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Objective Foreseeability:  Indiana Continues to Broaden the Foreseeability Analysis in Premises Liability Cases

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By Houston A. Hum and Nicholas G. Brunette

July 26, 2017

In its June 19, 2017 opinion in Daviess-Martin Cty. Joint Parks & Rec. Dep’t v. Estate of Abel, 2017 Ind. App. LEXIS 260, the Indiana Court of Appeals paved the way for Indiana trial courts to expand their analysis regarding whether harm to a premises invitee was foreseeable to a landowner.  Whether a defendant landowner owed a duty to warn or otherwise protect a plaintiff invitee has long depended primarily on whether the harm was foreseeable to the landowner, although courts also consider the relationship between the parties and public policy concerns.

In July 2012, Waylon Abel (“Abel”) had visited a public park, swam in the park’s lake, and was exposed to Naegleria fowleri, a common freshwater-borne amoeba.  The amoeba entered Abel’s nasal cavity and caused a brain infection, primary amoebic meningoencephalitis (“PAM”), which was fatal. 

Abel’s estate sued the park’s owners, operator, and two county health departments for negligence for allegedly failing to protect Abel from the danger posed by the amoeba and failing to warn Abel of the danger.  The defendants moved for summary judgment and argued they owed Abel no duty based largely on evidence of the absence of any test for readily determining the presence of the amoeba and the extreme rarity of PAM despite the amoeba’s prevalence.  Abel countered with evidence of the Center for Disease Control’s recommendation that landowners warn invitees to expect they will encounter an amoeba when entering warm water.  The trial court denied the defendants summary judgment and interlocutory appeal ensued.

For decades, the foreseeability analysis has considered the specific harm and the specific defendant’s knowledge of the condition resulting in that harm.  In 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), the Indiana Supreme Court expanded the analysis also to consider the foreseeability of the broad class of harm by a broad class of similarly situated defendants, where the harm is caused by one or more invitees’ activities rather than by some condition of the premises

Deeming it unclear whether Abel’s injury resulted from a condition on the land or on some “activity” on the land (noting that the amoeba was “effectively a wild animal”) the Daviess-Martin court considered both whether the specific defendants knew or should have known that the amoeba posed a danger to Abel, and whether it is generally foreseeable to the broad class of lake/park owners/operators that swimmers might contract PAM.  Based on the absence of any evidence showing otherwise, the court found that the specific defendants reasonably did not know of the risk of PAM.  The court further found, based primarily on the evidence of the extreme rarity of PAM despite the prevalence of the amoeba (there had never been a case of PAM in Indiana and most of the very few cases nationwide were in the South), that the risk of swimmers contracting PAM was not reasonably foreseeable by Indiana lake owners/operators in general.  Accordingly, the court found the defendants owed Abel no duty to warn or otherwise protect him from the amoeba and therefore that the defendants were entitled to summary judgment.

Landowners/operators and their insurers should realize that a specific defendant’s lack of knowledge of a dangerous condition may not be sufficient to eliminate his duty to invitees where a plaintiff can convince a court that the injury was due, at least in part, to some activity on the land and that the broader class of similarly situated landowners/operators knows or should know of the harm posed to the broader class of similarly situated invitees.  Although the Daviess-Martin court found the defendants were entitled to summary judgment, the case makes clear that it is more difficult for landowners/operators to obtain summary judgment based on arguing lack of duty due to the harm being unforeseeable.

If you have any question regarding this decision or any risk exposure to property owners or managers, feel free to call one of our Retail & Hospitality Liability Practice Group members.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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