INDIANA CAVE PROTECTION and LANDOWNER LIABILITY LAWS

IC 35-43-1-3 and IC 14-22-10-2

[Note: Indiana Code 14-2-6-3 has been repealed]

IC 35-43-1-3 (cave resource protection law):
Enacted 1983

(a) As used in this section:

"Cave" means any naturally occurring subterranean cavity, including a cavern, pit, pothole, sinkhole, well, grotto, and tunnel whether or not it has a natural entrance.

"Owner" means the person who holds title to or is in possession of the land on or under which a cave is located, or his lessee, or agent.

"Scientific purposes" means exploration and research conducted by persons affiliated with recognized scientific organizations with the intent to advance knowledge and with the intent to publish the results of said exploration or research in an appropriate medium.

(b) A person who knowingly and without the express consent of the cave owner:

  (1) disfigures, destroys, or removes any stalagmite, stalactite, or other naturally occurring mineral deposit or formation, or archeological or paleontological artifact in a cave, for other than scientific purposes;
  (2) breaks any lock, gate, fence, or other structure designed to control or prevent access to a cave;
  (3)deposits trash, rubbish, chemicals, or other litter in a cave; or
  (4) destroys, injures, removes, or harasses any cave-dwelling animal for other than scientific purposes;

commits a Class A misdemeanor.


Indiana Code 14-22-10-2 (premises liability law)
Enacted 1995
Amended 1995

IC 14-22-10-2 Sec. 2.

(a) As used in this section, "governmental entity" means any of the following:
  (1) The government of the United States of America.
  (2) The state of Indiana.
  (3) A county.
  (4) A city.
  (5) A town.
  (6) A township.
  (7) The following, if created by the Constitution of the United States, the Constitution of the State of Indiana, a statute, an ordinance, a rule, or an order:
      (A) An agency.
      (B) A board.
      (C) A commission.
      (D) A committee.
      (E) A council.
      (F) A department.
      (G) A district.
      (H) A public body corporate and politic.

(b) As used in this section, "owner" means a governmental entity or another person that:
  (1) has a fee interest in;
  (2) is a tenant, lessee, or an occupant of; or
  (3) is in control of;
a tract of land.

(c) A person who goes upon or through the premises, including caves, of another:
  (1) with or without permission to hunt, fish, swim, trap, camp, hike, sightsee, or for any other purpose; 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;
does not have an assurance that the premises are safe for the purpose.

(d) The owner of the premises does not assume responsibility for or incur liability for an injury to a person or property caused by an act or failure to act of other persons using the premises.

(e) This section does not affect the following:
  (1) Existing Indiana case law of 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.

(f) This section does not excuse the owner or occupant of premises from liability for injury to a person or property caused by a malicious or an illegal act of the owner or occupant.

As added by P.L.1-1995, SEC.15. Amended by P.L.178-1995, SEC.3.


Examination of Indiana's Premises Liability Statute

Adair Brent, Director - Mitchell Plain Research Center
(originally published in Notes on the Mitchell Plain, Vol. 1, No. 1)

[Editor note: In the following article, our attorney-to-be director examines the impacts of Indiana's statute for the protection of landowners whose land is used for recreational pursuits (including cave exploration and study) This is part of our effort to develop and disseminate information helpful to property owners on the Mitchell Plain. We feel that the liability question has had some influence in the past on landowners filling sinkholes and cave entrances (sometimes with trash and other unsuitable materials) to allay liability concerns.]

ANALYSIS:

Landowners are often fearful that they will be held liable for any injuries that occur in caves or sinkholes on their property. This fear has caused many owners to block or fill cave entrances or sinks, or to place gates on entrances which are detrimental to wildlife. The Indiana Legislature acknowledged this tendency among owners of caves and other natural resources. They also recognized the value of encouraging the use of these natural areas. IC 14-22-10-2 was drafted to encourage landowners to open their property to the public free of charge.

At first glance, this statute might seem to provide little protection for a land owner. Specifically, section (e) might appear worrisome. It might appear as if the State were not really providing any protection at all if this statute does not change the law with regard to an invited guest. Yet the term "invited guest" is not what it might seem. It is a term of art in the legal realm. Landowner liability statutes like this one hinge on the classification of the injured person. Are they an Invitee, a Licensee, or a Trespasser? The duty of care that a landowner must obey changes with the classification .

These distinctions can be quite technical, but I will try to provide a very brief overview. A landowner owes the highest duty of care to an invitee. Instead of quoting the technical definitions which can be very confusing; I turn to an example of the distinction between an invitee and a licensee that I found in McCormick v. Indiana 673 N.E. 2d 829 (1996). Children who are allowed by a landowner to play ball on a vacant lot would be licensees. If the landowner built a playground and put up a sign inviting the children in, they would be invitees and the landowner would owe them a much higher duty of care. This is the type of distinction that comes into play in cases involving landowner liability.

As I hope you can see from this example, few cave owners "hold their land open to the public for the purpose" (another legal phrase) of entering their caves. Rather, they allow cavers and others in pursuit of recreation on their property for the convenience, curiosity, or entertainment of the visitor. This typifies a licensee. A landowner must refrain from willful and wanton conduct, they must not increase the peril of the licensee and they must warn of latent dangers. The intricacies of these duties are beyond the scope of this article, but it would appear that only the third (for instance, if a landowner knew that his cave entrance flooded) would be a potential problem for the cave owner.

Section (d) of this statute is also interesting. A landowner would not be held liable if one caver or visitor hurt or failed to help another. This section provides additional explicit protection for the landowner.

From this basic review of IC 14-22-10-2, it appears that Indiana provides adequate protection to cave and sinkhole owners. In the majority of situations, a landowner would not be held liable for karst- related accidents. This is, however, not blanket protection. In my research, I was not able to locate a case in which a landowner was sued for an injury occurring in a cave. Yet the statute explicitly includes caves, so other case law dealing with this statute should cover cave- related cases as well. In addition, it must be remembered that the purpose behind this law was to encourage landowners to allow access to caves and other natural features.