Land seller not liable in death

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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.

Conclusion (slip op. at 8):  The trial court’s grant of summary judgment in favor of Jackson is affirmed.

Key Analysis (slip op. at 6, 7):  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 sec-tion 343, the only provision addressed by the parties, lies with Smith as the possessor of the land . . . Ownership of the property was transferred to Smith upon execution of the land sale contract, and Jackson had no duty at the time of the accident to maintain the tree as provided by the city ordinance.

Shepard, C.J., and Sullivan, J., concur.

Rucker, J., dissents with separate opinion in which Dickson, J., concurs:  “In my view there is no question that Jackson exercised some degree of control over the property notwithstanding he had sold it on contract to Smith . . .”

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