Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Daviess-Martin County Joint Parks and Recreation Department v. Estate of Abel

Court of Appeals of Indiana

June 19, 2017

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.

         Appeal from the Dubois County Circuit Court The Honorable William E. Weikert, Special Judge Trial Court Cause No. 19C01-1409-CT-499

          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

         [¶2] 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.

         Issue

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

         Facts

         [¶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 Naegler ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.