Divided COA panel affirms for Tyson in catastrophic motorcycle crash suit

The guardian of a Wayne County man who sustained catastrophic brain injuries in a motorcycle crash lost an appeal of a judgment against her negligence suit Thursday, but one judge would have permitted her case against a meat plant near the crash scene to proceed.

The case arises from an August 2014 crash involving motorcyclist Walter Reece and motorist Harold Moistner, who was 92 at the time of the crash and has since died. Reece’s guardian, Judy Reece, sued Tyson Fresh Meats and Tyson Foods Inc., alleging overgrown grass on its property near the corner of the crash scene at Hunnicut and Boyd roads in Cambridge City was a contributing factor to the collision.

Tyson won summary judgment in Wayne Superior Court, and the majority of an Indiana Court of Appeals panel affirmed in Judy Reece v. Tyson Fresh Meats, Inc., et al., 20A-CT-214.

“Tyson negated the element of duty in Reece’s negligence claim,” Judge L. Mark Bailey wrote for the majority joined by Judge Nancy Vaidik. “Reece did not satisfy the burden of persuading this Court that summary judgment was erroneously granted. Nor has Reece shown reversible error in the trial court’s evidentiary rulings.”

Those evidentiary rulings included determinations that Moistner’s responses to interrogatories, in which he said he could not see the intersection due to tall grass, were inadmissible. “Tyson moved to strike Moistner’s interrogatory responses as inadmissible hearsay because Moistner allegedly had exhibited signs of incompetency and cross-examination was impossible due to his death,” Bailey wrote.

“… Tyson took the position that Moistner’s attorney likely drafted the response and he lacked personal knowledge of the circumstances of the collision. The trial court struck the responses as hearsay. We need not reach the issue of whether this was an abuse of discretion …,” the majority held, citing other cumulative evidence in the record, including a deputy’s opinion that the grass would have limited Moistner’s view.

The trial court also excluded as speculative a crash reconstructionist’s opinion that overgrown grass and a Tyson sign impeded the view of the intersection. The COA unanimously affirmed those trial court evidentiary rulings.

But the three judges split over their interpretation of the same caselaw to determine whether Tyson was entitled to summary judgment. Both the majority and dissenting Senior Judge John Baker — who would reverse the Wayne Superior Court and remand the case for proceedings — cited Valinet v. Eskew, 574 N.E.2d 283 (Ind. 1991), and Pitcairn v. Whiteside, Ind. App. 693, 34 N.E.2d 943 (1941), to reach opposing conclusions.

In Pitcairn, railroad workers started a fire on a right of way, smoke from which obscured visibility on a nearby road where motorists became involved in an accident. Pitcairn held the railroad owed a duty to the traveling public.

In Valinet, the question was whether a landowner owed a duty to a passing motorist when a tree on the landowner’s property fell into the roadway.

“Here, the alleged dangerous condition was confined to the Tyson property. In her amended complaint, Reece alleged that Tyson allowed high grass growth ‘on their property,’” the majority held. “ …(T)he grass growth did not give rise to a duty to the traveling public.”

Baker read the cases differently for summary judgment purposes.

“The evidence is undisputed that the grass on Tyson’s property was sufficiently tall to block the view at the intersection in question. Our appellate courts have held that private property owners bear a duty of reasonable care in the use of their property in a way that does not interfere with safe travel on public roadways,” Baker wrote.

“… I believe that there are multiple issues of fact rendering summary judgment inappropriate. Specifically, I believe that a factfinder needs to resolve the questions of the population density of the area at the intersection as well as whether Tyson exercised the requisite reasonable care in maintaining the vegetation on its property.”

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