In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1545

SUZANNE MATHENY,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:04cv414—Andrew P. Rodovich, Magistrate Judge.

____________

ARGUED SEPTEMBER 12, 2006—DECIDED DECEMBER 4, 2006

____________

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 Indiana 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
2 No. 06-1545

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
No. 06-1545 3

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-
4 No. 06-1545

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
No. 06-1545 5

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 misimpression. 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 fly.

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
6 No. 06-1545

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

motivated.

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
No. 06-1545 7

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
8 No. 06-1545

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. 2005).

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.

AFFIRMED.
No. 06-1545 9

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-4-06