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COA: County entities did not owe duty under foreseeability analysis

June 19, 2017

A southern Indiana county and its parks and recreation and health departments did not owe a duty to a man who contracted a deadly infection while at a county park, the Indiana Court of Appeals held Monday, reversing the denial of summary judgment to the governmental entities.

In July 2012, Waylon Abel was visiting West Boggs Park, which is jointly owned by Daviess and Martin counties, when he was exposed to an amoeba, contracted a waterborne brain infection known as primary amoebic meningoencephalitis and died from the infection. Abel is the first known person in Indiana to contract PAM, which is extremely rare.

Waylon’s estate filed a complaint against the state, the Daviess-Martin Joint County Parks & Recreation Department, both counties and the Daviess and Martin counties health departments. The complaint alleged negligence for failing to test the water in West Boggs Lake and warn the public about the amoeba.

The Daviess County parties moved for judgment on the pleadings, arguing they did not have a duty to protect Abel and that they were immune from suit, and Martin County and its health department joined the motions. The designated evidence showed there is no routine test for the presence of the deadly amoeba and that the Centers for Diseases Control and Prevention “does not recommend testing untreated rivers and lakes…because the amebae is naturally occurring and there is no established relationship between detection or concentration of (the amoeba) and risk of infection.”

Additionally, CDC documentation noted that signs warning of the presence of the amoeba in water are not likely to effectively prevent infections. The estate, however, argued a material fact as to the CDC’s warning recommendations remained in dispute.

The Dubois Circuit Court converted the motions to motions for summary judgment, then denied those motions. The case of Daviess-Martin County Joint Parks and Recreation Department, Daviess County Indiana, and Daviess County Health Department v. The State of Waylon W. Abel by John Abel, Personal Representative, and John Abel on Behalf of Waylon W. Abel’s Dependent Children, Faith Abel, John Abel, and Gabriel Abel, 19A04-1607-CT-1563, was certified for interlocutory appeal, though the state, Martin County and its health department did not participate in the appeal. A panel of the Indiana Court of Appeals reversed the denial of summary judgment on Monday, with Judge Michael Barnes writing the defendants did not owe a duty to Abel while he was West Boggs Park.

Barnes’ opinion drew heavily on recent Indiana Supreme Court precedent in the cases of Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016), and Goodwin v. Yeakle’s Sports Bar and Grill, 62 N.E.3d 384 (Ind. 2016), which dealt with the issue of foreseeability of harm in landowner-invitee situations. Using a Rogers/Goodwin analysis, the judge wrote “there is no designated evidence that the County or the Parks Board knew or by the exercise of reasonable care would have discovered the existence of the (amoeba)…and the County and Parks Board did not owe Abel a duty under this analysis.”

Similarly, under the three-part balancing test in Neal v. IAB Fin. Bank, 68 N.E.3d 1114, 1117 (Ind. Ct. App. 2017), the Daviess County Health Department did not owe a duty to Abel because “given that the PAM infection is extremely rare…we do not believe that a blanket imposition of ‘duty’ under these circumstances promotes public policy,” Barnes said.

The case was remanded with instructions to enter summary judgment for the county, the Parks Board and the health department. In a separate concurring opinion, Judge Margaret Robb wrote that although the trial court’s decision should have been reversed, she was “unwilling” to say the governmental entities have no duty as a matter of law.

“Although the organism had not previously been identified in this body of water, I believe the ubiquitous nature of this amoeba should have put the Appellants on notice that it was most likely present in their lake and satisfies the foreseeability element of duty,” Robb wrote. “Having said that, I do not believe the Appellants breached their duty.”

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