ILNews

High court: land seller not liable in death

Back to TopCommentsE-mailPrintBookmark and Share

Addressing an issue of first impression today, the Indiana Supreme Court considered under what circumstances a vendor of land may be liable to a third party for harm resulting from the condition of trees on the property near a road.

The majority held that Fred Jackson, as the seller of his property to Ronald Smith through a two-year installment contract, didn't retain possession or control of routine maintenance of the property, so summary judgment in his favor by the trial court was correct.

In Christine R. Scheible, as mother of Travis David Scheible, deceased v. Fred Jackson and Ronald Smith, No. 03S01-0807-CV-390, Christine Scheible brought a wrongful death action against Jackson and Smith after her son Travis was killed while riding his bike. Travis's view of traffic was obstructed by a tree hanging low from the property Jackson sold to Smith, and he rode into the street and was struck by a car.

The Indiana Court of Appeals reversed summary judgment in favor of Jackson, holding there was a genuine issue of material fact as to whether Jackson controlled the property after the sale.

Chief Justice Randal T. Shepard and Justices Theodore Boehm and Frank Sullivan affirmed the trial court's grant of summary judgment in favor of Jackson, ruling that ownership of the property was transferred to Smith upon execution of the land-sale contract and he had no duty at the time of the accident to maintain the tree as provided by a city ordinance.

Scheible argued Jackson still could be held liable because he acted like a landowner after the sale, citing Smith's need to consult with Jackson before making changes to the property and that Jackson alone held the casualty and liability insurance for the property.

Justice Boehm, writing for the majority, determined that the fact Smith needed permission from Jackson before making changes reflects Jackson wanted to protect his security interest in the property. The same argument goes for the insurance: even though Smith was never added as an insured, Jackson's insurance policy on the property is consistent with his desire to protect his financial investment and doesn't show control, wrote Justice Boehm.

"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 section 343, the only provision addressed by the parties, lies with Smith as the possessor of the land," he wrote.

The majority also held the Columbus, Ind., ordinance requiring property owners to trim trees to certain aspects didn't apply to Jackson. Indiana law has long been that when parties enter into a land-sale contract, all incidents of ownership accrue to the vendee, wrote the justice.

Justice Robert Rucker dissented in a separate opinion in which Justice Brent Dickson concurred, writing summary judgment in favor of Jackson was inappropriate. There is an issue of whether or not Jackson exercised some degree of control over the property, and the justices would affirm the Court of Appeals decision.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

  3. I always wondered why high fence deer hunting was frowned upon? I guess you need to keep the population steady. If you don't, no one can enjoy hunting! Thanks for the post! Fence

  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

ADVERTISEMENT