McCormick v. State, Dept. of Natural Resources

• Citation: 673 N.E.2d 829
• Decision Date: 10 December 1996
• Docket Number: No. 49A02-9512-CV-714,49A02-9512-CV-714
• Parties: Nora May McCORMICK, Personal Representative of the Estate of Paul McCormick, deceased, Appellant-Plaintiff, v. STATE of Indiana, The DEPARTMENT OF NATURAL RESOURCES of The State of Indiana, and The Indianapolis Water Company, Appellees-Defendants.
• Court: Court of Appeals of Indiana

Page 829

673 N.E.2d 829

Nora May McCORMICK, Personal Representative of the Estate of Paul McCormick, deceased, Appellant-Plaintiff, v. STATE of Indiana, The DEPARTMENT OF NATURAL RESOURCES of The

State of Indiana, and The Indianapolis Water

Company, Appellees-Defendants.

No. 49A02-9512-CV-714.

Court of Appeals of Indiana.

Dec. 10, 1996.

C. Warren Holland, Michael W. Holland, Holland & Holland, Indianapolis, for Appellant-Plaintiff.

Eric Brodt, Eric Brodt & Associates, Indianapolis, Pamela Carter, Attorney General, Lisa M. Paunicka, Deputy Attorney General, Indianapolis, for Appellees-Defendants.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Nora May McCormick, Personal Representative of the Estate of Paul McCormick, deceased ("McCormick"), appeals from the trial court's grant of summary judgment in favor of the State of Indiana, its Department of Natural Resources ("the State") and the Indianapolis Water Company ("Water Company"). The decedent died in a boating incident at Morse Reservoir when he and his boat went over a spillway near the dam. The Water Company owns the reservoir, and the State regulates various matters related to it. McCormick subsequently sued the Water Company and the State for the wrongful death of her husband. The Water Company moved for summary judgment on the grounds that Indiana's Recreational Use Statute provided immunity and, further, that it had no duty to post signs or warn persons about the spillway. The State moved for summary judgment on the basis that it did not owe the decedent a private duty and that, in any event, it was immune from tort liability. The trial court granted both motions and McCormick appeals from that decision.

We affirm. ¹

ISSUES

McCormick presents two issues for our review which we restate as:

1. Whether the Water Company is immune from liability under the Indiana Recreational Use Statute ("IRUS").

2. Whether the State owed a private duty to the decedent.

FACTS

The evidence most favorable to McCormick reveals that she was married to the decedent and that her son-in-law, Robert Wampler ("Wampler"), owned a motorboat which he allowed the decedent to use. Wampler paid a launch fee at the Marina on Morse Reservoir and the decedent had leased dock space at the Marina where the boat was kept. On June 9, 1990, the decedent took the boat out on the reservoir when the reservoir was at flood stage. He subsequently found himself near the spillway of the reservoir dam and was unable to start the motor of his boat. The decedent jumped from the boat just as it was going over the spillway and then attempted to swim to safety in the catch basin beneath the spillway.

A State Conservation Officer responded to a telephone call which reported a man over the spillway at the reservoir. Recovery attempts were made on June 9 and 10, but were discontinued due to the rough currents and rough surface water caused by flooding conditions. On the day of the incident, the reservoir was at flood stage, winds were high and currents were fast. The water was treacherous, both above and below the spillway, and the water below the spillway was turbulent, deep, and extended over a much wider area than normal. The decedent's body was recovered on June 11, 1990, in the shallow water of Cicero Creek.

DISCUSSION AND DECISION

Standard of Review

In reviewing a trial court's ruling on a motion for summary judgment, this court applies the same standard applied by the trial court. Wells v. Hickman, 657 N.E.2d 172, 175 (Ind.Ct.App.1995). The purpose of summary judgment is to terminate causes of action which present no genuine issue as to any material fact and which may be determined as a matter of law. Ind. Trial Rule 56(C). We resolve any doubt as to a fact, or an inference to be drawn therefrom, in favor of the party opposing summary judgment. Terre Haute First Nat'l Bank v. Pacific Employers Ins. Co., 634 N.E.2d 1336, 1337 (Ind.Ct.App.1993). Summary judgment is rarely appropriate in negligence actions. Barsz v. Max Shapiro, Inc., 600 N.E.2d 151, 152 (Ind.Ct.App.1992). However, issues of duty are questions of law for the court and may be appropriate for disposition by summary judgment. Brewster v. Rankins, 600 N.E.2d 154, 156 (Ind.Ct.App.1992).

Issue One: The Water Company

The first issue presented is whether the IRUS shields the Water Company from liability. At the time of the incident, the IRUS provided:

Any person who goes upon or through the premises including, but not as limitation, lands, caves, 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 purpose. 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. The provisions of this section shall not be construed as affecting the existing case law of Indiana on 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. 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.

IND. CODE § 14-2-6-3 (repealed 1995) (emphasis added). ² This statute denies certain persons legal recourse for personal injury or property damage and, thus, is in derogation of the common law and must be strictly construed against limiting a claimant's right to bring suit. Drake v. Mitchell Community Sch., 649 N.E.2d 1027, 1029 (Ind.1995). Absent express declaration or unmistakable implication, statutes will not be interpreted as changing the common law. Id.

A. Application of the IRUS to "Public Water"

First, McCormick contends that the IRUS does not apply to a reservoir which has been declared, by regulation, to be a "public water" of the State of Indiana. Specifically, McCormick argues that public water must be held open to the public and, thus, that the purpose of the IRUS is not served by applying it to such water. We disagree. ³

The IRUS protects landowners from liability if they have opened their property to the public for recreational use. As a general rule, the recreational use statute applies if a landowner in lawful possession and control of lands allows the public to use them for recreational purposes without charging a fee. Here, the Water Company owns Morse Reservoir, the water in the reservoir, the land under the water, the dam and the spillway. Record at 89. McCormick seeks to hold the Water Company liable for an incident which occurred on property it owned but held open to the public for recreational use, and as we will discuss, the Water Company did not charge a fee. The statute was designed to apply in these circumstances.

We find no merit to McCormick's contention that the IRUS does not apply because Morse Reservoir had been declared a "public water." A "public water" is defined as "every lake, river, stream, canal, ditch and body of water that is subject to the jurisdiction of the state of Indiana, or owned or controlled by a public utility." IND. CODE § 14-1-1-1. Pursuant to Indiana Administrative Code, title 310, rule 2-29-1, Morse Reservoir is a "public water." The Administrative Code provides:

Morse Reservoir in Hamilton county is a public water of the State of Indiana. The intensive and diverse uses made on the reservoir create unusual conditions and hazards for the safe operation of watercraft. Morse Reservoir is made subject to the provisions of 310 I.A.C. 2-2.

310 I.A.C. 2-29-1. The purpose for enacting the IRUS was to encourage landowners to open their property to the public for recreational purposes free of charge. Kelly v. Ladywood Apartments, 622 N.E.2d 1044, 1047 (Ind.Ct.App.1993), trans. denied.

McCormick does not direct this court to, and we cannot locate, any law which would require the Water Company to hold Morse Reservoir open to the public. By declaring Morse Reservoir a public water, the Department of Natural Resources is able to regulate the operation of watercraft on the reservoir. Although the Department of Natural Resources regulates activities on Morse Reservoir, the Department cannot require the Water Company to hold the reservoir open to the public as it could amount to a confiscation or taking of the property. See generally, Public Serv. Comm'n v. Indiana Bell Tel. Co., 235 Ind. 1, 31-32, 130 N.E.2d 467, 481 (1955) (Public Service Commission cannot require phone company to furnish telephone service to the public without just and reasonable compensation, nor can it enforce an order which results in a piecemeal confiscation of private property for public use).

Still, McCormick argues that the Water Company is a public utility and as such, its property must be held open to the public. A public utility is defined in part as, "every corporation ... that may own, operate, manage, or control any plant ... for the ... production, transmission, delivery, or furnishing of ... water. The term does not include a municipality that may acquire, own, or operate any of the foregoing facilities." IND. CODE § 8-1-2-1(a). The Water Company is a public utility which is a wholly owned subsidiary of IWC Resources Corporation, an investor owned, publicly traded corporation. Record at 218. The property owned by the Water Company is private property. The fact that the Water Company is also a public utility does not make that property public property.

As a landowner, the Water Company could close the reservoir. The IRUS was enacted, in part, to reduce the tendency of...