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High court: land seller not liable in death

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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.

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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