A panel of judges with the 7th U.S. Circuit Court of Appeals has affirmed a trial court’s decision to dismiss the claim of a woman, who was injured while sledding on a snow-covered sand dune in the Indiana Dunes National Lakeshore.
Like the district court, the panel concluded that the plaintiff was not an invitee, meaning that she could be deemed a trespasser. This created a more modest duty of care for the land owner, which is the Federal Government.
The accident occurred when Suzanne Matheny was sledding at the national park and her sled struck a rusty pipe that protruded above the surface of the dune, but was concealed by snow. “A year earlier,” noted the panel, “a child had had a similar accident in the same area and park rangers had removed a number of protruding pipes, but had failed to discover and remove all of them. Objects buried in the dunes may be exposed part of the time and concealed part of the time, owing to the shifting of the sand. The pipes had not been installed by the federal government; they were the detritus of cottages built on the dune, and torn down, before the dune became part of the national park.”
Matheny, who suffered serious injuries, sued the United States under the Federal Tort Claims Act. The Federal Government moved for summary judgment, a motion the assigned magistrate judge granted, holding that Indiana law would not allow Matheny to prevail. “The Tort Claims Act waives the federal government’s sovereign immunity only insofar as the defendant, were it not the government, would be liable to the plaintiff under the law of the state in which the conduct that is alleged to be tortious occurred,” wrote the panel, citing 28 U.S.C. §§ 1346(b)(1), 2674.
The panel noted that Indiana, like a lot of other states (Terence J. Centner, “Revising State Recreational Use Statutes to Assist Private Property Owners and Providers of Outdoor Recreational Activities,” 9 Buff. Envtl. L.J. 1, 2-3 (2001)) “has a law intended to encourage landowners to allow the public to use their land for recreational purposes. McCormick v. State, 673 N.E.2d 829, 834 (Ind. App. 1996); Kelly v. Ladywood Apartments, 622 N.E.2d 1044, 1047 (Ind. App. 1993). The Indiana Recreational Use Statute, Ind. Code § 14-22-10-2, excuses the landowner from liability (including to sledders, Civils v. Stucker, 705 N.E.2d 524, 527 (Ind. App. 1999); Kelly v. Ladywood Apartments, supra, 622 N.E.2d at 1048; see Ind. Code. §§ 14-22-10-2(d), (e)) unless the recreational users of his property are ‘business invitees in commercial establishments’ or ‘invited guests,’ or unless the landowner has created an attractive nuisance or the injury was ‘caused by a malicious or an illegal act’ of the owner. Ind. Code §§ 14-22-10-2(f)(1) [*6] , (g). The district court ruled that none of the exceptions applied to Matheny’s accident.”
Considering whether the plaintiff was invited, the panel wrote that the park does invite the public “to attend lectures and guided tours and to use facilities such as beaches (of course), a visitors’ center, a learning center and a number of trails for cross-country skiing.” Further, it wrote that “cross-country skiing might seem pretty close to sledding in point of safety. So conceivably (no stronger word is possible) a reasonable person, reasoning by analogy as it were, might think she was being invited to sled, too. …The park would then have a duty through signage or otherwise to correct the misimpression.
“But we think not. Not in this case–because there is no suggestion that the plaintiff was aware that cross-country skiing was permitted and so could have been induced by such awareness to think sledding must be permitted as well–and probably not in any case.”
The court added that while “signs are a common way of warning off a visitor who would otherwise think himself invited to use the owner’s property in a particular way, St. Mary’s Med. Ctr. of Evansville, Inc. v. Loomis, 783 N.E.2d 274, 282-83 (Ind. App. 2002), they must be so placed as to be reasonably calculated to be seen by the visitor. City of Indianapolis v. Johnson, 736 N.E.2d 295, 298-99 (Ind. App. 2000).
“But Indiana Dunes National Lakeshore occupies 15,000 acres and extends for 25 miles along the shore of Lake Michigan. It has a huge perimeter. There are many points of entry (even ignoring the lake itself), and it would be a formidable undertaking to post enough signs about sledding to assure that the prohibition was known to all visitors–formidable, too, to anchor the signs so securely that the shifting sands could not dislodge or bury them. Cf. Fryman v. United States, 901 F.2d 79, 82 (7th Cir. 1990). The purpose of the Indiana Recreational Use Statute would be undermined if landowners who threw their land open to the public for some purposes had to undertake heroic efforts to make sure that no member of the public misunderstood the limits of the permission. See Blakely v. Camp Ondessonk, 38 F.3d 325, 327-28 (7th Cir. 1994) (Illinois law).”
After finding that Matheny was not an invitee, but a trespasser for legal purposes, the court turned to whether the government was guilty of “malice” in failing to remove the pipe that injured her.
“Unfortunately the word ‘malice’ does not have a settled meaning in law,” wrote the panel. “Although we cannot be certain what the word means in the Indiana Recreational Use Statute, it is unlikely that it means merely knowledge or recklessness.
Suzanne Matheny v. United States of America; 7th Cir.; No. 06-1545, 2006 U.S. App. LEXIS 29662; 12/4/06
Attorneys of Record: (for plaintiff) Mitchell A. Peter, Miller & Associates, Merrillville, IN, USA. (for defendant) Joseph S. Reid, Orest S. Szewciw, Office of the United States Attorney, Hammond, IN, USA.
