Daviess-Martin Cnty. Joint Parks & Recreation Dep't v. Estate of Abel

Decision Date19 June 2017
Docket NumberCourt of Appeals Case No. 19A04-1607-CT-1563
Citation77 N.E.3d 1280
Parties DAVIESS-MARTIN COUNTY JOINT PARKS AND RECREATION DEPARTMENT, Daviess County Indiana, and Daviess County Health Department, Appellants-Defendants, v. The ESTATE 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, Appellees-Plaintiffs. Martin County Indiana, Martin County Health Department and The State of Indiana, Rule 17(A) Third-Parties-Defendants.
CourtIndiana Appellate Court

Attorneys for Appellants: Daviess County, Indiana and Daviess, County Health Department, R. Jeffrey Lowe, Crystal G. Rowe, Kightlinger & Gray, LLP, New Albany, Indiana

Attorneys for Appellants: The Daviess-Martin Joint County Parks & Recreation Department, Matthew L. Hinkle, John V. Maurovich, Coots Henke Wheeler, P.C, Carmel, Indiana

Attorney for Appellees: Terry A. White, Olsen & White, LLP, Evansville, Indiana

Barnes, Judge.

Case Summary

[1] In this interlocutory appeal, the Daviess-Martin Joint County Parks & Recreation Department ("Parks Board"), Daviess County, Indiana ("the County"), and the Daviess County Health Department ("Health Department") (collectively, the "Appellants") appeal the trial court's denial of their motions for summary judgment regarding a negligence claim by the Estate of Waylon Abel by John Abel, Personal Representative, and John Abel on behalf of the dependent children of Waylon Abel (collectively, "the Estate"). We reverse and remand.


[2] Appellants raise several issues, and we find one dispositive: whether the Appellants owed a duty to Abel.1


[3] Naegleria fowleri is an amoeba, a microscopic free-living organism, that is found naturally in soil and freshwater. The amoeba can survive on its own and is not directly dependent on another organism for its survival. The amoeba thrives in warm freshwater bodies and is more commonly found in the southern parts of the United States. There is only one known way for the amoeba to infect a human. Water containing the amoeba must forcefully enter the nasal passage and reach the olfactory nerve, which is located at the very top of the nasal canal, just beneath the brain. The amoeba then can cause primary amoebic meningoencephalitis

("PAM"), a brain infection that leads to the destruction of brain tissue. The fatality rate is over 97%. However, the risk of a Naegleria fowleri infection is extremely rare. Between 1962 and 2013, only 132 people in the United States were diagnosed with PAM "despite millions of recreational water exposures each year." Appellants' App. Vol. II p. 96.

[4] West Boggs Park ("the Park") is a 1,500-acre recreation area that includes a 622-acre lake. The Park is jointly owned by Daviess County and Martin County, and the property is governed by and through the Parks Board. The creation and operation of the Parks Board is authorized and governed by Indiana Code Section 36-10-3-20 through Indiana Code Section 36-10-3-32. The Parks Board oversees operation of the Park. Although the County commissioners receive minutes of Parks Board meetings, the Park is operated "independent of unilateral control" by the County. Id. at 83.

[5] On July 15, 2012, Abel was a visitor to the Park. According to the Estate, Abel was exposed to Naegleria fowleri while swimming in the lake, and he contracted PAM, resulting in his death. Abel was the first person in Indiana's recorded history to contract PAM.

[6] In June 2014, the Estate filed a complaint against the Parks Board, the County, the Health Department, Martin County, Indiana, the Martin County Health Department, and the State of Indiana. The Estate alleged that the defendants were negligent for:

failing to protect the public from injury, including the Plaintiff, by failing to test the water of West Boggs Lake to determine the existence of harmful organisms in the water, including but not limited to Naegleria fowlari , to properly maintain West Boggs Lake in a manner permitting safe swimming, and failing to warn the public of a dangerous condition at West Boggs Lake, including failing to warn the public of the existence of Naegleria fowlari in the water.

Id. at 25.

[7] In January 2015, the County and the Health Department filed a motion for judgment on the pleadings.2 They argued that they were under no duty to protect Abel and that they were immune from suit under both common law sovereign immunity and statutory immunity. The Parks Board also filed a motion for judgment on the pleadings and argued that it did not have a duty to Abel. Both motions included designations of evidence and a motion to take judicial notice of documents from the Centers for Disease Control and Prevention ("CDC"). Martin County and the Martin County Health Department joined in the motions for judgment on the pleadings.

[8] The designated evidence noted that there is no routine or rapid test for the presence of Naegleria fowleri . Additionally, "no method currently exists that accurately and reproducibly measures the numbers of amebae in the water. This makes it unclear how a standard might be set to protect human health and how public health officials would measure and enforce such a standard." Id. at 98. "In general, CDC does not recommend testing untreated rivers and lakes for Naegleria fowleri because the amebae is naturally occurring and there is no established relationship between detection or concentration of Naegleria fowleri and risk of infection." Id. at 106. "There are no means yet known that would control natural Naegleria fowleri levels in lakes and rivers." Id. at 104. According to the CDC, "recreational water users should assume that there is a low level risk when entering all warm freshwater, particularly in southern-tier states." Id. at 96. The CDC documentation notes:

Posting signs based on finding Naegleria fowleri in the water is unlikely to be an effective way to prevent infections. This is because:
Naegleria fowleri occurrence is common, infections are rare.
• The relationship between finding Naegleria fowleri in the water and the occurrence of infections is unclear.
• The location and number of amebae in the water can vary over time within the same lake or river.
• There are no rapid, standardized testing methods to detect and quantitate Naegleria fowleri in water.
• Posting signs might create a misconception that bodies of water without signs or non-posted areas within a posted water body are Naegleria fowleri -free.

Id. at 96-97.

[9] In response, the Estate argued that the CDC recommends warning the public "that whenever they enter a warm freshwater body" they should assume an amoeba is present. Appellants' App. Vol. III p. 18. According to the Estate, a "material fact about what the CDC recommends regarding warning about the presence and risks of Naegleria fowleri remains in dispute...." Id. at 20. The Estate argued that further discovery was necessary to determine the defendants' actual knowledge about Naegleria fowleri and that they should have known Naegleria fowleri was present in the lake. The Estate contended that the defendants owed a duty to Abel as an invitee and under common law and statutory theories.

[10] Because the motions included matters outside of the pleadings, the trial court converted the motions to motions for summary judgment. The trial court gave the Estate thirty days to file responses to the converted motions. The Estate incorporated their prior response as their response to the summary judgment motions. The defendants then filed replies arguing, in part, that the Estate had failed to designate any evidence or raise a genuine issue of material fact.

[11] The trial court denied the motions for summary judgment and certified the order for interlocutory appeal at the request of the Appellants. We accepted jurisdiction of the interlocutory appeal pursuant to Indiana Appellate Rule 14. The State of Indiana, Martin County, and the Martin County Health Department are not participating in this appeal.


[12] The issue is whether the trial court properly denied Appellants' motions for summary judgment based on whether they owed a duty to Abel. When reviewing a grant or denial of a motion for summary judgment our well-settled standard of review is the same as it is for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Goodwin v. Yeakle's Sports Bar & Grill, Inc. , 62 N.E.3d 384, 386 (Ind. 2016). The party moving for summary judgment has the burden of making a prima facie showing that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. Once these two requirements are met by the moving party, the burden then shifts to the non-moving party to show the existence of a genuine issue by setting forth specifically designated facts. Id. Any doubt as to any facts or inferences to be drawn therefrom must be resolved in favor of the non-moving party. Id. Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows there is no genuine issue of material fact and that the moving party deserves judgment as a matter of law. Id.

[13] To prevail on a negligence claim, a plaintiff must prove that the defendant or defendants: (1) owed him a duty, (2) breached that duty, and (3) proximately caused his injury. Megenity v. Dunn , 68 N.E.3d 1080, 1083 (Ind. 2017). "Absent a duty there can be no negligence or liability based upon the breach." Goodwin , 62 N.E.3d at 386. "Whether a duty exists is a question of law for the court to decide." Id. at 386-87. "[A] judicial determination of the existence of a duty is unnecessary where the element of duty has ‘already been declared or otherwise articulated.’ " Rogers v. Martin , 63 N.E.3d 316, 321 (Ind. 2016) (quoting N. Ind. Pub. Serv. Co. v. Sharp , 790 N.E.2d 462, 465 (Ind. 2003) ). In general, "[i]n...

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