dissenting. The granting of summary judgment by the trial court in this case was reversible error. In order for the trial court to enter such judgment, it must have resolved that all evidence construed most favorably for the plaintiffs left no genuine question of *408material fact that the defendants did not have constructive notice of the deteriorated condition of the tree from which the limb fell, causing the injuries of the plaintiffs.
The court correctly cites Hay v. Norwalk Lodge No. 730, B.P.O.E. (1951), 92 Ohio App. 14, for the proposition that constructive notice can be imputed to the defendants in this case only if the hazard was patent. The court then completely ignores the facts before it in the record. Plaintiffs offered an affidavit of a claimed tree expert, Thomas Riccardi, in opposition to the defendants’ motion for summary judgment. The expert stated:
“7) Examination of the tree demonstrated that some of the limbs of the tree had grown large and rotten, and extended over the traveled portion of Sherman Church Road.
“8) Further, the deteriorated condition of the tree was visible and apparent; it was apparent that several limbs had already separated and fallen from the tree, showing the decay of the interior of the tree.
“9) In my opinion, this tree has been decaying and has been in a stressful state for several years prior to July 10, 1982 [the date of plaintiffs’ accident].” (Emphasis added.)
In Paragraph 8 of the expert’s affidavit, he clearly states that the deterioration of the tree was visible and apparent, and that this apparent condition existed before the date of plaintiffs’ accident on July 10, 1982, because before the date of such accident, as stated in that affidavit, “several limbs had already * * * fallen from the tree, showing the decay of the interior of the tree.” That this apparent condition existed before July 10, 1982, is further supplemented by Paragraph 9 of the affidavit which states that “this tree has been decaying and has been in a stressful state for several years prior to July 10, 1982.” This clearly refutes the basis of the majority opinion, that the evidence by way of the horticulturist’s affidavit that the tree had been dying for some time, was an “observation [that] was made of the tree’s interior after the limb had fallen.” On the contrary, the horticulturist’s opinion concerning decay was not based upon his observation of the tree’s interior after the limb had fallen on plaintiffs, but clearly stated it was based upon several other limbs that had separated and fallen from the tree, “showing the decay of the interior of the tree.” This affidavit likewise refutes the majority opinion’s statement that “[t]his affidavit provides no evidence that the condition could have been observed prior to the accident.” Likewise it refutes the statement in the majority opinion that “we find no proof that the weakened condition was patent or that Weinman had occasion to notice such defects.” If the foregoing analysis of the affidavit does not raise a question of material fact that the weakened condition of the tree was patent or that Weinman had occasion to notice such defects before the accident which overcomes a motion for summary judgment, then nothing could.
The Hay opinion found that a landowner is responsible for injuries to travelers which result from apparent dangers on his or her property which *409the owner ignores. At the barest minimum, the facts in dispute in this case create a genuine issue which should be given to a jury for determination as to whether the defendant landowner knew or should have known of the danger this tree posed to passers-by. Such controversy makes the entry of summary judgment as to the landowner error.
As for the county commissioners, since the abrogation of sovereign immunity for counties in Zents v. Bd. of Commrs. (1984), 9 Ohio St. 3d 204, they are subject to the same common-law duties as a private rural landowner. As a part of their recognition of this duty, the commissioners had the county road supervisor patrol the county road in question looking for hazards and defects. It is, therefore, a question of fact as to whether the commissioners knew or should have known of the deteriorated condition of this tree which was situated so close to the roadway.
Finding questions of material fact upon which reasonable minds could differ, I dissent and would reverse the judgment of the court of appeals.
Celebrezze, C.J., and J. P. Celebrezze, J., concur in the foregoing dissenting opinion.