*1 being accomplished these from prevents JACKSON, Appellee Fred jurisdic- order. And
the same (Defendant below), ordering more than one dis- bar to tional juvenile in the same order. position jurisdiction has over court SCHEIBLE, R. Christine As Moth time it makes its subject matter Scheible, Deceased, er of Travis David ju- and therefore has dispositional decree (Plaintiff below). Appellant proba- at that time to order both risdiction No. 03S01-0807-CV-390. and commitment to the DOC. tion Supreme Court of Indiana. R.J.G. also to Indiana Code 31-30-2-3, permits juve section March jurisdiction upon nile court to reinstate juvenile's release from the DOC. legislature pro has
R.J.G. this as the means
vided section exclusive may pro order juvenile which a court How
bation release DOC.
ever, entry multiple dispositions order is not with rein
initial inconsistent jurisdiction for additional dis
statement Pro upon release from DOC.
positions
viding juvenile option court with the jurisdiction
to reinstate does foreclose It including probation.
an initial order flexibility crafting a
merely preserves deferring
dispositional order and allows
decisions as to the need for additional dis
positions.
Conclusion provision disposi-
We affirm the ordering probation following
tional decree
R.J.(G.'s Department release from the
Correction.
SHEPARD, C.J., DICKSON,
SULLIVAN, RUCKER, JJ., concur. *2 Faultless, Seott A. In- Craig,
David W. IN, Attorneys Appellant. dianapolis, Lowe, Jeffrey Spurgeon, J. Todd R. Johnson, IN, Eric D. India- Albany, New IN, Attorneys for napolis, Appellee. the time of the accident. Scheible re- sponded summary judgment inap- propriate because of genuine issues of ma- terial regarding fact BOEHM, Justice. and control of the property at the time of Eskew, Valinet *3 the accident. argued Scheible also (See- (Ind.1991), adopted we negligent per failing was se for ond) 868 permitting pos Torts section comply a city requiring ordinance sessors of land to liable for harm be held landowners to trim trees on their property. by caused the condition of trees on land near a A highway. may seller be The trial court granted summary judg- liable for harm by caused condition of ment in favor of explana- Jackson without highway trees on the land near a if the tion. The trial court's order included the is in possession seller or control of the 54(B) findings required by Trial Rule for a condition of the trees when harm oc judgment, final appealed. case, curs. this the seller did retain possession or control of routine mainte Appeals Court of reversed. Schei nance, trees, including trimming of and the Jackson, (Ind. ble v. 1052, 881 N.E.2d 1058 trial correctly summary court entered Ct.App.2008). The Court of held judgment for the seller. may a vendor be liable for harm History
Facts and Procedural by caused the condition of sold if the vendor retains control of the property. 5, July 2005, ten-year-old On Travis Id. at majority 1055. The concluded that Scheible was killed in an accident Co- genuine was a lumbus, issue of According Indiana. material fact to the com- plaint, riding bicycle regarding Travis was whether Jackson controlled the started to cross the street from behind a after the sale. Id. at 1058. mature tree that overhung the sidewalk Chief Judge Baker dissented. Id. Neither and obscured his of oncoming view traffic. opinion discussed the effect of the city street, As he rode into the Travis was ordinance.
struck an oncoming car. Standard of Review The tree was located on residential a We review judgment property previously owned Fred and Reed, order de novo. Lean v. 876 N.E.2d Dorothy Jackson. About six months be- 1104, (Ind.2007). Summary fore the 1107 judg Jacksons sold the property to Ronald Smith ment is appropriate under a two- gen when there is no year uine issue of material fact installment began and Smith moving and the residing on the property. party is judgment entitled to a as a mat 56(C). ter of law. Ind. Trial Rule In de mother, Scheible,
Travis's Christine termining whether summary judgment brought wrongful death action Fred Jackson appropriate, we construe all and Smith.1 Jackson moved facts and rea sonable inferences in summary judgment, arguing favor of the that he nonmov- duty ing Block, had no party. Filip Travis because he v. did 1076, (Ind.2008). own, possess, 1080 or control the property wrongful Dorothy may death claim he assert. The Jackson was not named as a defen- father, Ray dant. Travis's driver of the vehicle that struck Travis was named as a defendant to answer as to not sued. 810 382, N.E.2d 385 Wright, v. 805 Liability Rhodes for the Condition
I. Vendor (Ind.2004). Near a our throughout Trees on Land A theme lability is that liability cases premises Highway over the condi from actual control arises is one of first The issue here Generally, a ven causing injury.3 tion cireumstances under what impression: no contract will have dor in a land-sale a third may be liable to of land 363 because the ven liability under section from the condi resulting party for harm or controls longer occupies dor highway. the land near trees on tion of even if the ven condition of the question analyze Both security. title as See retains dor (See- 363(2) of the Restatement subsection Marshall, 226, 234, Ind. v. Skendzel ond) (1965),2adopted in Valinet Torts ("When (1973) N.E.2d (Ind.1991). Eskew, *4 enter into a land-sale [to contract] 868(2) reads: Section ownership all incidents of is land in an urban area of possessor A Conceptually, to the accrue vendee.... using a liability persons to subject to therefore, of title the ven the retention harm result- highway physical for public reserving a lien or dor is the same as exercise reason- from his failure to ing mortgage."). prevent an unreasonable able care acknowledges that a ven- Here arising from the condition of harm risk liability, typically post-sale have no dor will highway. near the of trees on the land that Jackson can be held lable but "a part defined in "possessor" A is La like a land- "acting he continued because in of the person who is designated after the sale. Scheible owner" 328E(a). § to control it." Id. with intent support in of her following evidence first case Although this is this Court's retained control of contention that Jackson involving possession, a vendor's property. liability premises common to all is an issue First, that needed Scheible notes Smith "subject liability cases order permission changes to make any known of dan- Jackson's who could have pro- The land-sale contract could on the land and therefore have gers that Smith any foreseeable harm." vided prevent acted to partner ship only had 352, one member of party cites Restatement section 2. Neither provides Appeals, workshop and used it for a cited the Court constructed the occurring Noel, 1041, liability harm "on for vendor for hobby); Olds v. 857 N.E.2d land," presumably Travis was not because (holding (Ind.Ct.App.2006) thatit landlord's injured Nor on entry dispositive right of control was under Restatement sections claim asserted removal); Beachy Const. Reed v. over snow These sections discuss 372 or 373. 1145, (Ind.Ct.App. Corp, 781 N.E.2d occurring liability for harm "outside 2002) (holding "did not that homeowners conditions," which in- "artificial land" from duly ... premises to the extent control planted preserved plants "trees or or clude injury during when a home show arose" they irrespective are harmful . of whether only had moved a few items homeowners only so because in themselves or become possession for the home and had surrendered forces." subsequent operation of natural denied; Traini, show), Harris v. trans. § 363 crt. b. 215, (Ind.Ct.App.2001) N.E.2d 225 & n. (holding liable for that marina could not be See, Schilling, eg., v. Risk though injury even the marina on a houseboat (Ind.1991) (holding partnership that 647-48 in an right move the houseboat had the liability injury had no that owned land emergency), trans. denied. occurring workshop on the land when
$11 may treat said real estate as his own that Jackson controlled the property. The land-sale contract Smith understanding shall [he] with casualty would obtain certain levels not commit waste said estate liability insurance for Also, improvements pri- thereon. or policies would name both Smith delivery to the of title to time and the Jacksons as insureds. That provi estate, said real shall not con- [Smith] Instead, implemented. sion was not any improvements proper- struct on said paid premiums Jackson the amounts of the prior permission without the written existing policies, to maintain the but Smith of [the Jacksons.] an poli was never added as insured.4 The deposition Smith testified in cy protected the home fire and usually asked before I done [I] some- loss, casualty lability as well as to third thing, fairly because I to do it wanted parties. requirement As with the major, usually permission, asked permission Smith receive before improving because I felt like that if I done some- property, maintaining insur thing major should be they aware of ance on the is consistent technically because it was still their protect desire to his financial investment though I buying even on and does not demonstrate his control.5 way and that's the I felt. Harbrecht, See Helton *5 provided "knocking Smith out a wall" as an (Ind.Ct.App.1998) (holding that con example change of a for he would company struction that general carried permission. also ask Smith testified that liability work site insurance did not control permission he asked remove the tree partially-constructed home at the time of accident, after the but later that stated employees accident when none of its had they know is was aware that "[all [the month), been the for a site trans. de gonna be taken I don't tree] down. nied. if I know asked." Even when viewed most Third, Scheible notes that Jackson drove favorably to this evidence does past way the on the property to visit fami suggest not that Jackson controlled the ly at least dozen times each month in the property. condition of the The evidence six months before the accident and would raerely reflects that property the was seeu- have noticed the tree's condition. This rity for the installment and Jack- fact also does establish Jackson's con required permission major changes son trol of property. Upon execution of protect security interest. the land-sale Smith took exclu Second, points Scheible the fact that possession property, sive leaving casualty Jackson alone held the and liabili- with control over the mainte as evidence nance of property.6 insurance for the presented 4. provided have not issue of The land-sale contract that whether Smith has a claim Jackson or [plrior to the time of title transfer of the indemnity Jackson's in surer for or otherwise. estate, [Smith] shall have upon signing said real estate the date of the 5. The land-sale contract of this contract. Prior to the time of the hereby respon- all [Smith] assumes risk and estate, sibility injury damage per- delivery of title to said real [Smith] may treat said real estate property arising as his own with son and from use [Smith's] standing the under shall not [Smith] and control of the real estate. ... risk of improvements loss to on said real estate commit waste to said real estate or ..." improvements shall be borne [Smith]. thereon. these terms re Fourth, Jackson's reasoned argues that Scheible city regarding receipt of notice rating rea poor flected Smith's credit indicates "Jackson sonably on the foreseeable default so saplings tree Jack- control of the in the mainte clearly had a keen interest indicates that he of the notice receipt during son's the short Property nance of the but to the does held title of re period possibility of time until the Indeed, Jack- control. after not establish foreclosed." Scheible v. possession was notice, gave he son received (Ind.Ct. Jackson, prob- Smith, remedy" "agreed who Assuming that Jackson had a App.2008). lem. keen in the maintenance of the interest more, that interest does property, without Finally, point at some Smith "re translate into his control over returned the rights" nounced his property. Regardless of Jackson's re building property to Jacksons. Some equity property, tained in the all incidents remained on the materials ownership passed to Smith execu actions after parties' to the tion of the land-sale contract. rights proper to the Smith renounced his ty. Smith testified that he "[rlenounced sum, posses- the contract called for over, all signed it back left rights, closing. sion to transfer to Smith at None materials there because building [Jackson] designated of the evidence is inconsistent prop bought felt like since I them for law, provision. with that As matter of My stay there.... erty, they should liability only provi- section that, quite happy thoughts weren't parties, sion addressed lies with fine, but I said because it wasn't about possessor of the land. Jackson's assertion of control materials." Negligence II. Per Se he had re building materials after Scheible also suggest does not that he gained possession *6 judgment improper is because Jackson's property the condition of the at controlled city violation of a ordinance constitutes of the accident. the time negligence per se. We do not believe the In to these raised addition applies cited ordinance to Jackson. by Appeals the of found Court accident, raised a At time that the financial terms of the sale of the a Co city required property ordinance lumbus question as to the Jacksons' control of to trim street to certain "owners" trees The sold the property Jacksons specifications.7 defined to $60,000. $10,000 "Owner" was made a down owner, owner, include "any part joint include ten monthly pay make payment agreed and common, years partnership, joint a ant in tenant in ments of two and $450 $48,913.34 entirety of tenant or tenant of the payment. balloon Court provides 7. The ordinance shade trees shall be trimmed on the side trees, next to the street so that the limbs or persons are All who owners of shade branches where so trimmed shall not ex- occupant who are intended owner or or as tend more than feet from the trunk twelve agent abutting or con- or of estate trees; further, on, provided of such shade along tiguous any part street of adjacent or in front of or to which shade all such trees shall be so trimmed shade growing planted trees are or shall cause in no case shall such shade tree or fifty high. carefully properly | trees be more than feet be trimmed same to high Columbus, Ind., City point on the tree as as twelve feet § Mun.Code 12.20.0204 ground; provided, that all (1995). such building subsequently occupied of such or land." intent part or whole Columbus, Ind., § City (c) 1.04.040. Mun.Code control person who is entitled to land, immediate of the if contends that because Smith had no Scheible in the entire contract amount and other is paid Claus- conveyed, (a) (b)." had not been (Second) the deed es of (1965). § appears and had a Torts 828E It was the owner in duty inquiry determining trim the tree as in the critical whether a correctly party "possessor" states that is a as defined in Section ordinance. legal Jackson retained title to the 328E is the notion of control over the purchase price. "Only party until Smith satisfied who controls remedy can the hazardous condi- However, above, noted in law upon tions which exist it...." Rhodes v. long Indiana has been "[wlhen (Ind.2004) Wright, enter into the [land-sale] ownership (citation omitted). all incidents of accrue to the turn, "Control" is part power vendee." Skendzel v. Marshall 261 Ind. defined in as "the or authority (Ind.1973). 226, 234, direct, manage, or oversee." Black's (8th ed.2004). At the time of the Jackson oceu- Law Dictionary Henholder, pied position owner. my question view is no ("The Court, effect, Id. views a condi- Jackson exercised some degree of control land contract as a with a securi- tional sale property notwithstanding over the he had interest in the form of title re- it on very sold contract to Smith. At the by the Conceptually, served vendor. dispute least there is a of fact on this therefore, the retention of the title point, judgment reserving same as lien or inappropriate. favor was therefore mortgage"). Ownership agree with the majority Court was transferred to Smith execution and the judgment would reverse of the land sale and Jackson had trial court. duty the time the accident to maintain the provided by city tree as DICKSON, J., concurs.
ordinance.
Conclusion *7 grant summary judg-
The trial court's
ment in favor of Jackson is affirmed. CLARK, Appellant Todd Allen
SHEPARD, C.J., SULLIVAN, J.,, (Respondent below), concur. RUCKER, J., separate dissents with CLARK, Appellee Michelle D. DICKSON, J.,
opinion which concurs. (Petitioner below).
RUCKER, J., dissenting. No. 35S05-0809-CV-506. "(a) A "possessor" of land is defined as Supreme Court of Indiana. person occupation who is in of the land March 2009. (b) person with intent to control it or who has been in of land with
intent to control if no other has