Tree (or house) falls on a motorist (or witch); Act of God or negligence?

The following is republished, with permission, from The Ohio Real Estate Law Blog. Kohrman Jackson & Krantz PLL is a Cleveland-based law firm representing individuals and companies throughout Northeast Ohio and the United States.

By Stephen D. Richman, Senior Counsel, Kohrman Jackson & Krantz PLL

In the Land of Oz, the issue was clear. “The house began to pitch. The kitchen took a slitch. It landed on the Wicked Witch in the middle of a ditch.” No negligence or other fault on the part of Dorothy. In the case of falling trees in the land of Ohio, the issue is not so clear. The relatively recent case of Kish v. Scrocco, 2013-Ohio-899 (7th Dist. Ct. of App., Mahoning Cty.), however sheds a little light on the subject.

As the court in Kish recognized, falling tree cases are often “sad and tragic.” We agree and our sympathies go out to the Kish family.

The facts of the case are relatively simple. On April 16, 2007, Lawrence Kish was driving on Shields Road in Mahoning County when a tree on the Scroccos’ property fell onto Kish’s vehicle and killed him. A bad storm blew the tree over, but the tree was later found to have been significantly diseased and partially hollowed-out.  The Kish Estate filed a wrongful death claim, claiming negligence on the part of the Scroccos for failure to cut down the tree when it became diseased. The trial court granted (summary) judgment for the Scroccos. The 7th District Court of Appeals affirmed the trial court’s decision.

In analyzing the case, the court of appeals first summarized the common law requirements to establish negligence. To sustain a claim of negligence, Kish would need to show: a duty owed by the defendants to the deceased, a breach of that duty, injury or damages, and the existence of proximate cause between the breach and the injury or damages. A full analysis of all of the factors was not necessary, however, as the court found there was no duty owed by the defendants to the deceased.

Using prior case law as precedent, the court reasoned that the Scroccos would have a duty if they had actual or constructive knowledge of the diseased condition of the tree that fell and killed Kish. However, if there is no knowledge of the tree’s condition, either actual or constructive, then the landowner would not be liable.

The Kish Estate claimed the Scroccos had constructive knowledge (that they should have known) of the diseased condition because an examination of the tree after its fall showed loose and missing bark, no leaves, and the lack of structural integrity to the inside of the tree. Mrs. Scrocco had testified that she was a frequent visitor to her property, but the tree did not exhibit any signs of disease or decay until after it fell. She further stated that the tree did not have any leaves on it before it fell because it was too early in the year and that other neighborhood trees did not have any leaves at that time. Experts at trial bolstered the Scrocco’s claims. While reports did show a lack of structural integrity inside the tree, i.e. it was hollow; the experts could not confirm that such evidence was visible from the outside of the tree before it fell.

The appellate court contrasted the facts of the Kish case with that of Levive v. Brown, an 8th District Court of Appeals case. In Levine, the tree that fell was riddled with termite holes, with no live branches, bark, or green leaves. Additionally, evidence presented in that case demonstrated that the tree that caused damage (to the Levine’s property) had been dead for at least a year, that it was easily visible, and that the Browns (defendants) had a history of refusing to remove trees and trim branches on their property that Levine felt may be a danger to his property.

The Scroccos also argued that the falling of the tree was an “Act of God,” and accordingly, they should not be liable for same. The court recognized the “Act of God Defense” and cited previous authority holding that if an Act of God is “so unusual and overwhelming as to do damage by its own power, without reference to and independent of any negligence by defendant, there is no liability.” An Act of God has been defined by Ohio courts as: “any irresistible disaster, the result of natural causes, such as earthquakes, violent storms, lightening and unprecedented floods. It is such a disaster arising from such causes, and which could not have been reasonably anticipated, guarded against or resisted. It must be due directly and exclusively to such a natural cause without human intervention.”

The court in Kish, noted, however that it did not need to apply the “Act of God defense” in its case, because the court had already concluded that there was no negligence because there was no duty (because there was no actual or constructive knowledge of the tree’s diseased condition).

The moral of this story is don’t wait for your municipality, the electric company or a court action to examine and remove dead or diseased trees on your property. If you know or should know of a problem, the cost to remove same, sooner, will always be cheaper than the potentially costly and sometimes deadly consequences, later.

If the evidence showed Dorothy’s house was more susceptible to “twitch” because she used substandard construction materials, there would have been a completely different ending.

Tags: legal

Ohio health officials to hold final hearing on new septic system rules; likely Jan. 1, 2015 effective date

By Scott Williams, OAR Director of Government Affairs

The Ohio Department of Health has announced that it will conduct a final public hearing on new, comprehensive septic treatment system rules on Sept. 3, 2 p.m., in Columbus.

The new rules, the first update in standards since 1977, will have an effective date of Jan. 1, 2015.

State health officials have indicated that the new rules will not force homeowners to replace working systems, but rather are intended to apply to new construction and for failed septic systems. A 2012 survey found that 31 percent of septic systems statewide were leaking sewage into streams and groundwater, although health officials stress that many of these will not need to be replaced but simply have broken and/or missing parts replaced.

Click here to gain access to an ODH-produced video/powerpoint and fact sheet on the new septic rules.

The public hearing will held at the Ohio Department of Health, 35 E. Chestnut St., Columbus in the Basement Conference Room A/B. In order to ensure that everyone intending to testify and/or observe the hearing is able to get through security, the health officials are encouraging participants to pre-register. Click here for complete details on the upcoming hearing.

Following the public hearing, the rules will be considered at a hearing by the Ohio General Assembly’s Joint Committee on Agency Rule Review (JCARR) on Sept. 22.

Tags: politics

Ohio Division of Real Estate clarifies new appraiser requirements

By Anne M. Petit, Superintendent, Ohio Division of Real Estate & Professional Licensing

All Ohio licensed or certified real estate appraisers or registered real estate appraiser assistants who plan to UPGRADE their credential prior to the new requirements effective Jan. 1, 2015 MUST submit a complete application with all required education, a complete experience log with samples submitted for review, have state and federal background check results received by the Ohio Division of Real Estate and take and pass the exam before the Jan. 1 deadline.

The Division is aware that some licensed residential appraisers are under the mistaken belief that if they do not upgrade by the Jan. 1, 2015 deadline that they will lose their license. This is not the case and the Division encouraged any credential holder with questions regarding the 2015 criteria to call our office at (614) 466-4100 or via email:

Changes to College Level Education Requirements

Residential Appraiser Assistant
Current Requirements:
1/1/2015 Requirements:

Licensed Residential Appraiser
Current Requirements:
1/1/2015 Requirements:
30 semester hours of college level education from an accredited college, junior college, community college, or university OR an Associate’s degree or higher (in any field).

Certified Residential Appraiser
Current Requirements:
21 semester credit hours in specific collegiate subject matter courses from an accredited college or university OR an Associate’s degree or higher (in any field).
1/1/2015 Requirements: Bachelor’s degree or higher (in any field) from an accredited college or university.

Certified General Appraiser
Current Requirements:
30 semester credit hours in specific collegiate subject matter courses from an accredited college or university OR a Bachelor’s degree or higher (in any field).
1/1/2015 Requirements: Bachelor’s degree or higher (in any field) from an accredited college or university.


The Division’s website includes more information on the requirements.

Tags: Appraisal

Legally speaking: What does Ohio law require when a licensee becomes a buyer (or seller) in a transaction?

By Peg Ritenour, OAR Vice President of Legal Services/Administration

The OAR Legal Assistance Hotline receives an array of real estate-related legal questions — including license law issues, disclosure, contract law, ethics and commission problems, among others. In an effort to help you work within the law, our “Legally Speaking” series spotlights some of the timely questions that are being asked by REALTORS. The following are a sampling of questions about how the agency laws apply when a licensee is party to a transaction, whether as a buyer or seller…

I have my personal residence listed for sale. I also have been representing a buyer that is now interested in my home. Can I be a dual agent, representing myself and the buyer?
A: No. The Ohio license law was amended in 2012 to clarify that a licensee cannot act as a dual agent if the licensee is also a party to the transaction.

Does this mean I can’t list my own property?
A: You can definitely list your own property for sale! You just can’t claim to also represent the buyer’s best interests as a buyer’s agent.

Does that mean that I have to refer the buyer to another agent?
A: Not necessarily. While you can’t represent the buyer in the transaction, you can certainly work with that buyer as a customer. However, if the buyer wants representation in the transaction you will need to refer them to another licensee, as you aren’t able to provide such representation.

Could I refer the buyer to another licensee in my brokerage?
A: Yes, although the buyer certainly cannot be required to accept that referral.

I have a property listed that I am now interested in purchasing. Can I be a dual agent in this situation?
A: No. As stated above, Ohio license law prohibits a licensee from being  a dual agent in a transaction to which they are a party. This means that if you want to purchase property that you have listed, you cannot continue to represent the seller.

Does that mean the brokerage has to cancel the listing?
A: Not necessarily. Even though you cannot continue to represent the seller, another licensee in the brokerage may be appointed to take over the listing. Ohio law requires that the seller consent to such an appointment. Ohio law also allows the seller to delegate such authority to make an appointment to the listing licensee. Therefore, you should check your listing contract for language addressing the right to appoint another agent to represent the seller. Even if the seller has delegated the authority to appoint another licensee, the seller must be notified that this has occurred and still has the right to object to the appointment.

Tags: legal, Legally Speaking

Exercise caution when communicating via email in real estate transactions

In today’s busy market it is more important than ever to communicate offers and counteroffers quickly. As a result, many agents commonly  communicate their client’s counter offers and acceptances verbally. However, as every licensed agent should know, such verbal negotiations don’t meet the requirement under Ohio law for an enforceable real estate purchase contract.

But what about negotiations that take place via emails? Could an email from a listing agent to the buyer’s agent indicating that the seller has accepted the buyer’s offer be considered sufficient to create a legally binding purchase contract? What if the listing agent forwards an email from the seller indicating his acceptance of the offer to the buyer’s agent? In this article (originally written in 2011, but still timely today), Cleveland-based real estate attorney Cindy Lammert discusses this issue...


By Cindy Lammert, Coakley & Lammert Co., LPA

Real estate professionals who themselves indicate a client’s offer or acceptance via email, or who forward a communication from their client evidencing terms of an offer or acceptance may unwittingly bind their client to a real estate purchase or lease agreement. While it is still the conventional practice to have an original document executed by the parties, courts nationwide are now considering electronic agreements to have the same legal effect.

Recently, a New York appellate division court unanimously held that electronically transmitted emails satisfy New York’s statutes of frauds requirement for real estate contracts to be reduced to writing. In Naldi v. Grunberg, 2010 NY Slip Opp. 07079, the court concluded that the term “writing” as used in the state’s statute of frauds encompasses electronic communications and electronic signatures. “As much as communication original written or typed on paper, an e-mail retrievable from computer storage” is evidence of agreement, the court held.

In Naldi, the purchaser agreed via e-mail to pay $50M for two Manhattan apartment buildings, exercising a first right of refusal for the property that had been conveyed to him in an e-mail by the owner’s agent. When the seller refused to honor the terms set forth by his agent in the e-mail, the purchaser sued the owner for breach of contract. The owner moved to dismiss the lawsuit, arguing that the right of refusal was memorialized only in an email, and hence was not compliant with the statute of frauds. The Appellate Court rejected this argument. Naldi v. Grunberg was appealed in February 2011 to New York’s highest court.

Other courts likewise seem to be inclined to honor e-mail communications as binding. In Shattuck v. Klotzbach (Mass. Super. 2001), 14 Mass.L.Rptr. 360, a Massachusetts court held that “the typed name at the end of an e-mail is more indicative of a party’s intent to authenticate than that of a telegram as the sender of an e-mail types and sends the message on his own accord and types his own name as he so chooses.”

While there are few Ohio court cases relating to whether an email suffices as a signature for purposes of statute of frauds in real estate transaction, at least one Ohio court has suggested that typewritten signatures, including those in a telegram, are adequate. See Hart v. Oak Park Associates (Sept. 14, 1984), 6th Dist. No. L-84-031. Recently, in Bergey v. HSBC Bank USA, 9th Dist. No. 24986, 2010-Ohio-2736, the court also noted that a seller of real property accepted offer of buyer via email correspondence from seller’s agent. Thus, it is becoming more likely that an email from a party or its agent will be deemed sufficient to satisfy the signature requirement in Ohio.

Ohio’s statute of frauds, R.C. 1335.05, states:

No action shall be brought whereby to charge the defendant (…) upon a contract or sale of lands, tenements, or hereditaments, or interest in or concerning them, or upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized. (Emphasis added.)

While the statute does not specify the type or form of writing necessary to constitute a valid agreement, the substantive requirements are defined by common law. “A signed memorandum is sufficient to satisfy the Statute of Frauds so long as it (1) identifies the subject matter of the agreement; (2) establishes that a contract has been made; and (3) states the essential terms with reasonable certainty.” Landskroner v. Landskroner (2003), 154 Ohio App.3d 471, 483.

However, “where there is clear evidence demonstrating that the parties did not intend to be bound by the terms of an agreement until formalized in a written document and signed by both,” then a prior acceptance will not suffice to bind a party until memorialized in an actual document. See Artisan Mech., Inc. v. Beiser, 2010 Ohio 5427, 33, citing Richard A. Berjian, D.O., Inc. v. Ohio Bell Tel. Co. (1978), 54 Ohio St.2d 147, 151-152.

Accordingly, real estate brokers and agents should include a standard disclaimer in all e-mail communications clearly stating that the content may not be deemed an offer, counteroffer or acceptance until paper documents are mutually executed between the parties. This is the case for any email communications relaying an offer, counter-offer, terms of a purchase or lease, or any other communications where it is arguable that the communication forms the basis of the terms of an offer or counteroffer or acceptance of the same.

Real estate brokers and agents likewise should refrain from forwarding their client’s communications to the other party or the other party’s agent, as these likewise may be deemed binding and valid if the client expresses willingness to accept certain terms.

Adhering to the foregoing practices will help a brokerage and its clients to avoid leverage by the opposing party in negotiations, and potential litigation over whether or not a binding agreement was made via an email exchange.

Cindy Lammert will be part of a panel of attorneys discussing “Best Practices for Avoiding Legal Bear Traps” at the OAR Annual Convention & Expo, Sept. 9-10, in Cleveland. The session, scheduled for Sept. 10 from 10 to 11:30 a.m., includes 1.5 hours of continuing education credit. Click here for more information or to register for the event.

Tags: legal

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