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Wrongful Death and Premises Liability

Adnrousky v. Walter (Ind. Ct. App. May 30, 2012)

The Plaintiff in this case filed suit against a landowner after the Plaintiff’s son drowned in the landowner’s pool. This decision, affirming a defense verdict, involves several important issues.

First, the Court of Appeals rejected the Plaintiff’s argument that the trial court should have found as a matter of law that his son was a guest, not merely a licensee, on the landowner’s property. The trial court allowed the jury to make the determination based on disputed facts regarding the scope of the landowner’s invitation. The Court of Appeals found facts that would support the conclusion that the child was a licensee. Specifically, the landowner told the child’s mother that she and her children were not welcome to stay at his house, but reluctantly allowed them to stay one night and instructed them to promptly leave in the morning. This holding illustrates the importance of carefully examining facts before stipulating to a party’s status on the land. It also illustrates circumstances under which one’s status on land can be a jury question.

Second, the trial court instructed the jury on the abandonment defense, which precludes a parent “who abandoned a deceased child while the child was alive” from recovering in a wrongful death action. Ind. Code § 34-23-2-1(i). The Plaintiff saw his son “infrequently and provided little to no financial support.” The Plaintiff also attempted to terminate his parental rights shortly before his son’s death. The Court of Appeals held this evidence supported the jury instruction. Little interpretation exists on the abandonment defense. This decision provides some guidance on the issue and should be examined by any practitioner who contemplates using the defense.

Third, the Court of Appeals approved the trial court’s jury instruction regarding an administrative pool safety regulation. The Plaintiff argued that the jury should have been instructed that a violation was negligence per se, and not mere evidence of negligence, as the trial court had instructed the jury. The Court of Appeals disagreed with Plaintiff, noting that the violation of an administrative regulation is only some evidence of negligence, not negligence per se, as is a violation of a statute. This holding follows precedent. But the rule itself is somewhat curious for two reasons: 1) a violation of federal regulations is negligence per se; 2) many administrative regulations are passed under specific direction of the legislature. Still, the rule is the rule and any practitioner dealing with a claimed violation of an administrative regulation should remember the rule.

Fourth, the Court approved the trial court’s instruction that the duty to provide for a child’s safety rests with the child’s parent. The Court explained that a landowner’s duty to a child is not completely eliminated by the parent’s presence on the land. But the Court went on to explain that “when a parent is present and fully aware of the danger but consciously (and, in this case, recklessly) disregards the risk while caring for the child, the landowner should not generally be found to have breached the duty owed to the child.” The issue of injuries to children while in their parents’ care arises frequently. This case presents some explanation on the issue. Although this case involved an appeal after trial, the Court’s comments should be useful to practitioners at the summary judgment stage as well.

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