Sheley v. Cross

680 N.E.2d 10, 1997 Ind. App. LEXIS 539, 1997 WL 302395
CourtIndiana Court of Appeals
DecidedJune 6, 1997
Docket57A03-9510-CV-338
StatusPublished
Cited by12 cases

This text of 680 N.E.2d 10 (Sheley v. Cross) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sheley v. Cross, 680 N.E.2d 10, 1997 Ind. App. LEXIS 539, 1997 WL 302395 (Ind. Ct. App. 1997).

Opinion

OPINION

STATON, Judge.

Buryle and Hazel Grossman were granted summary judgment in a negligence action on the issue of a landowner’s duty to travelers on a road adjacent to the landowner’s property. Walter H. Sheley, as Admimstrator of the Estate of Margaret Sheley, deceased, appeals tMs decision, presenting one disposi-tive issue for review which we restate as: Whether a landowner owes a duty to travelers on a roadway adjacent to the landowner’s property to avoid creating a condition on his property which may impair the traveler’s vision at an intersection. 1

We affirm.

On October 15,1992, Margaret Sheley was killed when her automobile collided with Kimberly Cross’ at an intersection. Sheley brought smt against Cross, the county and the Grossmans. The theory of liability against the Grossmans is that they, as owners of land at tMs intersection, negligently planted crops on their land such that a motorist’s view of oncoming traffic at.this intersection was impaired. 2 The trial court granted summary judgment in favor of the Grossmans findmg that the Grossmans owed no duty to Margaret Sheley. 3 This appeal ensued.

Summary judgment is appropriate oMy when there is no genurne issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The burden is on the moving party to prove there are no genmne issues of material fact and he is entitled to judgment as a matter of law. Once the movant has sustained this burden, the opponent must respond by settmg forth specific facts showmg a genuine issue for trial; he may not simply rest on the allegations of his pleadings. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind.1992). At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to mterrogatories, admissions, matters *12 of judicial notice, and any other matters on which it relies for purposes of the motion. T.R. 56(C).

When reviewing an entry of summary judgment, we stand in the shoes of the trial court. We do not weigh the evidence but will consider the facts in the light most favorable to the nonmoving party. Reed v. Luzny, 627 N.E.2d 1362, 1363 (Ind.Ct.App.1994), reh. denied, trans. denied. We may sustain a summary judgment upon any theory supported by the designated materials. T.R. 56(C).

I.

Duty

The trial court found that the Gross-mans were under no duty to a motorist to avoid creating conditions on their land which may impair a motorist’s view at an intersection. 4 We agree.

To recover under a theory of negligence, the plaintiff must establish: (1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff; (2) a failure on the part of the defendant to conform his conduct to the requisite standard of care; and (3) an injury to the plaintiff proximately caused by the breach. Stephenson, 596 N.E.2d at 1371. Absent a duty, there can be no breach and, therefore, no recovery in negligence. Id. Whether a defendant owes a duty to a plaintiff is a question of law. Id.

Any analysis in this area must begin with Pitcairn v. Whiteside, 109 Ind.App. 693, 34 N.E.2d 943 (1941).

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 unnecessarily dangerous.
... The law requires that every one 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 of adjoining owners, or that substantially or harmfully interferes with or injures those rightfully traveling on an adjoining highway.

Id., 34 N.E.2d at 946. This duty is founded in the “fundamental principle 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 ways.” Lever Bros. Co. v. Langdoc, 655 N.E.2d 577, 581 (Ind.Ct.App.1995) (emphasis added). Thus, a landowner does owe 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. The issue, however, is whether the scope of this 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.

Sheley relies on Pitcairn, and Holiday Rambler Corp. v. Gessinger, 541 N.E.2d 559 (Ind.Ct.App.1989), trans. denied, in support of his position that the Grossmans owed a duty to Margaret. In Pitcairn, railroad employees started a fire on the railroad’s right-of-way. Smoke from the fire blew over *13 a nearby road, obscuring visibility. White-side was traveling along the road when he encountered the smoke, slowed his speed and was struck in the rear by another ear whose driver apparently could not see Whiteside. After announcing the general principles above, this court concluded that the railroad owed a duty to Whiteside as a member of the traveling public. “There was a duty upon appellants 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 unnecessarily dangerous.” Pitcairn, 34 N.E.2d at 946-47.

In Holiday Rambler, the defendant owned a manufacturing plant adjacent to a state highway. At 3:00 p.m. the plant’s shift would end, releasing 750 people at once onto the highway.

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Bluebook (online)
680 N.E.2d 10, 1997 Ind. App. LEXIS 539, 1997 WL 302395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheley-v-cross-indctapp-1997.