[Cite as Digiorno v. Ohio Dept. of Transp., 2017-Ohio-2698.]

{¶1} On March 3, 2017, defendant filed a motion for summary judgment pursuant 

to Civ.R. 56(B). On March 31, 2017, plaintiffs filed a response. The motion for 

summary judgment is now before the court for a non-oral hearing. L.C.C.R. 4. 

{¶2} Civ.R. 56(C) states, in part, as follows: 

{¶3} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, that reasonable 

minds can come to but one conclusion and that conclusion is adverse to the party 

against whom the motion for summary judgment is made, that party being entitled to 

have the evidence or stipulation construed most strongly in the party’s favor.” See also

Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc., 50 Ohio St.2d 317 (1977). 

{¶4} Plaintiffs allege that on February 5, 2014, agents of defendant, the Ohio 

Department of Transportation (ODOT), wrongfully removed seven trees from 

GARY DIGIORNO, et al. 

 Plaintiffs 

 v. 

OHIO DEPARTMENT OF 

TRANSPORTATION 

 Defendant 

Case No. 2015-00942 

Judge Patrick M. McGrath

Magistrate Anderson M. Renick 

ENTRY GRANTING DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT 
Case No. 2015-00942 -2- ENTRY 

Cynthia Digiorno’s property. Digiorno stated that, on the same day, she had a phone 

conversation with Christine Myers, a public information officer for ODOT, and was 

informed that “the trees were rotted and posed a road hazard.” (Plaintiffs’ Exhibit 1.) 

Plaintiffs contend that the trees were healthy and not rotted. On either February 5 or 

February 6, 2014, Digiorno received a phone call from Kim Scott, a transportation 

manager for ODOT’s Huron County maintenance facility. According to Digiorno, Scott 

related that the trees were removed “because they provided too much shade on the 

highway which deteriorated the asphalt causing potholes.” (Id. ¶ 5) 

{¶5} On March 14, 2014, Myers responded to an inquiry from plaintiffs’ counsel 

with a letter that provided a more detailed explanation of ODOT’s reasons for removing 

the trees. In her letter, Myers stated that due to the size and proximity of the trees to 

the highway, the trees were identified for removal based upon two factors. Myers stated 

that the primary reason for removal of the trees was the shade that caused premature 

deterioration of the asphalt, including a significant amount of potholes. Additionally, the 

proximity of the trees to the roadway presented a potential hazard to motorists whose 

vehicles might leave the road and collide with a tree. 

{¶6} Defendant attached to its motion for summary judgment the deposition of 

Kim Scott. Scott testified that her duties included performing highway inspections and 

scheduling work to maintain the roadways and vegetation in adjacent areas. On 

September 23, 2013, Scott completed a work order for tree removal and pruning which 

lists the condition of the trees as “dead” and directs workers to clear the right of way that 

borders Digiorno’s property on SR 18 in Huron County. (Defendant’s Exhibit B.) The 

work order states that the trees to be removed had been marked with a white “X.” Scott 

testified that she marked trees which she determined presented potential problems for 

the highway pavement. Scott explained that the trees shaded the highway in a manner 

that accelerated pavement deterioration by causing the pavement to remain wet or 
Case No. 2015-00942 -3- ENTRY 

frozen in the winter months. Scott testified that the work order was reviewed by an 

ODOT engineer before it was presented for bidding by private contractors. 

{¶7} There is no dispute that the trees were located within ODOT’s right of way. 

Raymond Foos, a professional surveyor, established that the right of way occupied by 

ODOT on State Route (SR) 18 was taken as a highway easement in 1955 and recorded 

in a deed that is attached to his affidavit. (Defendant’s Exhibit C.) Foos averred that 

the stumps from the removed trees are located within the right of way and subject to the 

terms and conditions of the easement. However, plaintiffs contend that the removal of 

the trees was not consistent with the purposes of the easement which granted ODOT its 

right of way. According to plaintiffs, the reasons provided for removing the trees were 

“fabricated” after defendant discovered the trees were not dead. 

{¶8} Pursuant to R.C. 5501.42, the director of ODOT is vested with “supervision 

and control of all trees and shrubs within the limits of a state highway. The department 

of agriculture or other proper department may, with the consent of the director of 

transportation, take charge of the care of such trees, and such department, in the event 

it takes charge of such tress, may, with the consent of the director of transportation, 

plant additional trees within the limits of a state highway. The cost and expense of 

caring for or planting such trees may be paid out of any funds available to the director or 

for the development of forestry of the state. 

{¶9} “The director may cut, trim, or remove any grass, shrubs, trees, or weeds 

growing or being within the limits of a state highway. 

{¶10} “The powers conferred by this section upon the director shall be exercised 

only when made necessary by the construction or maintenance of the highway or for the 

safety of the traveling public.” (Emphasis added.); Ritchie v. Ohio DOT, 10th Dist. 

Franklin No. 03AP-691, 2004-Ohio-2505, ¶ 7. 

{¶11} The Tenth District Court of Appeals has held that “[t]he law in Ohio is 

consistent * * * when an easement for public use exists over a landowner’s property, 
Case No. 2015-00942 -4- ENTRY 

and that landowner was compensated when the easement was granted, the landowner 

has no right to receive additional compensation for improvements to the highway or 

object to improvements constructed within the easement, as long as the improvements 

are consistent with the purposes of the contemplated easement. Ritchie, ¶ 11, quoting 

Smith v. Peyatt, Trumbull App. No. 3759, (May 6, 1988) 1988 Ohio App. LEXIS 1764; 

Masheter v. Blaisdell, 30 Ohio St.2d 8 (1972). 

{¶12} Although plaintiffs contend that a genuine issue of material fact remains as 

to the condition of the trees and defendant’s reasons for ordering the removal, the court 

finds that there is no dispute that the trees were within the highway right of way and that 

the easement pertained to “public highway and road purposes.” The undisputed 

evidence shows that the trees at issue shaded a portion of SR 18, which caused 

premature deterioration of the asphalt roadway. Furthermore, defendant’s 

determination that the removal was justified because the close proximity of the trees to 

the highway presented a potential hazard to motorists is also consistent with the 

purpose of the easement. The court finds that reasonable minds can only conclude that 

the removal of the trees was related to a highway improvement which is consistent with 

the purposes of the easement and that plaintiffs are not entitled to compensation. 

{¶13} Based upon the foregoing, the court finds that there are no genuine issues 

of material fact and that defendant is entitled to judgment as a matter of law. 

Accordingly, defendant’s motion for summary judgment is GRANTED. Judgment is 

rendered in favor of defendant. All previously scheduled events are VACATED. Court 

costs are assessed against plaintiffs. The clerk shall serve upon all parties notice of this 

judgment and its date of entry upon the journal.

 PATRICK M. MCGRATH 

 Judge 
Case No. 2015-00942 -5- ENTRY 

cc: 

Oliver Joseph Murray 

10 East Main Street 

Ashland, Ohio 44805-0650 

Frank S. Carson 

Peter E. DeMarco 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Filed April 19, 2017 

Sent to S.C. Reporter 5/5/17