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 WL 2628443, 2017 Ind. App. LEXIS 260
CourtIndiana Court of Appeals
DecidedJune 19, 2017
DocketCourt of Appeals Case 19A04-1607-CT-1563
StatusPublished
Cited by7 cases

This text of 77 N.E.3d 1280 (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) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
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 WL 2628443, 2017 Ind. App. LEXIS 260 (Ind. Ct. App. 2017).

Opinions

Barnes, Judge.

Case Summary

In this interlocutory appeal, the Da-viess-Martin Joint County Parks & Recreation Department (“Parks Board”), Da-viess 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

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

[1283]*1283Facts

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 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 Nae-gleria fowlari in the water.

Id. at 25.

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.

The designated evidence noted that there is no routine or rapid test for the [1284]*1284presence of Naegleña fowleñ. 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 Naegleña fowleñ because the amebae is naturally occurring and there is no established relationship' between detection or concentration of Naegleña fowleñ and risk of infection.”' Id. at 106. “There are no means yet known that would control natural Naegle-ña fowleñ 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 Naegle-ña fowleñ in the water is unlikely to be an effective way to prevent infections. This is because:
Naegleña fowleñ occurrence is common, infections are rare.
• The relationship between finding Naegleña fowleñ in the water and the occurrence of infections is unclear.
• The location and number of ame-bae in the water can vary over time within the same lake or river,
• There are no rapid, standardized testing methods to detect and quantitate Naegleña fowleñ in water.
• Posting signs might create a misconception that bodies of water without signs or nbn-posted areas within a posted water body are Naegleña fowleñ-íree.

Id. at 96-97.

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. Ill p. 18. According to the Estate, a “material fact about what the CDC recommends regarding warning about the presence and risks of Naegleña fowleñ remains in dispute .... ” Id. at 20. The Estate' argued that further discovery was necessary to determine the defendants’ actual knowledge about Naegleña fowleñ and that they should have known Naegleña fowleñ 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.

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 desú-nate any evidence or raise a genuine issue of material fact.

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.

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77 N.E.3d 1280, 2017 WL 2628443, 2017 Ind. App. LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daviess-martin-county-joint-parks-and-recreation-department-daviess-county-indctapp-2017.