The liability of a landowner for injuries sustained in a collision between two vehicles on a nearby roadway caused by an obstruction on the highway created by the landowner’s activity on his own premises was addressed by the Court of Appeals in Pitcarin v. Whiteside , 34 N.E.2d 943 (In.Ct.App.1941). The landowner’s duty set out in Pitcairn has been cited repeatedly since the case was decided in 1941; and, the Indiana Supreme Court has specifically stated that it agrees with the holding. Blake v. Dunn Farms, Inc ., 413 N.E.2d 560 (Ind.1980).
In Pitcairn, railroad employees lit a fire on railroad property. Smoke blew over a nearby road obstructing the view of motorists traveling on the road. The plaintiff slowed his vehicle because of the smoke and was struck from behind by another vehicle. The jury returned a verdict in favor of the plaintiff and the railroad appealed.
The Court of Appeals found that the railroad owed a duty to travelers on the highway stating that:
The occupier of land abutting on or adjacent to, or in close proximity of, a public highway, owes a duty to the traveling public to exercise reasonable care to prevent injury to travelers upon the highway from any unreasonable risks, created by such occupier, which he had suffered to continue after he knew, or should have known, of their existence, in cases where such occupier could have taken reasonable precautions to avoid harm to such travelers. The traveling public is entitled to make free use of highways and streets, and an occupier of land, which is adjacent to or in close proximity of such highway or street, has no right to use the property occupied by him so as to interrupt or interfere with the exercise of such right by creating or maintaining a condition that is unnecessarily dangerous. 34 N.E.2d 943, 946.
In addition, the Court of Appeals noted that in Ft. Wayne Cooperage Co. v. Page , 84 N.E. 145, 146 (Ind.1908), the Indiana Supreme Court had stated that:
One may not always conduct a lawful business on his own premises as he pleases. The law requires that every one [sic] in the use and enjoyment of his property shall have regard for the rights of others, and will not allow him to set up or prosecute a business on his own land in a way that is calculated to, or in fact does, materially or injuriously affect the rights or adjoining owners, or that substantially or harmfully interferes with or injures those rightfully traveling on an adjoining highway.
Id., 34 N.E.2d at 943 at 946.
The Court of Appeals also noted that in Rock Oil Company et al. v. Brumbaugh , 108 N.E.260, 264 (Ind.Ct.App. 1915), it had stated that:
One is entitled to the reasonable use of his property even if such use incidentally injures the property of his neighbor, but liability for an injury arises when it is caused by such [unreasonable] use of one’s property as might reasonably have been anticipated to result in damage to the person or property of others in the vicinity.
34 N.E.2d 943, 946.
The railroad in Pitcairn argued that the smoke over the road was a mere condition, the creation of which was not negligence. However, the Court of Appeals rejected that argument and held that:
[t]here was a duty [on the part of the railroad] to refrain from the creation or maintenance of any condition upon their right of way which subjected the traveling public, using public highways in the vicinity of such right of way, to unreasonable risks or conditions that were unreasonably dangerous. A violation of this duty would constitute negligence.
34 N.E.2d 943, 947
The railroad also asserted that the sole proximate cause of the collision in which the plaintiff was injured was the negligence of the driver who struck his car in the rear. However, the Court of Appeals rejected that argument, stating that had it not been for the smoke on the highway, the collision would not have occurred; and, therefore, the smoke was a concurring cause of the wreck, which would be treated as one of the proximate causes unless and independent agency intervened in such a way as to break the chain of causation and become the sole proximate cause. In that regard, the Court stated that in this case, the smoke on the highway was not a mere condition, unconnected with the intervening agent. Instead, it was an active agency produced by the railroad which materially interfered with the vision of both drivers to the extent that the jury could probably have determined that the collision would not have occurred in its absence and that it was a substantial factor in causing an injury that was reasonably foreseeable.
The railroad’s last argument on appeal was that the plaintiff was guilty of contributory negligence as a matter of law in failing to wait in a place of safety when his view of the highway was obscured by a temporary or transitory obstruction. However, the Court of Appeals disagreed, stating that it refused to hold as a matter of law that when the plaintiff approached a cloud of smoke that obstructed his vision, it was his duty to stop until the smoke was dissipated by the wind.
Dangers Created By Exits From A Landowner’s Property Onto An Adjacent Public Highway
In Holiday Rambler Corp. v. Gessinger , 541 N.E.2d 559 (Ind.Ct.App.1989), trans. denied, a collision took place on the highway in front of the Utilimaster plant owned by Holiday Rambler. The shift at the factory ended at 3:00. All employees got off at the same time. There were four drives that employees could exit from and from which they could turn in either direction. There were no warning signs or signals at any of those locations and the speed limit was 55 miles per hour. Danny Slabaugh, an Ultimaster employee, was leaving the plant and attempting to make a left turn into the southbound lane on the highway, he noticed two other vehicles leaving the plant and making left turns onto the highway from the drive immediately to his right. To avoid hitting those vehicles, he stopped his car while he was still in the northbound lane on the highway. Martha Martin was travelling north on the highway and when she saw Slabaugh pull out onto the road, she braked in an attempt to avoid hitting his vehicle. However, she began skidding, hit Slabaugh’s truck, spun into the southbound lane, continued to skid, and ultimately collided with Gregory Gessinger, who was driving his motorcycle in the southbound lane on the highway. Gessinger sued Utilimaster and the State for the damages he sustained as a result of the wreck.
Utilimaster filed a motion for summary judgment, asserting that an owner of land adjacent to a highway has no duty to control the conduct of third parties off the landowner’s property and over whom the landowner has no control. The trial court denied the motion and Utilimaster appealed. The Court of Appeals framed the issue as being whether the owners/lessees of a commercial property adjacent to a public highway owe a duty of care to the public traveling on the highway to reduce the number of driveways exiting from their plant onto the highway, to stagger the quitting time of the plant employees, or to take other precautions so as to control the conduct of, or otherwise protect, third persons traveling on the public highway.
Gessinger argued that Ultimaster had “a duty to exercise reasonable care to prevent injury caused by the property’s defective or dangerous condition to persons traveling on [the highway]”. 541 N.E.2d 559, 562. The Court of Appeals agreed, noting that this duty was described in Pitcairn v. Whiteside, as follows:
The occupier of land abutting on or adjacent to, or in close proximity of, a public highway, owes a duty to the traveling public to exercise reasonable care to prevent injury to travelers upon the highway from any unreasonable risks created by such occupier, which he had suffered to continue after he knew, or should have known, of their existence, in cases where such occupier could have taken reasonable precautions to avoid harm to such travelers. The traveling public is entitled to make free use of highways and streets, and an occupier of land, which is adjacent to or in close proximity of such highway or street, has no right to so use the property occupied by him as to interrupt or interfere with the exercise of such right by creating or maintaining a condition that is unreasonably dangerous.
541 N.E.2d 559, 562, quoting Pitcairn, 34 N.E.2d 943, 946.
The Court then went on to observe that:
According to the analysis in Pitcairn and subsequent cases, the owner of land adjacent to a highway owes the duty to the traveling public to prevent injury to travelers upon the highway from any unreasonable risks created by the property’s dangerous condition which the landowner knew or should have known about. Whether this duty was discharged is a question of fact for the jury.
541 N.E.2d 559, 562.
Therefore, the Court held that the trial court properly denied Utilimaster’s motion for summary judgment.
Liability For Creating Conditions Wholly Contained Within A Landowner’s Property Which Impair The View Of Motorists On An Adjoining Roadway
In Blake v. Dunn Farms, Inc. , 413 N.E.2d 560, 564 (Ind. 1980), the Indiana Supreme Court stated that it agreed with the Court of Appeals decision in Pitcairn. However, on cases involving obstructions of stop signs along the highway, defendants will often file Motions for Summary Judgment arguing that there is no duty owed if the obstruction is wholly contained with the defendant landowne’rs property based upon the Court of Appeals’ decision in Sheley v. Cross , 680 N.E.2d 10 (Ind.Ct.App.1997), trans. denied. In that case, Margaret Sheley was killed in an intersection collision. The administrator of her estate filed suit against the other driver, the county, and against the owners of land adjacent to the intersection, alleging that they had negligently planted crops on their land which impaired a motorist’s view of approaching traffic at the intersection. The trial court granted summary judgment in favor of the landowners based upon a finding that the landowners had no duty to motorists to avoid creating a condition on their land which might impair a motorist’s view at the intersection. The Court of Appeals agreed.
In its opinion, the Court of Appeals stated that “any analysis in this area” must begin with Pitcairn v. Whiteside, 680 N.E.2d 10, 12, quoting the duty set out in that case and stating that:
This duty is founded in the “fundamental principal that a person may not use his land in such a way as to unreasonably injure the interests of persons not on his land—including owners of adjacent lands, other landowners, and users of public highways.” Lever Bros. Co. v. Langdoc , 655 N.E.2d 577, 581 (Ind.Ct.App. 1995). Thus a landowner does owe a duty to the traveling public to exercise care in the use of his property so as to not interfere with safe travel on public roadways. 680 N.E.2d 10, at 12.
However, the Court of Appeals stated that the issue in Sheley was whether the scope of that duty extends to refraining from creating conditions wholly on a landowner’s property which may impair a traveler’s vision of approaching traffic at an intersection. Based upon that characterization of the issue, the Court of Appeals affirmed the summary judgment the trial court had entered in favor of the defendant, and stated that:
[T]his case is distinguishable from Pitcairn and Holiday Rambler . In those cases, the defendants’ conduct caused a hazard to visit itself wholly upon the roadway. Here, the alleged hazardous condition was wholly upon the Grossman’s property. The difference is significant as noted by our supreme court in Blake v. Dunn Farms, Inc. , 274 Ind. 560, 413 N.E.2d 560 (1980). Regarding Pitcairn , the court stated “We emphasize that in that case, the railroad itself was causing the dangerous condition that visited itself upon the traveled portion of the highway.” Id. at 564, 413 N.E.2d 560. Thus, to the extent a landowner owes a duty to travelers on an adjacent roadway, that duty is limited to refraining from creating hazardous conditions that visit themselves upon the roadway. Where an activity is wholly contained on a land owner’s property, there is no duty to the traveling public.
680 N.E.2d 10, at 13 (citations omitted).
The Court of Appeals reached its decision in Sheley by interpreting the Supreme Court’s ruling in Blake as being controlled by the fact that the smoke the railroad generated by the fire on its premises was present on the roadway. However, that is an incorrect interpretation of the basis for the Supreme Court’s decision in Blake. In Blake, the plaintiff was a passenger in a car which was traveling on a highway at night and struck a horse. The plaintiff sued the owner of the horse (Love) and the corporation which owned the land where the horse was kept (Dunn Farms, Inc.). Dunn Farms was a family-owned corporation whose officers lived in Arizona. The plaintiff alleged that the defendants were negligent in allowing the fences on the property where the horse was kept to fall into disrepair and in permitting a horse to run on the state right-of-way and highway.
Dunn owned the land, but rented the property to a third person. Love performed services and paid rent to the lessee in exchange for the right to pasture his horses on the property. The renter moved from the property shortly before the collision occurred because she could not reach an agreement as to a new lease with Dunn Farms. However, Love continued to keep his horses on the property.
The uncontroverted evidence showed that Dunn Farms was neither the owner nor the custodian of the horse involved in the collision, that it had no material relation to the horse, and had no material relation to Love. Although there was some evidence that Love’s horses had been out of the pastures before, there was no evidence that Dunn Farms’ owners had any knowledge of those incidents. Therefore, Dunn Farms filed a motion for summary judgment, asserting that a landowner who is neither the owner nor custodian of a horse, cannot not be held liable for injury caused by the horse when it escapes and is running at large.. The trial court granted the motion and Blake appealed.
The Supreme Court affirmed the entry of summary judgment in favor of Dunn Farms on the basis that it is the duty of the owner or keeper of an animal to keep him confined, and the mere possession or ownership of land from which an animal strays is not sufficient to make the landowner liable unless he is also the keeper of the animal. The Supreme Court noted that in Pitcairn, the Court of Appeals held that the owner of property adjacent to a highway has a duty “to exercise reasonable care to prevent injury caused by the property’s defective or dangerous condition”, and stated that it agreed with that decision. 413 N.E.2d 560, 564. However, the Supreme Court then went on to state that:
The facts in this case do not bring it within the rule set out in Pitcairn v. Whiteside [cite omitted], where it was held to be the duty of a property owner adjacent to a highway to exercise reasonable care to prevent injury caused by the property’s defective or dangerous condition. The defective or dangerous condition in Pitcairn was heavy smoke going across the traveled portion of the highway, caused by a railroad, through its employees, in burning off the right-of-way. We emphasize that in that case, the railroad itself was causing the dangerous condition that visited itself upon the traveled portion of the highway. This condition was heavy smoke, which billowed across the roadway so that drivers collided because they could not see other vehicles through the smoke. In that case, the dangerous condition existed for several hours throughout the day, with no effort on the part of the railroad employees to flag down moving vehicles approaching the smoke, or in any way to warn them of the dangerous condition.
Though we agree with the decision in Pitcairn , that case in no way parallels the facts and circumstances in the case before us. Here, the owner of the property had no relationship to the agency causing the problem, and no duty to investigate to determine if there was a problem, emergency, or dangerous condition.
To hold otherwise would place a duty on a property owner to continually inspect the perimeter of his property, particularly along an adjacent highway, to make sure that dangerous conditions do not arise for those traveling on the highway.
413 N.E.2d 560, at 564.
In interpreting the Supreme Court’s decision in Blake, the Court of Appeals incorrectly focused on Blake’s reference to the smoke being visited upon the highway. In fact, Blake was distinguishing Pitcairn based upon the fact that the railroad had control over the agency which caused the collision (the smoke), whereas Dunn Farms had no control over the agency which caused the collision (the horse).
The Court of Appeals recognized this crucial distinction in Holiday Rambler v. Gessinger, 541 N.E.2d 559 (Ind.Ct.App. 1989). Utilimaster filed for summary judgment contending it owed no duty of care to third parties off the landowner’s property and for the actions of others over whom the land owner had no control. The trial court denied the motion and Utilimaster appealed.
After reiterating the duty of a landowner as set forth in Pitcairn, the Court in Holiday Rambler pointed out that:
In Pitcairn , railroad employees were burning off the right of way sending heavy smoke billowing into the roadway, causing a collision due to drivers’ lack of visibility. In reaffirming Pitcairn the court in Blake v. Dunn Farms (1980) 274 Ind. 506, 413 N.E.2d 560 stated :
We emphasize that in that case, the railroad itself was causing the dangerous condition that visited itself upon the traveled portion of the highway. …
Here, the owner of the property had no relationship to the agency causing the problem, and no duty to investigate to determine if there was a problem, emergency, or dangerous condition. (emphasis added)
Blake, 413 N.E.2d at 564.
In the present case the landowner of the property did have a relationship to the agency causing the problem. Utilimaster provided its employees four driveways within eight hundred feet and allowed hundreds of people to exit at 3:00 p.m. each day onto a state road with a speed limit of fifty-five miles per hour. (At the time about 750 people were employed at the plant. All production employees left at 3:00 p.m.) These employees exited from driveways in both directions with no established traffic flow pattern. Danny Slabaugh was one of Utilimaster’s employees. If he had not stopped eight feet into the road to avoid hitting two other employees also exiting from Utilimaster, Martha Martin would have not applied her brakes continuing the chain of events which eventually injured Gessinger. (emphasis added).
The Court in Holiday Rambler then held that the trial court properly denied Utilimaster’s motion for summary judgment because:
According to the analysis in Pitcairn and subsequent cases, the owner of land adjacent to a highway owes the duty to the traveling public to prevent injury to travelers upon the highway from any unreasonable risks created by the property’s dangerous condition which the landowner knew or should have known about . Whether this duty is discharged is a question of fact for the jury. (emphasis added)
541 N.E.2d 559, at 562.
In Snyder Elevators, Inc. v. Baker, 529 N.E.2d 857 (Ind.Ct.App. 1988), trans. denied, the Court of Appeals reversed the denial of a landowner’s motion for summary judgment. In that case, the defendant, Snyder Elevators, owned a grain elevator with a parking lot that accommodated only twenty-five trucks. As a result, trucks normally lined up along the curb on neighboring streets, waiting to unload their grain. Timothy and Jamie Baker were injured when they drove their motorcycle into the front of a car being driven by Tonya Buck. Immediately prior to the collision, Buck had stopped at the intersection of 14 th Street and Main Street. She was traveling on 14 th Street and her view down Main Street to her left was blocked by an Easterday Company truck that was parked at the curb on Main, waiting in line to be able to unload grain at the elevator. As Buck inched out into the intersection, the Baker’s motorcycle hit the front of her car. The collision occurred several blocks away from the grain elevator. However, the Bakers sued Snyder as well as Easterday, alleging that Snyder was negligent in failing to: provide adequate parking for its customers; provide an orderly and efficient means of loading and unloading its customers’ trucks; inform its customers that their parking was creating hazards to the public; and, in failing to implement steps to eliminate those hazards.
Snyder filed a motion for summary judgment, asserting that as a matter of law, it owed no duty to the Bakers, nor had it assumed any duty toward them. The trial court ultimately denied that motion and Snyder appealed. The Court of Appeals reversed and remanded the case to the trial court with instructions to enter summary judgment in favor of Snyder. Again, control of the agency causing the collision was the key to the decision.
The Court of Appeals stated that there was no Indiana case in which the precise question posed in Snyder had been addressed. However, it noted that in State v. Flanigan , 489 N.E.2d 1216 (Ind.Ct.App.1986),
[t]he operators of a flea market adjacent to a highway owed no duty to its patrons to protect them from being struck by automobiles as the patrons were walking along a highway [on their way] to the flea market. (citation omitted) The Flanigan court declined to impose liability on the operators of the flea market for the acts of a third party over whom the operators had no control, and which occurred not on their property but on a public highway over which they had no control.
529 N.E.2d 855, 857-858.
The Court in Snyder also acknowledged that the Court of Appeals’ decision in Ember v. B.F.D., Inc. , 490 N.E.2d 764 (Ind.Ct.App.1986), suggested that a business owner may owe a duty to someone injured off of its premises when the activities conducted on the business premises affect the risk of an off-premises injury. In that situation, the Court stated that a landowner may be under a duty to correct the condition or guard against foreseeable injuries. However, the Court in Snyder stated that “[w]e believe that if members of the general public [as opposed to business patrons] are to benefit from such a rule, it should be limited to cases in which the defendant has maintained a hazardous condition or conducted some activity on the premises, beyond the mere fact of operating a business, which causes the off-premises injury. See Pitcairn v. Whiteside (1941), 109 Ind.App. 693, 34 N.E.2d 943 (occupier of land who started fire creating dense smoke which obscured view on adjacent highway, owed duty to refrain from endangering traveling public).” 529 N.E.2d 855, 858.
However, the Snyder Court stated that “[t]here was nothing in the way the elevator conducted its business which resulted in the long queues outside the business premises; there were simply more customers than usual. In fact, the record established that the elevator was weighing and unloading truckloads of grain at a much greater rate than during normal harvest periods.” Id., at 858-859. For these reasons, the Court in Snyder concluded that “the law does not impose a duty on a business to guard against injury to the public from the negligent acts of a customer over which the business has no control and which injury occurs off the business’s premises.” Id., at 859.
The Court in Snyder also rejected the Bakers’ argument that even if the law did not impose a duty on Snyder, it had gratuitously assumed a duty toward them. The Court acknowledged that the assumption of duty creates a special relationship between the parties and a corresponding duty to act in the manner of a reasonably prudent person; and, that the question of whether a party has assumed a duty and the extent of any duty that has been assumed are generally questions for the trier of fact. The evidence the Bakers cited to support their argument that Snyder had assumed a duty was as follows. Snyder had received complaints from the city and from an individual about the trucks blocking driveways and doorways along Main Street, thus deterring customers from frequenting the businesses along Main Street. In response to those complaints, Snyder had arranged for waiting trucks to park in a McDonald’s parking lot and instructed the truck drivers to go there. However, that plan had only limited success because newly-arriving trucks would jump in line and the McDonald’s parking lot was not large enough to accommodate all of the waiting trucks. The Court of Appeals concluded that those facts were insufficient to create a factual question for the jury as to whether Snyder had assumed a duty toward the Bakers. The basis for that conclusion was that the actions taken by Snyder were in response to complaints involving the detrimental effect the parked trucks were having on businesses along Main Street and had nothing to do with dangers to drivers on Main Street. Therefore, the Court stated that “no reasonable trier of fact could conclude from the record that Snyder’s actions were taken for the benefit of motorists using Main Street.” Id., at 860.
In Justice v. CSX Transportation, Inc. , 908 F.2d 119 (7 th Cir.1989), the 7 th Circuit Court of Appeals addressed the issue of whether a landowner could be held liable for a collision which occurred on a public road adjoining its property based upon the fact that its building and railroad cars on its property blocked the view of motorists approaching a railroad crossing. In that case, the estate of a man who was killed in a truck/train collision sued the railroads that owned the train and the railroad tracks, as well as the owner of the land that was adjacent to the crossing where the wreck occurred.
The Jasper County Farm Bureau owned a large fertilizer plant located near the crossing. At the time of the wreck, Farm Bureau had placed several railroad cars on a spur leading off of the main track, which, in combination with its fertilizer plant building, blocked the view of the main track to anyone on the county road approaching the crossing from the east, which was the direction in which the decedent was traveling. As he approached the crossing, the decedent saw that the lights on the railroad’s warning signal were flashing and he stopped before he got to the tracks. Not seeing the train that was approaching, he slowly drove forward and was hit by the train as he entered the main track. The estate’s theory of recovery against Farm Bureau was that it had a duty not to obstruct the view of persons using the county road. However, the U.S. District Court for the Northern District of Indiana entered summary judgment in favor of Farm Bureau based upon its finding that no such duty existed, and the estate appealed.
With regard to what duty is owed to persons using an adjacent public roadway, Farm Bureau conceded that if a landowner or occupier physically obstructs a public way, it is liable to a user injured as a result of the obstruction. It even conceded liability to users of a public way for indirect physical obstruction, as where the owner of a commercial property, by negligent design of the entrance from the property onto a public way, precipitates an accident between an employee or customer and a third party, and the third party sues the landowner (as in Holiday Rambler Corp. v. Gessinger, supra). However, Farm Bureau argued that no liability could be imposed for “merely obstructing the line of sight across its own land”, 908 F.2d 119, 121. The Court of Appeals agreed with the distinction that Farm Bureau drew between the facts in Justice and cases such as Holiday Rambler, in which the employee or customer “may be regarded as a physical projection or emanation from the property, much as if the owner had dumped his garbage in the public way”, 908 F.2d 119, 122; and acknowledged that there is no physical intrusion into the public way when a property owner merely blocks a view across his property. However, the Court did not find that dispositive.
The Court of Appeals noted that the question of “whether a landowner has a tort duty to prevent visual obstructions on his property to the use of a public way” is one of Indiana common law, but stated that there were no Indiana cases directly on point and “the analogous Indiana cases that the parties cite [Pitcairn, State v. Flanigan, Blake, Holiday Rambler, and Snyder Elevators] are all over the lot, and the case law elsewhere is sparse and divided”. 908 F.2d 119, 122. Therefore, since it found no decisive precedents, the Court “turned to principles”, Id., at 123, the most fundamental principle being that “a person may not use his land in such a way as unreasonably to injure the interests of persons not on his land – including owners of adjacent lands, of course, but also other landowners and the users of public ways.” Id., citing Ft. Wayne Cooperage Co., Pitcairn, and Prosser and Keeton on the Law of Torts, 386 (5 th ed. 1984).
According to the Court:
[t]his principle undergrids the law of nuisance, the doctrine of Rylands v. Fletcher , the blasting cases, much of trespass law, the landowner’s liability to persons injured off the land as a result of artificial as distinct from natural conditions on the land (Restatement, supra, §364), and the acknowledged duty of a landowner to avoid not only physically obstructing the public way but also (as in Holiday Rambler ) creating a situation in which the owner’s customers or employees obstruct it. Most of the cases that instantiate the principle involve a physical interference with the plaintiff, but not all. A funeral home placed in a residential community can be an actionable nuisance, Reiser v. Osborn , 114 Ind.App. 617, 53 N.E.2d 545 (1944); Travis v. Moore , 377 So.2d 609 (Miss.1979), although it does not emit particles or rays that strike the neighbors. The present case could be regarded as stronger for liability, because there is a physical obstruction: the fertilizer plant and the cars on the [railroad track] physically obstructed [the decedent’s] sight.
908 F.2d 119, 123.
The Court concluded that “[t]here is no satisfactory theoretical basis for drawing a sharp line distinction between land uses that send material entities across the property line and other land uses that harm persons not on the land”, Id. Although stating that it was not suggesting that people who own land at intersections must raze their buildings and level the land down to the surface of the intersecting rights of way, or that it is a tort to interfere with a neighbor’s view of a lovely prospect from your land”, the Court held, “predicting as best we can how the Indiana Supreme Court would rule if this case were presented to it – that a landowner’s duty of care extends to avoiding the creation of visual obstacles that unreasonably imperil users of adjacent public ways, even if the obstacle is wholly on his land and merely blocks the view across it.” 908 F.2d 119, 124.
Rather than narrowing the application of Pitcairn, the Supreme Court in Blake reaffirmed Pitcairn. Sheley misinterpreted the holding in Blake . The basis for the Court’s holding in Blake has been clarified by subsequent cases. In Holiday Rambler , the court found that the landowner had a duty because it had a relationship to with the agency that caused the problem (traffic). The vehicles causing the problem were employees of the defendant and the defendant made the decision to let all of the employees off at the same time without providing a proper means for them to exit from the employer’s premises without endangering motorists and the adjacent highway. In Blake, no duty was found because Dunn had no control over the horse which escaped. In Snyder, no duty was found because Snyder did not have control over the traffic which caused the collision. It was control of the condition, not the location of the condition, which distinguished Blake from Pitcairn.
Landowners’ Liability To Users Of Adjacent Roads Based Upon “Artificial” vs. “Natural” Conditions Of Land
In Spears v. Blackwell, 666 N.E.2d 974 (Ind.Ct.App.1996), trans. denied, a southbound motorist who was injured in a collision with a pool maintenance truck exiting from a driveway located on property on the west side of a rural highway sued the owners of the property, alleging that the collision occurred due to vegetation adjacent to the end of the driveway which obscured the drivers’ view of each other. The trial court entered summary judgment in favor of the landowners based upon its finding that the vegetation was a natural condition and therefore, the owners of the property owed no duty to the plaintiff relative to maintaining their property/trimming the vegetation.
The Court of Appeals noted that “[g]enerally, an owner of realty does not owe a duty to passersby using an adjacent public thoroughfare to protect them from harm that could result from natural conditions of the land. Valinet v. Eskew, 574 N.E.2d 283 (Ind.1991).” 666 N.E.2d 974, 977. However, “such a duty is owed regarding an artificial condition of the land about which the landowner knew or should have known. Holiday Rambler Corp. v. Gessinger , 541 N.E.2d 559 (Ind.Ct.App.1989), trans. denied; Pitcairn v. Whiteside , 109, Ind.App. 693, 34 N.E.2d 943 (1941).” Id. The plaintiff in Spears argued that there was a genuine issue of material fact as to whether the vegetation was a natural or artificial condition; and, that therefore, the trial court erred in granting summary judgment to the property owners based upon its finding that the vegetation was a natural condition. The Court of Appeals agreed.
The Court of Appeals noted that the Restatement (Second) of Torts states:
… defines natural conditions as land that was not changed by any acts of humans, including the possessor or any predecessors in interest. Restatement (Second) of Torts §363 cmt. B (1965). FN2 Natural conditions also include the natural growth of vegetation such as weeds, on land that is not artificially made receptive to them. Id. Also, vegetation that humans plant is non-natural despite whether they are inherently harmful or become so only because of subsequent changes due to natural forces. Id. Additionally, the Restatement defines “natural condition” of land to be “a condition that is not in any way the result of human activity.” Restatement (Second) of Torts §840 cmt. a (1979). “Natural condition” includes “soil that has not been cultivated, graded, or otherwise disturbed.” Id. Vegetation is not considered a “natural condition” if it “grows on land only because it has been plowed,” even if no one planted or cultivated the vegetation. Id.
FN2 Adopted by our Supreme Court in Valinet , 574 N.E.2d 283.
666 N.E.2d 974, 977.
However, the Court also noted that “natural condition” does not mean that human activity may not have ever affected an area. Human activity may be so remote in time, or so minimal in effect, that what may have begun as an artificial condition becomes a natural condition.
With regard to the facts in Spears, the Court of Appeals noted that the vegetation present at the end of the defendants’ driveway at the time of the collision was described as “tall weeds”. However, the previous owners of the property had planted juniper shrubs and a rock garden in the area where the “weeds” were growing and evidence of that juniper and rock garden was still present two years after the wreck when a large amount of rock and dirt was removed from the area. In addition, the Court noted that the defendants had mowed the area of the vegetation on at least one occasion before the collision; and, a corn field existed in the vicinity of the area when the defendants first acquired the property. The Court of Appeals held that this evidence was sufficient to permit a reasonable trier of fact to determine that the vegetation was not a natural condition, which created a genuine issue of material fact precluding summary judgment.
Statutes And Ordinances Relative To Trimming Vegetation To Prevent Obstructing The View At Intersections
In French v. Bristol Myers Company , 574 N.E.2d 940 (Ind.Ct.App.1991), trans. denied, the plaintiff, Donna French, was injured in an automobile collision. She sued Bristol Myers, alleging that it had caused the collision by permitting hedges to grow around its parking lot, in violation of a city ordinance which prohibited all owners, occupants and tenants of any real estate abutting any street intersections and intersections of public, business and service driveways with streets, from permitting any trees, plants, shrubbery, signs, parked vehicles, or any other object which obstructed or tended to obstruct the view of any operator of a vehicle or pedestrian approaching the intersection, from growing to a height over three feet from the grade of the curb within twenty-five feet of the intersection. The ordinance also provided that any property owner or occupant who violated its provisions would be given a notice of noncompliance and that “[f]ailure thereafter within five days to comply shall constitute a violation of this section”. 574 N.E.2d 940, 941. Bristol Myers moved for summary judgment relative to the negligence per se allegation in French’s complaint on the basis that it had not received a notice of noncompliance, and therefore, had not “violated” the ordinance. The trial court granted that motion, the case was tried, and the jury returned a defense verdict.
On appeal, French argued that it was not necessary for Bristol Myers to have received a notice of noncompliance and then fail to comply within five days in order for it to have violated the ordinance. Instead, she asserted that the ordinance imposed a duty on property owners to prevent obstructing the view of drivers and that Bristol Myers had violated that duty even though the City had not issued a notice of noncompliance.
The Court of Appeals noted that the unexcused or unjustified violation of a duty proscribed by a statute or ordinance constitutes negligence per se if the statute or ordinance is intended to protect the class of persons in which the plaintiff is included against the risk of the type of harm that has occurred as a result of its violation; and, the fact that a statute imposes a penalty for its violation will not prevent an action for damages resulting therefrom. In addition, the Court stated that in construing a statute or ordinance, the intention of the legislature or the body that passed the ordinance must be considered and will control over the strict letter of the ordinance or the literal import of its particular terms or phrases.
With regard to the facts in French, the Court stated that the ordinance was “enacted for the safety of those who come into contact with the intersections, whether transported by vehicle or by foot.” 574 N.E.2d 940, 944. Therefore, the class of persons to be protected and the risk of harm to be prevented included French and the injuries she sustained in the collision. The Court rejected Bristol Myers’ argument that in order for a violation of the ordinance to be considered negligence per se in French’s action against it, there had to be a “violation” in the sense that the City had imposed a fine on it. The Court’s reasoning for that conclusion was that:
The obvious purpose of the statute is the safety of persons who approach the intersection. That purpose will be thwarted, not advanced, by a construction of the statute which excuses an owner because of a lack of notice from the City of Evansville, an entity over which a plaintiff has no control, when the owner admittedly failed to “comply” with the ordinance. It is the ordinance and not the notice from the City of Evansville that imposes the duty upon the responsible person to prevent the obstruction of views at intersections. [citation omitted]
574 N.E.2d 940, 943.
Therefore, the Court of Appeals held that the trial court had erred in granting summary judgment in favor of Bristol Myers.
Current Indiana Statutes Relative To Trimming And Maintaining Vegetation
I.C. 32-26-5-1 requires that “[a] hedge or other live fence grown along the lines of dividing properties owned by different persons in Indiana shall be cut and timed to the height of not more than five (5) feet and to a width of not more than three feet once in each calendar year.
I.C. 32-26-4-1 Obstruction of view; trimming and maintaining; application of law provides as follows:
Sec. 1. (a) This chapter:
(1) does not apply to:
(A) a highway intersection located within a city or town; or
(B) a building of a substantial character that is located at the intersection of highways; and
(2) except for the provisions of this chapter concerning hedge fences, applies only to the intersection of a state highway with another state highway, a county highway, or a township highway.
(b) Except as provided in subsection (c), the owner of a hedge or live fence along the line of a highway shall cut and trim down the hedge or live fence to a height of not more than five (5) feet once in each calendar year.
(c) This subsection applies if a hedge, live fence, or natural growth other than a tree connects with or is found at a highway intersection, adjacent to a curve where the view of the highway may be obstructed, or at a railway right-of-way. The owner of a hedge, live fence, or other growth to which this subsection applies shall trim and maintain the hedge, live fence, or other growth at a height of not more than five (5) feet above the level of the center of the traveled road bed in the highway that adjoins the hedge, live fence, or other growth:
(1) throughout the year;
(2) for a distance of:
(A) one hundred (100) feet, if the obstruction is a hedge or live fence; or
(B) fifty (50) feet, if the obstruction consists of any other natural growths; and
(3) beginning at the intersection of the highway and continuing along the lines dividing the highways and the adjoining property.
(d) This subsection applies to a tree growing within fifty (50) feet of the intersection of a highway with:
(1) another highway; or
(2) a steam or interurban railroad.
The owner of a tree to which this subsection applies shall trim the tree so that the view at the intersection is not obstructed.
(e) Except for a natural elevation of land, an obstruction to the view at the intersection of a highway with another highway or a steam or interurban railroad that exceeds a height of five (5) feet above the center of the highway may not be maintained at the intersection.
(f) After May 22, 1933, a building may not be erected within fifty (50) feet of an intersection to which this chapter applies.
I.C. 32-26-4-2 Examination of live fences; notice to cut or trim; collection of expenses provides in part as follows:
Sec. 2. (a) The trustee of each township, the county highway superintendent, the Indiana department of transportation, or other officer in control of the maintenance of a highway shall between January 1 and April 1 of each year, examine all hedges, live fences, natural growths along highways, and other obstructions described in section 1 of this chapter in their respective jurisdictions. If there are hedges, live fences, other growths, or obstructions along the highways that have not been cut, trimmed down, and maintained in accordance with this chapter, the owner shall be given written notice to cut or trim the hedge or live fence and to burn the brush trimmed from the hedge or live fence and remove any other obstructions or growths.
(b) The notice required under subsection (a) must be served by reading the notice to the owner or by leaving a copy of the notice at the owner’s usual place of residence.
(c) If the owner is not a resident of the township, county, or state where the hedge, live fence, or other obstructions or growth is located, the notice shall be served upon the owner’s agent or tenant residing in the township. If an agent or a tenant of the owner does not reside in the township, the notice shall be served by mailing a copy of the notice to the owner, directed to the owner’s last known post office address.
(d) If the owner, agents, or tenants do not proceed to cut and trim the fences and burn the brush trimmed from the fences or remove any obstructions or growths within ten (10) days after notice is served, the township trustee, county highway superintendent, or Indiana department of transportation shall immediately:
(1) cause the fences to be cut and trimmed or obstructions or growths removed in accordance with this chapter; and
(2) burn the brush trimmed from the fences.
All expenses incurred under this subsection shall be assessed against and become a lien upon the land in the same manner as road taxes.
In Order To Support The Imposition of Liability Upon A Landowner For A Collision That Occurs On An Adjacent Roadway Because Vegetation Obscured The View Of Motorists, The Failure To Maintain Vegetation At A Lawful Height Must Be A Proximate Cause Of The Collision
The case of Wilcox v. Urschel , 200 N.E. 465 (Ind.Ct.App.1936), draws attention to the fact that in order to support the imposition of liability upon a landowner for a collision that occurs on an adjacent roadway based upon an allegation that vegetation growing on the landowner’s property obscured the view of motorists, the failure to maintain the vegetation at a lawful height must have been a proximate cause of the collision. The collision in Wilcox occurred in the country, at the intersection of two public highways. The defendant owned land adjacent to the intersection and had permitted a hedge fence at the edge of his land to grow to an unlawful height. The plaintiff sued the defendant for injuries she sustained in a collision with another vehicle, asserting that the hedge row obscured the view of motorists approaching the intersection where the wreck occurred. However, the trial court sustained the defendant’s demurrer to the plaintiff’s complaint; and the Court of Appeals affirmed that ruling.
The Court of Appeals noted that in the plaintiff’s complaint, she alleged that when her car had reached a point “equal to a full four-fifths of the distance westwardly across said crossing”, 200 N.E. 465, 466, the other driver approached and entered the intersection and struck her car near the left front wheel. The Court of Appeals stated that the facts pled in the complaint clearly showed that the collision was not caused by the defendant allowing his hedge fence and other bushes to grow taller than allowed by law. Instead, the Court stated that the facts showed that the collision was the direct and proximate result of the active, independent, efficient, direct and negligent intervening act of the other driver involved in the collision, and that the defendant “was in no effective way under the law a contributor to the injury”. 200 N.E. 465, 466. Therefore, the Court held that the facts stated in the plaintiff’s complaint failed to state a cause of action against the defendant landowner.
EDITORS NOTE: As you can tell from reading the article, this is a complicated area of the law. This article is educational only and by no means is intended to be a substitute for experienced legal advice.