Valinet v. Eskew

574 N.E.2d 283, 1991 Ind. LEXIS 123, 1991 WL 115499
CourtIndiana Supreme Court
DecidedJune 25, 1991
Docket06S01-9106-CV-484
StatusPublished
Cited by20 cases

This text of 574 N.E.2d 283 (Valinet v. Eskew) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Valinet v. Eskew, 574 N.E.2d 283, 1991 Ind. LEXIS 123, 1991 WL 115499 (Ind. 1991).

Opinions

ON PETITION TO TRANSFER

KRAHULIK, Justice.

The defendants, Stanley Valinet ("'Vali-net") and NRC Corporation ("NRC"), appealed a judgment of the Boone Superior Court finding them liable for injuries suffered by plaintiffs, Ann Eskew and Phillip Eskew ("Eskews"), resulting when a tree on Valinet's property fell on Ann's car as she was driving by. The Court of Appeals affirmed. Valinet v. Eskew (1990), Ind.App., 557 N.E.2d 702.

Valinet and NRC petition to transfer and present the following issues for our review:

(1) Whether a landowner should be liable to a passing motorist for injuries resulting from a falling tree which was located on the landowner's property;
(2) Whether the opinion testimony of a forestry expert was properly admitted at trial;
(3) Whether evidence of the defendant landowner's background relating to his experience as a lawyer, landholder, and real estate developer was admissible; and
(4) Whether the trial court properly refused the landowner's tendered instruction on a passing motorist's contributory negligence.

The record discloses the following facts: Valinet and NRC own wooded land in a residential area of Clay Township, Hamilton County, Indiana, near the intersection of 106th Street and Spring Mill Road. Val-inet resided in Indianapolis, but would occasionally drive through Clay Township to inspect his property. Located on this land, twenty-eight feet from the edge of Spring Mill Road, was a large (four feet in diameter), old (160 to 190 years) oak tree.

On December 15, 1987, while Ann Eskew was driving by this tree, a storm, with peak winds of 64 m.p.h., blew the tree over onto her car, seriously injuring her. Testimony [285]*285revealed that the tree had been dead for three to five years, and it had been showing signs of decay for eight to twelve years. Furthermore, large limbs had previously fallen from the tree onto the road.

At trial, the issues of liability and damages were bifurcated, and the jury found for the Eskews on the issue of liability. The trial court entered judgment on the verdict and certified the issue for appeal. The Court of Appeals affirmed.

I. Londowner's Duty to Passing Motorists

Central to the issue of liability is the duty owed by Valinet and NRC, as landowners, to Ann Eskew, a motorist on a highway adjacent to the defendants' property. The Court of Appeals held that a landowner owes a duty to exercise reasonable care to prevent injury caused by the defective or dangerous condition of the property to travelers on adjacent roadways. Valinet, 557 N.E.2d at 706 (citing Blake v. Dunn Forms, Inc. (1980), 274 Ind. 560, 413 N.E.2d 560; Holiday Rambler Corp. v. Gessinger (1989), Ind.App., 541 N.E.2d 559; Pitcairn v. Whiteside (1941), 109 Ind.App. 693, 34 N.E.2d 943).

In their petition to transfer, Valinet and NRC contend that, in contrast to the cases cited by the Court of Appeals, the present case involves a natural condition on their land which they should not be expected to inspect. The defendants also contend that the trial court erroneously instructed the jury pursuant to the RestaTEMENT (SECOND) or Torts § 868, which has not been adopted in Indiana. This section provides:

§ 863. Natural Conditions
(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.
(2) 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.

REstatEmEnNt (SEconp) or Torts (1965) § 363.

The general rule of nonliability for natural conditions on land arose at a time when land was largely unsettled and the burden imposed on a landowner to inspect it for safety was held to exceed the societal benefit of preventing possible harm to passersby. Prosser and Keaton on Torts (5th ed. 1984) § 57 at 390. Courts have imposed liability, however, when landowners had actual knowledge of a dangerous natural condition, regardless of location. Lemon v. Edwards (1961), Ky., 344 S.W.2d 822, 823; Hay v. Norwalk Lodge No. 730, B.P.O.E. (1951), 92 Ohio App. 14, 23, 109 N.E.2d 481, 486; Taylor v. Olsen (1978), 282 Or. 343, 345, 578 P.2d 779, 781. Furthermore, a line of cases developed in which courts imposed a duty on landowners in more heavily populated areas to inspect their trees to try to prevent their posing an unreasonable risk of harm to passing motorists. Brandywine Hundred Realty Co. v. Cotillo (1931), 3d Cir., 55 F.2d 281, cert. denied (1932), 285 U.S. 555, 52 S.Ct. 411, 76 L.Ed. 944; Turner v. Ridley (1958), D.C.Mun.App., 144 A.2d 269, 271; Harris v. Village of East Hills (1977), 41 N.Y.2d 446, 449, 393 N.Y.S.2d 691, 693, 362 N.E.2d 243, 245; Taylor v. Olsen, 282 Or. at 348-49, 578 P.2d at 782-83. The rationale for imposing such a duty on urban landowners is that the risk of harm to highway users is greater and the burden of inspection on landowners is lighter in such populated areas. Prosser, supra, at 391; Restatement (Second) or Torts (1965), § 8363, Comment e.

We agree that the differing duties placed on owners of land with respect to differing demographics is correct. We, therefore, adopt § 868 of the Restate. MENT. Whether the land is in an area of sufficient population density to invoke the rule requires a factual consideration of such factors as land use and traffic patterns. Also, whether the landowner exercised the requisite reasonable care will require the fact finder to weigh the seriousness of the danger against the ease with which it may be prevented. As this Court [286]*286has previously held, a landowner need not continually inspect his property for natural dangers. Blake v. Dunn Farms, Inc. (1980), 274 Ind. 560, 566, 413 N.E.2d 560, 564. However, under some circumstances, fulfilling a landowner's duty to passing motorists might reasonably require period-ie inspections to be sure that the premises do not endanger those lawfully on the highway. As it appears from the record here that the jury was instructed on these factors, we hold that the trial court committed no error.

II. Admission of Expert Opinion

Valinet and NRC next dispute the admission of testimony of Steven Goodwin, a forester. Goodwin provided information as to the age and size of the tree, extent of decay, and how long the tree had been dead. He also discussed physical characteristics of the tree's condition which were observable from the road.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Yerano Martinez v. Jeffrey Smith
Indiana Court of Appeals, 2024
Judy Reece v. Tyson Fresh Meats, Inc.
Indiana Court of Appeals, 2020
Scheckel v. NLI, INC.
953 N.E.2d 133 (Indiana Court of Appeals, 2011)
Marshall v. Erie Insurance Exchange
923 N.E.2d 18 (Indiana Court of Appeals, 2010)
Eckburg v. Presbytery of Blackhawk of Presbyterian Church (USA)
918 N.E.2d 1184 (Appellate Court of Illinois, 2009)
May v. George
910 N.E.2d 818 (Indiana Court of Appeals, 2009)
Jackson v. Scheible
902 N.E.2d 807 (Indiana Supreme Court, 2009)
Scheible v. Jackson
881 N.E.2d 1052 (Indiana Court of Appeals, 2008)
Patterson v. Seavoy
822 N.E.2d 206 (Indiana Court of Appeals, 2005)
Whitt v. Silverman
788 So. 2d 210 (Supreme Court of Florida, 2001)
Miles v. Christensen
724 N.E.2d 643 (Indiana Court of Appeals, 2000)
Knotts v. Knotts
693 N.E.2d 962 (Indiana Court of Appeals, 1998)
Sheley v. Cross
680 N.E.2d 10 (Indiana Court of Appeals, 1997)
Spears v. Blackwell
666 N.E.2d 974 (Indiana Court of Appeals, 1996)
Booker, Inc. v. Morrill
639 N.E.2d 358 (Indiana Court of Appeals, 1994)
Farrell v. State
612 N.E.2d 124 (Indiana Court of Appeals, 1993)
Valinet v. Eskew
574 N.E.2d 283 (Indiana Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
574 N.E.2d 283, 1991 Ind. LEXIS 123, 1991 WL 115499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valinet-v-eskew-ind-1991.