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

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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.

 

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  1. Good riddance to this dangerous activist judge

  2. 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.

  3. 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.

  4. 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.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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