ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Craig R. Jeffrey Lowe
Scott A. Faultless J. Todd Spurgeon
Indianapolis, Indiana New Albany, Indiana
Eric D. Johnson
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court Mar 10 2009, 9:17 am
_________________________________
CLERK
of the supreme court,
court of appeals and
tax court
No. 03S01-0807-CV-390
FRED JACKSON,
Appellee (Defendant below),
v.
CHRISTINE R. SCHEIBLE, AS THE MOTHER
OF TRAVIS DAVID SCHEIBLE, DECEASED,
Appellant (Plaintiff below).
_________________________________
Appeal from the Bartholomew Superior Court, No. 03D01-0602-CT-338
The Honorable Chris D. Monroe, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 03A01-0704-CV-186
_________________________________
March 10, 2009
Boehm, Justice.
In Valinet v. Eskew, 574 N.E.2d 283, 285 (Ind. 1991), we adopted Restatement (Second)
of Torts section 363 permitting possessors of land to be held liable for harm caused by the condi-
tion of trees on land near a highway. A seller of land may be liable for harm caused by the con-
dition of trees on the land near a highway if the seller is in possession or control of the condition
of the trees when the harm occurs. In this case, the seller did not retain possession or control of
routine maintenance, including trimming of trees, and the trial court correctly entered summary
judgment for the seller.
Facts and Procedural History
On July 5, 2005, ten-year-old Travis Scheible was killed in an accident in Columbus, In-
diana. According to the complaint, Travis was riding his bicycle and started to cross the street
from behind a mature tree that overhung the sidewalk and obscured his view of oncoming traffic.
As he rode into the street, Travis was struck by an oncoming car.
The tree was located on residential property previously owned by Fred and Dorothy Jack-
son. About six months before the accident, the Jacksons sold the property to Ronald Smith under
a two-year installment contract, and Smith began residing on the property.
Travis’s mother, Christine Scheible, brought a wrongful death action against Fred Jack-
son and Smith.1 Jackson moved for summary judgment, arguing that he had no duty to Travis
because he did not own, possess, or control the property at the time of the accident. Scheible re-
sponded that summary judgment was inappropriate because of genuine issues of material fact
regarding Jackson’s possession and control of the property at the time of the accident. Scheible
also argued that Jackson was negligent per se for failing to comply with a city ordinance requir-
ing landowners to trim trees on their property.
The trial court granted summary judgment in favor of Jackson without explanation. The
trial court’s order included the findings required by Trial Rule 54(B) for a final judgment, and
Scheible appealed.
The Court of Appeals reversed. Scheible v. Jackson, 881 N.E.2d 1052, 1058 (Ind. Ct.
App. 2008). The Court of Appeals held that a vendor may be liable for harm caused by the con-
dition of sold property if the vendor retains control of the property. Id. at 1055. The majority
concluded that there was a genuine issue of material fact regarding whether Jackson controlled
the property after the sale. Id. at 1058. Chief Judge Baker dissented. Id. Neither opinion dis-
cussed the effect of the city ordinance.
1
Dorothy Jackson was not named as a defendant. Ray Scheible, Travis’s father, was named as a defen-
dant to answer as to any wrongful death claim he may assert. The driver of the vehicle that struck Travis
was not sued.
2
Standard of Review
We review a summary judgment order de novo. Lean v. Reed, 876 N.E.2d 1104, 1107
(Ind. 2007). Summary judgment is appropriate when there is no genuine issue of material fact
and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In de-
termining whether summary judgment is appropriate, we construe all facts and reasonable infe-
rences in favor of the nonmoving party. Filip v. Block, 879 N.E.2d 1076, 1080 (Ind. 2008).
I. Vendor Liability for the Condition of Trees on Land Near a Highway
The issue here is one of first impression: under what circumstances a vendor of land may
be liable to a third party for harm resulting from the condition of trees on the land near a high-
way. Both parties analyze the question under subsection 363(2) of the Restatement (Second) of
Torts (1965),2 adopted in Valinet v. Eskew, 574 N.E.2d 283, 285 (Ind. 1991). Section 363(2)
reads:
A possessor of land in an urban area is subject to liability to persons using a pub-
lic highway for physical harm resulting from his failure to exercise reasonable
care to prevent an unreasonable risk of harm arising from the condition of trees on
the land near the highway.
A “possessor” is defined in part as “a person who is in occupation of the land with intent to con-
trol it.” Id. § 328E(a). Although this is this Court’s first case involving a vendor’s possession,
possession is an issue common to all premises liability cases in order to “subject to liability the
person who could have known of any dangers on the land and therefore could have acted to pre-
vent any foreseeable harm.” Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004). A theme
throughout our premises liability cases is that liability arises from actual control over the condi-
tion causing the injury.3 Generally, a vendor in a land-sale contract will have no liability under
2
Neither party cites Restatement section 352, cited by the Court of Appeals, which provides for vendor
liability for harm occurring “on the land,” presumably because Travis was not injured on the property.
Nor is there any claim asserted under Restatement sections 372 or 373. These sections discuss vendor
liability for harm occurring “outside of the land” from “artificial conditions,” which include “trees or
plants planted or preserved . . . irrespective of whether they are harmful in themselves or become so only
because of the subsequent operation of natural forces.” Restatement § 363 cmt. b.
3
See, e.g., Risk v. Schilling, 569 N.E.2d 646, 647–48 (Ind. 1991) (holding that partnership that owned
land had no liability for injury occurring in a workshop on the land when only one member of the partner-
ship had constructed the workshop and used it for a hobby); Olds v. Noel, 857 N.E.2d 1041, 1046 (Ind.
Ct. App. 2006) (holding that landlord’s right of entry was not dispositive of control over snow removal);
3
section 363 because the vendor no longer occupies or controls the condition of the property even
if the vendor retains legal title as security. See Skendzel v. Marshall, 261 Ind. 226, 234, 301
N.E.2d 641, 646 (1973) (“When the parties [to a land-sale contract] enter into the contract, all
incidents of ownership accrue to the vendee. . . . Conceptually, therefore, the retention of title by
the vendor is the same as reserving a lien or mortgage.”).
Here Scheible acknowledges that a vendor will typically have no post-sale liability, but
argues that Jackson can be held liable because he continued “acting like a landowner” after the
sale. Scheible designated the following evidence in support of her contention that Jackson re-
tained control of the property.
First, Scheible notes that Smith needed Jackson’s permission to make changes to the
property. The land-sale contract provided that Smith
may treat said real estate as his own with the understanding that [he] shall not
commit any waste to said real estate or the improvements thereon. Also, prior to
the time of the delivery of title to said real estate, [Smith] shall not construct any
improvements on said property without the prior written permission of [the Jack-
sons.]
Smith testified in deposition that
[I] usually asked before I done something, because I wanted to do it fairly major,
and I usually asked permission, because I felt like that if I done something major
they should be aware of it, because technically it was still their property even
though I was buying it on contract, and that’s the way I felt.
Smith provided “knocking out a wall” as an example of a change for which he would ask per-
mission. Smith also testified that he asked permission to remove the tree after the accident, but
later stated that “[a]ll I know is they was aware that [the tree] was gonna be taken down. I don’t
know if I asked.” Even when viewed most favorably to Scheible, this evidence does not suggest
that Jackson controlled the condition of the property. The evidence merely reflects that the prop-
Reed v. Beachy Const. Corp, 781 N.E.2d 1145, 1150 (Ind. Ct. App. 2002) (holding that homeowners “did
not control the premises to the extent a duty . . . arose” for injury during a home show when homeowners
had moved only a few items in and had surrendered possession for the home show), trans. denied; Harris
v. Traini, 759 N.E.2d 215, 225 & n.11 (Ind. Ct. App. 2001) (holding that marina could not be liable for
injury on a houseboat even though the marina had the right to move the houseboat in an emergency),
trans. denied.
4
erty was security for the installment contract, and Jackson required permission for major changes
to protect his security interest.
Second, Scheible points to the fact that Jackson alone held the casualty and liability in-
surance for the property as evidence that Jackson controlled the property. The land-sale contract
provided that Smith would obtain certain levels of casualty and liability insurance for the proper-
ty and that the policies would name both Smith and the Jacksons as insureds. That provision was
not implemented. Instead, Smith paid Jackson the amounts of the premiums to maintain the ex-
isting policies, but Smith was never added as an insured. 4 The policy protected the home against
fire and casualty loss, as well as liability to third parties. As with the requirement that Smith re-
ceive permission before improving the property, Jackson’s maintaining insurance on the property
is consistent with his desire to protect his financial investment and does not demonstrate his con-
trol.5 See Helton v. Harbrecht, 701 N.E.2d 1265, 1268 (Ind. Ct. App. 1998) (holding that con-
struction company that carried general work site liability insurance did not control partially-
constructed home at the time of accident when none of its employees had been at the site for a
month), trans. denied.
Third, Scheible notes that Jackson drove past the property on the way to visit family at
least a dozen times each month in the six months before the accident and would have noticed the
tree’s condition. This fact also does not establish Jackson’s control of the property. Upon ex-
ecution of the land-sale contract, Smith took exclusive possession of the property, leaving Jack-
son with no control over the maintenance of the property.6
4
The parties have not presented the issue of whether Smith has a claim against Jackson or Jackson’s in-
surer for indemnity or otherwise.
5
The land-sale contract provided that “[Smith] hereby assumes all risk and responsibility for accident,
injury or damage to person and property arising from [Smith’s] use and control of the real estate. . . .
[T]he risk of loss to any improvements on said real estate shall be borne by [Smith] . . . .”
6
The land-sale contract provided that
[p]rior to the time of title transfer of the real estate, [Smith] shall have possession of said
real estate upon the date of the signing of this contract. Prior to the time of the delivery
of title to said real estate, [Smith] may treat said real estate as his own with the under-
standing that [Smith] shall not commit any waste to said real estate or the improvements
thereon.
5
Fourth, Scheible argues that Jackson’s receipt of a notice from the city regarding tree
saplings on the property indicates Jackson’s control of the property. Jackson’s receipt of the no-
tice indicates that he held legal title to the property but does not establish control. Indeed, after
Jackson received the notice, he gave it to Smith, who “agreed to remedy” the problem.
Finally, at some point Smith “renounced his rights” and returned the property to the Jack-
sons. Some building materials remained on the property. Scheible points to the parties’ actions
after Smith renounced his rights to the property. Smith testified that he “[r]enounced the rights,
signed it back over, left all building materials there because [Jackson] felt like since I bought
them for the property, they should stay there. . . . My thoughts weren’t quite happy with that, but
I said fine, because it wasn’t about the materials.” Jackson’s assertion of control of the building
materials after he had regained possession does not suggest that he controlled the condition of
the property at the time of the accident.
In addition to these points raised by Scheible, the Court of Appeals found that the finan-
cial terms of the sale raised a question as to the Jacksons’ control of the property. The Jacksons
sold the property for $60,000. Smith made a $10,000 down payment and agreed to make
monthly payments of $450 for two years and a $43,913.34 balloon payment. The Court of Ap-
peals reasoned that these terms reflected Smith’s poor credit rating and reasonably foreseeable
default so “Jackson clearly had a keen interest in the maintenance of the Property during the
short period of time until the possibility of repossession was foreclosed.” Scheible v. Jackson,
881 N.E.2d 1052, 1058 (Ind. Ct. App. 2008). Assuming that Jackson had a keen interest in the
maintenance of the property, without more, that interest does not translate into his control over
the property. Regardless of Jackson’s retained equity in the property, all incidents of ownership
passed to Smith upon execution of the land-sale contract.
In sum, the contract called for possession to transfer to Smith at closing. None of the
evidence designated is inconsistent with that provision. As a matter of law, liability under sec-
tion 343, the only provision addressed by the parties, lies with Smith as the possessor of the land.
6
II. Negligence Per Se
Scheible also argues that summary judgment is improper because Jackson’s violation of a
city ordinance constitutes negligence per se. We do not believe the cited ordinance applies to
Jackson.
At the time of the accident, a Columbus city ordinance required property “owners” to
trim street trees to certain specifications.7 “Owner” was defined to include “any part owner, joint
owner, tenant in common, tenant in partnership, joint tenant or tenant by the entirety of the
whole or part of such building or land.” Columbus, Ind., City Mun. Code § 1.04.040. Scheible
contends that because Smith had not paid the entire contract amount and the deed had not been
conveyed, Jackson was the owner of the property and had a duty to trim the tree as provided in
the ordinance. Scheible correctly states that Jackson retained legal title to the property until
Smith satisfied the purchase price. However, as noted above, the law in Indiana has long been
that “[w]hen the parties enter into the [land-sale] contract, all incidents of ownership accrue to
the vendee.” Skendzel v. Marshall, 261 Ind. 226, 234, 301 N.E.2d 641, 646 (Ind. 1973). At the
time of the accident, Jackson occupied the position of lienholder, not owner. Id. (“The Court, in
effect, views a conditional land contract as a sale with a security interest in the form of legal title
reserved by the vendor. Conceptually, therefore, the retention of the title by the vendor is the
same as reserving a lien or mortgage.”). Ownership of the property was transferred to Smith
upon execution of the land sale contract, and Jackson had no duty at the time of the accident to
maintain the tree as provided by the city ordinance.
7
The ordinance provides
All persons who are owners of shade trees, or who are intended as owner or occupant or
agent of any real estate abutting or contiguous to any part of any street on, along or in
front of or adjacent to which shade trees are planted or growing shall cause the same to
be carefully and properly trimmed to a point on the tree as high as twelve feet from the
ground; provided, that all such shade trees shall be trimmed on the side next to the street
so that the limbs or branches where so trimmed shall not extend more than twelve feet
from the trunk of such shade trees; provided further, that all such shade trees shall be so
trimmed that in no case shall such shade tree or trees be more than fifty feet high.
Columbus, Ind., City Mun. Code § 12.20.020A (1995).
7
Conclusion
The trial court’s grant of summary judgment in favor of Jackson is affirmed.
Shepard, C.J., and Sullivan, J., concur.
Rucker, J., dissents with separate opinion in which Dickson, J., concurs.
8
Rucker, J., dissenting.
A “possessor” of land is defined as “(a) a person who is in occupation of the land with
intent to control it or (b) a person who has been in occupation of land with intent to control it, if
no other person has subsequently occupied it with intent to control it, or (c) a person who is en-
titled to immediate occupation of the land, if no other person is in possession under Clauses (a)
and (b).” Restatement (Second) of Torts § 328E (1965). It appears that the critical inquiry in
determining whether a party is a “possessor” as defined in Section 328E is the notion of control
over the property. “Only the party who controls the land can remedy the hazardous conditions
which exist upon it . . . .” Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004) (citation omitted).
“Control” in turn, is defined in part as “the power or authority to manage, direct, or oversee.”
Black’s Law Dictionary 353 (8th ed. 2004).
In my view there is no question that Jackson exercised some degree of control over the
property notwithstanding he had sold it on contract to Smith. At the very least there is a dispute
of fact on this point, and summary judgment in Jackson’s favor was inappropriate. I therefore
agree with the Court of Appeals majority and would reverse the judgment of the trial court.
Dickson, J., concurs.