Opinion
CAUSE NO. NA 00-200-C H/S
January 16, 2002
ENTRY ON SUMMARY JUDGMENT MOTIONS
"Don't step here, it's not nailed down" was the gist of a message written faintly in pencil on a board in a walkway at the Muscatatuck National Wildlife Refuge. The United States Fish and Wildlife Service owns and maintains the Refuge. During a visit to the Refuge, plaintiff Betty Williams fell off the walkway and injured her knee. She has asserted a negligence claim against the United States under the Federal Tort Claims Act. The Government denies liability and has asserted several affirmative defenses.
Williams has moved for partial summary judgment, seeking a ruling on all issues related to the Government's liability. The Government opposes the motion and has moved for summary judgment on comparative fault, one of its defenses. For the reasons discussed below, the court denies both motions. The summary judgment record does not compel the conclusion that Williams' claim falls outside the scope of the Indiana Recreational Use Statute, which limits landowner liability under certain circumstances. In addition, there are genuine factual disputes about the central issues in this case — the parties' respective duties and causation.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 669 (7th Cir. 2000). In determining whether a genuine issue of material fact exists, the court must construe all evidence in the light reasonably most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Rummery v. Illinois Bell Tel. Co., 250 F.3d 553, 556 (7th Cir. 2001). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See Bekker, 229 F.3d at 669.
Undisputed Facts
The following facts are either undisputed or reflect the record in the light reasonably most favorable to the non-moving party.
The United States Fish and Wildlife Service owns and maintains the Muscatatuck National Wildlife Refuge in Seymour, Indiana. The Refuge was established for the restoration, preservation, development and management of wildlife and wildlands habitat.
The Refuge has nature trails equipped with wooden walkways for public use. It also has a visitor center which is staffed, at least in part, by volunteers. The Muscatatuck Wildlife Society, Inc., a nonprofit organization, operates a bookstore in the visitor center. Refuge staff members sometimes fill in for Muscatatuck Wildlife Society members at the bookstore. The Refuge permits organizations such as the Muscatatuck Wildlife Society, the Muscatatuck Wildlife Society Foundation, the Jackson and Jennings County tourist bureaus, and the Seymour Band Boosters to sponsor events at the Refuge.
On May 19, 1999, plaintiff Betty Williams visited the Refuge with her husband and another couple. They came to have a picnic and to see birds.
Williams did not pay a fee to enter the Refuge. While walking down a walkway at the Refuge, Williams tripped and fell off the left side of the walkway. There was a loose board near where Williams fell. There was faint writing on the board, in pencil, that said "something to the effect of `Don't step here, it's not nailed down.'" Stanley Dep. at 22. Williams was walking a few inches away from the left side of the walkway when she fell. She was talking and looking around as she walked. She testified that the walkway in front of her appeared to be straight. Photographs show that at the point where Williams fell, the walkway angled to the right.
The Refuge and its employees were responsible for maintaining the walkway. Refuge employees and volunteers walked along the walkway several times a year. The Refuge asserts that it was unaware of any boards that needed maintenance. Other facts are noted below as needed, keeping in mind the standard that applies to a summary judgment motion.
Discussion
I. Plaintiff's Motion — The Indiana Recreational Use Statute
The Government has asserted that Williams' claim is barred by the Indiana Recreational Use Statute (IRUS), Indiana Code § 14-22-10-2. According to the Government, the IRUS entitles the Government to invoke sovereign immunity because the Federal Tort Claims Act waives immunity only to the extent that a private individual could be held liable for the conduct alleged by the plaintiff. See Ans. at 4; 28 U.S.C. § 1346(b) 2671; Donais v. United States, 232 F.3d 595, 598 (7th Cir. 2000) (the Government's liability is governed by the substantive law of the state where the alleged negligence occurred).
In her brief, Williams addressed sovereign immunity as an issue distinct from the IRUS defense. See Pl. Mem. at 13. Following the Government's lead, the court considers only the IRUS defense because that is the only basis on which the Government has argued immunity from suit.
The IRUS protects landowners from liability if they have opened their property to the public for recreational use. See McCormick v. State, Dep't of Natural Resources, 673 N.E.2d 829, 833 (Ind.App. 1996). In her summary judgment motion, Williams contends that IRUS does not apply to her as a matter of law because she falls within the statute's exception for "invited guests." In relevant part, IRUS provides:
(d) A person who goes upon or through the premises, including caves, of another:
(1) with or without permission; and
(2) either:
(A) without the payment of monetary consideration; or
(B) with the payment of monetary consideration directly or indirectly on the person's behalf by an agency of the state or federal government;
for the purpose of swimming, camping, hiking, sightseeing, or any other purpose (other than the purposes described in section 2.5 of this chapter) does not have an assurance that the premises are safe for the purpose.
(e) The owner of the premises does not:
(1) assume responsibility; or
(2) incur liability;
for an injury to a person or property caused by an act or failure to act of other persons using the premises.
(f) This section does not affect the following:
(1) Existing Indiana case law on the liability of owners or possessors of premises with respect to the following:
(A) Business invitees in commercial establishments.
(B) Invited guests.
(2) The attractive nuisance doctrine.
Ind. Code § 14-22-10-2(d)-(f).
The purpose of the IRUS is to encourage landowners to open their property to the public for recreational purposes free of charge. McCormick, 673 N.E.2d at 833. Because the IRUS is in derogation of the common law, the Indiana Supreme Court has instructed that it be strictly construed against limiting a claimant's right to bring suit. Drake v. Mitchell Community Schools, 649 N.E.2d 1027, 1029 (Ind. 1995).
Williams argues that the Government is not immune from liability under the IRUS as a matter of law because she was an "invited guest" at the Refuge. To decide Williams' motion, the court must determine what "invited guest" means under the IRUS and whether the summary judgment record conclusively establishes that Williams meets that definition.
A. Who is an "Invited Guest" Under the IRUS?
IRUS does not define "invited guest." However, in Drake v. Mitchell Community Schools, its only case involving the pertinent IRUS provision, the Indiana Supreme Court construed the term to mean any invitee. In Drake the court reversed summary judgment for a landowner under the IRUS. The plaintiff was a high school student who had contracted an illness while decorating a grain elevator as a haunted house. The elevator was owned by a bank that donated the use of its property for a community fund-raiser. Regarding the student's status under the IRUS, the court indicated that an "invitee" would not be subject to the IRUS because of its inapplicability to "invited guests":
Moreover, IRUS expressly declares that its provisions do not affect Indiana common law with respect to "business invitees in commercial establishments nor to invited guests." Ind. Code § 14-2-6-3 (emphasis added). In Burrell v. Meads (1991), Ind., 569 N.E.2d 637, 642-43, this Court recognized that a landowner's duty to exercise reasonable care in accordance with Section 343 of the Restatement (Second) of Torts extends to three types of invitees: business visitors, public invitees, and social guests. The facts asserted by the Bank do not exclude the possibility that Holli was an invitee and therefore not subject to IRUS.
649 N.E.2d at 1030 (footnote omitted).
At the time of the Drake decision, the IRUS was codified at Indiana Code § 14-2-6-3 and was not divided into subparts. The relevant substantive provisions have not changed.
The Drake court relied on Burrell v. Meads, 569 N.E.2d 637, 642-43 (Ind. 1991), where the Indiana Supreme Court reviewed the history of premises liability law in Indiana and held that "social guests" are invitees entitled to a reasonable duty of care. Burrell rejected Indiana's earlier classification of "social guests" as licensees, to whom landowners owe a duty only to refrain from willful or wanton injury and to warn of any latent danger of which the landowner has knowledge.
The Government dismisses the language above from Drake as dicta and argues that this case should be governed by the reasoning of Clem v. United States, 601 F. Supp. 835, 842 (N.D.Ind. 1985). In Clem, the court granted the Government's motion to dismiss plaintiff's negligence claim based in part on immunity under the IRUS. The plaintiff's husband had drowned at the Indiana Dunes National Lakeshore Park. The court held that the plaintiff's husband was not covered by the "invited guest" exception to the IRUS because he was a licensee at the park and not an invitee. In explaining its conclusion, the court stated that the plaintiff and her husband were most like "social guests," who — at that time — were deemed licensees under Indiana law. See 601 F. Supp. at 842.
The analysis in Clem does not prevail here. As discussed above, Burrell changed Indiana law on the status of social guests. In addition, even if the Indiana Supreme Court's consideration of the definition of "invited guest" in Drake was not its central holding, it was at least an alternative holding: "The facts asserted by the Bank do not exclude the possibility that Holli was an invitee and therefore not subject to IRUS." 649 N.E.2d at 1030. State law governs this issue, and this court cannot brush off such explicit guidance from the state's highest court. Under Drake, the term "invited guest" under the IRUS includes anyone who qualifies as an invitee under Indiana common law standards.
The court does not find persuasive the Government's argument that the Indiana Court of Appeals has continued to "distinguish" between "invited guest" and "invitee" after Drake. The Government cites Civils v. Stucker, 705 N.E.2d 524 (Ind.App. 1999), where the court concluded that the injured person "was a licensee, and not an invitee or invited guest." Id. at 528. Merely using the two different terms is not tantamount to recognizing a substantive difference between them, and the court in Civils plainly equated the two terms in its reasoning. Moreover, the Indiana Supreme Court referred to both terms in Drake but treated an invited guest as one type of "invitee" under the common law standards.
B. Was Williams an Invitee at the Refuge?
While the court agrees with Williams' construction of "invited guest" under IRUS, to defeat the Government's IRUS defense on summary judgment, Williams must prove that she was an invitee at the Refuge as a matter of law. Williams' evidence supports her case but does not compel summary judgment in her favor.
Burrell adopted a new test to determine who is an invitee, returning to a version of the "invitation test":
Adoption of the invitation test leads us to declare that at least those persons described in the Restatement (Second) of Torts § 332 qualify as invitees:
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee 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.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
Burrell, 569 N.E.2d at 642. Williams contends that she was a public invitee. Invitees may be invited expressly or may receive a "reasonably implied" invitation. Id. at 643.
In contrast to invitees, licensees have only a license to use the land and are privileged to enter or remain on the land by virtue of the permission or sufferance of the owner or occupier. Id. at 640, citing Restatement (Second) of Torts § 330, cmt. c, (possessor's consent). Licensees enter the land of another for their own convenience, curiosity, or entertainment, and they take the premises as they find them. Id.
In McCormick v. State, in an IRUS case, the Indiana Court of Appeals considered the distinction between invitees and licensees after Burrell, and its analysis shows that the distinction depends on the often fine line between activity the landowner encourages or desires and activity it merely permits:
[I]n the determination of whether an individual is a public invitee or a licensee, the distinction between the terms "invitation" and "permission" becomes critical. The comments to Restatement (Second) of Torts § 330 provide that:
c. Consent and toleration. The word "consent," or "permission," indicates that the possessor is in fact willing that the other shall enter or remain on the land, or that his conduct is such as to give the other reason to believe that he is willing that he shall enter, if he desires to do so.
The comments to Restatement (Second) of Torts § 332 clarify the distinction between invitation and permission:
b. Invitation and permission. Although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so.
* * * * * *
Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee, as stated in § 330; but it does not make him an invitee. . . .
The comments to the same section of the Restatement clarify what is meant by land held open to the public for purposes of the public invitee:
d. Land held open to the public. Where land is held open to the public, there is an invitation to the public to enter for the purpose for which it is held open. Any member of the public who enters for that purpose is an invitee . . .
* * * * * *
It is not enough, to hold land open to the public, that the public at large, or any considerable number of persons, are permitted to enter at will upon the land for their own purposes. As in other instances of invitation, there must be some inducement or encouragement to enter, some conduct indicating that the premises are provided and intended for public entry and use, and that the public will not merely be tolerated, but is expected and desired to come. When a landowner tacitly permits the boys of the town to play ball on his vacant lot they are licensees only; but if he installs playground equipment and posts a sign saying that the lot is open free to all children, there is then a public invitation, and those who enter in response to it are invitees.
Restatement (Second) of Torts § 332 (emphasis added).
McCormick, 673 N.E.2d at 836-37.
The decisive factor with regard to whether the landowner has extended an "invitation" or "permission" is the interpretation a reasonable person would give the landowner's words and actions in light of all the circumstances. Id. at 837, citing Restatement (Second) of Torts § 330, cmt. e; Restatement (Second) of Torts § 332, cmt. c.
Applying these principles, the McCormick court affirmed summary judgment for a landowner, holding that a man killed in a boating accident was a licensee at Morse Reservoir and not an invitee. His estate's claim therefore was barred by the IRUS. The evidence showed that the defendant had permitted the decedent and others to use the reservoir upon their own desire to do so. There was no evidence that the defendant "desired, induced, encouraged or expected the decedent to enter the reservoir." Id. at 837; see also Civils v. Stucker, 705 N.E.2d 524, 527-28 (Ind.App. 1999) (reversing denial of summary judgment for landowner where plaintiff had permission to sled on property but where there was no evidence that landowner did anything that reasonably would have led plaintiff to believe that the landowner desired that the plaintiff enter his land). Cf. Clem, 601 F. Supp. at 842 (members of the public using a park are best classified as "social guests" where the Government has taken steps to facilitate public use of the facilities).
Here, Williams argues that the visitor center, bookstore, and walkways are evidence that the Refuge "invites" the public to visit the Refuge. She also cites evidence of programs held at or sponsored by the Refuge. The Government counters that most of the activities on which Williams relies are conducted by independent, nonprofit organizations such as the Muscatatuck Refuge Society. The Government also generally asserts that, while it permits the public to visit the Refuge, its conduct could not reasonably be construed as evidence that it desired the public's attendance.
As the discussion of the distinction between invitees and licensees in McCormick makes clear, there is a thin line between permission and invitation. The issue here requires the trier of fact to draw inferences about the Government's state of mind based on objective evidence of its intentions. Williams' evidence about the Refuge's conduct would certainly permit the conclusion that she was an invitee, but the summary judgment evidence does not necessarily require this conclusion, at least when the court must view the evidence in the light reasonably most favorable to the Government. Crediting the Government's evidence and argument, a reasonable fact-finder might conclude that Williams' evidence is no more than evidence that the Government permitted the public to use the Refuge. Accordingly, plaintiff's motion for summary judgment on this issue must be denied.
II. Negligence and Comparative Fault
Williams also moved for summary judgment on her negligence claim and on the Government's affirmative defense that she was also negligent. In response, the Government filed its own summary judgment motion on the comparative fault issue. The questions in this case related to the scope of the parties' respective conduct and causation simply are not appropriate for summary judgment in either direction.
Williams argues that the Refuge had a duty to maintain the walkway and that the fact that there was a loose board proves as a matter of law that the Refuge breached that duty. Williams also contends that the evidence demonstrates as a matter of law that the loose board caused her injury. Williams has introduced strong evidence in support of her negligence theory, but that evidence does not necessarily compel a judgment in her favor in light of the Government's evidence that it maintained the walkways and had no knowledge of the loose board.
The Government also disputes causation, which lies at the heart of its own summary judgment motion on the defense of comparative fault. The Government contends that Williams is at least partially responsible for her injury because she was walking near the edge of the walkway, talking, and not paying close attention to where she was walking. The government has offered one reasonable interpretation of the evidence, but not the only reasonable one. Issues of causation must be resolved at trial.
There was some skirmishing in the briefs about whether Williams had responded to the Government's summary judgment motion. Williams answered the Government's legal argument in her Reply but did not respond to any of the Government's factual assertions in compliance with Local Rule 56.1. This issue does not affect the court's analysis of the Government's motion. Even taking the Government's statement of additional facts as undisputed, the Government is not entitled to summary judgment. The mere fact that Williams was not focusing her undivided attention on walking does not prove as a matter of law that she was negligent.
Conclusion
For the foregoing reasons, the court hereby denies plaintiff's partial summary judgment motion and defendant's summary judgment motion. The case remains scheduled for a court trial on September 17, 2002, with a final pretrial conference on September 6, 2002.
So ordered.