April 25, 2012
Falling Limbs

by Justice Paul E. Pfeifer

One day, in June of 2004, Lisa G. Huff was taking a walk along Kings Grove Road in Hartford Township, located in Trumbull County. She alleged that during a heavy thunderstorm, a big sugar maple tree had split in two about 25 feet up, and a large limb fell from the tree as she walked by and struck her. The falling limb caused serious and permanent injuries.

The sugar maple stood about 30 feet from the center of the road, about 20 feet from utility lines, and it was maintained by Ohio Edison Company. Ohio Edison maintained an easement near the tree, but the maple was outside that easement. The utility company had hired Asplundh Tree Expert Company to inspect trees and vegetation along its power lines in this area and to remedy any spots where the trees might affect the lines.

Ordinarily, Ohio Edison deferred to Asplundh on decisions regarding tree maintenance. Ohio Edison performed overview inspections of the electrical circuit only to determine whether any vegetation was growing into the wires.  It had been three years since Asplundh had been in the area where Lisa was injured.

After the accident, Lisa, her husband, and children filed suit against Ohio Edison and Asplundh. The Huffs alleged that Ohio Edison and Asplundh were liable for Lisa’s injuries based upon their failure to inspect, maintain, and remove the tree or to warn the landowner and the public of the danger raised by the tree.

Ohio Edison argued that it had no prior knowledge that the tree was dangerous, that it owed and assumed no duty to Lisa regarding the tree, and that it was not negligent and did not proximately cause or contribute to Lisa’s injuries. Asplundh made much the same argument.

The Huffs responded that Ohio Edison had contracted with Asplundh to inspect and maintain trees within the easement and that Asplundh failed to recognize that the tree in question was diseased and a hazard, and that it failed to remove the tree when it was on site in May 2001.

The Huffs also argued that Ohio Edison was responsible for maintaining trees within and around its easement, that it was aware of the tree based upon its location within an inspection zone, and that Ohio Edison had a duty to remove the diseased tree.

The trial court concluded that while the tree leaned about ten degrees away from the power lines, “there is absolutely no credible evidence about when the tree began to lean or if it was leaning because of the way it grew.”  The court also noted that one of the Huffs’ experts admitted that he couldn’t testify to a reasonable degree of probability as to when the tree became a hazard.

Finding no evidence that Ohio Edison or Asplundh actually inspected the tree or trimmed any branches, the court concluded that the Huffs failed to show that either company ever had actual or constructive notice of any decay of the tree. The court found that due to the tree’s location leaning away from the lines, neither company owed a duty to the Huffs and granted summary judgment to Ohio Edison and Asplundh.

The court of appeals came to a different conclusion. After examining the contract between Ohio Edison and Asplundh, the court of appeals decided that there was a question of whether the Huffs had enforceable rights under the contract as an intended third-party beneficiary.

In reaching this conclusion, the court stated that a portion of the contract – providing that Asplundh “shall plan and conduct the work to adequately safeguard all persons and property from injury” – could be read in two ways. The narrow reading would require Asplundh to protect all persons from injury while the company works on the site. A broader reading would require Asplundh to protect all persons from injury at all times, regardless of when the work is done.

The court of appeals concluded that the contract was ambiguous and reversed the trial court’s grant of summary judgment to the two companies. After that, the case came before us – the Ohio Supreme Court – for a final review.

The facts in this case don’t show that the agreement between the two companies was intended to benefit any third party. The court of appeals pointed to one specific portion of the contract – that Asplundh “shall plan and conduct the work to adequately safeguard all persons and property from injury” – and concluded that it raised a question whether the Huffs had an enforceable right under the contract.

But when the statement is read in context, it’s clear that neither Ohio Edison nor Asplundh intended to make the Huffs third-party beneficiaries under the contract. The contract wasn’t entered into for the general benefit of the public walking on public roads. It was designed to support the electrical service offered by Ohio Edison.

The contract applies to work, consisting of “tree trimming, tree removal, clearance of rights-of-way using either manual or chemical methods, and disposal of trees and brush,” completed by Asplundh on behalf of Ohio Edison.

Justice Judith Ann Lanzinger, who wrote the majority opinion for this case, stated that the purpose of the contract “is to ensure that Ohio Edison’s equipment and lines are kept free of interference from trees and vegetation. The remainder of the contract sets forth how this work is to be carried out, such as the standards by which Asplundh is to perform its work, the limits on liability for the performance of the work and the necessary qualifications for the Asplundh employees who were to perform the work.

“The contract contains no language establishing an ongoing duty to the general public on behalf of either Ohio Edison or Asplundh. Contrary to the assertion of the court of appeals, the agreement cannot be plausibly read to require Ohio Edison or Asplundh to safeguard all persons from injury at all times, regardless of when the work is completed.”

Therefore – by a seven-to-zero vote – we reversed the judgment of the court of appeals.

EDITOR'S NOTE: The case referred to is Huff v. FirstEnergy Corp., 130 Ohio St.3d 196, 2011-Ohio-5083. Case No. 2010-0857. Decided October 5, 2011. Majority opinion written by Justice Judith Ann Lanzinger.