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
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

ADVERTISEMENT