Martinez v. Smith - Court Reverses, Expands Landowner Duty

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April 8, 2026 Get Citation Alerts Download PDF Add Note

Yerano Martinez v. Jeffrey Smith

Indiana Supreme Court

• Citations: None known
• Docket Number: 26S-CT-00112
• Panel: Mark S. Massa, Loretta H. Rush
• Judges: Goff, Slaughter, Massa, Rush, Molter

• Disposition: Reversed

• Opinion

• Authorities (30)

• Cited By (0)

• Summaries (0)

• Similar Cases (5.2K)

• PDF

Disposition

Reversed

Combined Opinion

                        by Justice Goff

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).

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 2 of 13
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).

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 3 of 13
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.

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 4 of 13
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.

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 5 of 13
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

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 6 of 13
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).

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 7 of 13
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).

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

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 9 of 13
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)).

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 10 of 13
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

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 11 of 13
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.

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 12 of 13
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).

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

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

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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.

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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

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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

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

Indiana Supreme Court | Case No. 26S-CT-112 | April 8, 2026 Page 9 of 11
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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