IN THE COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO ERROL F. CARR, SR, Administrator of the Estate of Jacqueline Carr, deceased 7801 Constitution Drive Cincinnati, Ohio 45215 Plaintiff, vB. THE CITY OF CINCINNATI 80} Plum Street Cincinnati, Ohio 45202 and WILLIAM F. CARDEN, in his individual and official capacity as Cincinnati Parks Director c/o 950 Eden Park Drive Cincinnati, Ohio 45202 and JIM BURKHARDT, in his individual and official capacity as Superintendent of Urban Forestry fo 950 Eden Park Drive Cincinnati, Ohio 45202 and ROBIN HUNT, in his individual and official capacity as Supervisor of Urban Forestry cfo 950 Eden Park Drive Cincinnati, Ohio 45202 and ) d > d d d d ) > > ) ) ) » ) ) d ) d ) ) ) d d ) ) J d d d ) J ) ) » d d ) ) ) ) ) } ‘CASENO. JUDGE PLAINTIFF'S COMPLAINTDAVID GAMSTETTER i idual and official capacity as ‘Natural Resource Manager Cincinnati Park Board c/o 950 Eden Park Drive Cincinnati, Ohio 45202 and DOUGLAS FRITSCH in his individual and official capacity as Urban Forestry Florist c/o 980 Eden Park Drive Cincinnati, Ohio 45202 ) ) ) , d ) ) ) ) ) ) ) J ) ) ) and } PHIL HUCKE } in his individual and official capacity as ) ‘Urban Forestry Florist } ) ) ) ) ) ) ) ) ) ) ) ) ? ) d d ) } ) ) ) ) c/o 950 Eden Park Drive Cincinnati, Ohio 45202 and OAKE PROPERTIES, LTD c/o Marino Gvozdonovic, Statutory nt P.O. Box 36490 Cincinnati, Ohio 45236 and JOHN/JANE DOE (1-3) Names and Addresses Unknown and ABC CORPORATION (1-3) Names and Addresses Unknown Defendants.Now comes Plaintiff, Errol F. Carr, Sr, Administrator of the Estate of Jacqueline Carr, deceased, and for his Complaint against the within Defendants, alleges and avers the following: INTRODUCTION 1. This is refiting pursuant to R.C, 2305.19. The previous Complaint was filed under Case No. A1701311 and was assigned to the Honorable Patrick J. Dinkelacker, Judge of the Common Pleas Court of Hamilton County, Ohio, The Voluntary Dismissal without Prejudice was filed on January 24, 2018 pursuant to Ohio Civil Rule 41(AX1). PARTIES 2. Plaintiff, Errol F, Carr, Sr., the former spouse of decedent, was appointed Administrator of the Estate of Jacqueline Carr, deceased, by the Hamilton County Probate Court on July 20, 2016, in Case No. 2016-002191. He brings this action for wrongful death and _ conscious pain and suffering in his official capacity as personal representative ofthe estate and _for the exclusive benefit of the surviving children and legal next of kin of the decedent. 3. Atall times relevant hereto, the decedent, Jacqueline Carr, was a resident of the City of Cincinnati, Hamilton County, Ohio. 4. Atall times relevant hereto, Defendant, The City of Cincinnati, was a political subdivision us defined by Ohio law. 5. Atall times relevant hereto, Defendant, The City of Cincinnati, including by and through the authority granted to the City of Cincinnati Park Board and/or the City of Cincinnati Department of Urban Forestry, was responsible for the maintenance, trimming and removal of trees located between the strect and the sidewalk and along public right-of-ways throughout che City of Cincinnati, Hamilton County, Ohio.6. Atal times relevant hereto, Defendant, The City of Cincinnati, including by and through the authority granted to the Greater Cincinnati Water Works, was responsible for the establishment, maintenance and operation of a municipal corporation water supply system, which is specifically defined as a “proprietary function” pursuant to R. C. 2744.01(G)(2(C) for the purpose of statutory political subdivision immunity. 7. Upon information and belief, and at all times relevant hereto, Defendant William F. Carden was a resident of Hamilton County, State of Ohio, and was employed by Defendant, ‘The City of Cincinnati a its Park Director. Atall times relevant, Defendant Carden was a policy maker for The City of Cincinnati and was charged with the non-delegablc duty to adequately and properly train and supervise those in his department. Defendant Carden is sued in his official and individual capacity. 8. Upon information and belief, and at all times relevant hereto, Defendant Jim Burkhardt ‘was a resident of Hamilton County, State of Ohio, and was employed by Defendant, The City of Cincinnati, as its Superintendent of Urban Forestry. At all times relevant, Defendant Burkhardt was a policy maker for The City of Cincinnati and was charged with the non-delegable duty to adequately and properly train and supervise those in his department. Defendant Burkhardt is sued in his official and individual capacity, 9. Upon information and belief, and at all times relevant hereto, Defendant Robin Hunt was a resident of Hamilton County, State of Ohio, and was employed by Defendant, The City of Cincinnati, as a supervisory specialist in its Department of Urban Foresiry. At all times relevant, Defendant Hunt was a policy maker for The City of Cincinnati and was charged with the non- delegable duty to adequately and properly train and supervise those in his department. Defendant ‘Hunt is sued in his official and individual capacity.10. Upon information and belief, and at all times relevant hereto, Defendant David Gamstetter was a resident of Hamilton County, State of Ohio and was employed by Defendant, The City of Cincinnati, as Natural Resource Manager for its Park Board. At all times relevant, Defendant David Gamstetter was a policy maker for The City of Cincinnati and was charged with the non-delegable duty to develop policy and procedures and to adequately and properly train and supervise those in this department. Defendant Gamstetter is sued in his official and individual capacity. 1. Upon information and belief, and at all times relevant hereto, Defendant Douglas Fritsch was a resident of Hamilton County, State of Ohio and was employed by Defendant, The City of Cincinnati Urban Forestry, as a florist and inspector. At all times relevant, Defendant Fritsch was ‘one of the individuals who last inspected the subject tree in early July of 2014 and marked it for subsequent removal. Defendant Fritsch is sued in his official and individual capacity. 12. Upon information and belief, and at all times relevant hereto, Defendant Phi! Hucke ‘was a resident of Hamilton County, State of Ohio and was employed by Defendant, The City of Cincinnati Urban Forestry, as a florist and inspector, At all times relevant, Defendant Hucke was ‘one of the individuals who last inspected the subject tree in early July of 2014 and marked it for subsequent removal. Defendant Hucke is sued in his official and individual capacity. 13. At all times relevant hereto, Defendant, Oake Properties, LTD., was a corporate entity duly licensed by the State of Ohio and was further authorized to conduct business therein. Further, said corporate entity was the legal owner of a residential apartment complex located at 4770 Reading Road, in The City of Cincinnati, Hamilton County, Ohio. 14, Atall times relevant hereto, Defendants John/Jane Doe (1-3) were any and all individuals not otherwise named herein who were liable all or in part to Plaintiff for the damagesalleged herein and whose names and addresses could not be ascertained prior to the filing of this Complaint. 15, Atall times relevant hereto, Defendant ABC Corporation (1-3) were any and all corporations and for-profit business entities, including private landscape and tree removal contractors, not otherwise named herein, who were liable all or in patt to Plaintiff for the damages alleged herein and whose names and addresses could not ascertained prior to the filing of this Complaint, STATEMENT OF FACTS RELEVANT TO THE FAILURE TO TIMELY ‘REMOVE THE SUBJECT TREE 16, Plaintiff realleges and incorporates by reference all of the allegations made in the foregoing paragraphs as if fully rewritten berein, 17. On April 19, 2015, at approximately 3:40 pm, Plaintiff's decedent, Jacqueline Carr, ‘was operating a 2012 Chevrolet Impala automobile in a northbound direction on Reading Road, in the City of Cincinnati, Hamilton County, Ohio, 18. Plaintiff further says that at the above stated date, time and location, while proceeding in the right lane of northbound Reading Road, a large (ree located to her right and situated in the ‘ree lawn of the apartment complex loceted at 4770 Reading Road, suddenly became uprooted and fell across the roadway, landing on top of Plaintiff decedent’s vehicle and crushing it. 19, Plaintiff further says that the collapsed tree had previously been marked by a painted etter “X” in July of 2014, following a visual inspection by Defendants Douglas Fritsch and/or Phil Hucke, both of whom were acting as employees and/or agents of Defendant, The City of Cincinnati, and said tree was designated for future removal as part of the City's program of preventative tree maintenance.20. Upon information and belief, Plaintiff further says that trees designated for removal in this manner and placed on the preventative maintenance list by Defendant, The City of Cincinnati, are typically removed within a period of time less than nine (9) months from the time so designated. 21, Plaintiff further says that as a result of numerous visible signs of severe decay and decline that trained certified arborists such as Defendants Fritsch and/or Hucke should have detected upon their visual inspection in July of 2014, and consistent with accepted industry standards, the subject tree should have been placed on the emergency removal list and taken down immediately 22, Plaintiff further says that given their knowledge, education, training and experience, the failure of Defendants Fritsch and Hucke to have the subject tree placed on the emergency removal list following the July, 2014 inspection constitutes negligent, reckless, wanton or intentional conduct on their part while in the performance of their official duties as agents and/or employees of Defendant, The City of Cincinnati. 23. Plaintiff further says that Defendant, Oak Properties, Ltd, as the owner of the real estate located at 4770 Reading Road on which the subject tree was located, was responsible for the regular maintenance, trimming and removal of trees located on its property, including the decaying and rotting trec that had been previously marked for removal with a painted letter “X” on its trunk. 24. Plaintiff further says that at all times relevant hereto, Defendants, The City of Cincinnati, Oake Properties, Lid, and/or ABC Corporation acted in a negligent, reckless, wanton, or intentional manner in failing to remove the decaying and rotting tree in question, even though said tree has previously been marked and designated for removal some nine (9) months prior to ‘this foreseeable and preventable accident.25, Plaintiff further says, upon information and belief, that Defendants William F. Carden, and/or Jim Burkhardt and/or Robin Hunt acted in bad faith or in a wanton or reckless manner while performing their duties under color of law and within the course and scope of their employment as employees of The City of Cincinnati, in failing to have the subject tree immediately removed as an unsafe and hazardous condition that was located in a populated residential neighborhood and adjacent to a heavily traveled public street, in conscious disregard for the safety of the public, including Plaintiff's decedent. 26, Plaintiff further says that as a direct and proximate result of Defendants’ negligent, reckless, wanton, or intentional conduct, the subject tree fell onto the automobile being operated by Plaintiff's decedent, Jacqueline Carr. 27. Plaintiff Further says that as a direct and proximate result of Defendants’ aforementioned conduct, the automobile of Plaintiff's decedent was crushed and sustained a total loss ofits value, and Jacqueline Carr sustained severe and ultimately fatal bodily injuries, as well as great pain and conscious suffering. These injuries directly led to her death on April 19, 2015. VANT TO PRIOR DI STATEMENT OF FACTS RELEVANT TO PRIOR DISTURBANCES CAUSING IR) IBLE ROOT D, E 28. Plaintiff realleges and incorporates by reference all of the allegations made in the foregoing paragraphs as if fully rewritten herein. 29. Plaintiff further says that as far back as the year 2008, actions taken by The City of ‘Cincinnati Water Works in performing maintenance and repair work, including excuvation work in the vicinity of the subject (ree, resulted in site disturbances to the root system of the subject tree that caused irreversible root damage that led to its eventual failure on April 19, 2015.30, Plaintiff further says that Defendant, The City of Cincinnati, was negligent in its actions as aforementioned, including its failure to follow protocol and the statutory und regulatory standards mandated by its own City Tree Regulatory Code. 31. Plaintiff further says that as a result of its negligence in performing a proprietary function, as previously discussed herein, R.C. 2744.02 (B)(2) imposes liability on Defendant, The City of Cincinnati. 32. Plaintiff further says that subsequent to its purchase of the adjacent apartment complex located at 4770 Reading Road on or about October of 2009, actions taken by agents and/or employees of Defendant Oake Propesties, Lid in maintaining its property and preforming work in the vicinity of the subject tree resulted in site disturbances to the root system of the subject tree. 33. Plaintiff further says that said agents and/or employees of Defendant Oake Properties Ltd were negligent in these actions, which caused imeversible root damage to the subject tree that Jed to its eventual failure on April 19, 2015, WRONGFUL DEATH 34. Plaintiff realleges and incorporates by reference all of the allegations made in the foregoing paragraphs as if fully rewritten herein, 35, Plaintiff further says that at the time of the death of Jacqueline Carr, she was survived by three (3) adult children and other next of kin, all of whom are beneficiaries of her estate. 36. Plaintiff further says that as a direct and proximate result of the actions and/or omissions of all named Defendants, as previously set forth herein, the Estate of Jacqueline Carr and the decedent's beneficiaries have sustained damages consisting of the total loss of her 2012Chevrolet Impala automobile; reasonable and necessary medical expenses; reasonable and necessary funeral, burial and related expenses; the loss of inheritance; and, the loss of the decedent's support, services and society over her life expectancy, including loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training and education. 37. Plaintiff further says that as a direct and proximate result of the actions and/or ‘omissions of all named Defendants, as previously set forth herein, decedent's beneficiaries suffered damages for their grief and mental anguish caused by her death. SURVIVORSHIP 38, Plaintiff realleges and incorporates by reference all of the allegations made in the foregoing paragraphs as if fully rewritten herein. 39. Plaintiff further says that the Administrator of the Estate of Jacqueline Carr, deceased, brings this action for the injuries, damages and conscious pain and suffering sustained ‘by Jacqueline Carr prior to her death for the benefit of her estate and its beneficiaries. 40. Plaintiff further says that as a direct and proximate result of the actions and/or omissions of all named Defendants, as previously set forth herein, and as a result of the aforementioned incident, she was crushed by the weight of the falling tree and suffered blunt trauma injuries to her body, resulting in asphyxia due (o chest compression, thereby causing her death. Further, Jacqueline Carr experienced great pain and conscious pain and suffering during the period of time that she was alive after the accident until she passed away later that day on April 19, 2015.WHEREFORE, Plaintiff demands the following relief from all named Defendants: 1, Compensatory and noncompensatory damages in an unspecified amount in excess of Twenty-Five Thousand Dollars ($25,000.00), together with interest, reasonable attorney fees, costs, and any further relief as the Court deems just and proper, in Count One of this Complaint. 2. Compensatory and noncompensatory damages in an unspecified amount in excess of Twenty-Five Thousand Dollars ($25,000.00), together with interest, reasonable attorney fees, costs, and any further relief as the Court deems just and proper, in Count Two of this Complaint. Respectfully «th jitted, Bee OAM fiom ARIE. GHASTEB4#001 1065) ‘ubyn & Ghastei, LLP 8373 Mentor Avenue Mentor, Ohio 44060 (440) 352-9696 (440) 350-1999 Facsimile earlghaster law @aol.com Trial Atorney for Plaintiff