Carl Spangler (played by Bill Murray) – impressed into caddying for The Bishop (played by Henry Wilcoxon) – convinces him into continuing a solo 18-hole game into the teeth of a worsening gale.

Life sort of imitated art one September day 11 years ago. A 12-year old boy named Ryan Korengel and his friends kept playing in worsening conditions. Of course they did – they were 12-year old boys… would you expect anything less? A tree branch fell on Ryan, injuring him severely.

Ryan’s parents promptly sued everyone who had touched a golf club that day, including the Hamilton County, Ohio (Cincinnati) Park District. Of course they did – they were 21st century American parents… would you expect anything less?

The interesting note is that, after last week’s decision on summary judgment, this case is finally set for trial some 11 years after the event being litigated. Young Ryan can now legally swill a beer while he plays the front nine. He’s still playing golf (now in college), although the tree injury left him partially disabled. His story has been told on the Golf Channel, and it’s sort of inspiring.

But part of the tragedy for Ryan and the defendants and everyone involved (except the lawyers, of course) is that the case is in its second decade. The only thing longer and more tedious than watching 18 holes of golf is watching the American justice system.

Korengel v. Little Miami Golf Ctr., 2019 Ohio App. LEXIS 3787 (Ct.App. Hamilton County, September 13, 2019). Twelve-year old Ryan Korengel and three other boys paid to play golf on the nine-hole, par-three golf course at the Golf Center, which was owned by the Hamilton County Park District. The Golf Center advertises to golfers that it will “attempt to notify them of potentially severe weather conditions” by sounding a siren, communicating the recommendation to seek shelter or vacate the course.

When the boys teed off at about 1 p.m. one September day, the weather was warm, sunny, and breezy. As they progressed from hole to hole, the wind increased. The golf course play coordinator told the boys to pick up their pace near the fourth green, but he never warned them about the approaching storm.

As the boys teed off on the sixth hole, the winds became stronger. On the seventh hole, the boys began to hear tree limbs cracking and saw tree limbs breaking and falling from trees in the woods adjacent to the course. By the time the boys teed off on the eighth hole, they could see trees swaying and heard more cracking of limbs. At around 2:30 p.m., Ryan was preparing to putt on the eighth green when tree limbs from a nearby silver maple tree fell towards him. One struck him in the head, resulting in serious and permanent injury.

Before Ryan’s injury, no one from the Golf Center activated the clubhouse siren. Everyone agreed the wind caused the branch failure. In fact, the winds that day caused a lot damage in the Greater Cincinnati area, including at the Golf Center.

The Korengels sued the Park District (and several other defendants, not relevant here) alleging negligence and recklessness. The Park District moved for judgment on the grounds of political-subdivision immunity. The trial court denied the motion in its entirety. Appellants then appealed the denial of the motion to this court.

Held: Summary judgment before trial should not be granted to the Park District. The District established entitlement to the general grant of immunity under R.C. 2744.02(A)(1), where issues of material fact exist as to whether the injury, which occurred on the grounds of a building used in connection with a government function, was caused at least in part by the negligence of the park district employees in failing to maintain the tree limb and/or failing to manually activate a storm siren, and was due to a physical defect—an unmaintained tree limb—on those grounds, as required for the physical-defect exception to immunity set forth in R.C. 2744.02(B)(4).

Likewise, the Park District was entitled to summary judgment due to the immunity defense under R.C. 2744.03(A)(5) for a claim of reckless supervision in the failure to warn a 12-year-old golfer of impending weather, because the record contains no facts demonstrating that other potential golfers were turned away due to the weather.

The District argued that the open-and-obvious doctrine and the “act of God” defense barred the claims. In the alternative, they argue that, if there is evidence upon which reasonable minds could differ with respect to whether the physical-defect exception applied, the Park District’s immunity is reinstated under R.C. 2744.03(A)(3) or (5). But whether the danger from a defective tree is open and obvious to a 12-year old is not governed by the same standard that governs the determination of whether the District’s landscapers and arborists had constructive notice of the defect.

To establish the physical-defect exception, a plaintiff must show that the injury, death, or loss (1) resulted from employee negligence, (2) occurred within or on the grounds of buildings used in connection with a governmental function, and (3) resulted from a physical defect within or on the grounds of buildings used in connection with a governmental function.

“Physical defect” is not defined in Ohio law, but the court has previously defined the term as “‘a perceivable imperfection that diminishes the worth or utility of the object at issue. Here, the Korengels allege in the complaint that the condition of the tree limb and the storm siren constituted physical defects. Thus, when moving for summary judgment, the District presented evidence that the storm siren and tree limb were not defective, and therefore, summary judgment was warranted.

With respect to the storm siren, the District submitted evidence showing that the siren as functioning as intended on the day of the storm. It could be manually activated, but no one attempted to turn it on before Ryan’s injury. There was no evidence to support the Korengels’ allegation that the condition of the storm siren was a physical defect that day.

Admittedly, the Court held, no tree can ever be absolutely safe and immune from branch failure. The mere fact that a tree limb fell does not mean the limb had “a perceivable imperfection that diminished the worth or utility of the limb, a requirement for a physical-defect finding.” The United States Forest Service describes “a ‘hazard tree’ [a]s a tree that has a structural defect that makes it likely to fail in whole or in part.” Consistent with this description, the Court ruled, “we conclude that, where a tree has a perceivable structural defect that makes the tree likely to fail, a falling branch from the tree may be a physical defect for the physical-defect exception to immunity set forth in R.C. 2744.02(B)(4).”

The District submitted a report from the staff arborist, Alan Bunker, who, ten days after the windstorm, examined the tree in question, as well as photographs of the fallen limbs, including the one that had struck Ryan, taken right after the storm. Arborist Alan was not able to inspect the fallen limbs because the Golf Center had removed them along with other storm debris to clear the eighth green for play two days after the incident. Based on what he could review, however, Alan testified that the tree exhibited good health and structure and the broken branches and remaining stubs, which were large in diameter, did not display any decayed wood or malformed branch attachments. Alan believed that the high winds on September 14th caused the broken branches, not any condition of the tree. Other District employees testified that the tree had been maintained, subjected to regular inspections, and appeared healthy before the storm.

The Korengels presented a report from their expert arborist Mark Duntemann. Mark concludedthat the tree from which the limb fell had failed because of conditions, clear to a visual inspection, that showed the tree was diseased and a safety hazard. Mark cited, an “excessive” lean, an improper crown – which was “lion-tailed” and comprised of unhealthy sucker growth – and discolored leaves. In his opinion, the lean of the subject tree guaranteed a higher likelihood of a branch failure falling into the high use area of the green apron where Ryan was located at the time of the injury. Although Mark admitted that wind contributed to the failure, he contended that the tree’s weakened condition also directly was material to the failure, noting that other trees at the Golf Center did not fail that day.

The Korengels pointed out that the District’s evidence contained no document “specifically” indicating that any inspection or maintenance work was performed on the subject tree, and no one from with specialized training said that any such act had been performed.

Ultimately, at the summary judgment stage, the Court said, it must construe the evidence in the light most favorable to the nonmoving party—the Korengels—and may not make credibility determinations. Where, as here, several material facts are in dispute and the expert witnesses for the parties have presented conflicting opinions, the issue of whether the tree limb constituted a physical defect cannot be resolved summary judgment.

The District argued the Korengels could not show the requisite causation between any alleged defect in the tree limb and Ryan’s injury because of the high winds at the time of the accident. The Court rejected this argument, citing concurrent causation. The relevant portion of the statutory physical-defect exception to liability requires only that the injury “is due to physical defects,” the Court held. This requirement could be met if a trier of fact were to conclude that a physical defect in the tree limb was a concurrent, proximate cause of Ryan’s injuries. To what extent the weaknesses found by the Korengels’ tree expert contributed to Ryan’s injuries is unclear, but the expert’s testimony “creates factual disputes on whether the tree limb was a physical defect and whether it materially contributed to Ryan’s injuries.”

The Korengels must also show the injury was caused by Park District negligence. To establish negligence, the Korengels must show a duty owed, a breach of that duty, and an injury proximately caused by that breach. There is no doubt the Park District employees owed Ryan the duty of care owed a business invitee. An owner of premises owes business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition so its customers are not unnecessarily and unreasonably exposed to danger. This includes an affirmative duty to protect invitees against known dangers and those with which reasonable care might be discovered. That duty was heightened because Ryan was only 12 years old. Children have a special status in tort law and that duties of care owed to children are different from duties owed to adults. The Park District was required to exercise care commensurate with the foreseeable danger so as to avoid injury to 12-year-old Ryan.

However, an owner or occupier of land not an insurer of safety. There is no liability for harm resulting from conditions from which no unreasonable risk was to be anticipated or from those that the owner did not know about nor could have discovered with reasonable care. Id. The Korengels’ maintain that the Park District employees failed to exercise due care in the maintenance of the tree, permitting a hazardous tree to lean directly over the golf course where it was likely to fall on someone and cause serious injury or death. Second, the employees failed to exercise due care in the use of the siren, leaving Ryan without warning of the danger from the approaching storm and the negligently maintained tree on the eighth green.

Generally, where premise-liability negligence revolves around the existence of a hazard or defect, a defendant will not be liable for negligence unless its agents or officers actively created the faulty condition, or that it was otherwise caused and the defendant had actual or constructive notice of its existence. Here, the Court said, the record lacks any evidence of a breach of the duty of care related to maintenance of the tree. The Park District properly maintained the tree, as demonstrated by the deposition testimony of several employees and Alan’s expert report that the tree was in good health, growing normally, and had no defects that might have caused the limb that struck Ryan to break on September 14. Furthermore, the Park District never received any prior complaints about the tree, which had been routinely inspected. Thus, the District maintains the evidence in support of summary judgment shows that no Park District employee breached a duty of reasonable care with respect to the tree.

The Korengels argued that there are numerous questions of material fact raised by both fact and expert witnesses rendering summary judgment inappropriate on this issue, pointing to the same evidence creating a genuine issue of material fact as to whether the tree limb was a physical defect. This includes evidence undermining or contradicting the District’s evidence that the tree had been maintained and inspected by a qualified arborist, as well as Mark’s opinion that the Park District’s employees’ failure to maintain the tree fell below the standard of care owed a golf patron, when the condition of the tree was so patently bad, and for such a long time, that employees should have discovered it and removed the tree.

The Court concluded the evidence creates a genuine issue regarding whether the Park District employees fell below the required standard of care in this case. Ultimately, the credibility of and the weight to be given this conflicting evidence, the Court held, is for trial.

In its final Hail Mary, the District argued that if the tree was a hazard that should have been discovered before the storm, the hazardous condition was open and obvious, Ryan should have protected himself against it, and they owed no duty to Ryan with regard to the tree as a matter of law. In Ohio, if “a danger is open and obvious, a property owner owes no duty of care to individuals lawfully on the premises.” The issue of whether a risk was open and obvious may be decided by the court as a matter of law only when one conclusion can be drawn from the established facts.

The Korengels argued that the open-and-obvious doctrine would not apply because Ryan was injured by a flying object, not a static condition. The Court rejected this argument: “The Korengels’ position is essentially that the tree was a hazard in its static condition because it was foreseeable that a limb would break and land on the green on the eighth hole of the golf course and strike a player at any time. The ensuing wind that impacted the tree at the time of Ryan’s injury was not caused by any negligence of the Park District’s employees, and the facts show that the increasingly windy conditions and the resulting effect on the trees in the area could be observed by the golfers on the course long before the limb broke and injured Ryan. Because of these distinguishing facts, we reject the Korengels’ argument that the open-and-obvious doctrine cannot not apply in this case because Ryan was struck by a flying object.”

In this case, the facts are in dispute as to whether the Park District employees were negligent with respect to the maintenance of a tree, allegedly obviously defective in its static condition because it was likely to fail, resulting in a branch striking a golfer. Further, the instrumentality that caused movement in the limb of the tree was unquestionably not a human—it was the wind. Thus, the Korengels’ position is wrong.

Still, the Court ruled, “we cannot agree that the facts supporting a determination that the Park District had constructive notice of a defective tree on a golf course would also require a finding as a matter of law that the Park District owed no duty to protect Ryan from the allegedly hazardous tree. The legal standard governing when a golf course has constructive notice of a defective tree on the course is not the same as the standard governing what is an open and obvious danger to a lay person 12 years old, who lacks the same discernment and foresight in discovering defects and dangers as older, and more experienced golf course landscapers and arborists.”

As a result, the Court ordered that the case go to trial.

– Tom Root

TNLBGray140407

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