Appeals court upholds ruling in 2017 Ottawa tornado case

A lawsuit filed after two men died in Ottawa during the 2017 tornado didn’t get far in a La Salle County courtroom. It didn’t get past an appeals court, either.

Thursday, the 3rd District Appellate Court in Ottawa upheld the dismissal of a wrongful death lawsuit by the survivors of Wayne Tuntland and David Johnson. Both were killed when a tree fell on Ottawa’s south side during the tornado on Feb. 28, 2017.

Survivors Martha Newkirk and Toby Johnson sued the past and present owners of the property – it had changed hands shortly before the storm – from the which the tree fell. The lawsuit, however, never made it to a jury. La Salle County Circuit Judge Joseph P. Hettel threw out the lawsuit in a motion for summary judgment.

“In this particular case, it was only 45 days after (the defendants) moved in that injury was caused,” Hettel said. “So I can find that they had no duty to inspect that tree before this tornado came along.

“Having no duty to inspect the tree before the tornado came along, they did not breach a duty,” he said. “And if they did not breach a duty, they cannot be liable for the damages.”

Newkirk and Johnson thought Hettel was wrong and asked the appeals court to overturn Hettel’s ruling and send it back to trial court.

But the appeals court, in a unanimous ruling Thursday written by Justice William Holdridge, upheld Hettel’s decision to dismiss the case.

Holdridge pointed out a pre-sale property inspection had characterized the vegetation as a whole “acceptable,” and this in turn meant the property owners had no “constructive knowledge” the tree was at risk of falling.

“If the inspector, a few weeks prior to the tornado, was unable to detect qualities in the tree that would have rated it anything other than acceptable,” Holdridge wrote, “it is unreasonable to conclude that (they) should have reached a different conclusion.”

Holdridge further wrote the tornado was “an act of God that could not have been prevented” and that the 155 mph winds, rare for that time of year, “were unforeseeable.”

Plaintiffs’ attorney Alexis Ferracuti did not immediately return a call seeking comment or to address whether they would appeal the ruling.