Bailey, J.
Case Summary
Judy Reece, individually and as the Guardian of Walter Reece (“Walter”), (collectively, “Reece”) appeals a grant of summary judgment in favor of Tyson Fresh Meats, Inc. and Tyson Foods, Inc. (collectively, “Tyson”). We affirm.
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Reece’s complaint alleged that Tyson was negligent because it had allowed grass to grow so high on its property that the grass blocked the view at the intersection of Boyd and Hunnicut Roads. For summary judgment purposes, Tyson admitted ownership of the ditch at the northwest corner of the intersection. As the nonmovant obliged to show prima facie the absence of a genuine issue of material fact, T.R. 56, Tyson did not designate evidence to contradict Reece’s allegation that grass was sufficiently tall to block the view at the intersection.
But Tyson argued that, under the common law, where a natural condition is wholly contained within a parcel of property, the owner or occupier owes no duty to a traveler using an adjacent public thoroughfare. Absent a duty, there can be no breach and, therefore, no recovery in negligence. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992). Whether there is a legal duty owed by one party to another in a negligence action is generally a question of law for the court to decide. Chandradat v. State, Ind. Dep’t of Transp., 830 N.E.2d 904, 908 (Ind. Ct. App. 2005), trans. denied
It is well established under Indiana common law that a landowner owes a duty to the traveling public to exercise reasonable care in the use of his property so as not to interfere with safe travel on public roadways. Pitcairn v. Whiteside, 109 Ind. App. 693, 34 N.E.2d 943 (1941)…
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The Court acknowledged the general rule of non-liability for harm caused outside land by a natural condition thereon but also recognized that courts had imposed liability when landowners had actual knowledge of a dangerous natural condition..
After our Indiana Supreme Court’s adoption of § 363, a panel of this Court had occasion to consider, in the context of planted vegetation, “whether the scope of the [landowner] duty extends to refraining from creating conditions wholly on a landowner’s property which may impair a traveler’s vision of oncoming traffic at an intersection.”…
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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.” (App. Vol. II, pg. 54.) Reece made no allegation of encroachment upon the roadway. Thus, consistent with Sheley, the grass growth did not give rise to a duty to the traveling public.
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Conclusion
Tyson negated the element of duty in Reece’s negligence claim. 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.
Affirmed. Vaidik, J., concurs.
Baker, Sr. J., dissents in part with opinion
Baker, Senior Judge, dissenting in part.
I fully concur with respect to the resolution of the evidentiary issue, but I respectfully dissent from the majority’s decision to affirm the trial court’s order granting summary judgment in favor of Tyson.
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In this case, 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. Consequently, I would reverse the trial court’s order on summary judgment and remand for further proceedings