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Property mortgagor, managers owed no duty in case of drowned girl

January 15, 2013

A trial court correctly dismissed a wrongful death case the mother of a 5-year-old girl filed against a mortgage company and other defendants after the child drowned in the pool of a house that had been abandoned.

Sheyenne R. Jenkins drowned in the pool of a home in the Ian’s Pointe subdivision of Avon in 2008 after she wandered away from relatives’ home a couple of properties away. Her mother sued the mortgagor, management compnay and homeowners association, and a trial court granted summary judgment in favor of defendants. The appeal is Secrena D. Erwin, individually and as Mother of Sheyenne R. Jenkins, deceased v. HSBC Mortgage Services, Inc., Ian's Pointe Homeowners Association, Inc., and R&G Management Co., Inc., et al., 32A01-1202-CT-80.

The house’s former owner had filed for bankruptcy and abandoned the house in January of that same year. Neighbors eventually complained about the deteriorating and dangerous conditions of a pool and its partially submerged cover, and a neighbor said a representative of R & G Management Co. Inc., d/b/a Community Association Services of Indiana, represented in a phone call that the situation “would be taken care of.” Court records indicate nothing was done afterward.

“Even if we were to take the leap with Mother and infer that this was an assurance that CASI would go onto the property and secure the pool, the fact is that CASI did not act upon this promise in any way,” Judge Ezra Friedlander wrote for the court.

“The trial court correctly determined as a matter of law that this is not a case of gratuitous assumption of duty. The trial court properly granted summary judgment in favor of Defendants based upon lack of duty. Because we have affirmed the grant of summary judgment on this ground, we need not reach the attractive nuisance issue addressed by the parties,” Friedlander wrote.
 

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