dissenting.
I respectfully dissent with regard to the duty issue. I disagree with the majority's conclusion that under the facts of this case, Indiana Limestone owes the decedent a common law duty.
As stated in the majority opinion, we must examine three factors when determining whether there is a common law duty: the relationship between the parties, the reasonable foreseeability of harm, and public policy concerns. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991), reh'g denied. Contrary to the majority's conclusion, the undisputed facts of this case do not demonstrate that there was a relationship between the parties or that the accident was reasonably foreseeable. In addition, public policy weighs against imposing a duty. A careful review of each of these factors reveals that Indiana Limestone does not owe the decedent a common law duty.
A. Relationship Between the Parties
The majority looks to City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N.E. 155 (1886), reh'g denied, to support the assertion that "Our supreme court has long recognized a relationship between owners or occupiers of land adjacent to a highway and persons rightfully using the highway." Opimion, p. 1381. The majority elevates to the status of a "rule" dicta from Emmelman, which did not involve any excavation near the traveled portion of the highway. That case involved a steep pit that was dug in the bed of a stream where the stream was crossed by a city street. Construction was being done to prepare for building a bridge across the stream. The pit was filled with water from the stream and was surrounded by the otherwise shallow water in the stream. The area was frequented by children who were known to play in the stream in the area where the work was being done. The work was left unguarded when the workers finished for the day. The plaintiffs decedent was a five year old who drowned when he fell into the pit. The case bas nothing to do with the liability of persons owning land adjacent to a highway to users of the highway, as is clear from the following passages from the decision:
"The excavation into which the appellee's son fell was made in Spruce street, at a point where it crosses Pleasant run. It was made in the bed of a shallow stream, and left alone, unguarded in a July day, with knowledge that children were aceus-tomed to play in the vicinity.... It was gross carelessness on the part of the city, with such knowledge, to leave an unguarded pit, filled with water, in the street, into which an unsuspecting child might fall.
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... [T)he fact remains that the city made an excavation in a street, at a place where it knew children living in the vicinity were accustomed to play, and where they had a right to be, at all proper times, without being intruders upon the premises, or invaders of the rights of any one.... It owed them the duty to guard the pit in the street, so that they might not fall into it and perish."
Emmelman, 108 Ind. at 536-537, 9 N.E. at 158 (emphasis added).1
The majority also points to Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248 (Ind.1996), in further support for the recognition of a relationship between the user of a high*1386way and the owner or occupier of land adjacent to the highway. That case involved the liability of the operator of a pipe cutting station on a construction site to a pedestrian in a stairwell near the cutting station. The pipe cutter operator, Grunau, had no posses-sory or control interest with regard to the stairwell. The pedestrian was injured when he slipped on a pipe which had fallen on the stairwell. The supreme court concluded:
"Grunau had a duty to insure that materials from the pipe cutting station did not endanger people in adjacent areas, including the stairwell, just as the defendant in Fort Wayne Cooperage [Co. v. Page, 170 Ind. 585, 84 N.E. 145 (1908), reh'g denied ] had a duty to prevent escaping steam from harming passers-by. Accordingly, as Palsgraf [v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928) ] makes clear, Grunau had a duty of care to all reasonably foreseeable plaintiffs, including Tibbs."
Id. at 250. In Fort Wayne Cooperage, the operator of a manufacturing plant was found to be liable to the user of an adjacent highway where steam escaping from the plant startled the highway user's horse which then became unmanageable causing an injury. Fort Wayne Cooperage Co. v. Page, 170 Ind. 585, 588, 84 N.E. 145, 148.
What Emmelman, Fort Wayne Cooperage, and T%bbs tell us is that the person in control of land adjacent to a highway has a duty to exercise care not to injure those using the highway while they are on the highway. The cases do not address the relationship or duty as to users of the highway who leave the highway and come onto the property adjacent to the highway.
The Indiana case most helpful to resolve the issue presented is Northern Indiana Public Service Co. v. Sell, 597 N.E.2d 329 (Ind.Ct.App.1992), trans denied. In that case, a motorist lost control of his car, crossed the center line, went down an embankment, and crashed into a utility pole. Id. at 830-881. Thereafter, the plaintiff, a passenger in the car, filed an action against the utility company to recover damages for his injuries Id. at 880. On appeal, we determined that the utility company did not owe the plaintiff either a statutory or common law duty in the placement of the utility pole. Id. at 834. Although the utility company did not own the land adjacent to the highway, it did have the authority under Ind.Code § 8-20-1-28 to use the area adjacent to the highway to place poles along the highway. Id. at 832.
The facts of the present case are analogous to the accident in Sell The decedent here apparently also lost control of her car which then crossed the center line and opposing lane of traffic. The decedent's car continued off the highway and crashed into Indiana Limestone's quarry. Under the authority of Sell, there is no relationship between Indiana Limestone and the decedent which would give rise to a duty in this case.
Nevertheless, the majority finds that the "Sell reasoning is not helpful to our analysis." Opinion, p. 1382. The majority asserts that Sell is distinguishable because it did not address the common law relationship between the parties, but rather, just the statutory relationship. However, a plain reading of Sell reveals that it is subject to one interpretation, that there was no relationship between the utility company and the motorist. Specifically, we stated:
"There is no contractual or professional relationship between the parties. However, as stated above, NIPSCO has the statutory right to locate its utility poles along state roads so long as the placement of the poles does not 'incommode' the public in the use of such roads. IC 8-20-1-28. Thus, there is somewhat of a statutory relationship between NIPSCO and Bernard Sell, a member of the public using U.S. Highway 24. Nonetheless, we believe that this relationship is limited to those members of the public using state highways as they were intended to be used. Onee the car in which Bernard Sell was a passenger crossed the center line and opposing lane of traffic, the use was no longer legitimate. See IC 9-21-8-2 (vehicles required to be driven on the right half of the roadway). NIPSCO's position of the utility pole in this case was not related to the proper use of U.S. Highway 24. The undisputed facts demonstrate that NIP-*1387SCO had no relationship with the Sells that would give rise to a duty in this case."
Sell, 597 N.E.2d at 332 (emphasis added). Because we held that there was no relationship between the parties, I find the majority's distinction of Sell unpersuasive.
Lastly, the majority asserts that the "Em-melman rule" is in accord with the Restatement (Second) of Torts § 868 (1965), which has never been adopted in Indiana. See State, Department of Natural Resources v. Morgan, 432 N.E.2d 59, 66 n. 2 (Ind.Ct.App.1982) (citing Restatement § 868, but not applying it). While Restatement § 368 may provide some guidance on the issue of common law duty, it is inapplicable to the present case because Sell is controlling.
As previously stated, Sell holds that once a motorist leaves the highway, there is no relationship between the motorist and those using adjacent land. Sell, 597 N.E.2d at 333-334. Therefore, under the authority of Sell, there is no relationship between Indiana Limestone and the decedent which would give rise to a duty in this dispute.
B. Foreseeability
The majority concludes it was foreseeable that the decedent would lose control of her car and crash into the quarry. Opimion, p. 1383. In arriving at this conclusion, the majority distinguishes Sell and turns to authority from other states. Id. at 1882. The majority makes much of the fact that in Sell the driver crashed into a utility pole, but in the present case the decedent crashed into a quarry. Such a distinction does not render Sell inapplicable.
The majority fails to note the fact that the trial court relied upon Sell in determining the decedent's accident was foreseeable and, consequently, denied summary judgment. In its order, the trial court stated:
"2. Both Plaintiff and Defendant, Indiana Limestone Company, cite NIPSCO v. Sell, Ind.App. 597 N.E.2d 329, as authority for their position herein. In Sells [sic], the Court stated:
'The Louisiana Court of Appeals reached a similar result in an appeal from the grant of summary judgment. Vigreaum vs. Louisiana Dep't of Transportation & Development (1989) La. App., 535 So.2d 518. There, the Court concluded that a prior case affirming a judgment for a utility company under a similar circumstance did not stand for the proposition that a utility company, as a matter of law, will never be held liable for injuries caused a motorist whose vehicle leaves the primary roadway. Relying on facts identical to those articulated in the McMillan [v. Michigan State Highway Commission (1986), 426 Mich. 46, 393 N.W.2d 332] case, the Court in Vigreaus observed that the utility pole was a mere eight inches from the street, and was located immediately following a 'sharp curve in the roadway.' 535 So.2d at 519. The court further noted that the plaintiff produced affidavits supporting the claim that the utility company had notice of prior accidents at that location, and that the utility was aware of an alternative, less dangerous location for its pole.
Had the Sells been able to produce similar evidence in this case, summary judgment would have been inappropriate.'
It appears to this court that Plaintiff will be able to produce 'similar evidence' in this case.
3. Wherefore, Defendant's Motion for Summary Judgment is denied."
Record, pp. 192-193.
As indicated in its order, the trial court denied summary judgment on the basis that the plaintiff, Staggs, would later be able to produce evidence showing that the accident was foreseeable. However, such a ruling contravenes Ind. Trial Rule 56. This rule provides in part:
"At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto. The judgment sought shall be rendered forthwith if the *1388designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.... Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court."
TR. 56(C) (emphasis added). In addition, the rule also provides: "No judgment rendered on the motion shall be reversed on the ground that there is a genuine issue of material fact unless the material fact and evidence relevant thereto shall have been specifically designated to the trial court." TR. 56(H). Pursuant to T.R. 56, the trial court erred in basing its denial of summary judgment on the speculation that Staggs would later provide sufficient evidence, rather than on the designated evidence. See Jackson v. Blanchard, 601 N.E.2d 411, 415 (Ind.Ct.App.1992).
However, the mere fact that the trial court erroneously speculated on Staggs' ability to produce evidence does not require a reversal of the judgment. Because an appellate court reviews the trial court's decision on summary judgment according to the same standard as the trial court, the denial of summary judgment will be affirmed if it is sustainable on any theory or basis found in the evidentiary matter designated to the trial court. Beradi v. Hardware Wholesalers, Inc., 625 N.E.2d 1259, 1261 (Ind.Ct.App.1993), reh'g denied, trans. denied.
A review of the designated evidence reveals that there is no genuine issue of material fact concerning whether the accident was reasonably foreseeable. In its motion for summary judgment, Indiana Limestone designated the affidavit of Deputy James Inman of the Monroe County Sheriff's Department. In his affidavit, Inman stated:
"6. On February 28, 1998, Shelly D. Staggs operated a 1988 Lincoln Continental automobile in a southerly direction on S. Rockport Road south of its intersection with Tapp Road at approximately 9:12 a.m.
6. At a point approximately a half-mile south of that intersection, Rockport Road curves to the left.
7. To the left of that curve is a quarry known as the University Quarry which I believe was owned by Indiana Limestone Company, Inc.
8. The physical evidence at the accident seene revealed that the vehicle driven by Shelly D. Staggs crossed the center line of Rockport Road and ran up and over the left edge of the roadway. The Staggs vehicle erossed the center line at a point 80 feet south of PSI utility pole no. 22/11. After crossing the center line, the vehicle traveled 42 feet before leaving the left edge of the roadway.
9. After leaving the roadway, the vehicle operated by Shelly D. Staggs traveled a distance of 156 feet across brush and some other natural growth, then struck a wall at the corner of the quarry located approximately 24 feet from the nearest edge of S. Rockport Road.
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11. After the vehicle operated by Shelly D. Staggs struck the quarry wall, it fell into the water-filled quarry.
12. Prior to February 28, 19983, there had been no prior auto accidents on Rock-port Road in which vehicles had left the southbound lane, crossed the center line, left the roadway, and entered the quarry.
13. On February 28, 1998, there were iey spots on the southbound and northbound lanes of S. Rockport Road between its intersection with Tapp Road and the location where the Staggs vehicle left the roadway."
Record, pp. 64-65.
In his response to the motion for summary judgment, Stages designated the affidavit of Paul Box, an expert witness. In his affidavit, Box stated:
"It is common knowledge within my profession and has been for sometime that vehicles do leave the roadway in the ordinary course of travel for various reasons. Those reasons include but are not limited to skids on slippery pavement, tire blowouts, evasive maneuvers to avoid an accident with another vehicle, or to avoid an animal running across the road. For these *1389reasons, it is recognized that severe hazards within thirty feet or so of a road edge may be encountered by errant vehicles."
Record, pp. 122-128.
Similar to the cireumstances in Sells, I find that the evidence in the present case is not susceptible to the inference that the decedent's accident was reasonably foreseeable. See Sell, 597 N.E.2d at 334. The designated evidence indicates that there were no prior accidents at this site. In addition, because the decedent went off the road to the inside of the curve and traveled about two hundred feet before hitting the quarry, the fact that the quarry is less than twenty-five feet from a curve does not lead to an inference of foreseeability.
While I might agree with the trial court's speculation that Staggs conceivably could later produce evidence that the accident was foreseeable, I find that based upon the designated evidence, it was not reasonably foreseeable that motorists would leave the traveled portion of a road and crash into the quarry. Such foreseeability "does not mean that the precise hazard or exact consequence should have been foreseen, but neither does it encompass anything which might occur." Crull v. Platt, 471 N.E.2d 1211, 1215 (Ind.Ct.App.1984), reh'g denied, trans. denied. Therefore, the foreseeability factor weighs against imposing a duty on Indiana Limestone.
C. Public Policy
The majority finds that public policy weighs in favor of imposing a duty, but does not give any explanation for such a finding. Instead, the majority merely asserts that Indiana Limestone had "other alternatives that they could have used to protect travelers," and cites to Hayes v. Malkan, 26 N.Y.2d 295, 310 N.Y.S.2d 281, 258 N.E.2d 695 (1970). Opinion, p. 1384. In Hayes, the court did not focus on public policy concerns about exeavations near public roads, but rather held that there was no liability against a landowner for injuries to a motorist arising out of a collision with a pole. Hayes, 310 N.Y.S.2d at 283-285, 258 N.E.2d at 697.
Contrary to the majority's conclusion, the facts of this case show that public policy weighs against finding a duty. If we impose a duty on Indiana Limestone, then we are effectively imposing liability on a landowner every time a motorist leaves the roadway and falls into an excavation. Whenever a motorist loses control of his car and leaves the roadway, there is the risk of serious injury. Accordingly, there is no public policy goal which will be promoted by imposing liability on Indiana Limestone because its quarry is not a hazard to motorists who are properly using South Rockport Road.
In conclusion, the undisputed facts in this case do not demonstrate the existence of a relationship between the parties giving rise to a duty. Moreover, the accident in this case was not reasonably foreseeable as a matter of law. Finally, public policy weighs against imposing a duty in this case. Finding no issues of material fact in this case, I would hold that Indiana Limestone was entitled to summary judgment with regard to Staggs' negligence claim.
I respectfully dissent from the majority's holding on the duty issue and would reverse the trial court's judgment in all respects.
. Over the years, Emmelman has been cited in cases involving attractive nuisances. See, eg., Pace v. American Radiator & Standard Sanitary Corp., 346 F.2d 321, 324 (1965) ("Other Indiana cases have reaffirmed the duty expressed in Em-melman to exercise special precautions where children are involved."); Wozniczka v. McKean, 144 Ind.App. 471, 488, 247 N.E2d 215, 224 (1969). In addition, reviewing courts have relied upon Emmelman for the proposition that cities may be held liable for damages caused by negligence in the maintenance of streets and bridges. See, eg., Klepinger v. Board of Comm'rs, 143 Ind.App. 155, 162, 239 N.E.2d 160, 165 (1968).