Monday, December 04, 2006
Ind. Decisions - An interesting 7th Circuit decision in an Indiana torts case today
In Matheny v. U.S. (ND Ind., Andrew P. Rodovich, Magistrate Judge), an 8-page opinion, Judge Poser begins:
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 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.In the end, the opinion affirms the lower court decision, denying plainitff's claim.
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.
Posted by Marcia Oddi on December 4, 2006 01:15 PM
Posted to Ind. (7th Cir.) Decisions