SW Legal studies in Business

Seller of Property May Still Be Liable for Torts

Appeals court held that while liability for torts related to property normally passes from buyer to seller, if the seller retains effective control, the seller could be liable.

Topic Real and Personal Property
Key Words

Negligence; Reasonable Care; Control; Trees

C A S E   S U M M A R Y

Jackson owned a piece of land. They entered into an “Installment Contract Sale of Real Estate” with Smith. Jackson retained legal title; Smith took possession. The contract required Smith to carry liability insurance for the property. Rather than obtain a new policy, Smith paid the insurance premiums on policies bought by Jackson. The city notified Jackson that trees on his property were obstructing the view and blocking the sidewalk and he must cut the trees back. Nothing was done. Several months later, a boy riding a bicycle down the sidewalk cut into the street because the tree blocked the sidewalk. He was killed by an oncoming car, which he could not see because of the trees. The boy’s mother sued Jackson and Smith for negligence for failing in their duty to maintain the property in a reasonably safe condition. The trial court dismissed the suit against Jackson; the plaintiff appealed that dismissal.


Reversed and remanded. There is an issue to be determined at trial about the degree of control the seller of the property exercised over it so as to impose a duty to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of overgrown trees obstructing the view on a public street. The general rule that the seller is not liable for physical harm caused by a dangerous condition on the land applies where possession and control of the land have actually passed from the seller to the buyer. Where the seller still retains control, liability may attach. The court will look to the terms of the contract between the parties and to the reality of control in practice.


Scheible v. Jackson, ---N.E.2d--- (2008 WL 616107, Ct. App., Ind., 2008)

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