Fort Wayne Indiana Personal Injury Lawyer and Attorney Blog

Indiana Man Dead from Waterborne Infection Not Owed Duty to Protect

By Jack H. FarnbauchOctober 30, 2017

In July 2012, Waylon Abel visited West Boggs Park and was exposed to an amoeba when he swam in a body of freshwater (West Boggs Lake) on the property. Exposure to the amoeba caused Abel to contract a waterborne brain infection. Abel died on August 7, 2012 as a result of the infection.

West Boggs Park is operated by Daviess County. The family of Abel filed suit in the Dubois County Circuit Court for wrongful death against Daviess County, the Daviess County Health Department and the Daviess-Martin County Joint Parks and Recreation Board. The 2014 lawsuit alleged the county and parks board were responsible for West Boggs Lake and failed to protect Abel and the public from the deadly organism. The Daviess County parties moved for a pretrial motion to have the case thrown out, arguing they didn't have a duty to protect Abel and that they were immune from suit. Martin County and its health department joined the motion. The Defendants looked to show that there is no routine test for the presence of the deadly amoeba and that the Centers for Diseases Control and Prevention “does not recommend testing untreated rivers and lakes…because the amoeba is naturally occurring and there is no established relationship between detection or concentration of (the amoeba) and risk of infection.” 

The judge in Dubois Circuit Court denied the Defendants’ motion and permitted the Abel family’s lawsuit to continue. The Defendants then filed an appeal with the Indiana Court of Appeals.  

A panel of the Indiana Court of Appeals reversed the denial of summary judgment, with Judge Michael Barnes writing the defendants did not owe a duty to Abel while he was West Boggs Park. Barnes’ opinion drew heavily on recent Indiana Supreme Court precedent in the cases of Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016), and Goodwin v. Yeakle’s Sports Bar and Grill, 62 N.E.3d 384 (Ind. 2016), which dealt with the issue of foreseeability of harm in landowner-invitee situations. Using a Rogers/Goodwin analysis, the judge wrote “there is no designated evidence that the County or the Parks Board knew or by the exercise of reasonable care would have discovered the existence of the (amoeba)…and the County and Parks Board did not owe Abel a duty under this analysis.”

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