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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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