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Appeals court affirms dismissal of suit against Nappanee in near-drowning

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The city of Nappanee was not negligent and didn’t breach its duty of care when a 5-year-old boy required CPR after lifeguards rescued the child as he floated face-down in a city pool, the Indiana Court of Appeals ruled Wednesday.

The court affirmed a decision of summary judgment in favor of the city entered in the Elkhart Superior Court in W.D., a minor by his parents R.D. and S.D., and R.D. and S.D., individually v. City of Nappanee, No. 20A05-1112-CT-698.

The parents brought suit against the city on behalf of their child after taking him and his 8-year-old sister to the public pool on June 24, 2009. The older girl had taken swimming lessons at the pool, and the mother was registering her son for lessons. The boy, who the record says had limiting swimming skills, watched from the shallow end as his sister dove in the deep end on a hot day when about 120 swimmers were at the pool.

After the girl’s second dive, she walked toward the shallow end and saw her brother floating face down in the water near the edge of the pool. At about the same time, lifeguards pulled the boy from the water, cleared the pool and began administering lifesaving CPR.

“What more the City of Nappanee’s lifeguard staff could have done to protect [W.D.] is hard to fathom,” Judge Paul Mathias wrote for the unanimous panel.

“Although our courts rarely determine whether a breach of duty occurred as a matter of law, this case represents one of those rare exceptions. Because the record lacks any designated evidence of disputed factual questions that would preclude the entry of summary judgment in this case, we affirm the trial court’s entry of summary judgment in favor of the City and its dismissal of W.D.’s complaint,” Mathias wrote.

 

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  1. A sad end to a prolific gadfly. Indiana has suffered a great loss in the journalistic realm.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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