Daviess-Martin County Joint Parks and Recreation Department, Daviess County Indiana, and Daviess County Health Department v. The Estate of Waylon W. Abel by John Abel, Personal Representative , 77 N.E.3d 1280 ( 2017 )


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  • ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEES
    Daviess County, Indiana and Daviess                        Terry A. White
    County Health Department                                   Olsen & White, LLP
    Evansville, Indiana
    R. Jeffrey Lowe
    Crystal G. Rowe
    Kightlinger & Gray, LLP
    New Albany, Indiana                                                            FILED
    ATTORNEYS FOR APPELLANTS                                                   Jun 19 2017, 5:33 am
    CLERK
    The Daviess-Martin Joint County Parks &                                    Indiana Supreme Court
    Court of Appeals
    Recreation Department                                                           and Tax Court
    Matthew L. Hinkle
    John V. Maurovich
    Coots Henke Wheeler, P.C
    Carmel, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Daviess-Martin County Joint                                June 19, 2017
    Parks and Recreation                                       Court of Appeals Case No.
    Department, Daviess County                                 19A04-1607-CT-1563
    Indiana, and Daviess County                                Appeal from the Dubois County
    Health Department,                                         Circuit Court
    Appellants-Defendants,                                     The Honorable William E.
    Weikert, Special Judge
    v.                                                  Trial Court Cause No.
    19C01-1409-CT-499
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017                           Page 1 of 23
    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.
    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.
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 2 of 23
    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
    1
    Appellants also argue that they were entitled to immunity. We need not address that argument because we
    find that they did not owe Abel a duty.
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017                      Page 3 of 23
    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.
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017      Page 4 of 23
    [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
    2
    The State of Indiana also filed a motion to dismiss, which the trial court later denied.
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017                       Page 5 of 23
    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’
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 6 of 23
    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.
    Analysis
    [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
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 7 of 
    23 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 determining whether a duty exists when it has not been
    established by law, we use a three-part balancing test under which we consider:
    (1) the relationship between the parties, (2) the reasonable foreseeability of
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 8 of 23
    harm, and (3) public policy concerns.” Neal v. IAB Fin. Bank, 
    68 N.E.3d 1114
    ,
    1117 (Ind. Ct. App. 2017) (citing Webb v. Jarvis, 
    575 N.E.2d 992
    , 995 (Ind.
    1991), disapproved in other circumstances by Goodwin, 62 N.E.3d at 391 (holding
    the Webb v. Jarvis three-part test for determining the existence of a duty is
    inappropriate in landowner-invitee cases).
    [14]   In general, our courts have held that “a governmental unit is bound by the same
    duty of care as a non-governmental unit except where the duty alleged to have
    been breached is so closely akin to one of the limited exceptions (prevent crime,
    appoint competent officials, or make correct judicial decisions) that it should be
    treated as one as well.” Benton v. City of Oakland City, 
    721 N.E.2d 224
    , 230 (Ind.
    1999). “Governmental units have a long-recognized duty to maintain a public
    recreational facility in a reasonably safe manner.” Id. at 233. However, our
    supreme court recently handed down two cases regarding the duty of
    landowners that have an impact on the analysis in this case.
    [15]   In Rogers v. Martin, 
    63 N.E.3d 316
     (Ind. 2016), a homeowner’s boyfriend got
    into a fight with a guest at their house party, and the guest was injured. The
    homeowner did not help the guest, and he died after he was carried outside. A
    complaint was filed alleging that the homeowner was liable based on negligence
    and a Dram Shop Act claim. The trial court granted the homeowner’s motion
    for summary judgment, and on appeal, our supreme court reversed summary
    judgment on the negligence claim but affirmed summary judgment on the
    Dram Shop Act claim.
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 9 of 23
    [16]   In analyzing the negligence claim, our supreme court examined and
    reevaluated the landowner-invitee duty. The duty governing the homeowner’s
    conduct—the duty to exercise reasonable care for an invitee’s protection while
    the invitee is on the premises—was already firmly grounded in premises liability
    law. Rogers, 63 N.E.3d at 321. Over the years, the application of this broadly
    stated landowner-invitee duty to particular situations has depended on one
    critical element—foreseeability. Id.
    [17]   The court noted that cases over the last twenty-five years since Burrell v. Meads,
    
    569 N.E.2d 637
     (Ind. 1991), had expressed the landowner-invitee duty in
    different ways—some broadly and some in a “more limited fashion.” Id. at
    322. The court determined that:
    When a physical injury occurs as a result of a condition on the
    land, the three elements described in Restatement (Second) of
    Torts section 343 accurately describe the landowner-invitee duty.
    And because Burrell involved an injury due to a condition on the
    land, it accordingly framed the landowner-invitee duty in terms
    of section 343. But as mentioned above, other portions of Burrell
    spell out the landowner-invitee duty broadly. This broad
    formulation recognized that while section 343 limits the scope of
    the landowner-invitee duty in cases involving injuries due to
    conditions of the land, injuries could also befall invitees due to
    activities on a landowner’s premises unrelated to the premises’
    condition—and that landowners owe their invitees the general
    duty of reasonable care under those circumstances, too.
    Id. at 322-23.
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 10 of 23
    [18]   The court, however, clarified the duty of a landowner to an invitee in the
    context of a dangerous activity on the land. The court noted that the “critical
    element” in deciding whether a duty exists in cases “where an invitee’s injury
    occurs not due to a dangerous condition of the land but due to some harmful
    activity on the premises . . . is foreseeability.” Id. at 324. The court held that
    “the landowner-invitee ‘duty to protect’ generally applies to dangerous activities
    on the land and that a court must analyze the foreseeability of harm before
    extending this duty to a particular situation.” Id. “This inquiry simply
    acknowledges that the landowner-invitee ‘duty to protect’ is not limitless,
    because some harms are so unforeseeable that a landowner has no duty to
    protect an invitee against them.” Id. Confusion over how to incorporate the
    foreseeability into the duty analysis existed, though, because foreseeability is “a
    component of both duty and proximate cause.” Id. at 325. In an effort to
    provide “clarity for practitioners and courts alike,” our supreme court held:
    When foreseeability is part of the duty analysis, as in landowner-
    invitee cases, it is evaluated in a different manner than
    foreseeability in the context of proximate cause. Specifically, in
    the duty arena, foreseeability is a general threshold determination
    that involves an evaluation of (1) the broad type of plaintiff and
    (2) the broad type of harm. In other words, this foreseeability
    analysis should focus on the general class of persons of which the
    plaintiff was a member and whether the harm suffered was of a
    kind normally to be expected—without addressing the specific
    facts of the occurrence. Goodwin v. Yeakle’s Sports Bar and Grill,
    Inc., No. 27S02-1510-CT-627, 
    62 N.E.3d 384
    , 388-89, 
    2016 WL 6573824
     (Ind. Oct. 26, 2016) (evaluating why this is the
    appropriate framework in determining foreseeability in the duty
    context). We believe this analysis comports with the idea that
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 11 of 23
    “the courts will find a duty where, in general, reasonable persons
    would recognize it and agree that it exists.” Gariup Constr. Co.,
    Inc. v. Foster, 
    519 N.E.2d 1224
    , 1227 (Ind. 1988) (quoting Prosser
    & Keeton on Torts § 53, at 357-59 (5th ed. 1984)).
    Id.
    [19]   Applied to the facts of the case, the court noted that it had “repeatedly stated
    that a landowner has a duty to take reasonable precautions to protect invitees
    from foreseeable criminal attacks.” Id. at 326. The court looked at whether a
    duty should be imposed on the homeowner to take precautions to prevent a co-
    host from fighting with and injuring a guest at the party. The court determined
    that it was “not reasonably foreseeable for a homeowner to expect this general
    harm to befall a house-party guest” and that the homeowner was not “an
    insurer for all social guests’ safety.” Id. Consequently, the homeowner had no
    duty to take reasonable precautions to protect the victim from her boyfriend’s
    conduct. The homeowner did, however, have a duty to her social guest to
    protect him from exacerbation of an injury occurring in her home, and although
    reasonable persons would recognize such a duty, questions of breach and
    proximate cause remained for the fact-finder. Id. at 327.
    [20]   On the same day that Rogers was handed down, our supreme court also handed
    down Goodwin v. Yeakle’s Sports Bar and Grill, 
    62 N.E.3d 384
     (Ind. 2016). In
    Goodwin, customers of a bar were shot by another patron, and the three victims
    filed a negligence complaint against the bar. The trial court found that the
    criminal acts were unforeseeable and that the bar did not have a duty to
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 12 of 23
    anticipate and take steps to prevent the shooter’s conduct. On appeal, our
    supreme court further explained duty in the context of whether a landowner
    owes an invitee a duty to take reasonable care to protect an invitee from third-
    party criminal attacks. Our supreme court held:
    [B]ecause foreseeability is—in this particular negligence action—
    a component of duty, and because whether a duty exists is a
    question of law for the court to decide, the court must of
    necessity determine whether the criminal act at issue here was
    foreseeable. This is not a “redetermination” of the duty a
    landowner owes its invitees. Rather, the focus is on the point
    and manner in which we evaluate whether foreseeability does or
    does not exist. See [Paragon Family Restaurant v. Bartolini, 
    799 N.E.2d 1048
    , 1053 (Ind. 2016)]. And that point initially rests
    with the trial court as gatekeeper.
    Goodwin, 62 N.E.3d at 389. The court then held that, “for purposes of
    determining whether an act is foreseeable in the context of duty we assess
    ‘whether there is some probability or likelihood of harm that is serious enough
    to induce a reasonable person to take precautions to avoid it.’” Id. at 392
    (quoting Satterfield v. Breeding Insulation Co., 
    266 S.W.3d 347
    , 367 (Tenn. 2008)).
    Applying these principles to the facts at issue, our supreme court held:
    The broad type of plaintiff here is a patron of a bar and the harm
    is the probability or likelihood of a criminal attack, namely: a
    shooting inside a bar. But even engaging in a “lesser inquiry” we
    conclude that although bars can often set the stage for rowdy
    behavior, we do not believe that bar owners routinely
    contemplate that one bar patron might suddenly shoot another.
    To be sure, we doubt there exists a neighborhood anywhere in
    this State which is entirely crime-free. Thus, in the broadest
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 13 of 23
    sense, all crimes anywhere are “foreseeable.” But to impose a
    blanket duty on proprietors to afford protection to their patrons
    would make proprietors insurers of their patrons’ safety which is
    contrary to the public policy of this state. See [Delta Tau Delta,
    Beta Alpha Chapter v. Johnson, 
    712 N.E.2d 968
    , 971 (Ind. 1999)].
    Further such a blanket duty would abandon the notion of liability
    based on negligence and enter the realm of strict liability in tort
    which “assumes no negligence of the actor, but chooses to
    impose liability anyway.” Cook v. Whitsell-Sherman, 
    796 N.E.2d 271
    , 276 (Ind. 2003). We decline to impose such liability here.
    In sum we hold that a shooting inside a neighborhood bar is not
    foreseeable as a matter of law.
    
    Id. at 393-94
     (footnote omitted). Consequently, the court held that the trial
    court properly granted summary judgment in the bar’s favor.
    [21]   With our supreme court’s opinions in Rogers and Goodwin in mind, we will
    analyze whether the County, Parks Board, or the Health Department owed a
    duty to Abel.
    I. Daviess County & Parks Board
    [22]   Daviess County is a landowner of West Boggs Park, and the Parks Board is the
    operator of the Park. We will analyze the duty of the County and the Parks
    Board together because, under the Restatement (Second) of Torts § 328E
    (1965), a “possessor of land” is “a person who is in occupation of the land with
    intent to control it . . . .” The Parks Board is the operator of West Boggs Park
    pursuant to Indiana Code Section 36-10-3-29, which authorized the
    establishment of a joint department of parks and recreation.
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 14 of 23
    [23]   Under the Rogers/Goodwin analysis, it is unclear whether the infection by the
    amoeba would be considered a “condition of the land” or the result of an
    activity on the land or a third party’s conduct. Exposure to the amoeba, which
    is effectively a wild animal, does not seem to fit squarely into either category.
    Regardless, under either analysis, we conclude that neither the County nor the
    Parks Board owed a duty to Abel.
    [24]   If we engage in the standard analysis regarding a landowner’s duty to an invitee
    for a condition of the land, we apply the Restatement (Second) of Torts section
    343, which provides:
    A possessor of land is subject to liability for physical harm caused
    to his invitees by a condition on the land if, but only if, he
    (a) knows or by the exercise of reasonable care would discover
    the condition, and should realize that it involves an unreasonable
    risk of harm to such invitees, and
    (b) should expect that they will not discover or realize the danger,
    or will fail to protect themselves against it, and
    (c) fails to exercise reasonable care to protect them against the
    danger.
    Rogers, 63 N.E.3d at 322.
    [25]   We first focus on whether the County and Parks Board knew or by the exercise
    of reasonable care would have discovered the condition and should have
    realized that it involved an unreasonable risk of harm to invitees. The Estate
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017    Page 15 of 23
    admits that “there are currently no known methods of eradicating or controlling
    the Amoeba in” lakes. Appellees’ Br. p. 8. However, the Estate argues that,
    given the published CDC materials regarding Naegleria fowleri, the County and
    Parks Board should have warned swimmers of the possible risks associated with
    Naegleria fowleri. According to the Estate, the County and the Parks Board
    knew or should have known by the exercise of reasonable care that Naegleria
    fowleri was present in the lake, and they should have “follow[ed] the CDC
    recommendation that recreational users of warm water bodies of water across
    the U.S. should be warned about the de facto presence of the Amoeba in the
    water, its risks, and precautions necessary to protect themselves against
    infection.” Appellees’ Br. p. 21.
    [26]   The County designated evidence that the potential presence of Naegleria fowleri
    was never brought to the attention of the County’s Board of Commissioners or
    “otherwise contemplated during Board meetings” prior to Abel’s death.
    Appellants’ App. Vol. II p. 85. Prior to August 7, 2012, the Parks Board
    Superintendent had never heard of Naegleria fowleri. The County did not
    conduct any water testing at the lake; rather, the Parks Board, which operated
    the Park for the County, did so. The Parks Board oversees the lake operations
    “including compliance with the applicable health and environmental
    regulations governed by Federal, State, and local officials.” Id. at 218. It
    routinely tests the water as required by the Indiana State Department of Health,
    but those requirements do not include testing for Naegleria fowleri. There had
    never been a known Naegleria fowleri infection in Indiana prior to Abel’s death.
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 16 of 23
    [27]   Information from the CDC, which was designated by the defendants,
    established 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 ameba is naturally occurring and there is no
    established relationship between detection or concentration of Naegleria fowleri
    and risk of infection.” Id. at 106. 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. “There are no means
    yet known that would control natural Naegleria fowleri levels in lakes and rivers.”
    Id. at 104.
    [28]   There is no designated evidence indicating that either the County or the Parks
    Board knew of Naegleria fowleri. The designated evidence also indicates that a
    PAM infection, especially in Indiana, is very rare. In fact, Abel was the first
    known PAM infection in Indiana’s history. There is no rapid, standardized
    testing method to detect and quantitate Naegleria fowleri. Even if the County or
    the Parks Board had tested for Naegleria fowleri, there is no quantifiable
    relationship between finding Naegleria fowleri in the water and predicting the
    occurrence of the PAM infection. Under these circumstances, there is no
    designated evidence that the County or the Parks Board knew or by the exercise
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 17 of 23
    of reasonable care would have discovered the existence of the Naegleria fowleri or
    realized that it involved an unreasonable risk of harm to invitees, and the
    County and Parks Board did not owe Abel a duty under this analysis.
    [29]   If we engage in the analysis set out in Rogers and Goodwin, we likewise conclude
    that the County and Parks Board were entitled to summary judgment because
    no duty to Abel existed. The focus in the Rogers and Goodwin analysis was
    foreseeability. We must look at the “broad type of plaintiff” and the “broad
    type of harm,” and we will find a duty where “reasonable persons would
    recognize it and agree that it exists.” Rogers, 63 N.E.3d at 325. Thus, we must
    determine whether it was reasonably foreseeable for a lake owner/operator to
    expect a swimmer to contract a PAM infection. Prior to Abel’s death, there
    had been no known Indiana PAM infections. Out of millions of recreational
    swimming water exposures each year, only 132 people were diagnosed with the
    infection between 1962 and 2013. Even if a swimmer is exposed to Naegleria
    fowleri, the likelihood of contracting the PAM infection is rare. The majority of
    those infections were found in southern states. Under these circumstances, it
    was not reasonably foreseeable that Abel would contract a PAM infection, and
    the County and the Parks Board did not owe a duty to Abel. The trial court
    erred when it denied the County’s and the Parks Board’s motions for summary
    judgment.
    II. Health Department
    [30]   The Estate also included the Health Department in its complaint, and the trial
    court denied the Health Department’s motion for summary judgment. Where a
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 18 of 23
    duty has not been established by law, “we use a three-part balancing test under
    which we consider: (1) the relationship between the parties, (2) the reasonable
    foreseeability of harm, and (3) public policy concerns.” Neal, 68 N.E.3d at
    1117 (citing Webb, 575 N.E.2d at 995, disapproved in other circumstances by
    Goodwin, 62 N.E.3d at 391).
    [31]   The purpose of a local health department is discussed in Indiana Code Section
    16-20-1-21, which provides:
    Each local health board has the responsibility and authority to
    take any action authorized by statute or rule of the state
    department to control communicable diseases. The board of each
    local health department or a designated representative may make
    sanitary and health inspections to carry out this chapter and IC
    16-20-8 [dealing with food inspections].
    In the designated evidence, the Environmental Health Specialist for Daviess
    County noted that the Health Department’s primary purposes “are to ensure
    the safe preparation of food for county residents and the sanitary installation
    and operation of septic systems.” Appellants’ App. Vol. II p. 78. The Health
    Department did not conduct any water testing at the lake; rather, the Parks
    Board did so. The Environmental Health Specialist noted that, “[a]t no time
    during [his] education, training, certification, or continuing education had [he]
    heard naegleria fowleri mentioned, discussed, cautioned against or otherwise
    stated.” Id.
    [32]   The Health Department argues that there was no special relationship between
    the Health Department and Abel; the only relationship was one of citizen and
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 19 of 23
    public agency that promotes public welfare. As discussed in the context of the
    County and Parks Board, the foreseeability harm element also disfavors a
    finding of duty here. As for public policy, given that the PAM infection is
    extremely rare, the infection is due to an amoeba that is comparable to a wild
    animal, there is no rapid, standardized testing method for the presence of
    Naegleria fowleri, and there is no known treatment available for lake water, we
    do not believe that a blanket imposition of “duty” under these circumstances
    promotes public policy. We conclude that, like the County and Parks Board,
    the Health Department did not have a duty here.
    Conclusion
    [33]   Although the circumstances here were tragic, we conclude that the County,
    Parks Board, and Health Department did not have a duty to Abel.
    Consequently, the trial court erred when it denied their motions for summary
    judgment. We reverse and remand with instructions to enter summary
    judgment in favor of the County, the Parks Board, and the Health Department.
    [34]   Reversed and remanded.
    Kirsch, J., concurs.
    Robb, J., concurs in result with opinion.
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 20 of 23
    IN THE
    COURT OF APPEALS OF INDIANA
    Daviess-Martin County Joint                                Court of Appeals Case No.
    Parks and Recreation                                       19A04-1607-CT-1563
    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.
    Robb, Judge, concurring in result.
    [35]   I respectfully concur in result. Although I agree the trial court’s decision should
    be reversed, I cannot agree that it should be reversed on the basis the Appellants
    owe no duty to Abel. As the majority notes, as owners/operators of the Park,
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017               Page 21 of 23
    the Appellants have a duty to recreational users of their freshwater lake to
    maintain it in “reasonably safe manner.” Slip op. at ¶ 14 (quoting Benton v. City
    of Oakland City, 
    721 N.E.2d 224
    , 230 (Ind. 1999)). I am unwilling to say the
    Appellants have no duty as a matter of law to test for, warn against, or treat
    Naegleria fowleri because even though no one using the Park had contracted
    PAM prior to Abel, the de facto presence of the amoeba in freshwater lakes and
    the devastating consequences of infection were known generally. My objection
    to deciding this case based on “duty” is that declaring as a matter of law the
    Appellants had no duty here means that even though the presence of the
    amoeba is now specifically known within the Park and the serious
    consequences of infection are clear, the Appellants would be absolved of any
    responsibility with respect to foreseeable harm the presence of the amoeba
    might cause going forward. Cf. N. Ind. Pub. Serv. Co. v. Sharp, 
    790 N.E.2d 462
    ,
    465 (Ind. 2003) (noting the three-part balancing test articulated in Webb v. Jarvis,
    
    575 N.E.2d 992
     (Ind. 1991), for determining whether a duty exists “is a useful
    tool in determining whether a duty exists . . . only in those instances where the
    element of duty has not already been declared or otherwise articulated”). Even
    though there had been no known cases of PAM in Indiana prior to this and
    even though an extremely small number of cases have occurred nationally, the
    common existence of the amoeba in warm freshwater lakes has been known for
    at least five decades. I would say owners and operators of freshwater
    recreational areas do have a duty to know about the amoeba; the harm it can
    cause; and the options for and efficacy of testing, treatment, and warnings to
    users. That the Appellants’ did not test for, treat, or warn of the possible
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 22 of 23
    presence of the amoeba was not because they made a conscious choice based on
    available research and recommendations, but because they were simply
    unaware. Although the organism had not previously been identified in this
    body of water, I believe the ubiquitous nature of this amoeba should have put
    the Appellants on notice that it was most likely present in their lake and satisfies
    the foreseeability element of duty.
    [36]   Having said that, I do not believe the Appellants breached their duty. See Ford
    Motor Co. v. Rushford, 
    868 N.E.2d 806
    , 810 (Ind. 2007) (stating the plaintiff is
    required to prove a duty owed by the defendant, a breach of that duty, and
    injury proximately caused by the breach to prevail on a claim of negligence).
    Although they should have foreseen the amoeba could be present in the lake,
    based on the peculiarities of this organism, the rate of infection compared to the
    rate of exposure, and the fact that no one had previously contracted PAM in
    Indiana let alone in the Park, I would hold the Appellants could not have
    anticipated that harm would come to Abel from using the lake on this occasion.
    I therefore concur in reversing the trial court’s denial of the Appellants’ motions
    for summary judgment.
    Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017   Page 23 of 23
    

Document Info

Docket Number: 19A04-1607-CT-1563

Citation Numbers: 77 N.E.3d 1280

Filed Date: 6/19/2017

Precedential Status: Precedential

Modified Date: 1/12/2023