Daviess-Martin County Joint Parks and Recreation Department, Daviess County Indiana, and Daviess County Health Department, Appellants-Defendants,
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.
from the Dubois County Circuit Court The Honorable William E.
Weikert, Special Judge Trial Court Cause No.
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
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
Appellants raise several issues, and we find one dispositive:
whether the Appellants owed a duty to Abel.
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.
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.
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.
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
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
Id. at 25.
In January 2015, the County and the Health Department filed a
motion for judgment on the pleadings. 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.
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
• 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 ...