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

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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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  1. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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