The Grass is Greener when it is Contained on Your Property

10.20.2021 Written by Chuck Niblick

A common lawyer joke is that when you ask an attorney a question, the answer is typically, “it depends.” However, the Indiana Supreme Court removed all doubt as to whether a landowner owes a duty to the public traveling on highways when visual obstructions are fully contained within the property in Reece v. Tyson Fresh Meats, Inc., --- N.E.3d ----, 2021 WL 4271793 (Ind. 2021). The Court, in resolving a split among the Court of Appeals, held that there is no duty as long as it is contained within the property. This decision was reached by analyzing the 80 years of precedent, all of which sought to balance the owner’s property rights with the safety of the public without placing unreasonable burdens on either.

To start out, the Court reasoned that Indiana law has found that landowners have a duty to prevent dangerous conditions on their land from intruding on public roads. However, even when a dangerous condition encroaches on the highway, courts must look to the owner’s role in causing the condition. In any event, there is no duty to continually inspect the perimeters of a property. Furthermore, there is no duty when the injury does not occur on the land and the injury was caused by a third party that the owner does not control. From there, the Court acknowledged that the case law was less than clear with differing opinions as to whether the condition was “natural” or “artificial.” Ultimately, the Court concluded that the current case law raised too many questions.

Therefore, the Court expressly adopted the following rule: “a landowner owes a duty to passing motorists on an adjacent highway to not create hazardous conditions that visit themselves upon the roadway.” The Court was careful to caution that this rule does not apply to situations where a motorist actually comes into contact with a condition that is wholly contained on the land. The Court also noted that the Indiana General Assembly could create a statutory duty on landowners.

So, the next time you ask your lawyer friend, “do I owe a duty to the traveling public when my land use or condition causes a visual obstruction that is wholly contained on my property,” the answer is a resounding “no.”