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COA: County entities did not owe duty under foreseeability analysis

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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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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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