BOEHM, J.
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 high-way. Both parties analyze the question under subsection 363(2) of the Restatement (Second) of Torts (1965), [footnote omitted] 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. § 328E(a). Although this is this Court’s first case involving a vendor’s possession, possession is an issue common to all premises liability cases in order to “subject to liability the person who could have known of any dangers on the land and therefore could have acted to prevent any foreseeable harm.” Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004). A theme throughout our premises liability cases is that liability arises from actual control over the condition causing the injury. [Footnote omitted.] Generally, a vendor in a land-sale contract will have no liability under section 363 because the vendor no longer occupies or controls the condition of the property even if the vendor retains legal title as security. . . . .
Here Scheible acknowledges that a vendor will typically have no post-sale liability, but argues that Jackson can be held liable because he continued “acting like a landowner” after the sale. . . . .
First, Scheible notes that Smith needed Jackson’s permission to make changes to the property. . . . .
. . . .
Second, Scheible points to the fact that Jackson alone held the casualty and liability insurance for the property as evidence that Jackson controlled the property. . . . .
Third, Scheible notes that Jackson drove past the property on the way to visit family at least a dozen times each month in the six months before the accident and would have noticed the tree’s condition. . . . .
Fourth, Scheible argues that Jackson’s receipt of a notice from the city regarding tree saplings on the property indicates Jackson’s control of the property. . . . .
Finally, at some point Smith “renounced his rights” and returned the property to the Jacksons. . . . .
In addition to these points raised by Scheible, the Court of Appeals found that the financial terms of the sale raised a question as to the Jacksons’ control of the property. The Jacksons sold the property for $60,000. Smith made a $10,000 down payment and agreed to make monthly payments of $450 for two years and a $43,913.34 balloon payment. The Court of Appeals reasoned that these terms reflected Smith’s poor credit rating and reasonably foreseeable default so “Jackson clearly had a keen interest in the maintenance of the Property during the short period of time until the possibility of repossession was foreclosed.” . . . .
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.
Shepard, C.J., and Sullivan, J., concur.
RUCKER, J., dissents with separate opinion in which Dickson, J., concurs:
A “possessor” of land is defined as “(a) a person who is in occupation of the land with intent to control it or (b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or (c) a person who is en-titled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).” Restatement (Second) of Torts § 328E (1965). It appears that the critical inquiry in determining whether a party is a “possessor” as defined in Section 328E is the notion of control over the property. “Only the party who controls the land can remedy the hazardous conditions which exist upon it . . . .” Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004) (citation omitted). “Control” in turn, is defined in part as “the power or authority to manage, direct, or oversee.” Black’s Law Dictionary 353 (8th ed. 2004).
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. At the very least there is a dispute of fact on this point, and summary judgment in Jackson’s favor was inappropriate. I therefore agree with the Court of Appeals majority and would reverse the judgment of the trial court.