                                                                           FILED
                                                                      Aug 20 2020, 10:06 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Michael W. Phelps                                          TYSON FRESH MEATS, INC. &
Stewart Phelps Wood                                        TYSON FOODS, INC.
Indianapolis, Indiana                                      Bruce D. Jones
                                                           Keith A. Gaston
                                                           Rachel O. Webster
                                                           Bradley M. Owen
                                                           Cruser, Mitchell, Novitz, Sanchez,
                                                           Gaston & Zimet, LLP
                                                           Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Judy Reece,                                                August 20, 2020
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           20A-CT-214
        v.                                                 Appeal from the Wayne Superior
                                                           Court
Tyson Fresh Meats, Inc., et al.,                           The Honorable Jay L. Toney,
Appellees-Defendants.                                      Special Judge
                                                           Trial Court Cause No.
                                                           89D01-1508-CT-38



Bailey, Judge.




Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020                             Page 1 of 21
                                            Case Summary
[1]   Judy Reece, individually and as the Guardian of Walter Reece (“Walter”),

      (collectively, “Reece”) appeals a grant of summary judgment in favor of Tyson

      Fresh Meats, Inc. and Tyson Foods, Inc. (collectively, “Tyson”). We affirm.



                                                     Issues
[2]   Reece presents two consolidated and restated issues for review:


              I.       Whether the trial court abused its discretion in excluding
                       from the summary judgment record interrogatory
                       responses and a portion of the opinion of an accident
                       reconstructionist; and


              II.      Whether the trial court erred in granting summary
                       judgment to Tyson upon Reece’s negligence claim.


                             Facts and Procedural History
[3]   On August 10, 2014, at approximately 7:30 p.m., ninety-two-year-old motorist

      Harold Moistner (“Moistner”) was traveling southbound on Boyd Road in

      Wayne County. As his vehicle approached the intersection of Boyd Road and

      Hunnicut Road, Connie Sherwood (“Sherwood”) was driving her vehicle

      eastbound on Hunnicut Road. Sherwood saw Moistner, who was driving very

      slowly, motion to her to enter the intersection. Sherwood then turned south

      onto Boyd Road.




      Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020            Page 2 of 21
[4]   After turning, Sherwood looked in her rearview mirror. She observed Moistner

      execute a U-turn at Hunnicut Road west of Boyd Road, approach the

      intersection, hesitate briefly, and pull out. Moistner’s vehicle collided with a

      motorcycle operated by Walter. Walter suffered catastrophic brain injuries.


[5]   Moistner left the scene of the accident but he was located and interviewed by

      Wayne County Sheriff’s Deputy Tyler Dougherty (“Deputy Dougherty”).

      Moistner appeared to be unable to recount the accident details but he conveyed

      his perception that the motorcycle had pulled out in front of him. Deputy

      Dougherty compiled a report in which he included the following observation:


              Grass on the northwest corner of Hunnicut Road and Boyd Road
              was tall. This grass would have limited or prohibited the view of
              Driver 1 to see Vehicle 2 traveling southbound.


      (App. Vol. II, pg. 86.) Tyson’s plant was located on the northwest side of this

      intersection. A drainage ditch ran parallel to southbound Boyd Road.


[6]   On August 24, 2015, Reece filed a complaint for damages against Moistner.

      During discovery, Reece served Moistner with Interrogatories and scheduled

      his deposition for January 27, 2016. In addition to any assistance that may

      have been provided by his attorney, Moistner was assisted by his daughter,

      Nola Geise (“Geise”). Geise wrote down Moistner’s verbal responses but did

      not recall writing down a response to Interrogatory 21, which sought

      information as to any claimed affirmative defenses. Moistner received and

      signed a printed copy of his Responses to Interrogatories, which, as to

      Interrogatory 21, stated in part that Moistner’s view at the intersection had been
      Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020        Page 3 of 21
      blocked by tall grass.1 Geise brought Moistner to the scheduled deposition but

      Moistner questioned “what accident” and was not sworn in to provide

      testimony. (Id. at Vol. III, pg. 50.)


[7]   On March 29, 2016, Reece filed an Amended Complaint, adding as defendants

      the State of Indiana, Wayne County, and Tyson. Regarding Tyson, Reece

      alleged:


              That on or about August 10, 2014, the defendant, Tyson Fresh
              Meats, Inc., negligently allowed grass to grow so high on their
              property that it blocked the view of the roadway where Hunnicut
              Road and Boyd Road intersect, and therefore is at fault for the
              collision described in paragraph 2 above.


      (App. Vol. II, pg. 54.)


[8]   Tyson answered the complaint on June 14, 2016. On June 19, 2016, Moistner

      died. Eventually, Reece settled her claims with Moistner’s estate and Wayne

      County. The State of Indiana was dismissed as a party.


[9]   On December 5, 2017, Tyson filed a motion for summary judgment and its

      designation of evidence. Although Tyson had initially denied ownership of the

      drainage ditch at the intersection of Boyd Road and Hunnicut Road, Tyson




      1
        Interrogatory 21 provides: “Specify in detail the facts which establish each Affirmative Defense that you
      assert in this case, giving names and addresses of all witnesses and describing all documents upon which you
      rely to support such claim.” (App. Vol. II, pg. 96.)
      The Answer included an objection, legal authority, and information as to collateral source payments. It also
      included the language: “Defendant states that when he came to a stop at the intersection, his view was
      blocked by tall grass and prevented him from fully seeing the Plaintiff’s vehicle.” (Id.)

      Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020                              Page 4 of 21
       admitted ownership for purposes of summary judgment. Reece filed a response

       in opposition to summary judgment together with a designation of evidence.

       Included within Reece’s designations were Moistner’s responses to

       interrogatories and an affidavit of Shawn Gyorke (“Gyorke”), a certified

       accident reconstructionist. In part, Gyorke’s affidavit stated:


               On May 16, 2017, I performed a site investigation at the
               intersection of Boyd Road and Hunnicut Road in Wayne
               County, Indiana, as well as examining sightlines across the
               property of Tyson’s property located at the intersection of Boyd
               and Hunnicut.


               Based upon my investigation it is my professional opinion that
               the placement of Tyson’s sign in conjunction with uncontrolled
               foliage growth on Tyson’s property and within the draining ditch
               along the west side of Boyd Road inhibited Harold Moistner’s
               view and line of sight as he made a U-turn on Hunnicut Road
               and approached Boyd Road heading eastbound on Hunnicut
               Road.


       (Id. at pg. 121.)


[10]   On May 3, 2018, Tyson filed a motion to strike Moistner’s responses. On

       February 19, 2019, Tyson filed a motion to exclude Gyorke’s opinion affidavit

       testimony.


[11]   The trial court conducted a hearing on the pending motions. On December 30,

       2019, the trial court granted summary judgment to Tyson, concluding that

       landowner Tyson had no duty to Reece, as a member of the traveling public.

       The trial court also entered two orders, one excluding Moistner’s interrogatory

       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020         Page 5 of 21
       responses and the second excluding Gyorke’s opinion with respect to Tyson’s

       sign. Reece now appeals.



                                   Discussion and Decision
                                          Standard of Review
[12]   We review summary judgment de novo, applying the same standard as the trial

       court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Summary judgment

       is appropriate “if the designated evidentiary matter shows that there is no

       genuine issue as to any material fact and that the moving party is entitled to a

       judgment as a matter of law.” Ind. Trial Rule 56(C). We construe the evidence

       in favor of the nonmovant and resolve all doubts against the moving party.

       Pfenning v. Lineman, 947 N.E.2d 392, 397 (Ind. 2011) (quotation omitted). The

       party moving for summary judgment bears the initial burden to establish its

       entitlement to summary judgment. Id. at 396–97. Only then does the burden

       fall upon the nonmoving party to set forth specific facts demonstrating a

       genuine issue for trial. Id. at 397 (quotation omitted).


[13]   A genuine issue of material fact exists where facts concerning an issue that

       would dispose of the litigation are in dispute or where the undisputed material

       facts are capable of supporting conflicting inferences on such an issue.

       Huntington v. Riggs, 862 N.E.2d 1263, 1266 (Ind. Ct. App. 2007), trans. denied.


[14]   The summary judgment process is not a summary trial. Hughley, 15 N.E.3d at

       1003–04. Indiana consciously errs on the side of letting marginal cases proceed

       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020         Page 6 of 21
       to trial on the merits, rather than risk short-circuiting meritorious claims. Id. at

       1004. Nevertheless, a grant of summary judgment is clothed with a

       presumption of validity, and the appellant bears the burden of demonstrating

       that the trial court erred. Kramer v. Catholic Charities of Diocese of Fort Wayne-

       South Bend, Inc., 32 N.E.3d 227, 231 (Ind. 2015).


[15]   Reece’s claim against Tyson is one of negligence. To recover on a negligence

       claim, a plaintiff must establish: (1) a duty owed by the defendant to the

       plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff resulting from

       the defendant’s breach. Miller v. Rosehill Hotels, LLC, 45 N.E.3d 15, 19 (Ind. Ct.

       App. 2015). Summary judgment is rarely appropriate in negligence cases

       because such cases are particularly fact-sensitive and are governed by a standard

       of the objective reasonable person, which is best applied by a jury after hearing

       all the evidence. Kramer, 32 N.E.3d at 231. However, summary judgment for a

       defendant is appropriate if the moving party negates at least one element of the

       negligence claim. American Legion Pioneer Post No. 340 v. Christon, 712 N.E.2d

       532 (Ind. Ct. App. 1999).


                                          Evidentiary Rulings
[16]   A review of summary judgment is dependent upon what evidence the parties

       designated for review. Beal v. Blinn, 9 N.E.3d 694, 698 (Ind. Ct. App. 2014). A

       trial court has broad discretion in making evidentiary rulings and we will

       reverse its decision to admit or exclude evidence only if that decision is clearly

       against the logic and effect of the facts and circumstances before the court. Id.


       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020           Page 7 of 21
       Further, the trial court’s decision will not be reversed unless prejudicial error is

       clearly shown. Id. at 698-99.


[17]   Indiana Trial Rule 56(C) provides: “At the time of filing the motion or

       response, a party shall designate to the court all parts of pleadings, depositions,

       answers to interrogatories, admissions, matters of judicial notice, and any other

       matters on which it relies for purposes of the motion.” Relevant to our

       discussion here, Reece designated the portion of Moistner’s response to

       Interrogatory 21 stating that his view at the intersection was blocked by tall

       grass.


[18]   Tyson moved to strike Moistner’s interrogatory responses as inadmissible

       hearsay because Moistner allegedly had exhibited signs of incompetency and

       cross-examination was impossible due to his death. As to Interrogatory 21 in

       particular, Tyson took the position that Moistner’s attorney likely drafted the

       response and he lacked personal knowledge of the circumstances of the

       collision. The trial court struck the responses as hearsay. We need not reach

       the issue of whether this was an abuse of discretion, because there was other

       evidence in the designated record cumulative of the challenged portion of

       Interrogatory 21.


[19]   Reece alleged in her complaint that the grass at the intersection was tall enough

       to block a motorist’s view. In addition to the response to Interrogatory 21, she

       designated the report of the responding officer. Deputy Dougherty’s

       contemporaneous review of the accident site resulted in his opinion that “this


       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020          Page 8 of 21
       grass would have limited or prohibited the view of Driver 1 to see Vehicle 2

       traveling southbound.” (App. Vol. II, pg. 86.) Tyson did not designate any

       evidence to the contrary. Under Indiana’s summary judgment standard, the

       trial court had to consider the grass to be tall enough to block the view. Reece

       did not suffer prejudice from the exclusion of interrogatory responses.


[20]   Reece also challenges the trial court’s exclusion, in part, of Gyorke’s affidavit.

       Pursuant to Ind. Evidence Rule 702(a), expert testimony must convey

       knowledge that “will assist the trier of fact to understand the evidence or to

       determine a fact in issue.” Evidence Rule 702(a) assigns to the trial court a

       gatekeeping function of ensuring that an expert witness’s testimony both rests

       on a reliable foundation and is relevant to the task at hand. Howerton v. Red

       Ribbon, Inc., 715 N.E.2d 963, 966 (Ind. Ct. App. 1999). Knowledge admissible

       under the Rule must connote more than subjective belief or unsupported

       speculation. Id. Expert testimony must be supported by appropriate validation

       or good grounds based on what is known, establishing a standard of evidentiary

       reliability. Lytle v. Ford Motor Co., 696 N.E.2d 465, 472 (Ind. Ct. App. 1998).


[21]   Gyorke opined that the placement of Tyson’s sign in conjunction with the

       growth of Tyson’s foliage had inhibited Moistner’s view at the intersection. At

       Tyson’s behest, the trial court struck the reference to the sign placement as

       speculative. Sherwood, the sole eyewitness, placed Moistner’s vehicle past the

       Tyson sign when he turned his vehicle and proceeded into the roadway.

       Gyorke explained in his deposition that the sign placement was irrelevant

       unless Sherwood’s account was inaccurate. As such, Gyorke’s opinion as to

       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020        Page 9 of 21
       the sign placement was merely speculative, and the trial court did not abuse its

       discretion by excluding it.


                                 Grant of Summary Judgment
[22]   Reece’s complaint alleged that Tyson was negligent because it had allowed

       grass to grow so high on its property that the grass blocked the view at the

       intersection of Boyd and Hunnicut Roads. For summary judgment purposes,

       Tyson admitted ownership of the ditch at the northwest corner of the

       intersection. As the nonmovant obliged to show prima facie the absence of a

       genuine issue of material fact, T.R. 56, Tyson did not designate evidence to

       contradict Reece’s allegation that grass was sufficiently tall to block the view at

       the intersection.


[23]   But Tyson argued that, under the common law, where a natural condition is

       wholly contained within a parcel of property, the owner or occupier owes no

       duty to a traveler using an adjacent public thoroughfare. Absent a duty, there

       can be no breach and, therefore, no recovery in negligence. Stephenson v.

       Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992). Whether there is a legal duty

       owed by one party to another in a negligence action is generally a question of

       law for the court to decide. Chandradat v. State, Ind. Dep’t of Transp., 830 N.E.2d

       904, 908 (Ind. Ct. App. 2005), trans. denied.


[24]   It is well established under Indiana common law that a landowner owes a duty

       to the traveling public to exercise reasonable care in the use of his property so as

       not to interfere with safe travel on public roadways. Pitcairn v. Whiteside, 109

       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020       Page 10 of 21
       Ind. App. 693, 34 N.E.2d 943 (1941). The facts of Pitcairn were that railroad

       employees started a fire on the railroad’s right of way and smoke from the fire

       blew over a nearby road, obscuring visibility of motorists who were involved in

       an accident. The Pitcairn Court concluded that the railroad owed a duty to

       Whiteside, a member of the traveling public, explaining:


               The occupier of land abutting on or adjacent to, or in close
               proximity of, a public highway, owes a duty to the traveling
               public to exercise reasonable care to prevent injury to travelers
               upon the highway from any unreasonable risks, created by such
               occupier, which he had suffered to continue after he knew, or
               should have known, of their existence, in cases where such
               occupier could have taken reasonable precautions to avoid harm
               to such travelers. The traveling public is entitled to make free use
               of highways and streets, and an occupier of land, which is
               adjacent to or in close proximity of such highway or street, has
               no right to so use the property occupied by him as to interrupt or
               interfere with the exercise of such right by creating or
               maintaining a condition that is unnecessarily dangerous. …


               The law requires that every one in the use and enjoyment of his
               property shall have regard for the rights of others, and will not
               allow him to set up or prosecute a business on his own land in a
               way that is calculated to, or in fact does, materially or injuriously
               affect the rights of adjoining owners, or that substantially or
               harmfully interferes with or injures those rightfully traveling on
               an adjoining highway.


       Id. at 946.


[25]   Subsequently, in Holiday Rambler Corp. v. Gessinger, 541 N.E.2d 559 (Ind. Ct.

       App. 1989), a manufacturing plant was operated on the defendant’s property,


       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020         Page 11 of 21
       which was located adjacent to a state highway. At 3:00 p.m., as the plant’s shift

       ended, 750 people were released onto the highway from four plant exits, all

       located within 800 feet of each other. See id. at 562. During one congested

       exodus of vehicles, a motorcyclist was struck and injured. A panel of this Court

       agreed with the motorcyclist that the plant owners owed a duty to travelers on

       the adjacent highway and had created a dangerous condition on their land

       which adversely affected the neighboring highway. As such, a landowner

       whose plant emits smoke that drifts over the highway, or one who creates a

       traffic jam on the highway during plant shift changes, may be liable to a

       traveler.


[26]   Smoke and a traffic jam are artificially created conditions arising from the use

       of land. By contrast, a natural condition is “land that was not changed by any

       acts of humans” and includes “the natural growth of vegetation, such as weeds,

       on land that is not artificially made receptive to them.” Spears v. Blackwell, 666

       N.E.2d 974, 977 (Ind. Ct. App. 1996) (quoting RESTATEMENT (SECOND)

       OF TORTS § 363 cmt. b (1965)). Vegetation planted by humans is not a

       natural condition. Id.


[27]   In Valinet v. Eskew, 574 N.E.2d 283 (Ind. 1991), our Indiana Supreme Court

       considered whether a landowner should be liable to a passing motorist who was

       injured when a tree located on the landowner’s property fell into the roadway.

       In analyzing the landowner’s duty, our Indiana Supreme Court adopted the

       Restatement (Second) of Torts § 363, titled “Natural Conditions.” That section

       provides:

       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020       Page 12 of 21
               (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.


[28]   The Court acknowledged the general rule of non-liability for harm caused

       outside land by a natural condition thereon but also recognized that courts had

       imposed liability when landowners had actual knowledge of a dangerous

       natural condition:


               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. Courts have imposed liability, however, when
               landowners had actual knowledge of a dangerous natural
               condition, regardless of location. 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. 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.


               We agree that the differing duties placed on owners of land with
               respect to differing demographics is correct. We, therefore, adopt
               § 363 of the RESTATEMENT. Whether the land is in an area of
       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020        Page 13 of 21
               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 case with which it may be prevented. As this
               Court has previously held, a landowner need not continually
               inspect his property for natural dangers. However, under some
               circumstances, fulfilling a landowner’s duty to passing motorists
               might reasonably require periodic inspections to be sure that the
               premises do not endanger those lawfully on the highway.


       Valinet, 574 N.E.2d at 285–86 (citations omitted).


[29]   After our Indiana Supreme Court’s adoption of § 363, a panel of this Court had

       occasion to consider, in the context of planted vegetation, “whether the scope

       of the [landowner] duty extends to refraining from creating conditions wholly

       on a landowner’s property which may impair a traveler’s vision of oncoming

       traffic at an intersection.” Sheley v. Cross, 680 N.E.2d 10, 12 (Ind. Ct. App.

       1997), trans. denied. Margaret Sheley was killed when her vehicle collided with

       a vehicle driven by Kimberly Cross at an intersection. In addition to suing the

       county and other driver, the Estate of Margaret Sheley sued Buryle and Hazel

       Grossman, who owned land adjacent to the intersection. Allegedly, the

       Grossmans had negligently planted crops on their land such that a motorist’s

       view of oncoming traffic was impaired. See id. at 11.


[30]   The Sheley Court reviewed the Pitcairn and Holiday Rambler cases, observing

       that, in each case, the landowner’s “conduct caused a hazard to visit itself upon

       the roadway.” Id. at 13. The Court then considered Blake v. Dunn Farms, Inc.,


       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020        Page 14 of 21
       274 Ind. 560, 561, 413 N.E.2d 560 (1980), wherein the Indiana Supreme Court

       had addressed the duty of a landowner to persons on an adjacent public road

       “particularly as that duty applies to the ownership and keeping of domestic

       animals.” Robert Blake was a passenger in an automobile which struck a horse

       on a portion of the state highway running through the land of Dunn Farms, Inc.

       Blake alleged negligence on the part of the owner and the occupier of the land

       in permitting fences to fall into disrepair such that the horse could escape. Id. at

       563. The Blake Court briefly discussed Pitcairn, explicitly agreeing with the

       decision but finding the facts and circumstances of Blake unlike those in Pitcairn.

       In distinguishing Pitcairn, the Court explained:


               The facts in this case do not bring it within the rule set out in
               Pitcairn v. Whiteside, (1941) 109 Ind. App. 693, 34 N.E.2d 943,
               where it was held to be the duty of a property owner adjacent to a
               highway to exercise reasonable care to prevent injury caused by
               the property’s defective or dangerous condition. The defective or
               dangerous condition in Pitcairn was heavy smoke going across
               the traveled portion of the highway, caused by a railroad,
               through its employees, in burning off the right-of-way. We
               emphasize that in that case, the railroad itself was causing the dangerous
               condition that visited itself upon the traveled portion of the highway.


       413 N.E.2d at 566 (emphasis added.)


[31]   Having reviewed Pitcairn, Holiday Rambler, and Blake, the Sheley Court found the

       Indiana Supreme Court’s focus upon the railroad’s affirmative conduct to be

       particularly instructive. The Sheley Court concluded: “to the extent a

       landowner owes a duty to travelers on an adjacent roadway, that duty is limited


       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020             Page 15 of 21
       to refraining from creating hazardous conditions that visit themselves upon the

       roadway. Where an activity is wholly contained on a landowner’s property,

       there is no duty to the traveling public.” 680 N.E.2d at 13.


[32]   Here, the alleged dangerous condition was confined to the Tyson property. In

       her amended complaint, Reece alleged that Tyson allowed high grass growth

       “on their property.” (App. Vol. II, pg. 54.) Reece made no allegation of

       encroachment upon the roadway. Thus, consistent with Sheley, the grass

       growth did not give rise to a duty to the traveling public.


[33]   As an alternative to common law duty, Reece argued that Tyson had

       voluntarily assumed a duty when its employee mowed the drainage ditch.

       Reece deposed John Lewellen (“Lewellen”), a Tyson retiree, and learned that

       he had mowed the drainage ditch during his employment with Heinhold Hog

       Market from 1975 to 1995 and his employment with Tyson from 1995 to 2012.

       According to Lewellen, he did so without explicit instruction from his

       employer, but he was paid for his time, and he intended to make the area

       “presentable to the public.” (Id. at 105). Lewellen had last mowed the ditch in

       2012, the year of his retirement.


[34]   A duty of care may arise where a party gratuitously or voluntarily assumes such

       a duty. Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212, 1219 (Ind. Ct. App. 1983).

       “The assumption of such a duty creates a special relationship between the

       parties and a corresponding duty to act in the manner of a reasonably prudent

       person.” Id. The existence and extent of such a duty are ordinarily questions


       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020       Page 16 of 21
       for the trier of fact. Marks v. NIPSCO, 954 N.E.2d 948, 956 (Ind. Ct. App.

       2011). However, the court will decide the issue as a matter of law where there

       is no genuine issue of material fact. Id.


[35]   The assumption of such a duty requires affirmative and deliberate conduct such

       that it is “apparent that the actor ... specifically [undertook] to perform the task

       that he is charged with having performed negligently.” Yost v. Wabash College, 3

       N.E.3d 509, 517 (Ind. 2014) (internal citation omitted). Liability for the breach

       of an assumed duty is expressed in the Restatement (Third) of Torts: Physical

       and Emotional Harm § 42 (2012), which states:


               An actor who undertakes to render services to another and who
               knows or should know that the services will reduce the risk of
               physical harm to the other has a duty of reasonable care to the
               other in conducting the undertaking if:


               (a) The failure to exercise such care increases the risk of harm
                   beyond that which existed without the undertaking, or


               (b) The person to whom the services are rendered or another
                   relies on the actor’s exercising reasonable care in the
                   undertaking.


       “Thus, to impose liability resulting from breach of assumed duty, it is essential

       to identify and focus on the specific services undertaken. Liability attaches only

       for the failure to exercise reasonable care in conducting the ‘undertaking.’”

       Yost, 3 N.E.3d at 517.




       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020         Page 17 of 21
[36]   Tyson did not dispute Lewellen’s deposition testimony that he was paid by

       Tyson for his time spent mowing the drainage ditch twice monthly for several

       years, albeit without specific instruction to do so. Tyson highlights Lewellen’s

       testimony that he mowed solely for aesthetic reasons. Thus, according to

       Tyson, Lewellen never intended to render a service to the motorists at the

       public intersection. But regardless of Lewellen’s motivation or Tyson’s

       acquiescence, Lewellen ceased mowing upon his retirement in 2012.2 Reece

       has suggested that an assumed duty cannot be abandoned, but she provides no

       authority for this proposition, and we are aware of none.


[37]   Even were we to assume that Lewellen’s conduct at one time gave rise to a

       “special relationship between the parties,” Plan-Tek, 443 N.E.2d at 1219,

       Lewellen ceased to participate in the relationship upon his retirement. For

       approximately two years preceding the collision, Lewellen was not performing

       his “undertaking,” Yost, 3 N.E.3d at 517, negligently or otherwise. There is no

       act providing a basis for liability under § 42 of the Restatement. Reece may not

       obtain a reversal of the grant of summary judgment on grounds of the

       assumption of duty.




       2
           According to Tyson, Wayne County employees mowed the ditch after 2012.


       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020           Page 18 of 21
                                                Conclusion
[38]   Tyson negated the element of duty in Reece’s negligence claim. Reece did not

       satisfy the burden of persuading this Court that summary judgment was

       erroneously granted. Nor has Reece shown reversible error in the trial court’s

       evidentiary rulings.


[39]   Affirmed.


       Vaidik, J., concurs.
       Baker, Sr. J., dissents in part with opinion.




       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020    Page 19 of 21
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Judy Reece,                                                Court of Appeals Case No.
                                                                  20A-CT-214
       Appellant-Plaintiff,

               v.

       Tyson Fresh Meats, Inc., et al.,
       Appellees-Defendants.




       Baker, Senior Judge, dissenting in part.


[40]   I fully concur with respect to the resolution of the evidentiary issue, but I

       respectfully dissent from the majority’s decision to affirm the trial court’s order

       granting summary judgment in favor of Tyson.


[41]   The evidence is undisputed that the grass on Tyson’s property was sufficiently

       tall to block the view at the intersection in question. Our appellate courts have

       held that private property owners bear a duty of reasonable care in the use of

       their property in a way that does not interfere with safe travel on public

       roadways. Pitcairn, 34 N.E.2d at 946; see also Valinet, 574 N.E.2d at 285

       (holding that “[w]hether the land is in an area of sufficient population density to

       invoke the rule” is a question of fact, as is the question of “whether the

       landowner exercised the requisite reasonable care”).




       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020                     Page 20 of 21
[42]   In this case, I believe that there are multiple issues of fact rendering summary

       judgment inappropriate. Specifically, I believe that a factfinder needs to resolve

       the questions of the population density of the area at the intersection as well as

       whether Tyson exercised the requisite reasonable care in maintaining the

       vegetation on its property. Consequently, I would reverse the trial court’s order

       on summary judgment and remand for further proceedings.




       Court of Appeals of Indiana | Opinion 20A-CT-214 | August 20, 2020       Page 21 of 21
