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ATTORNEYS FOR APPELLANT David W. Craig Scott A. Faultless Indianapolis, Indiana

ATTORNEYS FOR APPELLEE R. Jeffrey Lowe J. Todd Spurgeon New Albany, Indiana Eric D. Johnson Indianapolis, Indiana

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Indiana Supreme Court
_________________________________ No. 03S01-0807-CV-390 FRED JACKSON,

In the

FILED
Mar 10 2009, 9:17 am
of the supreme court, court of appeals and tax court

CLERK

Appellee (Defendant below), v. CHRISTINE R. SCHEIBLE, AS THE MOTHER OF TRAVIS DAVID SCHEIBLE, DECEASED, Appellant (Plaintiff below). _________________________________ Appeal from the Bartholomew Superior Court, No. 03D01-0602-CT-338 The Honorable Chris D. Monroe, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 03A01-0704-CV-186 _________________________________ March 10, 2009 Boehm, Justice. In Valinet v. Eskew, 574 N.E.2d 283, 285 (Ind. 1991), we adopted Restatement (Second) of Torts section 363 permitting possessors of land to be held liable for harm caused by the condition of trees on land near a highway. A seller of land may be liable for harm caused by the condition of trees on the land near a highway if the seller is in possession or control of the condition of the trees when the harm occurs. In this case, the seller did not retain possession or control of routine maintenance, including trimming of trees, and the trial court correctly entered summary judgment for the seller.

Facts and Procedural History On July 5, 2005, ten-year-old Travis Scheible was killed in an accident in Columbus, Indiana. According to the complaint, Travis was riding his bicycle and started to cross the street from behind a mature tree that overhung the sidewalk and obscured his view of oncoming traffic. As he rode into the street, Travis was struck by an oncoming car. The tree was located on residential property previously owned by Fred and Dorothy Jackson. About six months before the accident, the Jacksons sold the property to Ronald Smith under a two-year installment contract, and Smith began residing on the property. Travis's mother, Christine Scheible, brought a wrongful death action against Fred Jackson and Smith.1 Jackson moved for summary judgment, arguing that he had no duty to Travis because he did not own, possess, or control the property at the time of the accident. Scheible responded that summary judgment was inappropriate because of genuine issues of material fact regarding Jackson's possession and control of the property at the time of the accident. Scheible also argued that Jackson was negligent per se for failing to comply with a city ordinance requiring landowners to trim trees on their property. The trial court granted summary judgment in favor of Jackson without explanation. The trial court's order included the findings required by Trial Rule 54(B) for a final judgment, and Scheible appealed. The Court of Appeals reversed. Scheible v. Jackson, 881 N.E.2d 1052, 1058 (Ind. Ct. App. 2008). The Court of Appeals held that a vendor may be liable for harm caused by the condition of sold property if the vendor retains control of the property. Id. at 1055. The majority concluded that there was a genuine issue of material fact regarding whether Jackson controlled the property after the sale. Id. at 1058. Chief Judge Baker dissented. Id. Neither opinion discussed the effect of the city ordinance.

Dorothy Jackson was not named as a defendant. Ray Scheible, Travis's father, was named as a defendant to answer as to any wrongful death claim he may assert. The driver of the vehicle that struck Travis was not sued.
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Standard of Review We review a summary judgment order de novo. Lean v. Reed, 876 N.E.2d 1104, 1107 (Ind. 2007). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In determining whether summary judgment is appropriate, we construe all facts and reasonable inferences in favor of the nonmoving party. Filip v. Block, 879 N.E.2d 1076, 1080 (Ind. 2008). I. Vendor Liability for the Condition of Trees on Land Near a Highway The issue here is one of first impression: under what circumstances a vendor of land may be liable to a third party for harm resulting from the condition of trees on the land near a highway. Both parties analyze the question under subsection 363(2) of the Restatement (Second) of Torts (1965),2 adopted in Valinet v. Eskew, 574 N.E.2d 283, 285 (Ind. 1991). Section 363(2) reads: A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway. A "possessor" is defined in part as "a person who is in occupation of the land with intent to control it." Id.

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Indiana Law