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

May 30, 2012

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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