United States 7th Circuit Court of Appeals Reports

MATHENY v. U.S.A., 06-1545 (7th Cir. 4-12-2006) Suzanne
Defendant-Appellee. No. 06-1545. United States Court of
Appeals, Seventh Circuit. Argued September 12, 2006.
Decided December 4, 2006.

Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division. No.
2:04cv414 — Andrew P. Rodovich, Magistrate Judge.

Before EASTERBROOK, Chief Judge, and POSNER and SYKES,
Circuit Judges.

POSNER, Circuit Judge.

One wintry day, Suzanne Matheny went sledding on a
snow-covered sand dune in the Indi-ana Dunes National
Lakeshore, a national park. Her sled struck a rusty pipe
that protruded (the record is unclear how far) above the
surface of the dune but was concealed by snow. A year
earlier 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 suffered serious injuries from the collision with
the pipe and brought suit for damages against the United
States under the Federal Tort Claims Act. A magistrate
judge granted summary judgment for the government on the
ground that Indiana law would not allow Matheny to prevail.
A magistrate judge is authorized to enter a final judgment
only with the written consent of the parties, and our
circuit rule 28(a)(2)(v) requires the parties to indicate
in the jurisdictional statements in their briefs the dates
on which the parties consented. Both parties ignored the
rule, but after we directed their attention to the omission
they supplemented the record with their written consents.

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. 28 U.S.C. §§
1346(b)(1), 2674. That was Indiana, and we may assume
without having to decide that Matheny made out a prima
facie case of negligence under Indiana law. There is, it is
true, support for the view that in an area specifically
designated for skiing a skier has to assume that danger may
be lurking beneath the snow in the form of rocks, gullies,
or tree stumps, and hence that he assumes the risk of an
accident due to these irregularities even though they are
hidden. Wright v. Mt. Mansfield Lift, Inc., 96 F. Supp.
786, 790-92 (D. Vt. 1951); Kaufman v. State, 172 N.Y.S.2d
276, 282-83, (N.Y. Ct. Cl. 1958); cf. Knight v. Jewett, 834
P.2d 696, 705 (Cal. 1992); Shukoski v. Indianhead Mountain
Resort, Inc., 166 F.3d 848, 850-51 and n. 1 (6th Cir. 1999)
(discussing statutes in a number of states, not including
Indiana, that provide that skiers assume risks arising from
variations in terrain). Skiing is a dangerous sport, and
only on novice trails do skiers expect or indeed desire a
perfectly manicured slope. (So the rule for such trails may
be different. Sunday v. Stratton Corp., 390 A.2d 398,
401-03 (Vt. 1978).) Sledding is less dangerous. See Kooly
v. State, 958 P.2d 1106, 1109 (Alaska 1998). The sledder
reasonably believes himself less likely to encounter and be
injured by dangerous obstacles than a skier would be; and
protruding pipes in an area that to all appearances has
never had a building on it are at once more dangerous and
less to be expected than a rock, a gully, or a tree stump.
Less dangerous doesn’t mean safe. Olson v. Bismarck Parks &
Recreation District, 642 N.W.2d 864, 871 (N.D. 2002). In
the Kooly case, a three-year-old drowned when he sledded
into a partially frozen creek at the bottom of a hill that
was a popular venue for sledding.

In our case the earlier accident to a sledder had led to
the discovery of a number of pipes in the area; and
conventional legal principles, were they applicable, might
require the park authorities either to scour the dune and
remove all the pipes or to post warning signs; or possibly
to fence the dune, or to post signs forbidding entry, rather
than warning of the specific hazard. Bears v. Hovey, 269
A.2d 77, 78-79 (Conn. 1970); Gould v. United States, 160
F.3d 1194, 1196-97 (8th Cir. 1998); Maalouf v. Swiss
Confederation, 208 F. Supp. 2d 31, 39-40 and n. 7 (D.D.C.
2002); see Kooly v. State, supra, 958 P.2d at 1109 and n. 7.

But Indiana — in common with all other states,
Terence J. Centner, “Revising State Recreational Use
Statutes to Assist Private Property Owners and Providers of
Outdoor Recre-ational 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), (g).
The district court ruled that none of the exceptions
applied to Matheny’s accident.

She certainly was not a business invitee in a commercial
establishment; the Indiana Dunes National Lakeshore is not a
commercial establishment. Was she an “invited guest,” that
is, “a person who is invited to enter or remain on land as
a member of the public for a purpose for which the land is
held open to the public”? Drake by Drake v. Mitchell
Community Schools, 649 N.E.2d 1027, 1030 (Ind. 1995),
quoting Restatement (Second) of Torts § 332(2)
(1965). Signs prohibiting sledding are posted in a number
of places in the national park, but not where the accident
occurred. Nor is there any indication that Matheny knew
about the prohibition. The park invites 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. 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
(though not to engage in downhill skiing, which is much
more dangerous than cross-country skiing). Cf. Civils v.
Stucker, supra, 705 N.E.2d at 527-28; McCormick v. State,
supra, 673 N.E.2d at 835 (“an invitation is conduct which
justifies others in believing that the possessor desires
them to enter the land”). The park would then have a duty
through signage or otherwise to correct the misimpres-sion.
There is a hint (no more) in Markle v. Hacienda Mexican
Restaurant, 570 N.E.2d 969, 975 (Ind.App. 1991), as well as
in cases from other jurisdictions, such as Orthmann v.
Apple River Campground, Inc., 757 F.2d 909, 912-13 (7th
Cir. 1985) (Wisconsin law), that such an argument might

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.
Although 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 Medical
Center of Evanston, 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).

There may seem an element of unreality in treating the
federal government as if it were a private landowner.
Enabling a person to shift the costs of his activity to the
public at large is a fairly common legal technique for
encouraging the person to provide a service to the public
for which he cannot charge. A pertinent, if anachronistic,
example is the charitable tort immunity. E.g., St. Vincent
College v. Hallett, 201 F. 471, 481 (7th Cir. 1912);
Gilbert v. Seton Hall University, 332 F.3d 105, 110 (2d
Cir. 2003). In economic terminology, the immunity is a
method of externalizing costs (shifting them to others’
shoulders — tort victims’) in order to encourage the
externalization of benefits (the conferral of benefits on
others) by reducing the costs of the enterprise. The
Recreational Use Statute is an example of the technique.
Landowners are relieved from the costs of the usual tort
liabilities of occupiers of land in order to encourage them
to provide a public benefit. But although the federal
government doesn’t require such encouragement in order to
create national parks, an increase in its liability costs
could induce the park service to limit public access,
perhaps severely. In any event the Tort Claims Act requires
that the federal government be treated no worse in a tort
suit than if it were a private entity, however differently

If Matheny was not an invitee, as we hold, she was either a
trespasser or a licensee. At common law a landowner owes
neither type of user of its land a duty of due care, but
owes both a duty not to set a trap, and also a duty to warn
of a trap that he is or should be aware of on his land by
whomever the trap was set, including nature. E.g., Gaboury
v. Ireland Road Grace Brethren, Inc., 446 N.E.2d 1310,
1314-15 (Ind. 1983); Keane v. Schroeder, 264 N.E.2d 95,
99-100 (Ind.App. 1970); Restatement (Second) of Torts
§ 342 (1965). (A “trap” for this purpose is merely a
menace hidden from the licensee or trespasser. E.g.,
Gaboury v. Ireland Road Grace Brethren, Inc., supra, 446
N.E.2d at 1315; Harper v. Kampschaefer, 549 N.E.2d 1067,
1070 (Ind.App. 1990); see Taylor v. Duke, 713 N.E.2d 877,
881-82 (Ind.App. 1999).) And failure to warn of a trap is a
possible characterization of the government’s behavior in
this case. But the recreational-use statute abrogates
liability to trespassers and licensees unless the landowner
has acted with “malice.” So Matheny’s only chance is to
show that the government was guilty of “malice” in failing
to remove the pipe that injured her.

The district court closed this door by ruling that “malice”
means an act that is “malicious” in the ordinary meaning of
the word. In so ruling the court did not, because it could
not, rely on the Indiana courts’ interpretation of the word
as it appears in the recreational-use statute; there is no
judicial interpretation of it except in a previous district
court opinion, Reed v. United States, 604 F. Supp. 1253,
1261 (N.D. Ind. 1984), which is not authoritative; district
court opinions do not have precedential authority. Old
Republic Ins. Co. v. Chuhak & Tecson, P.C., 84 F.3d 998,
1003 (7th Cir. 1996); Colby v. J.C. Penney Co., 811 F.2d
1119, 1124 (7th Cir. 1987).

Unfortunately the word “malice” does not have a settled
meaning in law. Sometimes it means ill will, hatred, “evil
design,” or, in short, “malice” in its everyday sense.
Fryback v. State, 400 N.E.2d 1128, 1131 (Ind. 1980); Ford
v. State, 35 N.E. 34, 35 (Ind.App. 1893); Higgason v.
Clark, 984 F.2d 203, 207 (7th Cir. 1993). But sometimes, as
in defamation law (also in criminal law), it means simply
knowledge of the harmful consequences of an act or —
what is simply a very high degree of negligence —
recklessness (the publisher thought it highly likely,
without knowing for certain, that the defamatory piece he
was publishing was false, and he did nothing to determine
whether it was in fact false). New York Times Co. v.
Sullivan, 376 U.S. 254, 279-80 (1964); Journal-Gazette Co.
v. Bandido’s, Inc., 712 N.E.2d 446, 456 (Ind. 1999);
Blackburn v. State, 291 N.E.2d 686, 695 (Ind. 1973); United
States v. Serawop, 410 F.3d 656, 663 and n. 4 (10th Cir.

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. For that is the
same state of mind that is required to hold a landowner
liable for a trap that injures a licensee or trespasser.
E.g., Swanson v. Shroat, 345 N.E.2d 872, 877 (Ind.App.
1976); Davis v. United States, 716 F.2d 418, 425-26 (7th
Cir. 1983). If “malice” bore the same meaning in the
statute, the statute would not have changed the common law.
That cannot be correct.