ORDER
This matter is before the court on defendant, United States ofAmerica, Corps of Engineers', May 24, 1983 "Motion for SummaryJudgment." Plaintiff responded to that motion on August 4, 1983whereupon defendant United States filed its reply on August 31,1983. A supplemental response to defendant's motion for summaryjudgment was filed by plaintiff on November 2, 1983. For thereasons set forth below, defendant's motion for summary judgmentwill be granted.
Facts
Taken in the light most favorable to the non-moving party (hereplaintiff) and accepting the allegations as true, see e.g.Barbian v. Panagis, 694 F.2d 476, 478 (7th Cir. 1982), therelevant facts are as follows.
Plaintiff, Michael Reed, was severely injured in a mishap atthe Huntington Reservoir on July 2, 1979. On that date, GaryCollins, a friend of plaintiff, asked the plaintiff to go waterskiing. They met two other friends, Dave Waldon and Dan Hicks, atthe Huntington Reservoir. The four men launched a seventeen-footaluminum motor boat belonging to Waldon and Collins from theKilsoquah boat ramp between 5:30 and 6:00 p.m.
Collins drove the boat out of the idle zone, whereuponplaintiff began to pilot the boat. Plaintiff drove around forapproximately five minutes in order to warm up the engine. Atabout this time a discussion ensued among the occupants of theboat as to who would go ashore since the boat was not powerfulenough to pull a skier with three persons aboard. By this time,plaintiff had shut off the boat motor, and the boat was thenabout forty feet from shore. After the boat drifted to a pointapproximately thirty feet from shore, plaintiff announced that hewould be the one to go ashore.
Plaintiff dove from the boat into the water, the result ofwhich proved tragic. Upon diving into the water plaintiff's headstruck a gravel-sand bar and he was immediately paralyzed.Plaintiff's companions immediately noticed his difficulty andrescued him from drowning. Plaintiff was placed back in the boatand taken to the Kilsoquah boat ramp where an emergency vehiclewas summoned. Despite treatment, the plaintiff has neverrecovered movement below his armpits, nor does he have anymovement in his fingers.
The Huntington Reservoir was constructed pursuant to the FloodControl Act of 1958, Title II of Public Law No. 85-500,under the supervision of the United States Army Corps ofEngineers. The Corps of Engineers acquired over eight thousandacres of real estate near Huntington, Indiana for the purpose ofconstructing a flood control pool, public use facilities andwildlife management areas. Though flood control was the primarypurpose of the construction of the Huntington Reservoir,recreational use was also an intended benefit including boating,fishing, swimming, and water skiing. It was estimated that withinfive years of project completion, two hundred twenty-fivethousand annual visitors could be expected to attend theReservoir and that an ultimate visitation of eight hundredseventy thousand was expected within fifty years of the projectcompletion.
The Reservoir area was cleared pursuant to a contract datedJune 26, 1968 between the Army Corps of Engineers and theApplachian Contracting Company. Applachian Contracting Companywas to remove the Meridian Road bridge which crossed the WabashRiver. It is alleged that Applachian failed to remove asignificant portion of the roadway south of the actual bridgestructure. The earthen embankment which led up to the bridge wasleft intact since it was considered a part of the terrain and nota structure as defined in the Corps of Engineers guidespecifications.
Almost all of the Huntington Lake project area was leased tothe State of Indiana, Department of Natural Resources, on July 1,1973 under a long-term lease which was to end June 30, 2013.Under the terms of the lease, the lessee was required toadminister and maintain the premises in accordance with the Corpsof Engineers "Master Plan" and general development plan. AProject Safety Plan and a Project Resource Management Plan weremade a part of the Master Plan and were applicable to theHuntington Lake project. The Huntington Reservoir was formallyopened up to the public in the spring of 1971.
As things turned out, the water over the Meridian Roadembankment is, at points, deceptively shallow. At the point whereplaintiff exited the boat, the water was approximately two feetdeep. Because the water was murky, plaintiff was unable todiscover the presence of the embankment. Other parts of the area,which are also approximately thirty feet from the shore, arequite deep.
Prior to the accident, plaintiff had only been to theHuntington Reservoir area to water ski on two occasions in 1978and on three or four occasions in 1979. He had never skied in thearea in 1978 where the accident occurred, and on one occasion inJune of 1979, he dove out of a boat on the south side of theReservoir near the east end about thirty to forty feet from shoreand was able to swim to shore since the water was deep. Plaintiffhad observed people swimming at various points around theReservoir, as well as around boats. Plaintiff alleges that he hadnever seen any signs prohibiting swimming though it appears thata "No Swimming" sign was placed by the State of Indiana at theKilsoquah boat ramp, as well as a sign posted by the Corps ofEngineers which indicated that boaters were to obey certainregulations. Notwithstanding these admonitions, plaintiff assertsthat he had no idea nor any knowledge that the old Meridian Roadbed and embankments went through the Reservoir under the water.
As indicated, plaintiff had been invited to go water skiing byGary Collins. Either Collins, and/or Waldon, had paid $5.00 foran annual permit allowing them to launch their boat at theKilsoquah boat ramp earlier in the year.
Based upon the foregoing, the defendant United States ofAmerica, Army Corps of Engineers, has moved for summary judgmentnotwithstanding the tragic events which led to plaintiff'scondition.
Discussion and Legal Analysis
Plaintiff's amended complaint as it relates to the defendantUnited States1 allegesa cause of action under the Federal Tort Claims Act, 28 U.S.C. § 2671et seq., with jurisdiction invoked pursuant to 28 U.S.C. § 1346.In Count V, plaintiff also asserts that this court hasadmiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333.
With respect to the Federal Tort Claims Act allegations, theUnited States is liable for injury under circumstances "where theUnited States, if a private person would be liable to theclaimant in accordance with the law of the place where the act oromission occurred." 28 U.S.C. § 1346(b), 2674. In this case,since the accident occurred in Indiana, the applicable law withrespect to the Federal Tort Claims Act allegation is that of theState of Indiana. See Davis v. United States, 716 F.2d 418, 423(7th Cir. 1983). As for the admiralty claim, 28 U.S.C. § 1333(1)gives federal district courts exclusive jurisdiction over "[a]nycivil case of admiralty or maritime jurisdiction."28 U.S.C. § 1333(1); see Foremost Insurance Co. v. Richardson, 457 U.S. 668,102 S.Ct. 2654, 2656, 73 L.Ed.2d 300 (1982).
While certain substantive claims in this case are governed byIndiana law, and general federal law governs the admiralty claim,the procedural aspects are, of course, governed by federal law.Rule 56(c) of the Federal Rules of Civil Procedure provides that:
"[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). The burden of proof is, of course, on theparty moving for summary judgment and consequently all reasonableinferences as to the existence of a genuine issue of a materialfact are drawn in favor of the non-moving party. PeoplesOutfitting Co. v. General Electric Credit Corp., 549 F.2d 42 (7thCir. 1977); Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir.1980); generally C. Wright, Law of Federal Courts, 493-5 (3d ed.1976). Further, "[i]n order to avoid the grant of summaryjudgment, a party must demonstrate both the existence of amaterial fact and a genuine issue as to that material fact."Kennett-Murray, supra, at 892.
Taking the foregoing principles together, it can be said thatthe proper scope of inquiry under Rule 56 requires the answeringof two essential questions: "First, is there any genuine issue asto any material fact? Second, if there is no genuine issue offact, then, viewing the evidence and the inferences which may bedrawn therefrom in the light most favorable to the adverse party,is the movant entitled to prevail as a matter of law?" Radobenkov. Automated Equipment Corp., 520 F.2d 540 (9th Cir. 1975).
Utilizing the above considerations, this court is of the viewthat the factual disputes, if any, do not relate to a materialissue and that the defendant is entitled to prevail as a matterof law. This conclusion is based upon this court's agreement withdefendant that plaintiff's cause of action against it based uponthe Federal Tort Claims Act is barred by Indiana law. Further,the court is of the view that it has no jurisdiction over thealleged admiralty claim. Under separate headings, the court'sreasoning behind its conclusion follows.
Liability under Indiana Statutes
Defendant United States moves for summary judgment with respectto the Federal Tort Claims Act allegation asserting, inter alia,that no cause of action lies by virtueof I.C. § 14-2-6-3 and I.C. §§ 4-16-3-1 through 4-16-3-3.Plaintiff, of course, argues that his claim is not barred byeither statutory provision.
Though this court, on the basis of the present record, is notconvinced that I.C. 14-2-6-3 bars plaintiff's claim, an overviewof the parties' arguments with respect to that statute is usefulas background for this court's conclusion that plaintiff's claimis, in fact, barred by I.C. 4-16-3-1 through 4-16-3-3. The reasonfor such an overview flows from the fact that many of thearguments with respect to both statutes overlap and furtherbecause plaintiff argues that some of the provisions of I.C. §14-2-6-3 should be read into 4-16-3-1, et seq.
The general restrictions on a landowner's liability to personsusing land for recreational activities is embodied in IndianaCode § 14-2-6-3, which provides:
Any person who goes upon or through the premises including, but not as a limitation, lands, waters and private ways of another with or without permission to hunt, fish, swim, trap, camp, hike, sightsee or for any other purposes, without the payment of monetary consideration, or with the payment of monetary consideration directly or indirectly on his behalf by an agency of the state or federal government, is not thereby entitled to any assurance that the premises are safe for such purposes. The owner of such premises does not assume responsibility for nor incur liability for any injury to person or property caused by an act or failure to act of other persons using such premises: Provided, That the provisions of this section shall not be construed as affecting the existing case law of Indiana of liability of owners or possessors of premises with respect to business invitees in commercial establishments nor to invited guests nor shall this section be construed as to affect the attractive nuisance doctrine: Provided, further, That nothing in this section contained shall excuse the owner or occupant of premises from liability for injury to persons or property caused by the malicious or illegal acts of the owner or occupant.
I.C. 14-2-6-3. Utilizing the language of the foregoing statute,it is defendant's position that as an owner of land, here theHuntington Reservoir, it "does not assume responsibility for norincur liability for any injury caused by an act or failure to actby the act of others using the premise" and since a user was "notentitled to any assurance that the premises [were] safe" it isnot liable to plaintiff.
There can be no doubt but that the foregoing recreational usestatute is an attempt to limit a landowner's liability forpersons venturing upon the landowner's premises in pursuit ofrecreation and in this respect it is not unlike otherrecreational user statutes in other states which limit theliability of the United States under the Federal Tort Claims Act,e.g., Jones v. United States, 693 F.2d 1299 (9th Cir. 1982);Otteson v. United States, 622 F.2d 516 (10th Cir. 1980); Mandelv. United States, 545 F. Supp. 907 (W.D.Ark. 1982). But the extentthat I.C. 14-2-6-3 varies the common law is far from clear.
Fairly read, it could very well be that I.C. 14-2-6-3 does notbar present plaintiff's claim — at least at this juncture. Asidefrom the provisos contained in the statute (of which more will besaid later), the statute on its face may allow plaintiff topursue his claim.
As for the arguments between the parties, it appears to bedefendant's principal position that the second sentence of I.C.14-2-6-3 which states in part that "the owner of such premisesdoes not assume responsibility for nor incur liability for anyinjury to person or property caused by an act or failure to actof other persons using such premises . . ." bars presentplaintiff's claim. Plaintiff, to the contrary, suggests thatdefendant's reliance upon that passage is misplaced and furtherthat his claim is not barred by the first sentence of the statutewhich provides that persons who go upon or through landowner'spremises for recreational purposes "is not thereby entitledto any assurance that the premises are safe for such purposes."
A recent decision of the Indiana Court of Appeals, which wasdecided shortly before defendant filed its motion for summaryjudgment, suggests that the second sentence of I.C. 14-2-6-3 doesnot, standing alone, bar present plaintiff's claim. That case,Schwartz v. Zent, 448 N.E.2d 38 (Ind. App. 1983), involved anaction by a victim of a hunting accident against a landowner torecover damages sustained in the accident. There, the victim wasinjured when a hunter on the landowner's premises fired an errantshot which struck the plaintiff who was on neighboring land.While the particular issue before the court in Schwartz waswhether the statute protected landowners when the injury occurredon neighboring land, the court analyzed Ind.Code 14-2-6-3 inbroader terms. That analysis is of aid in the present matter:
I.C. 14-2-6-3 provides a dual protection from liability for landowners who permit their land to be used by others for recreational purposes. The first sentence of the statute relates to injuries caused by the condition of the land, while the second sentence relates to injuries caused by acts of a recreational user. The language of that second sentence is clear. It provides that the landowner shall not by liable for `any injury to person or property' caused by such recreational user . . .
448 N.E.2d at 39-40. Thus, as Schwartz and the statute appear tomake clear, the second sentence of I.C. 14-2-6-3 relates only toinjuries caused by acts of a recreational user and sinceplaintiff complains of defendant's act, or failure to act, thesecond sentence of the statute appears to be wholly inapplicable.So, apart from the provisos, the remaining issue with respect toI.C. 14-2-6-3 is whether or not the first sentence of the statutebars plaintiff's claim.
In essence, the first sentence of I.C. 14-2-6-3 provides thatpersons who go upon or through the landowner's premises forrecreational purposes "is not entitled to any assurance that thepremises are safe for such purpose." It is the legislature's useof "assurance" in the statute which leads the parties to differas to the applicability of the first sentence to the facts ofthis case.
Relying upon such sources as Black's Law Dictionary 158 (4thed. 1968), Random House College Dictionary 83 (Rev. ed. 1979) andWebster's New Collegiate Dictionary (1974), it is plaintiff'sposition that the term "assurance" means "a pledge, guarantee,surety, or a declaration tending to inspire full confidence."(Plaintiff's "Memorandum in Opposition to Defendant's Motion forSummary Judgment," August 4, 1983, Record at 87, p. 30).Interpreting the term "assurance" in that fashion, in plaintiff'sview, is in keeping with the general rule that statutes should,if there is a doubt, not be construed as derogating the commonlaw. E.g., Seymour National Bank v. State, 179 Ind. App. 295,384 N.E.2d 1177 (1979); see also Maroon v. State Dept. of MentalHealth, 411 N.E.2d 404 (Ind. App. 1980). Because of the provisoscontained within the statute at hand, the court will not quarrelwith plaintiff's interpretation that the Indiana legislature'suse of the term "assurance" is not in derogation of the commonlaw in this state.2
The provisos of Ind.Code 14-2-6-3 sets forth two exceptionswhich, at least faciallysuggest that the statute does not wholly abrogate the common lawwith respect to the potential liability of a landlord. The firstproviso states that nothing in the statute shall "be construed asaffecting the existing case law of Indiana of liability ofowner's . . . premises with respect to business invitees incommercial establishments nor to invited guests . . . nor shallthis section be construed as to affect the attractive nuisancedoctrine." Similarly, the second proviso states that "nothing inthis section shall excuse the owner from liability for injury topersons . . . caused by the malicious or illegal acts of theowner. . . ."
If the statute does not affect the existing Indiana case law(common law) vis-a-vis the liability of an owner to "businessinvitees in commercial establishments nor to invited guests" andif the statute does not excuse the "owner . . . of premises fromliability or injury to persons" caused "by the malicious orillegal acts of the owner" then defendant cannot, on the basis ofthis statute, be entitled to judgment as a matter of law pursuantto Rule 56 of the Federal Rules of Civil Procedure. That is, ifI.C. 14-2-6-3 does not wholly abrogate the common law, then someof the common law exceptions to landlord non-liability mayentitle plaintiff to recover.
Generally, a lessor of premises is not liable for injuriessustained by a party who comes upon its premises and sustainsinjuries thereon. Of course there are caveats to the general ruleof non-liability. The exceptions which may be available underI.C. 14-2-6-3, insofar as the statute reiterates the common law,include, at least, inter alia, potential liability where thepremises are leased for a public purpose; where the premisescontain an existing nuisance; where the landlord retains controlover the leased premises; and where the landlord negligentlyperforms a duty he retained. Further, given the second proviso,the government could be potentially liable because of "maliciousor illegal acts." Each of these possibilities is considered inturn.
First, it could very well be that the present defendant couldbe liable because it, ostensibly at least, leased the HuntingtonReservoir for a public purpose and in doing so is responsible forplaintiff's injury. In this respect, the defendant, under commonlaw, could be potentially liable because "[t]he public purposeexception applies where property is leased for a purpose whichinvolves the admission of the public." Chrysler Corp. v. M.Present Co., Inc., 491 F.2d 320, 323 (7th Cir. 1974). It is thenthe rule that the "lessor is under an affirmative duty toexercise reasonable care to inspect and repair the premisesbefore possession is transferred, to prevent unreasonable risk ofharm to the public." Id. (quotation omitted); see also GreatAtlantic & Pacific Tea Co., Inc. v. Wilson, 408 N.E.2d 144(Ind. App. 1980); Graves v. United States Coast Guard, 692 F.2d 71(9th Cir. 1982) (California law). Since it is plaintiff'scontention (which for present purposes under rule 56 must beaccepted as true) that defendant knew that the lessee — State ofIndiana — intended to admit the public to the HuntingtonReservoir and that the defendant knew that the old gravel sandbarfrom the Meridian Road embankment constituted an unreasonablerisk of harm to the public using the reservoir, it would appearthat that defendant would not be entitled to judgment as a matterof law under this common law exception which is apparentlyrecognized under I.C. 14-2-6-3.
Second, defendant could be liable under the common law and theprovisos of I.C. 14-2-6-3 for leasing a premises with an existingnuisance. Notwithstanding the distinction between a public andprivate nuisance, e.g., Stover v. Fechtman, 140 Ind. App. 62,222 N.E.2d 281 (Ind. App. 1966), a litigant, under the common law, canbe held liable for injuries arising from an existing nuisanceinsofar as it is public, e.g., Walker v. Ellis, 126 Ind. App. 353,129 N.E.2d 65 (1955). And while it is clear that not all of thepublic is entitled to recover damages for a public nuisance(because of the lack of particular damage to support a privateaction), e.g., Town of Rome City v.King, 450 N.E.2d 72 (Ind. App. 1983); City of Evansville v.Rinehart, 142 Ind. App. 164, 233 N.E.2d 495 (1968), Count IV ofplaintiff's complaint alleges that the defendant created a publicnuisance which caused injury and since those allegations must beaccepted as true, summary judgment under this common lawexception is not warranted.
A third exception to the general rule of non-liability forlandlords exists where the complainant's injuries occur on landwhich is still under control of the lessor, e.g., Rossow v.Jones, 404 N.E.2d 12 (Ind. App. 1980). While this exceptiongenerally applies to situations where the lessor leases outpremises yet retains control of common passages, such ashallways, present plaintiff's allegations to the effect that thegovernment retained control via the United States Army'sEngineers "master plan" and the "Project Safety Plan" set forthsufficient questions of facts which renders summary judgment onthe basis of Indiana common law unwarranted.
Fourth, under the common law of Indiana, a landlord may beliable where the landlord covenants to repair the premises, e.g.,Robertson Music House v. William H. Armstrong, 90 Ind. App. 413,163 N.E. 839 (1928); see also Hunter v. Cook, 149 Ind. App. 657,274 N.E.2d 550 (1971). And since the lease between the defendantand the Indiana Department of Natural Resources suggests thatwhile the Indiana Department of Natural Resources wouldadminister most of the recreational facilities but the defendantwould nonetheless inspect the premises and be apprised ofhazardous conditions, could very well be that, under the commonlaw of Indiana, present defendant could not prevail on its motionfor summary judgment.
Yet even supposing that I.C. 14-2-6-3 was intended to displacethe common law and with it the exceptions referred to above, itstill may be that plaintiff's claim is not barred under thatstatute because of the second proviso. As indicated, that provisostates that an owner will not be shielded from liability whereinjury results from malicious or illegal acts of the owner.
Here, plaintiff takes the position that the defendant may beliable for "malicious or illegal" acts and in doing so suggeststhat "malicious and illegal acts" should be read to mean willfuland/or malicious misconduct as is found in most recreational userstatutes. See, e.g., Ill.Rev.Stat.Ch., 70 § 36; Jones v. UnitedStates, 693 F.2d 1299 (9th Cir. 1982); Stephens v. U.S.,472 F. Supp. 998 (C.D.Ill. 1979). Instead of indulging in theassumption that the Indiana legislature merely miscopied thephrase in its codification, the court will, as defendantsuggests, assume that a different standard of care was intendedby the enactment. Even so, the court remains unconvinced that thedefendant may not be liable for "malicious" acts within thepurview of I.C. 14-2-6-3.
"Malice" has been equated with an "evil design," Fryback v.State, 272 Ind. 660, 400 N.E.2d 1128, 31 (1980); also, Drollingerv. State, 274 Ind. 5, 408 N.E.2d 1228-43 (1980), and, maliciousacts have been equated to acts which were wrongful and donewithout just cause or excuse, e.g., Baldock v. State,177 Ind. App. 355, 379 N.E.2d 539 (1978), and/or acts "done within acondition that shows a heart regardless of social duty and bentor mischief." Fox v. State, 179 Ind. App. 267, 384 N.E.2d 1159, 67n. 16 (Ind. App. 1979), see also, Brown v. State, 403 N.E.2d 901(Ind. App. 1980). Even utilizing such definitions, which appear toimpose a higher standard of care than that required where thegiven statute speaks in terms of willful or malicious conduct,the court is nonetheless of the view that plaintiff has madeallegations sufficient to override defendant's contention that itis not culpable for "malicious acts" in constructing theHuntington Reservoir.
It appears to be plaintiff's position that the defendantcreated the hazardous condition and notwithstanding the hazardouscondition, the defendant entered into an agreement with thecontractor which permitted the contractor to allow the MeridianRoad embankment to remain, under murkywaters (which at times were deceptively shallow), on the bed ofthe Huntington Reservoir. It further appears to be plaintiff'sposition that the defendant had actual knowledge of the hazardyet did nothing, in spite of the probability of, and gravity of,harm and further failed to warn of the harm or attempt to easesuch a harm. While such conduct may facially appear to be nothingmore than mere negligence, the inferences (which must beconstrued in plaintiff's favor) is that such conduct mightconstitute a malicious act. Thus when such inferences are made itappears to the court that defendants can not wholly be absolvedfrom potential liability under Ind.Code 14-2-6-3 and its secondproviso.
None of the foregoing is intended to suggest that plaintiffcould ultimately prevail under Ind.Code 14-2-6-3, nor is any ofthe foregoing intended to suggest that that statute does not, toa greater or lesser extent, change the common law of Indiana.After all, it would be somewhat incongruous, and perhapsincomprehensible, to assume that Ind.Code 14-2-6-3 is wholly inkeeping with the common law for it would make little sense forthe Indiana legislature to codify something which is already apart of this state's law. What the foregoing is intended tosuggest, however, is that given the mandates of I.C. 14-2-6-3 andthe provisos contained therein, and further given the plethora ofpossibilities involved in this case, vis-a-vis, the applicabilityof the mandates of that statute, and its provisos, the court isnot convinced that that statute entitles defendant to judgment asa matter of law.
But there is another statute available to the remainingdefendant. And, in the court's view, that statute — 4-16-3-1through 4-16-3-3 — necessitates a finding in favor of thedefendant United States of America, Army Corps of Engineers.
Indiana Code 4-16-3-1 through Indiana Code 4-16-3-3 (in full,and omitting headnotes) provides:
4-16-3-1
Sec. 1. The word "premises" as used in this act includes lands, waters, private ways and structures thereon.
4-16-3-2
Sec. 2. Any person who goes upon or through premises leased to the state of Indiana or to any tax-supported institution to study, hunt, swim, fish, trap, camp, hike, sightsee or for any other purpose is not entitled to any assurance that the premises are safe for such purpose. The owner of such premises does not assume responsibility for or incur liability for any injury to person or property caused by an act or failure to act of persons using such premises.
4-16-3-3
Sec. 3. Nothing in this act creates a duty of care or ground of liability for injury to person or property.
Ind.Code 4-16-3-1 through 4-16-3-3 (footnote referring todefinition of premises in 4-16-3-1 omitted).
The foregoing statute has not been the subject of any reportedIndiana decisions. Perhaps that is because the statute appearsremarkably clear. Unlike Ind.Code 14-2-6-3, Ind.Code 4-16-3-1through 4-16-3-3 contains no exceptions, but instead specificallystates that any person who (as here) goes upon premises leased tothe state is not entitled to "any assurance that the premises aresafe for such purpose."
True, the term "assurance" has cropped up once again. Even if,as plaintiff once again urges, "assurance" is defined to mean "apledge, guarantee, surety, or a declaration tending to inspirefull confidence," it does not mean that the defendant is notentitled to the defenses of 4-16-3-1 through 3 because thestatute read in its entirety suggests the opposite.
It will be recalled that after the "assurance" language in14-2-6-3, the statute clearly sets forth two provisos — onerelating to the existing case law and the otherrelating to malicious or illegal acts. Ind. Code 4-16-3-1 through3, however, contains no such provisos. To the contrary, the"assurance" language found in Ind. Code 4-16-3-2 is followed bythe clear mandate of 4-16-3-3 which provides that "[n]othing inth[e] act creates a duty of care or ground of liability forinjury to person or property."
It is, of course, a cardinal rule of statutory constructionthat a court should presume that the legislature intended to giveeffect "to every word and clause if possible." State v. Carter,424 N.E.2d 158, 60 (Ind. App. 1981). "[A]n interpretation of astatute which does not give effect to all of a statute'sprovisions must be avoided if any interpretation is possiblewhich would give effect to all of the statute's provisions."Evansville-Vanderburgh School v. Roberts, 273 Ind. 449,405 N.E.2d 895 (1980) citing Thompson v. Thompson, 259 Ind. 266,286 N.E.2d 657 (1972). Thus, in construing words or phrases of astatute the entire statute as well as its purpose must beconsidered.
When the foregoing rules of statutory construction are appliedto the case at hand, it appears quite clear that the two statutesunder consideration are quite different even though they bothstate, in effect, that the recreational user is not entitled toany assurance that the premises are safe for such purposes. Afterthe "assurance" language the statutes diverge greatly: I.C.14-2-6-3 sets forth provisos which limit non-liability while I.C.4-16-3-3 sets forth a mandate which restricts liability bycreating neither a duty of care nor a ground of liability.Clearly the import of the statutes are different. Aside from theapparent purposes of the statutes (of which more will be saidshortly) the language utilized when read in its entirety is quitedifferent. Thus, merely because both statutes may utilize thesame phrase relating to "assurance" does not mean that thestatutes are identical for, as pointed out before, much more issaid in terms of limiting non-liability in Ind.Code 4-16-3-3.
Recognizing that the two statutes differ, plaintiff argues thatcertain of the exceptions of Ind.Code 14-2-6-3 should be readinto Ind.Code 4-16-3-1 through 3. In this respect, plaintiffargues that the exception of Ind.Code 14-2-6-3 which relates tomalicious or illegal acts on the part of the owner and theexception for visitors who have paid an entry fee should be readinto Ind.Code 4-16-3-1 through 3. This the court will not do.
Generally, it is not within the province of the court to add toa statute — that is the legislature's function. See, e.g.,Whitacre v. State, 274 Ind. 554, 412 N.E.2d 1202 (1980); Romackv. State, 446 N.E.2d 1346 (Ind. App. 1983). Thus, "[e]xceptions toclearly deliniated statutes will be implied only where essentialto prevent `absurd results' or consequences at variance with theenactment as a whole." United States v. Rutherford, 442 U.S. 544,52, 99 S.Ct. 2470, 75, 61 L.Ed.2d 68 (1979); accord, Frost v.Review Board of Indiana Employment Security Division,432 N.E.2d 459 (Ind. App. 1982).
In the present matter it does not appear that exception shouldbe read into 4-16-3-1 through 3. The exception of 14-2-6-3 arenot needed to prevent absurd results nor are such exceptionsnecessary to prevent consequences which are at variance with theenactment (4-16-3-1 through 3) as a whole.
Certainly the purposes behind the enactment of the two statutesare different. Indiana Code 14-2-6-3 encourages landowners toopen their land for recreational use while Ind. Code 4-16-3-1through 3 encourages landowners to lease land to the state whichin turn could be opened for recreational use. Given thatdistinction it is not surprising that different protections wouldbe afforded the landowner since it may take more encouragementfor an owner to lease his land to another particularly given thefact a landlord has less control than an owner in possession.
Even aside from the foregoing, there is another reason why theexceptions of 14-2-6-3should not be read into 4-16-3-1 through 3. It would beredundant. Were the court to read in the exceptions plaintiffdesires it would render Ind.Code 4-16-3-1 through 3 superfluous.Just as the Indiana legislature saw fit to draft exceptions into14-2-6-3 it could have engrafted exception onto 4-16-3-1 through3. It has not chosen to do so and neither will this court.3
Because the statutes are different, plaintiff sets forth onefinal argument with respect to his federal tort claims actassertion. Plaintiff argues that if Ind.Code 4-16-3-1 through 3provides more protection than 14-2-6-3, then the former provisionis void as violative of the equal protection clause of both theUnited States Constitution and the Indiana constitution. Assumingthat plaintiff can even raise an equal protection challenge,4the court is nevertheless of the view that the statutes inquestion do not violate the equal protection clauses of eitherconstitution.
Article 1, § 23 of the Indiana constitution provides:
The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.
The equal protection provision of the United States Constitutionis provided in the Fourteenth Amendment which state in relevantpart:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
While the two provisions are not identical the same standard ofreview applies. Vicory v. State, 272 Ind. 683, 400 N.E.2d 1380,3 (1980).
Generally, there is a two-tier standard of review for equalprotection claims.5 Where a statute makes a "suspectclassification" such as one based upon alienage, e.g., In reGriffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973), orif the statute affects a "fundamental right" such as the right totravel, e.g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322,22 L.Ed.2d 600 (1969), it will be strictly construed. Where,however the statute's classification does not affect a suspectclass, nor impinge on a fundamental right, then it will be upheldif it rationally furthers a legitimate state objective, e.g.,Williamson v. Lee Optical348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). That is, "in theabsence of fundamental rights or a suspect classification, equalprotection requires only that a classification which results inunequal treatment bear some rational relationship to a legitimatestate purpose." French v. Heyne, 547 F.2d 994, 997 (7th Cir.1976) citing, Wojcik v. Levitt, 513 F.2d 725 (7th Cir. 1975).
In the present matter neither party has even intimated thateither fundamental constitutional rights are involved in thiscase or that plaintiff is a member of a suspect class.Accordingly, the test to be utilized in analyzing the equalprotection claim is the rational relationship test. In fact,other Indiana statutes which grant immunity from suit havewithstood equal protection challenges because they met therational relationship test. E.g., Cartee v. Weber, 397 N.E.2d 622(Ind. App. 1979); Holt v. City of Bloomington, 181 Ind. App. 179,391 N.E.2d 829 (1979). And, recreational use statutes, in otherjurisdictions, have been found to further a legitimate stateinterest and thus survive equal protection challenges. E.g.,Simpson v. United States, 652 F.2d 831 (9th Cir., 1981)(California statute); Moss v. Department of Natural Resources,62 Ohio St.2d 138, 404 N.E.2d 742 (1980) (Ohio statute).
This court agrees with defendant that the Indiana legislaturein enacting Ind. Code 4-16-3-1 through 3 furthered a legitimategoal and that the statute has a rational relationship to thepurpose of encouraging persons to lease land to the state so thatthe state may open the area to recreational users. It is not idlespeculation to assume that more may be required to encourage alandowner to lease land to another than would be required toencourage a landowner to open the land, on his or her initiative,to recreational users since a lessor, by implication, has lesscontrol over the property than would a landowner who permitsrecreation on his or her property. Further, as defendant astutelypoints out, land leased to the state would be of more benefit tothe state than land not so leased, and it follows from such aproposition that additional encouragement in the form of morelimited liability would encourage such a turnover. Thus, Ind.Code4-16-3-1 through 3 does not violate the equal protection clausesof either the Indiana constitution or the United StatesConstitution since a rational relationship to a legitimate statepurpose exists in distinguishing between landowners who leasetheir property to the state for recreational use and those whoopen up their own land for recreational purposes.
By way of summary, with respect to plaintiff's Federal TortActs claim, the court holds as follows. While plaintiff,arguably, sets forth sufficient facts to override defendant'smotion for summary judgment with respect to Ind.Code 14-2-6-3,Ind.Code 4-16-3-1 through 4-16-3-3 bars plaintiff's state lawclaims against this defendant. Further the court holds thatnotwithstanding the distinction between those two statutes, andassuming that present plaintiff has standing to raise the issue,Ind.Code 4-16-3-1 through 4-16-3-3 is not void as violative ofthe equal protection clause of either the United StatesConstitution or the Indiana constitution. Accordingly, summaryjudgment on the Federal Tort Claims Act allegation must beGRANTED in favor of the defendant United States of America,Department of the Army, Corps of Engineers. There remains theadmiralty claim.
Admiralty Claim
Count V of plaintiff's amended complaint asserts that the courthas jurisdiction over plaintiff's claim by virtue of admiraltyjurisdiction. In this count, without more, plaintiff asserts, inconclusory fashion, that the Huntington Lake Reservoir is a"navigable water" for purposes of admiralty jurisdiction. As willbe seen, this court is of the view that such conclusoryallegations, given the evidence to the contrary, does not providejurisdiction in this court.
Generally, a tort claim is maritime in nature and within thejurisdiction of the federal courts when the alleged wrong (1)occurs on navigable waters and, (2) the activity bears asignificant relationship to maritime activity. McCormick v.United States, 680 F.2d 345 (5th Cir. 1982); e.g., ForemostInsurance Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73L.Ed.2d 300 (1982); Executive Jet Aviation v. Cleveland,409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). In this case, it isaltogether clear, to the court, that plaintiff's activity did notbear a substantial relationship to traditional maritime activitynor did it occur upon navigable waters. Both of these elements,which are necessary for admiralty jurisdiction, will beconsidered in turn.
With respect to traditional maritime activity, of course, "ashipwreck on the high seas is quinessentially the kind ofincident for which the distinctive doctrines and remedies ofadmiralty were designed . . ." In Re: Oil Spill by the AmocoCadiz off the Coast of France, 699 F.2d 909, 13 (7th Cir. 1983).This case, however, presents no such activity, yet, as theparties to the present dispute recognize, there have been severaldecisions with facts analogous to the case at bar.
For example, in Onley v. South Carolina Electric & Gas Co.,488 F.2d 758 (4th Cir. 1973) and Chapman v. City of Grosse PointeFarms, 385 F.2d 962 (6th Cir. 1967), among other cases, it wassuggested that diving bears no significant relationship tomaritime activity. Similarly, swimming, e.g., McGuire v. City ofNew York, 192 F. Supp. 866 (S.N.Y. 1961); Rubin v. Power Authorityof New York, 356 F. Supp. 1169 (W.N.Y. 1973); and water skiing,e.g., Crosson v. Vance, 484 F.2d 840 (4th Cir. 1973); Jorsch v.LeBeau, 449 F. Supp. 485 (N.D.Ill. 1978) have been found not to be"traditional maritime" activities. Such conclusions in thecourt's view is not surprising given the purpose, as set forth inIn re Cadiz, supra, at 913, underlying admiralty jurisdiction.
In an effort to distinguish such cases, plaintiff levels a twoprong argument. First, plaintiff asserts that such cases aredistinguishable on their facts and second, given the UnitedStates Supreme Court decision in Foremost Insurance, supra, thecontinued validity of such cases is in dispute. With neitherproposition does the court agree.
Every case, by its very nature, is distinguishable on its factsfor it would be rare indeed for any two cases, brought tolitigation, to be identical. While the plaintiff in Chapman,supra, may have dove off a pier; and while the plaintiff(swimmer) in McGuire, supra, may have dove off a pier; and whilethe plaintiff Crosson, supra, may have been waterskiing, it doesnot change this court's ultimate conclusion that such activitiesdo not constitute traditional maritime activity so as to warrantthe invocation of admiralty jurisdiction. Here, in pursuit ofrecreational activity, plaintiff dove out of a seventeen footboat. In the court's view, such activity is not traditionallymaritime.
Nor is the court convinced that the United States SupremeCourt's decision in Foremost Insurance, supra, vitiates decisionswhich suggest that swimmers, waterskiers, and divers are notengaged in traditional maritime activity. In Foremost Insurance,the United States Supreme Court was presented with a preciseissue: "whether the collision of two pleasure boats on navigablewaters falls within the admiralty jurisdiction of the federalcourts." 102 S.Ct. at 2656. True, it appears at least one of thepleasure boats was pulling a waterskier (102 S.Ct. 2656) but onat least two occasions, (aside from the framing of issues), thecourt limited its holding to collisions of pleasure boatsoccurring on navigable waters. First, the Court indicated thatthe "(wrong) here involves the negligent operation of a vessel onnavigable waters" and concluded that such an activity "has asufficient nexus to traditional maritime activity to sustainadmiralty jurisdiction in the District Court." 102 S.Ct. at 2658.Secondly, in note 5 of its opinion, the Supreme Court stated thatthe activity of pleasure boats could "bear a traditional maritimeactivity" where, "navigation of boats in [that] case," bears asubstantial relationship to "traditional maritime activity."Foremost Insurance, 102 S.Ct. at 2659 n. 5. Thus, it cannot besaidthat the United States Supreme Court decision in Foremost, supra,by implication, or otherwise, overrules decisions which suggestthat swimmers, divers, and/or waterskiers, are not engaged intraditional maritime activity. Stated simply, the issue beforethe Supreme Court was entirely different, and this court, giventhe difference, is not about to hold that present plaintiff'sactivity constituted traditional maritime activity.
Yet even supposing that plaintiff was engaged in traditionalmaritime activity, it appears clear to the court that theHuntington Reservoir is not navigable within the meaning ofadmiralty jurisdiction.
As a general rule, waters which are presently capable ofcommercial shipping are navigable for purposes of admiraltyjurisdiction. Livingston v. United States, 627 F.2d 165 (8th Cir.1980). Further, even if the waters are not currently being usedfor commercial navigation, the admiralty jurisdiction of afederal court may be invoked where the same are "susceptible ofsuch use in their present state." Chapman v. United States,575 F.2d 147, 51 (7th Cir. 1978). Under either definition, it appearsclear to the court that the Huntington Reservoir is not anavigable water so as to warrant this court's admiraltyjurisdiction.
In reply to plaintiff's motion for summary judgment, thedefendant filed an affidavit. Despite a supplemental reply onplaintiff's behalf, that affidavit remains undisputed insofar asit suggests that the Huntington Reservoir is not navigable. Sofar as is relevant, the affiant, Glenn E. Bayes, Chief of theNatural Resources Management Branch of the Operations Division ofthe Louisville District Corps of Engineers, avers as follows:
2. That Huntington Reservoir was created by construction of a concrete flood control dam, a project begun in 1965;
3. That no locks or channel were constructed with the dam;
4. That the dam renders the waterway not susceptible of being used as an artery of commerce;
5. That there are no commercial marinas located on Huntington Lake;
6. The lake is contained wholly within the State of Indiana.
(Defendants' "Memorandum in Reply to Plaintiff's Response,"Record at 91, Exhibit B.) Clearly, given such unopposedallegations, it would appear that the Huntington Reservoir is nota navigable waterway. That conclusion is bolstered further byrecent decisions which have construed admiralty jurisdiction interms of navigable waters.
Particularly worthy of note on this score is the post-Foremostdecision of the United States Court of Appeals for the SixthCircuit in Finneseth v. Carter, 712 F.2d 1041 (6th Cir. 1983).There, after extensive review of the existent case law, the courtconcluded that the waterway in question (Dale Hollow Lake) waswithin the admiralty jurisdiction of the federal district courtbecause seven to eleven commercial marinas surrounded it and,more importantly, it was an "interstate body of water susceptibleor capable of being used as an interstate highway of commerce,even though it is not so used. . . ." Finneseth, supra, at 1047(emphasis added). It is the analysis utilized by the UnitedStates Court of Appeals for the Sixth Circuit which isparticularly enlightening in this case.
In arriving at the conclusion that Dale Hollow Lake was in factnavigable, the court wrote:
The principles to be distilled from the above mentioned Supreme Court cases are that an artificial water body, such as a man-made reservoir, is navigable in fact for purposes of conferring admiralty jurisdiction if it is used or capable or susceptible of being used as an interstate highway for commerce over which trade or travel is or may be conducted in the customary modes of travel on water.
In this case Dale Hollow Lake clearly meets the requirement that the lake be an interstate highway for commerce because it straddles Kentucky and Tennessee. Because the interstate nexus is satisfied in this manner, it is not probative that maritime traffic on the lake is prevented from traveling downstream by the lockless dam. Two cases cited by appellee Carter, Chapman v. United States, 575 F.2d 147 (7th Cir.) (en banc), cert. denied, 439 U.S. 893, 99 S.Ct. 251, 58 L.Ed.2d 239 (1978), and Adams v. Montana Power Co., 528 F.2d 437 (9th Cir. 1975), are distinguishable from the case on appeal in that the reservoirs created by lockless dams were wholly within the confines of one state. Thus, the threshold requirement that the water body be available as an interstate highway of commerce was not satisfied.
Finneseth, supra, 712 F.2d at 1044 (emphasis added). Sinceboaters in Finneseth could traverse the lake between Kentucky andTennessee, the interstate nexus requirement was met.
It appears that the body of water in question — the HuntingtonReservoir — is not navigable for purposes of conferring admiraltybecause it is not being used, nor "capable or susceptible ofbeing used as an interstate highway for commerce over which tradeor travel is or may be conducted. . . ." Finneseth, supra, at1044. The reservoir itself, as the unopposed affidavit makesclear, lies wholly within the state of Indiana. Unlike waterwayssuch as Dale Hollow Lake, the Huntington Reservoir does notstraddle, or have boundaries, in two or more, states. Thus theinterstate nexus requirement for navigability is absent.
In summary, the court is of the view that it lacks jurisdictionover plaintiff's alleged admiralty claim under 28 U.S.C. § 1333.At the time in question, plaintiff was not engaged in traditionalmaritime activity nor did the accident occur on navigable waters.Accordingly, defendants' motion for summary judgment on thiscount must be GRANTED.
Conclusion
On the basis of the foregoing, it is ORDERED, ADJUDGED, andDECREED that the United States of America, Department of theArmy, Corps of Engineers' May 24, 1983, "Motion for SummaryJudgment" be GRANTED. Judgment is entered on behalf of thatdefendant.
1. Plaintiff originally filed suit against the United States ofAmerica, the Department of the Army, Corps of Engineers, theState of Indiana, Indiana Department of Natural Resources and theMonroe Guaranty Insurance Company. A settlement agreement wasreached with the state defendants and the Monroe GuarantyInsurance Company and, by order of October 31, 1983, plaintiff'sclaims and causes of action against these defendants weredismissed without prejudice. Accordingly, the present motion onlyconcerns claims against the federal defendant and therefore, theUnited States and the Army Corps of Engineers will becollectively referred to as defendant.
2. Even part from the foregoing, it could very well be that thepayment of $5.00 for a boat launch permit by Waldron and/orCollins constituted "monetary consideration" so as to take thepresent case out of the purview of I.C. 14-2-6-3. See Jones v.United States, 693 F.2d 1299 (9th Cir. 1982) (fee for inner tubenot consideration); Graves v. United States Coast Guard,692 F.2d 71 (9th Cir. 1982) (injury from dive off a cabana — campgroundfee was consideration); Ducey v. United States, 523 F. Supp. 225(D.Nev. 1981) (money paid concessionaire not consideration).Here, a genuine issue of fact exists as to whether or not the$5.00 may also have been paid on plaintiff's behalf. Further,given the cases referred to above, it is not clear that defendantwould be entitled to judgment as a matter of law. In any event,the court need not resolve this dispute given the court'sultimate conclusion that defendant's motion for summary judgmentwith respect to I.C. 14-2-6-3 must be denied.
3. The court, of course, recognizes that I.C. 4-16-3-1 through 3was enacted in 1963 while 14-2-6-3 was enacted in 1969. But thisdoes not change the court's conclusion that the Indianalegislature, given all this time, could have, if it wanted to,redraft the statute to include any exceptions it desired. It mustbe presumed that in enacting 14-2-6-3 the legislature was awareof the former statute since "[t]here is a strong presumption thatthe legislature in enacting a particular piece of legislation isaware of existing statutes on the same subject." IndianaAlcoholic Beverage Commission v. Osco Drugs, Inc.,431 N.E.2d 823, 33 (Ind. App. 1982). Further, since the two statutes are notin irreconcilable conflict, nor are they repugnant to oneanother, it cannot be said that Ind.Code 14-2-6-3 repealed, byimplication or otherwise, the former statute. See, Osborne v.State, 439 N.E.2d 677 (Ind. App. 1982); Wencke v. City ofIndianapolis, 429 N.E.2d 295 (Ind. App. 1981).
4. It is not altogether clear that plaintiff has standing tochallenge the constitutionality of I.C. 4-16-3-1 through 3."Ordinarily, a question as to the constitutionality of a statuteon the ground that it denies rights and privileges bydiscriminating between classes of people may not be raised by onenot belonging to the class alleged to be discriminated against."Indiana Department of State Revenue v. Indiana Gamma Gamma, Inc.,181 Ind. App. 664, 394 N.E.2d 187, 97 (1979). Here, it wouldappear that standing to challenge I.C. 4-3-3-1 would inure tolandowners who open property for recreational use but do notlease it to the state. Since, however, "[i]n Indiana, thestanding requirement is stated in terms of the requirement of aparty to show injury," id., the court will analyze plaintiff'schallenge.
5. There is, of course, an increasing tendency to recognize athird, intermediate, standard of review in cases involving either"quasi-suspect" classifications such as sex, e.g., Parham v.Hughes, 441 U.S. 347, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979), orimportant rights such as welfare, e.g., Medora v. Colautti,602 F.2d 1149 (3rd Cir. 1979).