Yerano Martinez v. Jeffrey Smith

FILED

Apr 08 2026, 1:11 pm

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Indiana Supreme Court

Supreme Court Case No. 26S-CT-112

Yerano Martinez and Jessica Martinez

Appellants (Plaintiffs below)

–v–

Jeffrey Smith, et al.

Appellees (Defendants below)

Argued: June 5, 2025 | Decided: April 8, 2026

Appeal from the Marion Superior Court,

No. 49D05-2005-CT-15308

The Honorable John M.T. Chavis II, Judge

On Petition to Transfer from the Indiana Court of Appeals,

No. 24A-CT-1272

Opinion by Justice Goff

Chief Justice Rush and Justice Massa concur.

Justice Molter concurs with separate opinion in which Chief Justice Rush joins

as to Parts II–IV.

Justice Slaughter dissents with separate opinion.

Goff, Justice.

In Reece v. Tyson Fresh Meats, Inc., this Court adopted a bright-line rule

under which “landowners owe a duty to passing motorists on adjacent

highways not to create hazardous conditions that visit themselves upon

the roadway” but have no such obligation when the land use or condition

is “wholly contained on a landowner’s property.”1 In this case, we’re

tasked with clarifying what we meant in Reece by the term “roadway.” Is

the duty to refrain from creating hazardous conditions confined to the

surface of the road itself? Or does that duty encompass something more?

We hold that the common-law duty under Reece to refrain from creating

hazardous conditions encompasses not just the paved portion of the

roadway but also traffic-control devices within the public right-of-way.

And because the hazardous condition here, by the landowner’s own

admission, amounted to such an impermissible encroachment, we hold

that the trial court erred by granting summary judgment in favor of the

landowner. Accordingly, we reverse.

Facts and Procedural History

On the afternoon of Halloween Day 2019, Yerano Martinez drove

through a stop sign located at the intersection of County Road 300 North

and State Road 19 in Miami County, colliding with a truck and sustaining

serious injuries. At the time of the accident, the stop sign was allegedly

obscured by an overgrown bush located on property owned by Jeffrey

Smith and extending partially into Miami County’s right-of-way.

Martinez sued, alleging that Smith, despite his duty to passing motorists,

failed to maintain his property to “discover and remedy obstructions

1 173 N.E.3d 1031, 1034 (Ind. 2021) (internal quotation marks and citation omitted).

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impeding the view of the stop sign.”2 App. Vol. 2, p. 27. Smith moved for

summary judgment, arguing that, because the bush didn’t intrude upon

the roadway, he owed no duty of care under this Court’s decision in Reece

v. Tyson Fresh Meats, Inc., 173 N.E.3d 1031 (Ind. 2021). Martinez responded

by arguing that the bush was located in the public right-of-way, so Smith

had a duty to protect passing motorists under Reece. The trial court

entered summary judgment for Smith, explaining the “difference between

a right of way and a roadway” and concluding that Reece “did not extend”

the landowner’s duty to the former. App. Vol. 2, pp. 21–22.

In a unanimous opinion, the Court of Appeals affirmed, holding that,

under Reece, Smith owed no duty to Martinez. Martinez v. Smith, 249

N.E.3d 1096, 1100 (Ind. Ct. App. 2024). Under the bright-line rule adopted

in Reece, the panel stressed, “landowners must protect motorists from

hazards that extend onto the roadway but have no duty” to protect

against “conditions that remain entirely on their property.” Id. at 1098.

And though the Reece opinion referred occasionally to the “public right of

way,” the panel explained that the Court there intended to use that term

synonymously with “roadway,” i.e., the road surface itself, rather than a

county easement over which motorists do not necessarily have a right to

travel. Id. at 1099. The panel also found significant the fact that the Reece

opinion used “roadway” more than a dozen times while referring only

twice to the “public right of way.” Id. Because the overgrown bush

extended only into the county easement and not onto the roadway, the

2Martinez also sued the Miami County Board of Commissioners, the Miami County Highway

Department, and the State of Indiana. But because the trial court entered final judgment for

Martinez and Smith only, the government entities are not parties to this appeal. See App. Vol.

2, pp. 19–22; Ind. Trial Rule 54(B) (allowing for entry of final judgment for fewer than all

parties).

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panel concluded, finding a duty here would improperly expand the rule

in Reece. Id. at 1100.3

Martinez petitioned for transfer, which we now grant, vacating the

Court of Appeals’ opinion. See Ind. Appellate Rule 58(A).

Standard of Review

When reviewing summary judgment, this Court uses “the same

standard as the trial court,” that is summary judgment is proper only

when the designated evidence shows “no genuine issue of material fact”

and the moving party is “entitled to judgment as a matter of law.” Reece,

173 N.E.3d at 1033 (citing Ind. Trial Rule 56(C)).

Discussion and Decision

Under Indiana common law, a person who “owns or occupies land has

a duty to the traveling public on adjacent highways to exercise reasonable

care to prevent injury to travelers from ‘unreasonable risks’ the owner or

occupier creates.” Id. at 1034 (quoting Pitcairn v. Whiteside, 34 N.E.2d 943,

946 (Ind. Ct. App. 1941)). In Reece, we sought “to clarify what types of land

uses or conditions implicate this duty in cases where motorists claim their

views were obstructed.” Id. We described our task as deciding “the correct

approach for conditions that do not intrude on the public right-of-way but

rather are visual obstructions contained wholly on the land.” Id. at 1040. In

resolving the issue, the Court adopted a bright-line rule holding that,

while “landowners owe a duty to passing motorists on adjacent highways

not to create ‘hazardous conditions that visit themselves upon the

roadway,’” there is no duty to the traveling public “when a land use or

3The panel also rejected Martinez’s argument that, though the bush didn’t physically intrude

onto the roadway, it still “visited” itself upon the roadway because it affected traffic

operations by blocking the stop sign. Martinez v. Smith, 249 N.E.3d 1096, 1100 (Ind. Ct. App.

2024). Such a theory, the panel concluded, stands at odds with the language used in Reece and

“would completely replace the analysis” set forth in that decision. Id.

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condition that may impose a visual obstruction is ‘wholly contained on a

landowner’s property.’” Id. at 1034 (quoting Sheley v. Cross, 680 N.E.2d 10,

13 (Ind. Ct. App. 1997)).

Martinez argues that, because it was situated partially within the

county’s right-of-way, the hazardous condition here—the overgrown

bush—wasn’t “wholly contained” on Smith’s property. Appellant’s Reply

Br. at 6. For the common-law duty under Reece to apply, he insists, the

dangerous condition need not extend onto or physically encroach upon

the “traveled portion” of the adjacent roadway. Appellant’s Br. at 9, 13.

Rejecting this proposition, Smith emphasizes the distinction between a

“public right-of-way” (i.e., a roadway) and a county right-of-way

easement (over which the public has no right to travel). Resp. in Opp. to

Trans. at 7; Appellee’s Br. at 11–12. Smith argues that Martinez’s theory, if

upheld, would lead to the absurd result of allowing the public to drive

through the “right of way” portion of Smith’s yard. Appellee’s Br. at 13.

We stand with Martinez.

I. Landowners owe a duty to motorists on adjacent

highways to reasonably prevent conditions on

their property from obstructing a traffic-control

device located in the public right-of-way.

In affirming summary judgment for Smith, the Court of Appeals here

acknowledged the Reece Court’s references to the “public right of way.”

Martinez, 249 N.E.3d at 1098. But to read that term as encompassing “both

the road surface as well as the strip of roadside land over which the

county has an easement,” the panel concluded, would misinterpret Reece

and improperly extend the scope of the duty set forth in that decision. Id.

The panel reached this conclusion from a “reading of the entire opinion”

in Reece (showing that the Court intended to use “roadway” and “public

right of way” synonymously) and the cases on which the Reece decision

relied. Id. at 1099.

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We agree with the Court of Appeals that Reece used “roadway” and

“public right of way” synonymously. But we reject the idea that either

term is necessarily confined to the paved portion or surface of the road.

What’s more, a stop sign, like any traffic-control device, is an integral part

of the roadway.

A. The common-law duty under Reece is not confined to

the paved portion of the roadway.

To begin with, the Indiana common law has long considered it

“unlawful” to place or “leave continuously in a public highway anything

which either impedes or endangers public travel”—a rule applicable “to

the whole width of the highway, and not merely to a worn portion of it

commonly used for passage.” Indianapolis Water Co. v. Schoenemann, 20

N.E.2d 671, 677 (Ind. Ct. App. 1939) (quoting Indiana Nat. & Illuminating

Gas Co. v. McMath, 57 N.E. 593, 594 (Ind. Ct. App. 1900)). To be sure, a

condition on an abutting landowner’s property that falls outside “the

traveled portion of the right-of-way” does not, by itself, amount to an

impermissible encroachment. See Town of Ogden Dunes v. Wildermuth, 235

N.E.2d 73, 76 (Ind. Ct. App. 1968). But such an exemption applies only

when the encroachment creates no “dangerous hazard” to the public. Id.

(holding that a fence erected by an abutting landowner outside “the

traveled portion of the right-of-way” was not unlawful absent evidence

that it created a “dangerous hazard” or obscured the view of passing

motorists); see also City of Evansville v. Follis, 315 N.E.2d 724, 726 (Ind. Ct.

App. 1974) (holding that a landowner’s construction of a wall outside the

“traveled portion of the street” was a permissible encroachment upon the

city’s “right-of-way” absent evidence that the improvements obstructed

the “vision of drivers upon the street” or otherwise interfered “in any way

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with the City’s use of its right-of-way”).4 Cf. Reece, 173 N.E.3d at 1041

(holding that the landowner owed no duty to the motoring public because

“the visual obstruction was wholly contained on the land”) (emphasis

added).

This precedent, which recognizes the need to prevent the encroachment

of dangerous obstructions beyond just the “traveled portion” of the public

right-of-way, aligns with common usage of the terminology at issue here.

General dictionaries, for example, define “right-of-way” as “the strip of

land devoted to or over which is built a public road” without confining

the term to the public road itself. See Right-of-Way, Webster’s Third New

Int’l Dictionary 1956 (2002 ed.). The term “roadway” carries a virtually

identical meaning: a “strip of land through which a road is constructed.” Id.

at 1963 (emphasis added). To be sure, “roadway” may refer specifically to

“the part of a road over which vehicular traffic travels.” Id. But Indiana

courts have eschewed such a precise definition, preferring instead to

interpret the term as it’s “ordinarily used”—that is, as a “strip of land over

which a road is constructed”—without limiting it to the surface of the

road itself. Austin v. Durbin, 310 N.E.2d 893, 895 (Ind. Ct. App. 1974).

Several pertinent statutory definitions reflect this common usage,

bolstering our broad understanding of the relevant terms. Under our

motor-vehicle code, for example, the term “roadway” is defined as “that

part of a highway improved, designed, or ordinarily used for vehicular

travel.” Ind. Code § 9-13-2-157(a). This definition expressly “does not

4 The dissent finds it “telling that none of these three cases merited discussion in Reece,

prompting the question whether Reece overlooked important case law, or whether today’s

Court goes astray by citing these cases.” Post, at 3. But the Reece Court, as the dissent itself

implicitly acknowledges, wasn’t tasked with defining “roadway,” so it had no need to survey

common-law definitions of that term. See id. at 2 (conceding that, “[i]n hindsight, we now

learn that what Reece meant by ‘roadway’ would be hotly contested”). And it’s certainly not

unusual for courts to rely on the common law to define specific terms or phrases. See, e.g.,

Gunderson v. State, Ind. Dep’t of Nat. Res., 90 N.E.3d 1171, 1181 (Ind. 2018) (relying on “early

American common law” definitions of the “ordinary high water mark” to determine the

precise boundary separating public-trust land from privately owned riparian land along the

shores of Lake Michigan); Owens v. Lewis, 46 Ind. 488, 508 (1874) (relying on the “common law

definition” of “land” in determining the scope of a contract for the sale of an interest in land).

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include the sidewalk, berm, or shoulder,” but only for purposes of

regulating school-bus stops, suggesting that, outside of this context, the

term extends beyond those portions of the road traversed by the motoring

public.5 See I.C. § 9-13-2-157(b). In another section of our motor-vehicle

code, “highway” or “street” refers to “the entire width between the

boundary lines of every publicly maintained way when any part of the way

is open to the use of the public for purposes of vehicular travel in

Indiana.” I.C. § 9-13-2-73 (emphasis added). See also I.C. § 8-23-1-23

(defining a “highway, street, or road” as “a public way for purposes of

vehicular traffic, including the entire area within the right-of-way”).

In short, neither Indiana common law nor standard usage (as reflected

in dictionary definitions and pertinent statutes) have strictly confined

“roadway” or “public right-of-way” to the pavement on which the

motoring public traverses.

B. A stop sign, like any traffic-control device, is an integral

part of the roadway.

Still, Smith emphasizes the distinction between a public right-of-way

(i.e., a roadway) and a county right-of-way easement over which the

public has no right to travel. Resp. in Opp. to Trans. at 7; Appellee’s Br. at

11, 12. The Court of Appeals agreed, citing the “Reece Court’s deliberate

use of the word ‘public’ when referring to a right-of-way” as evidence that

we “meant to impose a duty only on areas the traveling public uses, like

roadways.” Martinez, 249 N.E.3d at 1099. “This word choice matters,” the

panel explained, “because it distinguishes roadways from county right-of-

way easements, which aren’t necessarily public areas.” Id.

5 Smith points to code section 9-13-2-155, which, on first impression, stands at odds with the

broader statutory definitions cited above. But that statute defines not a particular portion of

land; instead, it refers to the “privilege of the immediate use of a highway” for purposes of the

motor-vehicle code. I.C. § 9-13-2-155 (emphasis added).

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We agree that motorists do not necessarily have a right to travel on

anything other than the paved portion of the public right-of-way.6 We

likewise agree that Reece intended to “impose a duty only on areas the

traveling public uses, like roadways.” See id. But the motoring public’s

ability to navigate the Crossroads of America depends on more than just

the surface of the roadway itself. As Martinez points out, a stop sign, like

any traffic-control device, is “part of the roadway because the roadway

simply cannot function without [it].” See Pet. to Trans. at 11.

The legislature itself appears to have contemplated traffic-control

devices as an integral part of the roadway. The motor-vehicle code, for

example, charges the department of transportation with erecting and

maintaining traffic-control devices “upon all state highways.” I.C. § 9-21-4-

2(a) (emphasis added). A contiguous section of the code refers to specific

standards a government agency must follow “for the signing, marking,

and erection of traffic control devices on streets and highways.” I.C. § 9-21-

4-1 (emphasis added). Cf. City of Angola v. Hulbert, 162 N.E.2d 324, 329

(Ind. Ct. App. 1959) (stressing analogous language to interpret a statute

prohibiting the installation of advertising signs “on the highway” or within

a certain distance from the highway). And to ensure visibility of these

traffic-control devices, a “county highway right-of-way” may encompass

an “additional width” for, among other things, “public safety.” I.C. § 8-20-

1-15 (emphasis added).

Under Smith’s theory, a landowner, without consequence, could build

a wall that obscures the view of a stop sign so long as that wall doesn’t

encroach upon the surface of the roadway. But our common law says

otherwise. See Schoenemann, 20 N.E.2d at 677; Wildermuth, 235 N.E.2d at 76;

Follis, 315 N.E.2d at 726. To be sure, these cases involved not overgrown

bushes but, rather, artificial structures. But as Smith himself properly

acknowledges, the “condition causing the visual obstruction can be

6 Although Indiana courts have “recognized the right of the traveler ‘to deviate from the

established road on adjacent land when the highway becomes impassable.’” Chicago & E.R.

Co. v. Hunter, 113 N.E. 772, 776 (Ind. Ct. App. 1916) (quoting Small v. Binford, 83 N.E. 507, 509

(Ind. Ct. App. 1908)).

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natural or artificial,” given that Reece rendered that distinction

“irrelevant.” Appellee’s Br. at 10.

Finally, we recognize that the county itself “has a common law duty to

exercise reasonable care and diligence to keep its streets and sidewalks in

a reasonably safe condition for travel.” Ladra v. State, 177 N.E.3d 412, 415

(Ind. 2021) (internal quotation marks and citation omitted). But a county

or other state subdivision’s “responsibility to place and maintain stop

signs does not, by itself, establish a public policy to absolve adjoining

landowners from liability for the interference with sign visibility created

by trees [or other conditions] on their land.” See Physicians Plus Ins. Corp.

v. Midwest Mut. Ins. Co., 632 N.W.2d 59, 67 (Wis. Ct. App. 2001), aff’d, 646

N.W.2d 777 (Wis. 2002). What’s more, a county may only be “held liable

for a dangerous defect or condition in a highway” if it has “knowledge,

either actual or constructive, of the dangerous, unsafe or hazardous

condition.” Boger v. Lake Cnty. Comm’rs, 547 N.E.2d 257, 259 (Ind. 1989).

Absent such knowledge, “the result would be that an obvious hazard to

public safety could continue to exist, with no one having any obligation to

correct it.” Physicians Plus, 632 N.W.2d at 66.

C. Our decision imposes no more of an onerous burden on

landowners than if the duty were confined only to the

roadway surface.

To reiterate, the bright-line rule adopted by this Court in Reece holds

that, while “landowners owe a duty to passing motorists on adjacent

highways not to create hazardous conditions that visit themselves upon

the roadway,” there is no duty to the traveling public when a land use or

condition is “wholly contained on a landowner’s property.” 173 N.E.3d at

1034 (internal quotation marks and citation omitted). To hold otherwise,

the Court reasoned, would impose “too onerous” a duty on “a property

owner to continually inspect the perimeters of his property, particularly

along an adjacent highway, to make sure that dangerous conditions do

not arise for those traveling on the highway.” Id. at 1040 (quoting Blake v.

Dunn Farms, Inc., 413 N.E.2d 560, 566–67 (Ind. 1980)).

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Our decision today, interpreting the duty under Reece to encompass

traffic-control devices within the public right-of-way, imposes no more of

an onerous burden on a landowner than if the duty were confined to the

surface of the roadway itself. Rather, our decision simply clarifies where,

under our bright-line rule, the landowner’s responsibility begins and

where it ends. And this duty arises only from our common law. As we

emphasized in Reece, “our holding in no way prevents the General

Assembly or local legislative bodies from enacting statutes or ordinances”

that dictate otherwise. See 173 N.E.3d at 1041.

II. Because the visual obstruction was not wholly

contained on the land, Smith owed a duty to the

motoring public.

Having decided that the common-law duty under Reece encompasses

traffic-control devices within the public right-of-way, we must now decide

whether summary judgment is proper for either party.

In Reece, a motorcyclist sustained “catastrophic injuries” after colliding

with a car at an intersection adjacent to the landowner’s property. Id. at

1033. Tall grass growing in a ditch on the property obscured the

motorcyclist’s view of the oncoming car, but neither party disputed that,

at “the time of the collision, the grass didn’t extend onto the road.” Id.

And because this visual obstruction was “wholly contained on the land,”

the landowner “owed no duty to the motoring public” under the Court’s

bright-line rule and, thus, summary judgment was proper. Id. at 1041.

Here, by contrast, the parties dispute whether the bush at issue was, in

fact, “wholly contained” on Smith’s land. In his motion for summary

judgment, Smith argued that he owed no duty of care to Martinez because

“the bush in question never extended out into the roadway.” App. Vol. 2,

p. 158. But by admitting that the trunk of the bush fell within the county

right-of-way, see id. at 43, 161, Smith acknowledged, under our holding

today, that the condition was not “wholly contained” on his property.

Smith, thus, failed to carry his initial burden of showing the absence of a

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genuine issue of material fact. Accordingly, the trial court erred by

granting summary judgment in his favor.

In reaching this conclusion, we reiterate that a condition on an abutting

landowner’s property falling outside “the traveled portion of the right-of-

way” becomes an impermissible encroachment only when it creates a

“dangerous hazard” to the motoring public. See Wildermuth, 235 N.E.2d at

76. And in most cases, whether a condition amounts to such a “dangerous

hazard” will be a question for the trier of fact to determine. But here, there

are no factual issues to resolve, as Smith himself assumed, for summary-

judgment purposes, that the bush did present a “visual obstruction.” Oral

Argument at 28:50–29:02; see also App. Vol. 2, p. 158 (making the same

assumption).

Conclusion

For the reasons above, we hold that, under Reece, a landowner’s

common-law duty to refrain from creating hazardous conditions for

passing motorists on adjacent highways encompasses traffic-control

devices within the public right-of-way. And because the hazardous

condition here, by Smith’s own admission, impermissibly encroached into

the public right-of-way, we hold that the trial court erred by granting

summary judgment in his favor.

Reversed.

Rush, C.J., and Massa, J., concur.

Molter, J., concurs with separate opinion in which Rush, C.J., joins as

to Parts II–IV.

Slaughter, J., dissents with separate opinion.

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ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

Scott A. Faultless Sheila M. Sullivan

Sidney M. Lewellen Flynn & Sullivan PC

William E. Beck Indianapolis, Indiana

Craig Kelley & Faultless LLC

Indianapolis, Indiana

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 13 of 13

Molter, J., concurring.

In Reece v. Tyson Fresh Meats, Inc., our Court held that “a landowner

owes a duty to passing motorists on an adjacent highway to not create

hazardous conditions that visit themselves upon the roadway.” 173

N.E.3d 1031, 1041 (Ind. 2021) (quotations omitted). Today the Court holds

that duty includes not creating hazardous conditions that extend into the

public right‐of‐way and obstruct traffic‐control devices. More specific to

the allegations in this case, that means a landowner is not absolved of

liability if injury results from the landowner unreasonably letting a bush

grow into the public right‐of‐way such that it obstructs a driver’s view of

a stop sign. I agree with this holding and join the Court’s opinion in full. I

write separately merely to amplify the discussion in Part I.C. of the

Court’s opinion, which in my view is the key, indispensable ingredient to

the Court’s analysis and best addresses the dissenting opinion’s concerns

about our common law’s clarity and consistency.

I.

“To recover under a theory of premises liability sounding in

negligence, the plaintiff must prove three elements: (1) a duty owed to the

plaintiff, (2) a breach of that duty by the defendant, and (3) the breach

proximately caused the plaintiff’s damages.” Isgrig v. Trs. of Ind. Univ., 256

N.E.3d 1238, 1244 (Ind. 2025) (quoting McCraney v. Gibson, 952 N.E.2d 284,

288 (Ind. Ct. App. 2011)). “Duty” can be a misleading label for the first

element, though, and that mislabeling causes an inordinate amount of

confusion. Cf. Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 387

(Ind. 2016) (“For a period of at least over the past two decades or so our

case law has been less than perfectly lucid in explaining how a court

determines whether a duty exists in the context of a negligence claim.”);

see also John C. P. Goldberg & Benjamin C. Zipursky, The Restatement

(Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657, 698‐

723 (2001) (distinguishing between four different “senses” in which courts

refer to “duty,” including duty as an obligation, duty as a nexus between

breach and duty, duty as breach as a matter of law, and duty as an

exemption from the operation of negligence law).

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Most often, negligence claims may be more clearly understood by first

“recognizing that every actor has an obligation to behave reasonably”

when their conduct creates a risk of harm to others. Hon. Theodore R.

Boehm, A Tangled Webb‐Reexamining the Role of Duty in Indiana Negligence

Actions, 37 Ind. L. Rev. 1, 1 (2003); see also Restatement (Third) of Torts:

Liability for Physical & Emotional Harm § 7(a) (A.L.I. 2010) (“An actor

ordinarily has a duty to exercise reasonable care when the actor’s conduct

creates a risk of physical harm.”). And then when we say the defendant

owed no duty to the plaintiff, what we really mean is that there is some

consideration, usually a public‐policy consideration, that leads the court

to preclude liability as a matter of law without considering whether the

defendant behaved unreasonably given the facts of a particular case.

Boehm, supra, at 19 (arguing we should proceed “on the assumption that

all of us are obliged to take reasonable steps to avoid harm to others in the

activities we undertake and can control,” and the “duty” analysis then

“resolves itself to an inquiry into whether there is some reason in policy

why the law should nevertheless preclude recovery” even if the

defendant’s unreasonable conduct caused harm); see also Restatement

(Third) of Torts: Phys. & Emot. Harm § 6 (2010) (“An actor whose

negligence is a factual cause of physical harm is subject to liability for any

such harm within the scope of liability, unless the court determines that the

ordinary duty of reasonable care is inapplicable.” (emphasis added)); id. § 7(b)

(“In exceptional cases, when an articulated countervailing principle or

policy warrants denying or limiting liability in a particular class of cases, a

court may decide that the defendant has no duty or that the ordinary duty

of reasonable care requires modification.”).

For a time, we said that courts should decide whether there is a duty by

balancing three factors: “(1) the relationship between the parties, (2) the

reasonable foreseeability of harm to the person injured, and (3) public

policy concerns.” Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991),

disapproved of by Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384

(Ind. 2016). We’ve drifted from that approach, and now it seems more

accurate to say that no‐duty or limited‐duty rules may emerge from any

one or a combination of those factors. See Goodwin, 62 N.E.3d at 387

(acknowledging our Court’s “limited fidelity” to the three‐part Webb

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balancing test); Cowe ex rel. Cowe v. F. Grp., 575 N.E.2d 630, 636 (Ind. 1991)

(acknowledging the “nebulous nature of the concept of duty,” that “no

universal test for it ever has been formulated,” and that “[n]o better

general statement can be made than that the courts will find a duty where,

in general, reasonable persons would recognize it and agree that it

exists”).1

For example, duty‐based limitations on premises owners’ liability often

turn on the defendant’s relationship to the plaintiff, specifically whether

the plaintiff was a trespasser, licensee, or invitee. Burrell v. Meads, 569

N.E.2d 637, 639 (Ind. 1991). The rule that bars do not owe patrons a duty

to protect against third‐party criminal attacks is based on foreseeability

and “the public policy of this state” that proprietors are not “insurers of

their patrons’ safety.” Goodwin, 62 N.E.3d at 394. At bottom, “[p]ublic

policy has always been the linchpin of duty,” and the relationship and

foreseeability factors “are either subsumed into the policy issue or more

properly viewed as bearing on issues for the trier of fact,” such as the jury

1 Justice Slaughter has some concern that I may be advocating “a wholesale change in our tort

law.” Post, at 10. My view isn’t so bold. The United States Supreme Court has observed that

the Third Restatement’s explanation of duty, which is the articulation I’m suggesting, reflects

“basic tort‐law principles.” Air & Liquid Sys. Corp. v. DeVries, 586 U.S. 446, 452 (2019). The

Third Restatement’s approach is also consistent with “the cases and the understanding of

major commentators.” 2 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts

§ 251 (2d ed. 2011) (footnotes omitted). Very little, if any, daylight appears between Justice

Slaughter’s view and mine. In the end, we both seem to be saying that “duty is no more than

the sum of the policy considerations bearing on the plaintiff’s right to recover,” and the key

clarification in my preferred articulation is to acknowledge that “duty, or the absence of duty,

is an expression of the result of the analysis, not a tool used to reach that result.” Boehm,

supra, at 6. Or as our Court has repeatedly explained, “Duty is not sacrosanct in itself, but is

only an expression of the sum total of those considerations of policy which lead the law to say

that the plaintiff is entitled to protection.” Mangold ex rel. Mangold v. Ind. Dep’t of Nat. Res., 756

N.E.2d 970, 974 (Ind. 2001) (brackets omitted) (quoting Webb v. Jarvis, 575 N.E.2d 992, 997 (Ind.

1991) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53 (5th ed. 1984))).

My objective is “not a different result in any specific case,” and I’m not proposing to expand

tort liability in Indiana. Boehm, supra, at 18. Instead, the goal is a “better understanding of the

principles underlying the result, and therefore more coherent precedent for the future.” Id. All

that said, Justice Slaughter correctly notes that this case does not turn on how we articulate

the duty element, and I welcome the opportunity he acknowledges for future briefing and

deliberation. Post, at 10.

Indiana Supreme Court | Case No. 26S‐CT‐112 | April 8, 2026 Page 3 of 8

questions of whether the defendant’s behavior was unreasonable or

whether it was the proximate cause of injury. Boehm, supra, at 11.

II.

Reece’s rule—that “when a land use or condition that may impose a

visual obstruction is wholly contained on a landowner’s property, there is

no duty to the traveling public”—was based on public policy. Reece, 173

N.E.3d at 1034 (quotations omitted). Specifically, the public policy concern

was that “it would be too onerous to impose a duty on a property owner

to continually inspect the perimeters of his property, particularly along an

adjacent highway, to make sure that dangerous conditions do not arise for

those traveling on the highway.” Id. at 1040 (quotations omitted). Still, we

also concluded it is not too onerous, and there is a duty, for landowners to

make reasonable efforts to ensure they don’t create hazards that visit

themselves on the roadway. Id. at 1041.

The Reece analysis reflects a law‐and‐economics approach consistent

with Judge Learned Hand’s algebraic expression of negligence liability:

There is liability when B < P x L, where B is the burden (or cost) of taking

precautions, P is the probability that harm will occur without the

precautions, and L is the gravity of the potential loss or injury. United

States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). When the

defendant’s burden is less than the probability multiplied by the gravity

of harm, we expect the defendant to shoulder the burden; but when the

burden is greater than the probability multiplied by the gravity of harm,

we don’t expect the defendant to shoulder the burden. See Conway v.

O’Brien, 111 F.2d 611, 612 (2d Cir. 1940) (Hand, J.) (“The degree of care

demanded of a person by an occasion is the resultant of three factors: the

likelihood that his conduct will injure others, taken with the seriousness of

the injury if it happens, and balanced against the interest which he must

sacrifice to avoid the risk.”), rev’d, 312 U.S. 492 (1941).

Judge Hand used the formula to analyze the breach element of a tort

claim when he was deciding “when the absence of a bargee or other

attendant will make the owner of the barge liable for injuries to other

vessels if she breaks away from her moorings.” Carroll Towing, 159 F.2d at

173. But the formula “can be used not only to deduce the outcomes of

Indiana Supreme Court | Case No. 26S‐CT‐112 | April 8, 2026 Page 4 of 8

particular cases but to deduce all sorts of interesting doctrines,” including

our doctrinal approach to evaluating legal duties. Richard Posner,

Jurisprudential Responses to Legal Realism, 73 Cornell L. Rev. 326, 327–28

(1988). In other words, while Judge Hand used the formula to analyze

whether an individual defendant behaved reasonably, the same formula

can also guide judges in answering a different question—determining

what duties to impose on defendants when that answer depends on the

judge’s impression of aggregate costs and benefits.

In terms of the Hand formula, the Reece analysis reflects the common

experience that: (1) while colliding cars often cause serious injury or death

(the “L”); (2) it would be too burdensome to require landowners to

constantly police their property to ensure they have not created or

allowed any visual obstructions from any angle of the intersecting roads

bordering their property (the “B”); (3) given that failing to take that

precaution will not often cause accidents so long as the hazards do not

visit themselves on the roadway (the “P”). Since B > P x L—the aggregate

burden on landowners outweighs the aggregate societal benefit—we

relieve landowners of liability for failing to protect against hazards that

remain wholly contained on their property regardless of the

reasonableness of the landowner’s conduct in a particular case.

At the same time, Reece also reflects the common experience that:

(1) since colliding cars often cause serious injury or death (the “L”); (2) it is

not too burdensome to impose the less onerous requirement to ensure that

landowners do not create or allow hazards that visit themselves on the

roadways (the “B”); (3) because hazards that visit themselves on the

roadways are much more likely to cause accidents (the “P”). Since

B < P x L—the aggregate societal benefits outweigh the aggregate burden

on landowners—we expect landowners to take reasonable measures to

ensure they do not create or allow hazards from their property to visit

themselves upon the roadway. And we do not relieve them of liability

when their failure to do so is a proximate cause of the plaintiff’s injury.

Justice Slaughter assesses this way of understanding Reece to be a

“stretch,” but he never reveals his own understanding of Reece’s

underlying rationale. Post, at 7. He does mention that he likes that “Reece

Indiana Supreme Court | Case No. 26S‐CT‐112 | April 8, 2026 Page 5 of 8

imposed a bright‐line rule.” Id. at 2. But I presume he didn’t sign onto the

Reece opinion just because the line it drew was bright; surely he thought

there was a good reason for the line’s placement too. Yet we’re left to

wonder not just what that reason was, but also why that reason doesn’t

apply here.

III.

In any event, the same public policy approach from Reece—balancing

the benefits and burdens—guides the line drawing here. Regardless of

whether the public right‐of‐way is considered part of the roadway or not,

the burden of keeping the public right‐of‐way clear of obstructions in

front of traffic signs is not meaningfully more onerous than keeping the

area over the asphalt clear of obstructions. And the impact on reducing

the risk of injury is similar too. So when a landowner’s unreasonable

failure to keep the public right‐of‐way clear of obstructions blocking a

traffic signal proximately causes an injury, the law does not relieve that

defendant of liability.

Consistent with this view, the General Assembly already imposes on

many landowners—including the defendant here, it appears—the

obligation to keep the public right‐of‐way clear of hazards that visually

obstruct traffic control signals. Ind. Code §§ 32‐26‐4‐1 and ‐2; I.C. § 1‐1‐4‐

5(a)(7); I.C. §§ 9‐21‐4‐4 and ‐6; I.C. § 9‐13‐2‐73. To be clear, that is not to

suggest there is an implied statutory right of action. But the question we

confront is whether there is a good reason for the common law to

effectively immunize unreasonable conduct that presents the risk of

serious, even fatal, injury. These statutes reflect there is no such reason,

and the common law does not impose too heavy a burden by declining to

immunize property owners from their negligence in obstructing traffic

signs.

The dissenting opinion provides another good illustration, pointing to

Sheley v. Cross, 680 N.E.2d 10 (Ind. Ct. App. 1997), which held that a

landowner owed no duty to the traveling public to keep crops from

impairing a motorist’s view at an intersection. A key reason we don’t

impose such a duty is that the cost would be great and not worth it; if

there were a duty to keep crops from creating that sort of visual

Indiana Supreme Court | Case No. 26S‐CT‐112 | April 8, 2026 Page 6 of 8

obstruction, we could no longer have massive corn fields in Indiana

because during the summer and fall the corn in those fields grows tall

enough to block the view of intersecting traffic. Instead, we rely on a

much less burdensome but still very effective tool: traffic signals.

Yet, as I understand Justice Slaughter’s view, he concludes our common

law should condone farmers planting corn directly in front of stop signs

even when that presents an obvious, unreasonable risk of injury and

death. It’s unclear why that result would be sensible. Instead, since the

enormous benefit of keeping corn from obstructing stop signs outweighs

the modest burden, there is no reason to absolve farmers of the duty

merely to exercise reasonable care in those circumstances.

For all our safety, traffic signs need to be clear of obstructions. When it

is most efficient in the aggregate to make property owners responsible for

clearing obstructions on their own land, the common law does not relieve

them of liability for failing to do so unreasonably; when it is not most

efficient for them to do so, our common law does relieve them of that

liability. See Richard A. Posner, Instrumental and Noninstrumental Theories

of Tort Law, 88 Ind. L.J. 469, 469 (2013) (explaining that the Hand formula

“essentially penalizes economically wasteful activity (the burden of taking

a precaution that would have prevented the accidental injury to the

victim, if the burden––that is, the cost––was less than the harm to the

victim discounted––that is, multiplied‐by the probability that such an

accident would occur in the absence of the precaution), and, by thus

making it more costly, tends to reduce, by deterrence, the amount of

wasteful behavior in the future.” (footnote omitted)).

None of this is to suggest our common law is or should always be

explainable in law‐and‐economics terms, nor that courts should always

run negligence and duty analyses through the Hand formula. Our case

law deploys a variety of public policy prisms through which to analyze

tort duties:

Various factors undoubtedly have been given conscious or

unconscious weight, including convenience of administration,

capacity of the parties to bear the loss, a policy of preventing

Indiana Supreme Court | Case No. 26S‐CT‐112 | April 8, 2026 Page 7 of 8

future injuries, the moral blame attached to the wrongdoer, and

many others. Changing social conditions lead constantly to the

recognition of new duties.

Gariup Constr. Co. v. Foster, 519 N.E.2d 1224, 1227 (Ind. 1988). The Hand

formula simply provides a helpful theoretical framework for

understanding our case law in this context.2

IV.

In sum, I agree with the Court’s application of the Reece rule here

because it is consistent with the policy considerations underlying the rule.

Obstructing traffic signs poses a danger comparable to obstructing the

view of the road surface; the location of traffic signs within the right‐of‐

way warrants different treatment from conditions located on exclusively

private land; applying the duty here is only slightly more onerous than

in Reece; and the rule remains easy to apply. A landowner owes a duty to

passing motorists on an adjacent highway not to create hazardous

conditions that visit themselves upon the roadway, and we consider as

part of the roadway a public right‐of‐way containing a traffic control

device; landowners do not owe a duty to the traveling public to prevent

visual obstructions that are wholly contained on the landowner’s property

outside of any public right‐of‐way containing a traffic control device.

Rush, C.J., joins in Parts II–IV.

2 Although I suggest only that the Hand formula is helpful for understanding the Reece rule,

Justice Slaughter explains that applying the rule more broadly presents many questions. Post,

at 9. I don’t take issue with any of the answers he supplies, including that judges rather than

juries decide the duty element, and experience shows common missteps that he explains well.

Id.

Indiana Supreme Court | Case No. 26S‐CT‐112 | April 8, 2026 Page 8 of 8

Slaughter, J., dissenting.

I respectfully dissent. I would either deny transfer, letting the court of

appeals’ opinion stand, or affirm summary judgment for the landowner.

I

The plaintiff, Yerano Martinez, drove through a stop sign at a rural in-

tersection and collided with another vehicle. Martinez sued the owner of

land adjoining the intersection, Jeffrey Smith. He alleged Smith was negli-

gent for allowing a bush on his property to grow into the county’s ease-

ment alongside the road and obscure the stop sign. Smith sought sum-

mary judgment, relying on our recent decision in Reece v. Tyson Fresh

Meats, Inc., 173 N.E.3d 1031 (Ind. 2021), which held that a landowner’s

duty to the motoring public is to avoid creating “hazardous conditions

that visit themselves upon the roadway.” Id. at 1041 (quotation omitted).

Martinez responded that Reece does not govern this case because the bush

“was in the public right-of-way and ‘visited’ itself upon the adjacent road-

way.” The trial court sided with Smith and entered summary judgment in

his favor.

On appeal, a unanimous appellate panel affirmed in a precedential

opinion. It held that Smith owed Martinez no legal duty to prevent any

visual obstruction because the disputed bush did not “extend into the

roadway”. Martinez v. Smith, 249 N.E.3d 1096, 1100 (Ind. Ct. App. 2024).

Writing for the panel, Judge Weissmann reached this result after a thor-

ough examination of our decision in Reece and the long line of precedent

on which the Reece rule is based. Historically, she observed, Indiana case

law on visual obstructions concerned only those hazards that invade the

“traveled roadway.” Id. at 1099 (collecting cases). Thus, the panel con-

cluded, Smith “did not owe a duty of care to Martinez as a matter of law.”

Id. at 1100.

The Court today rejects the panel’s thoughtful opinion. It grants trans-

fer and reverses the trial court’s judgment for the property owner based

on what I believe to be stale case law, irrelevant dictionary definitions,

and inapposite statutes. And in the process, it undermines Reece’s bright-

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 1 of 11

line rule. I am not persuaded Reece requires any modification or clarifica-

tion.

II

Five years ago, we brought order—or so I thought—to Indiana’s dispar-

ate, common-law precedent about the legal duty landowners owe to pass-

ing motorists. Reece, 173 N.E.3d at 1032. Reece concerned “visual obstruc-

tion” cases where a motorist’s view of the roadway is visually impaired by

something on the landowner’s property. “To clarify any confusion,” Reece

imposed a bright-line rule that “landowners owe a duty to passing motor-

ists on adjacent highways not to create ‘hazardous conditions that visit

themselves upon the roadway’”. Id. at 1034 (quoting Sheley v. Cross, 680

N.E.2d 10, 13 (Ind. Ct. App. 1997), trans. denied). Limiting the scope of

this duty, we further stated that “there is no duty to the traveling public”

when a visual obstruction is “wholly contained” on the land and thus not

“visit[ing itself] upon the roadway”. Ibid. (quoting Sheley, 680 N.E.2d at

13). In hindsight, we now learn that what Reece meant by “roadway”

would be hotly contested. The Court today holds that term “encompasses

not just the paved portion of the roadway but also traffic-control devices

within the public right-of-way.” Ante, at 2 (Goff., J.).

I respectfully disagree. In my view, a property owner’s common-law

duty extends only to the paved, traveled portion of the roadway, which is

separate from the “public right-of-way”. First, I explain the problems with

the Court’s opinion. Then, I briefly describe the comparative strength of

the appellate panel’s approach. Last, I respond to Justice Molter’s separate

opinion.

A

I take issue with the Court’s opinion in two respects. First, its holding

and rationale find no support in our common law. Second, the Court tries

to compensate for the lack of common-law support by resorting to mis-

placed dictionary and statutory authorities.

1

We announced our governing visual-obstruction rule in Reece only after

“examin[ing] and synthesiz[ing] decades of caselaw to determine whether

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 2 of 11

the duty applies when a condition on the land imposes a visual obstruc-

tion but is confined to the land.” 173 N.E.3d at 1032. One might have

thought, given the work that went into deciding it, that Reece would be the

starting point for today’s case.

Yet the Court barely mentions Reece at all. The Court, rather, derives its

understanding of our common-law visual-obstruction principles from

three obscure court of appeals’ opinions, the most recent of which is fifty

years old. Ante, at 6 (citing Indianapolis Water Co. v. Schoenemann, 20 N.E.2d

671 (Ind. Ct. App. 1939); Town of Ogden Dunes v. Wildermuth, 235 N.E.2d 73

(Ind. Ct. App. 1968); City of Evansville v. Follis, 315 N.E.2d 724 (Ind. Ct.

App. 1974)). That the Court could summon three appellate cases for its po-

sition is no surprise. Our stated goal in Reece, after all, was to resolve the

“divergent answers” our appellate court had reached over many years.

173 N.E.3d at 1032. It is telling that none of these three cases merited dis-

cussion in Reece, prompting the question whether Reece overlooked im-

portant case law, or whether today’s Court goes astray by citing these

cases. I side with the latter.

Start with Schoenemann, which the Court adopts as its standard bearer.

Schoenemann was a negligence action where a pedestrian “tripped over a

curb box” containing utility fixtures. 20 N.E.2d at 673. Describing applica-

ble law, the appellate court held, “It is a nuisance and unlawful to place

and keep or leave continuously in a public highway anything which either

impedes or endangers public travel.” Id. at 677 (citation omitted). Then,

using language the Court is swift to adopt, the appellate court explained

that “[t]his rule applies to the whole width of the highway, and not

merely to a worn portion of it commonly used for passage.” Ibid. True

enough, but Schoenemann concerned a physical impediment, a “curb box”

covering water plugs or shut-off valves. 20 N.E.2d at 673. Reece, in con-

trast, “is confined to visual obstructions that do not come in contact with

traveling motorists”. 173 N.E.3d at 1041. Indeed, Reece “does not address

situations where a motorist comes in contact with a condition that is

wholly contained on the land.” Ibid. (emphasis in original). The Court to-

day does not explain how a rule relevant to physical impediments applies

to our visual-obstruction case law.

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 3 of 11

The Court’s other two appellate cases fare no better. Wildermuth, 235

N.E.2d 73, involved a town suing a landowner “to abate a nuisance”

brought on by the landowner’s “wooden fence approximately six feet

within the right-of-way of a public street”. Id. at 74. The issue was whether

the encroaching fence was a “public nuisance”, and thus removable,

though “not within the traveled portion of the right-of-way”. Id. at 76. The

appellate panel held the fence was not a nuisance because “the view of

persons operating motor vehicles on [the adjoining road] was not ob-

scured”, and “the fence did not force pedestrians” to share the road with

“motor vehicles”. Ibid. Today’s case, in contrast to Wildermuth, has nothing

to do with an actual or alleged nuisance. And Wildermuth’s concern over

whether the fence was within the “traveled portion of the right-of-way”,

ibid., contradicts the Court’s view that the common-law duty extends to

the entire right-of-way.

The Court’s third case, Follis, 315 N.E.2d 724, is the least relevant. Follis

asked whether the City of Evansville could enjoin construction of a

“swimming pool and a surrounding brick wall” in a resident’s backyard.

315 N.E.2d at 725. The case turned on whether the swimming pool and

wall amounted to a “permissible encroachment” on the city’s right-of-

way. Id. at 727. In denying the injunction, the appellate panel relied on

Wildermuth and noted that the disputed structures “did not obstruct the

vision of persons driving along the street nor did [they] interfere with the

public use thereof.” Ibid. The Court ignores the distinction between a “per-

missible encroachment” necessary to defeat an injunction and a “danger-

ous hazard” implicated in a visual-obstruction case.

The Court says it is relying on these cases to define the meaning of

“roadway” because Reece did not define it. Ante, at 7 n.4. The Court’s un-

stated assumption is that the meaning of “roadway” in those cases must

also govern here. Yet it is unclear why the term used a dozen times in

Reece should derive its meaning not from the principles and precedents es-

poused there, but from the inapt Schoenemann case decided eighty-seven

years ago.

To sum, the Court deviates from Reece by relying on three cases having

nothing to do with motorists at all, much less motorists whose view was

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 4 of 11

obstructed by something on an adjoining owner’s property. The Court

cites these cases because, it says, they reveal that “[t]he common-law duty

under Reece is not confined to the paved portion of the roadway.” Id. at 6.

These cases, in fact, reveal no such thing. If the goal is to discern the scope

of the underlying common-law duty we announced in Reece, the least we

should do is discuss Reece and the case law on which its rule was based.

The Court does neither.

2

Recognizing the dearth of case law to support its result, the Court next

explores what various dictionaries and statutes have to say about these is-

sues. Id. at 7–8. In doing so, the Court assumes these other sources some-

how inform or are relevant to the common-law rule we divined in Reece

and apply here to guide the meaning—the “standard usage”—of “road-

way”. Id. at 8. This assumption is misplaced.

Dictionary definitions do not apply here. “The language of an opinion

is not always to be parsed as though we were dealing with language of a

statute.” Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 373 (2023)

(cleaned up) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979)). If

our case law includes an ambiguous term, we should interpret and clarify

our underlying precedent in light of the principles on which the precedent

was based—and not resort to dictionary definitions that may have nothing

to do with the context in which our case law used the term. Might a dic-

tionary definition of “roadway” include something beyond the street itself

where the traveling public rides? Sure. Must the definition of “roadway”

be limited to the street itself and not include peripheral property? Not nec-

essarily. The issue, though, is not how broadly or narrowly one or more

dictionaries may define this term, but what we meant in Reece when we

pronounced our rule concerning the duty adjoining property owners owe

to motorists for obstructions that do not “visit themselves upon the road-

way”. 173 N.E.3d at 1034. The answer to that question is sooner found in

our precedent than in a dictionary.

The same is true of the Court’s reliance on various statutes to discern

the common-law meaning of “roadway”. Throughout its opinion, ante, at

7–9, the Court considers what six statutes within Titles 8 and 9 of the

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 5 of 11

Indiana Code (dealing, respectively, with “Utilities and Transportation”

and “Motor Vehicles”) have to say about “common usage”, id. at 7, or

what the legislature “contemplated” through these laws, id. at 9. But the

common law has never been about such things. Common law represents

the “general principles that run through” our cases “and govern the deci-

sion of them.” Loper Bright Enter. v. Raimondo, 603 U.S. 369, 418–19 (2024)

(Gorsuch, J., concurring) (citation and internal quotation marks omitted).

Thus, even were the Court correct that “roadway” in these statutes means

more than just a road’s paved portion, it mistakenly interprets our com-

mon law based on statutory definitions.

Of course, the legislature is free to create its own regulatory standards

and to impose legal consequences for breaching these standards. But it

does not follow that the legislature’s chosen path necessarily coincides

with, or supersedes, our own path for addressing similar issues or prob-

lems. Reece said as much. There, we recognized the gulf between common

law and statutes, stating that “our holding in no way prevents the General

Assembly or local legislative bodies from enacting statutes or ordinances

to impose a duty on landowners to refrain from creating or maintaining

visual obstructions on land adjacent to highways in favor of the motoring

public.” Reece, 173 N.E.3d at 1041. We held only that “Indiana common

law imposes no such duty.” Ibid. That was then. Now, however, with to-

day’s about-face we tie the meaning of our common law to the meaning of

statutes and, in the process, erode the important distinction between them.

B

Next, I prefer the court of appeals’ analysis of this case to our own.

As the panel noted, Reece and the cases underpinning it “all contem-

plated a duty only where hazards existed on the traveled roadway.” Mar-

tinez, 249 N.E.3d at 1099 (emphasis added) (collecting cases). The seminal

example, which Reece formally adopted as the basis for its decision, is

Sheley v. Cross, 680 N.E.2d 10. Sheley involved a claim that landowners had

“negligently planted crops on their land such that a motorist’s view of on-

coming traffic at [an] intersection was impaired.” Id. at 11. There, the court

found no duty because the crop hazard did not “visit [itself] upon the

roadway”, id. at 13, and what Sheley meant by “roadway” is clear. It refers

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 6 of 11

to our reasoning in Blake v. Dunn Farms, Inc., 413 N.E.2d 560 (Ind. 1980),

that the property owner’s duty is to prevent a “dangerous condition that

visit[s] itself upon the traveled portion of the highway.” Sheley, 680

N.E.2d at 13 (quoting Blake, 413 N.E.2d at 564) (emphasis added). The

panel’s holding below is that Reece, by relying on Sheley, was “impos[ing]

a duty only on areas the traveling public uses, like roadways”. Martinez,

249 N.E.3d at 1099.

Despite the court of appeals’ unimpeachable application of Reece, the

Court nevertheless extends Smith’s legal duty beyond the roadway’s

“traveled portion” based not on Reece but our own definition of “road-

way” wrenched from dubious sources—an outcome that does nothing

but, as the panel noted, “obscure Reece’s bright-line rule.” Id. at 1100.

C

Last, I address Justice Molter’s separate opinion, which proposes a law-

and-economics template for assessing whether courts should relieve a de-

fendant (or a class of defendants) from an otherwise presumed duty under

our tort law. This law-and-economics template, Justice Molter suggests,

offers an alternative lens through which to adjudge our decision in Reece.

1

I share Justice Molter’s view that law and economics can be a valuable

tool for assessing many legal questions, including whether to impose a

tort duty at all and, if so, with which party (or parties) any such duty

should lie. I have written or joined opinions for our Court specifically

adopting a law-and-economics approach in other areas of law. See, e.g.,

Morehouse v. Dux North LLC, 226 N.E.3d 758, 770 (Ind. 2024); Town of El-

lettsville v. DeSpirito, 111 N.E.3d 987, 996-97 (Ind. 2018). And I generally

think our case law across many topics would benefit from using such an

approach more often. But it would be a stretch to say that we decided

Reece on these grounds. Nowhere does our opinion say that.

We do not write on a blank slate here. Reece and the generations of

precedent from which it derived should be the focus of this case. Thus, the

answer to Justice Molter’s rhetorical question “what [the] reason was”,

ante, at 6 (Molter, J., concurring), for Reece’s brightline rule is simple: it is

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 7 of 11

what our common-law precedent demanded. I understand that Justice

Molter and my other colleagues believe that imposing a duty here is

sound public policy. Id. at 6–8 (Molter, J.) (Part III); ante, at 10–11 (Goff, J.)

(Part I.C). But, like the appellate panel below, I would resolve this case

with a neutral application of Reece and our other visual-obstruction prece-

dents.

These precedents do not condone “planting corn” or other vegetation

“directly in front of stop signs”, Ante, at 7 (Molter, J.), and that is not what

happened here. Smith did not plant the offending bush in the public right-

of-way. The bush was on his own property, and over time its foliage grew

to obstruct the view of the traffic sign. That is no different from the corn in

our “massive corn fields” that grows “tall enough to block the view of in-

tersecting traffic.” Ibid. From Sheley, the rule has always been that a land-

owner must refrain “from creating hazardous conditions that visit them-

selves upon the roadway.” 680 N.E.2d at 13.

If the Court is right that “a stop sign, like any traffic-control device, is

an integral part of the roadway”, ante, at 6 (Goff, J.) (emphasis omitted), I

would have expected the Court to conjure more than its own say-so for

what it treats as a self-evident proposition. Yet until today, no visual-ob-

struction or other case law of which I am aware—and my colleagues cite

none—holds that the right-of-way is part of the “roadway”.

Despite my difference with Justice Molter on this point, I share his con-

ceptual embrace of Judge Learned Hand’s “algebraic expression of negli-

gence liability”. Ante, at 4 (Molter, J., concurring). Under the Hand for-

mula (B < P x L), whether the defendant was negligent turns on three con-

siderations: the cost to the defendant of preventing potential harm, the

likelihood harm will occur without the defendant's intervention, and the

severity of harm if it does occur. United States v. Carroll Towing Co., 159

F.2d 169, 173 (2d Cir. 1947). This approach reflects a classic cost-benefit

analysis for imposing tort liability. If the cost of preventing harm exceeds

its benefit, then the defendant should not be liable for doing nothing. In

other words, he is not “at fault” for his inaction and incurs no liability for

the plaintiff's injury. The opposite is also true. If the cost to the defendant

of preventing injury is modest in relation to the probability and severity of

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injury, then the defendant should be liable for resulting injury he could

have avoided but did not.

Justice Molter lays out these principles well in his separate opinion.

Ante, at 4–6. But as the opinion notes, the Hand formula is about deter-

mining whether a defendant is negligent (for breaching a duty of care),

ibid.; it is not about the antecedent question (at issue here) whether the de-

fendant owes a duty at all. In this sense, Justice Molter conflates issues of

duty and negligence (breach of duty) and leaves questions unanswered

that will require further discussion in later cases.

Among the questions needing further development are broad issues of

“who decides?”. For example, I understand that Justice Molter’s proposed

law-and-economics approach would continue to assign judges and juries

different tasks in tort cases: Judges decide duty; juries decide negligence.

Yet other questions concern specific applications of the Hand rule. As

noted, Hand is about negligence, which I assume is for juries to apply. But

if Hand is also about duty, and thus for judges to apply, we must provide

sufficient guidance to both judges and juries tasked with applying it. Our

guidance must include notice of the very real risks that they will misapply

it.

There are a few common ways to trip up in applying Hand. One is the

risk of hindsight bias. The right way to apply Hand is to ask what precau-

tions were reasonable before the accident occurred given known risks.

What often happens, though, in practice—and it is human nature—is that

the omniscient judge or jury knows the harm occurred and thus tends to

overstate the risk of harm. After all, the risk of harm in every litigated case

is 100%—the accident happened. Judges and juries also must be leery of

efforts to manipulate (reverse engineer) Hand to attain a desired outcome.

Another common error is that courts may rely too much on the formula.

“Though mathematical in form, the Hand formula does not yield mathe-

matically precise results in practice”. United States Fid. & Guar. Co. v.

Jadranska Slobodna Plovidba, 683 F.2d 1022, 1026 (7th Cir. 1982) (Posner, J.).

Hand is not a “straitjacket” binding courts to its result; the formula merely

reflects that “[t]he higher P and L are, and the lower B is, the likelier is a

finding of negligence.” Ibid.

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These and other concerns demand that we provide sufficient guidance

and guardrails for judges and juries who would apply Hand. Though I am

onboard conceptually with this analytical tool, more details are war-

ranted.

2

The other notable aspect of Justice Molter’s separate opinion is how he

sees the evolution of our tort case law over the last thirty-five years. He

correctly observes that our decision in Webb v. Jarvis, 575 N.E.2d 992 (Ind.

1991), was about balancing various factors in deciding whether such a

tort-law duty exists. Ante, at 2. But beginning with Goodwin v. Yeakle’s

Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016), continuing through Reece,

173 N.E.3d 1031, in 2021, and culminating with today’s decision, he be-

lieves, we have “drifted” from asking whether there exists a tort-law duty

to presuming such a duty exists and asking whether to relieve the de-

fendant from this duty. Ante, at 2–3.

For starters, Goodwin does not say that. And relevant here, neither does

Reece. Both opinions framed and analyzed the issue in terms of whether to

“impose” a duty, not whether to relieve the defendant of a duty we pre-

sumed already existed. Goodwin, 62 N.E.3d at 394 (“We decline to impose

such liability here.”); Reece, 173 N.E.3d at 1041 (“We hold only that Indi-

ana common law imposes no such duty.”). Though I originally under-

stood Justice Molter to be arguing for a wholesale change in our tort law

that we have never adopted, ante, at 2, his separate opinion seeks to assure

me that is not his aim. I am heartened to learn that he sees “[v]ery little, if

any, daylight … between his view and mine”. Id. at 3 n.1.

For now, it is enough to say that the question of how, precisely, to

frame the issue of duty is not before us. But in a future case, with the bene-

fit of further briefing, deliberation, and a full picture of its implications, I

am open to being persuaded that Justice Molter’s view would not repre-

sent a sweeping change in our tort law.

* * *

Our court of appeals properly held that Reece imposes a duty on adjoin-

ing landowners only for obstructions that “exist[] on the roadway, i.e., the

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 10 of 11

area used by traveling motorists.” Martinez, 249 N.E.3d at 1100. Because I

agree with the appellate panel that no such duty is implicated here, I

would deny transfer or summarily affirm the panel’s opinion.

For these reasons, I respectfully dissent.

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