dissenting.
{¶ 22} I respectfully dissent. Based upon the particular facts of this case, I would conclude that Akron is not entitled to the benefit of immunity at this point in the proceedings. Thus, I would affirm the judgment of the trial court.
{¶ 23} As noted by the majority, a three-tiered analysis applies in determining whether a political subdivision is entitled to the benefit of immunity. See Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610. R.C. 2744.02(A)(1) provides a general grant of immunity to a political subdivision, which is only revoked if an exception listed in R.C. 2744.02(B) is applicable. Id. If an exception applies, the political subdivision can regain immunity if a defense enumerated in R.C. 2744.03(A) applies. Id.
{¶ 24} In the instant matter, the Seikels contended in their brief in opposition to Akron’s motion for summary judgment that the exception stated in R.C. 2744.02(B)(2) applies, rendering Akron liable. R.C. 2744.02(B)(2) provides that “[ejxcept as otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.” The Supreme Court of Ohio has interpreted the statutory language to allow liability “for injury, death, or loss to persons or property caused by an act or omission of the political subdivision or any of its employees in connection with the performance of a proprietary function.” Hill v. Urbana (1997), 79 Ohio St.3d 130, 679 N.E.2d 1109, paragraph one of the syllabus.
{¶ 25} The dispute centers on whether maintaining the trees at issue constitutes a proprietary or governmental function. Clearly, if it is a governmental function, by its very terms, R.C. 2744.02(B)(2) would not apply. The Seikels assert that it is a proprietary function, while Akron maintains that it is a governmental function.
{¶ 26} The definition of the term “governmental function” that Akron believes is applicable requires it to establish that the area where the trees were located constituted a “public ground.” However, there is no evidence in the record that establishes that the trees were located on a public ground. The Supreme Court of Ohio has stated:
The subject matter of the statute — “public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts” — relates specifically to traditional areas used only for the purpose and means of travel. The *372term, “public grounds,” contemplates areas to which the public may resort and within which it may walk, drive or ride, etc.
Std. Fire Ins. Co. v. Fremont (1955), 164 Ohio St. 344, 347, 58 O.O. 130, 131 N.E.2d 221, quoting R.C. 723.01. The trial court in its judgment entry noted that “[t]here is no sidewalk or tree lawn along the road at the location where the accident occurred. [In addition,] [t]he land on which the tree was located was not park land or generally open to the public.”
{¶ 27} The majority maintains that “the body of law supports the conclusion that a political subdivision’s responsibility for maintaining trees adjacent to public roads is a governmental function.” (Majority opinion at ¶ 16.) However, the case law relied on by the majority to reach this conclusion is clearly distinguishable. Each case relied on by the majority that concluded that tree-trimming was a governmental function involved an area that could be classified as a public ground. Laurie v. Cleveland, 8th Dist. No. 91665, 2009-Ohio-869, 2009 WL 483175, involved the tree-law area. Id. at ¶ 32-33. Featherstone v. Columbus, 10th Dist. No. 06AP-89, 2006-Ohio-3150, 2006 WL 1704110, at ¶ 10, involved tree limbs encroaching on a public sidewalk. Harp v. Cleveland Hts., 87 Ohio St.3d 506, 507, 721 N.E.2d 1020, involved a public park. Estate of Finley v. Cleveland Metroparks, 189 Ohio App.3d 139, 2010-Ohio-4013, 937 N.E.2d 645, at ¶ 33, involved a tree located either in a public park or within the city’s right of way. In addition, neither the Harp court nor the Estate of Finley court was confronted with analyzing whether R.C. 2744.02(B)(2) applied to the situation.
{¶ 28} Thus, Akron cannot fit the instant situation, maintenance of trees not located in the tree law, near a sidewalk, or in a public park, within the definition of governmental function that it believes applies. Moreover, the factual situation at issue fits squarely within the general definition of proprietary function: (1) it does not fit within the governmental-function definitions and (2) it “promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons.” R.C. 2744.01(G)(1). Therefore, I would conclude that the exception contained within R.C. 2744.02(B)(2) is available to the Seikels should they demonstrate that Akron or its employees were negligent. Further, in viewing the facts in a light most favorable to the Seikels, genuine issues of material fact exist with respect to whether Akron was negligent in maintaining the trees. Moreover, I cannot conclude that Akron met its summary-judgment burden with respect to the defenses contained in R.C. 2744.03(A), because it did not submit sufficient evidence to establish the absence of a genuine dispute of material fact on this point. Thus, because I agree with the trial court’s finding that Akron was not entitled to summary judgment, I would affirm its judgment.