This case involves a suit brought by a child and his parents against the City of Nappanee following injuries sustained by the child in a near-drowning in the City pool. The Court of Appeals affirmed the trial court’s grant of summary judgment in favor of the City on the grounds that the City breached no duty to W.D.
Here, W.D. went to the pool with his mother, sister, and friend. After W.D. was left momentarily unattended, a lifeguard observed W.D. floating face down near the edge of the pool. The lifeguard jumped into the pool, pulled W.D. out, and performed CPR. The Court of Appeals succinctly stated: the lifeguard’s “training and immediate action saved W.D.’s life.” The Court of Appeals explained that a lifeguard owes a duty to assist imperiled swimmers, but “cannot possibly be an absolute insurer of the safety of swimmers.”
It is difficult to win summary judgment based on lack of breach because, as the Court of Appeals noted, the issue is rarely a matter that a court will decide as a matter of law. This case illustrates that given the right facts, a defendant can successfully make the argument. The defendant in this case clearly did an excellent job of developing the summary judgment record and establishing that no reasonable fact finder could conclude that the lifeguard acted unreasonably.
The defense attorney in this matter was friend-of -the-blog Mark Ulmschneider, of Fort Wayne.
The information contained in the Barrett McNagny LLP website is for informational purposes only and should not be considered legal advice on any subject matter. Furthermore, the information contained on our website may not reflect the most current legal developments. You should not act upon this information without consulting legal counsel.
Your transmission and receipt of information on the Barrett McNagny LLP website, or sending an e-mail to one of our attorneys or staff, will not create an attorney-client relationship between you and Barrett McNagny LLP. If you need legal advice and want to establish an attorney-client relationship with Barrett McNagny LLP, please contact one of our attorneys by telephone, email, or other means of communication, and allow the attorney to confirm that the firm does not represent other persons or entities involved in the matter and that the firm is willing to accept representation. Until such confirmation is provided by one of our attorneys, you should not transmit information to us that you consider confidential. If you do provide information to us, and no attorney-client relationship is established, the information will not be considered confidential or privileged, and our receipt of such information will not preclude us from representing another client in a matter adverse to you.
Any links to other websites are not intended to be referrals or endorsements of those sites.
A representative will be in touch with you shortly.
An attorney-client relationship will NOT be formed merely by sending an email to Barrett McNagny, LLP or to any of its attorneys. Please do not send any information specific to your legal needs until you obtain approval from a Barrett McNagny, LLP attorney, as the content of such email will not be considered confidential or privileged. By sending us an email, you confirm your understanding of this notification. If you agree, you may use the e-mail links on this page to contact an attorney.