ILNews

Pool's owner did not breach any duty owed to boy

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals affirmed a jury verdict in favor of the owner of a pool in a lawsuit filed by the father of a young boy who drowned in the pool. The appellate court found the trial court did not abuse its discretion in giving certain jury instructions.

James Androusky III drowned in Cole Walter’s residential swimming pool. Walter is the former stepfather of the boy’s mother’s boyfriend, Matthew Hollingsworth. The mother, Tammra Androusky, was married to James Androusky II for a period of time and had three children with him. James Androusky II did not pay child support and even attempted to sign away his rights to the children at one point.

Tammra Androusky, Hollingsworth, and her children stayed at Walter’s home over his objections. He did not want them staying there, but allowed them to stay just one night as long as they left after eating breakfast. Walter went to work, but Hollingsworth and the others stayed late in the morning. Two of the boys were allowed to play outside unsupervised near the pool. When Hollingsworth and Tammra Androusky discovered James Androusky III was missing, they found him at the bottom of the pool.

James Androusky II, individually and as a personal representative of his son’s estate, filed a wrongful death action against Walter. The jury ruled in favor of Walter, leading James Androusky II to appeal, claiming the trial court abused its discretion by instructing the jury to determine whether the boy was an invitee or licensee; by instructing the jury regarding abandonment under the Child Wrongful Death Act; by instructing regarding a state administrative pool safety regulation; and whether the trial court properly instructed on the effect of a parent’s failure to supervise his or her child around a known and obvious condition upon the land.

The evidence at trial shows the boy and his family were licensees and not social guests or invitees. There was also evidence introduced to show that James Androusky II rarely saw his son and provided little to no financial support. He even filed with the court a document to attempt to terminate his parental rights for the exchange of the non-enforcement of his child support obligation. Under the Child Wrongful Death Act, a parent who abandoned a deceased child while the child was alive is not entitled to recovery under the act.

The trial court didn’t err in giving the instruction on the administrative pool safety regulation in place at the time of the boy’s death. James Androusky II argued that the regulation required that the fencing outlined in the regulation was to be immediately around the pool, not just the yard. But a plain reading of the regulation doesn’t support that interpretation, wrote Judge Ezra Friedlander in James Androusky, II, Individually and as Personal Rep. of the Estate of James Androusky, III, Deceased v. Cole A. Walter and Tammra Androusky, No. 83A01-1103-CT-137.

Finally, James Androusky II’s complaint with respect to the instruction on parental supervision turns on the perceived unfairness in depriving him of recovery for the death of his son due to the negligence of his ex-wife and her boyfriend. His argument is misguided, Friedlander wrote, because it is focused entirely on his right to recover damages and ignores the fact that Walter’s negligence must first be established. Walter did not owe a duty to the boy and the sole proximate cause of the boy’s death was the mother’s lack of supervision.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Uh oh, someone is really going to get their panti ... uh, um ... I mean get upset now: http://www.theguardian.com/us-news/2015/mar/31/arkansas-passes-indiana-style-religious-freedom-bill

  2. Bryan, stop insulting the Swedes by comparing them to the American oligarchs. Otherwise your point is well taken.

  3. Sociologist of religion Peter Berger once said that the US is a “nation of Indians ruled by Swedes.” He meant an irreligious elite ruling a religious people, as that Sweden is the world’s least religious country and India the most religious. The idea is that American social elites tend to be much less religious than just about everyone else in the country. If this is true, it helps explain the controversy raking Indiana over Hollywood, San Fran, NYC, academia and downtown Indy hot coals. Nevermind logic, nevermind it is just the 1993 fed bill did, forget the Founders, abandon of historic dedication to religious liberty. The Swedes rule. You cannot argue with elitists. They have the power, they will use the power, sit down and shut up or feel the power. I know firsthand, having been dealt blows from the elite's high and mighty hands often as a mere religious plebe.

  4. I need helping gaining custody of my 5 and 1 year old from my alcoholic girlfriend. This should be an easy case for any lawyer to win... I've just never had the courage to take her that far. She has a record of public intox and other things. She has no job and no where to live othe than with me. But after 5 years of trying to help her with her bad habit, she has put our kids in danger by driving after drinking with them... She got detained yesterday and the police chief released my kids to me from the police station. I live paycheck to paycheck and Im under alot of stress dealing with this situation. Can anyone please help?

  5. The more a state tries to force people to associate, who don't like each other and simply want to lead separate lives, the more that state invalidates itself....... This conflict has shown clearly that the advocates of "tolerance" are themselves intolerant, the advocates of "diversity" intend to inflict themselves on an unwilling majority by force if necessary, until that people complies and relents and allows itself to be made homogenous with the politically correct preferences of the diversity-lobbies. Let's clearly understand, this is force versus force and democracy has nothing to do with this. Democracy is a false god in the first place, even if it is a valid ideal for politics, but it is becoming ever more just an empty slogan that just suckers a bunch of cattle into paying their taxes and volunteering for stupid wars.

ADVERTISEMENT