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

ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEES
Daviess County, Indiana and Daviess Terry A. White
County Health Department Olsen & White, LLP
Evansville, Indiana
R. Jeffrey Lowe
Crystal G. Rowe
Kightlinger & Gray, LLP
New Albany, Indiana FILED
ATTORNEYS FOR APPELLANTS Jun 19 2017, 5:33 am

CLERK
The Daviess-Martin Joint County Parks & Indiana Supreme Court
Court of Appeals
Recreation Department and Tax Court

Matthew L. Hinkle
John V. Maurovich
Coots Henke Wheeler, P.C
Carmel, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Daviess-Martin County Joint June 19, 2017
Parks and Recreation Court of Appeals Case No.
Department, Daviess County 19A04-1607-CT-1563
Indiana, and Daviess County Appeal from the Dubois County
Health Department, Circuit Court
Appellants-Defendants, The Honorable William E.
Weikert, Special Judge
v. Trial Court Cause No.
19C01-1409-CT-499

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 The Estate of Waylon W. Abel,
by
John Abel, Personal
Representative, and
John Abel on Behalf of Waylon
W. Abel’s Dependent Children,
Faith Abel, John Abel, and
Gabriel Abel,
Appellees-Plaintiffs.

Martin County Indiana, Martin
County
Health Department and The State of
Indiana,

Rule 17(A) Third-Parties-Defendants.

Barnes, Judge.

Case Summary
[1] In this interlocutory appeal, the Daviess-Martin Joint County Parks &

Recreation Department (“Parks Board”), Daviess 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.

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 Issue
[2] Appellants raise several issues, and we find one dispositive: whether the

Appellants owed a duty to Abel.1

Facts
[3] 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.

[4] 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

1
Appellants also argue that they were entitled to immunity. We need not address that argument because we
find that they did not owe Abel a duty.

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 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.

[5] 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.

[6] 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 Naegleria
fowlari in the water.

Id. at 25.

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[7] 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.

[8] The designated evidence noted that there is no routine or rapid test for the

presence of Naegleria fowleri. 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 Naegleria fowleri because the amebae is naturally occurring and there is no

established relationship between detection or concentration of Naegleria fowleri

and risk of infection.” Id. at 106. “There are no means yet known that would

control natural Naegleria fowleri levels in lakes and rivers.” Id. at 104.

According to the CDC, “recreational water users should assume that there is a

2
The State of Indiana also filed a motion to dismiss, which the trial court later denied.

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 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 Naegleria fowleri in the water is
unlikely to be an effective way to prevent infections. This is
because:

 Naegleria fowleri occurrence is common, infections are rare.

 The relationship between finding Naegleria fowleri in the
water and the occurrence of infections is unclear.

 The location and number of amebae in the water can vary
over time within the same lake or river.

 There are no rapid, standardized testing methods to detect
and quantitate Naegleria fowleri in water.

 Posting signs might create a misconception that bodies of
water without signs or non-posted areas within a posted
water body are Naegleria fowleri-free.

Id. at 96-97.

[9] 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. III p. 18. According to the Estate, a

“material fact about what the CDC recommends regarding warning about the

presence and risks of Naegleria fowleri remains in dispute . . . .” Id. at 20. The

Estate argued that further discovery was necessary to determine the defendants’

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 actual knowledge about Naegleria fowleri and that they should have known

Naegleria fowleri 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.

[10] 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 designate any evidence or raise a genuine issue of material fact.

[11] 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.

The State of Indiana, Martin County, and the Martin County Health

Department are not participating in this appeal.

Analysis
[12] The issue is whether the trial court properly denied Appellants’ motions for

summary judgment based on whether they owed a duty to Abel. When

reviewing a grant or denial of a motion for summary judgment our well-settled

standard of review is the same as it is for the trial court: whether there is a

genuine issue of material fact, and whether the moving party is entitled to

judgment as a matter of law. Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62

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 N.E.3d 384, 386 (Ind. 2016). The party moving for summary judgment has the

burden of making a prima facie showing that there is no genuine issue of

material fact and that the moving party is entitled to judgment as a matter of

law. Id. Once these two requirements are met by the moving party, the burden

then shifts to the non-moving party to show the existence of a genuine issue by

setting forth specifically designated facts. Id. Any doubt as to any facts or

inferences to be drawn therefrom must be resolved in favor of the non-moving

party. Id. Summary judgment should be granted only if the evidence

sanctioned by Indiana Trial Rule 56(C) shows there is no genuine issue of

material fact and that the moving party deserves judgment as a matter of law.

Id.

[13] To prevail on a negligence claim, a plaintiff must prove that the defendant or

defendants: (1) owed him a duty, (2) breached that duty, and (3) proximately

caused his injury. Megenity v. Dunn, 68 N.E.3d 1080, 1083 (Ind. 2017).

“Absent a duty there can be no negligence or liability based upon the breach.”

Goodwin, 62 N.E.3d at 386. “Whether a duty exists is a question of law for the

court to decide.” Id. at 386-87. “[A] judicial determination of the existence of a

duty is unnecessary where the element of duty has ‘already been declared or

otherwise articulated.’” Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016)

(quoting N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003)). In

general, “[i]n determining whether a duty exists when it has not been

established by law, we use a three-part balancing test under which we consider:

(1) the relationship between the parties, (2) the reasonable foreseeability of

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 harm, and (3) public policy concerns.” Neal v. IAB Fin. Bank, 68 N.E.3d 1114,

1117 (Ind. Ct. App. 2017) (citing Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.

1991), disapproved in other circumstances by Goodwin, 62 N.E.3d at 391 (holding

the Webb v. Jarvis three-part test for determining the existence of a duty is

inappropriate in landowner-invitee cases).

[14] In general, our courts have held that “a governmental unit is bound by the same

duty of care as a non-governmental unit except where the duty alleged to have

been breached is so closely akin to one of the limited exceptions (prevent crime,

appoint competent officials, or make correct judicial decisions) that it should be

treated as one as well.” Benton v. City of Oakland City, 721 N.E.2d 224, 230 (Ind.

1999). “Governmental units have a long-recognized duty to maintain a public

recreational facility in a reasonably safe manner.” Id. at 233. However, our

supreme court recently handed down two cases regarding the duty of

landowners that have an impact on the analysis in this case.

[15] In Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016), a homeowner’s boyfriend got

into a fight with a guest at their house party, and the guest was injured. The

homeowner did not help the guest, and he died after he was carried outside. A

complaint was filed alleging that the homeowner was liable based on negligence

and a Dram Shop Act claim. The trial court granted the homeowner’s motion

for summary judgment, and on appeal, our supreme court reversed summary

judgment on the negligence claim but affirmed summary judgment on the

Dram Shop Act claim.

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[16] In analyzing the negligence claim, our supreme court examined and

reevaluated the landowner-invitee duty. The duty governing the homeowner’s

conduct—the duty to exercise reasonable care for an invitee’s protection while

the invitee is on the premises—was already firmly grounded in premises liability

law. Rogers, 63 N.E.3d at 321. Over the years, the application of this broadly

stated landowner-invitee duty to particular situations has depended on one

critical element—foreseeability. Id.

[17] The court noted that cases over the last twenty-five years since Burrell v. Meads,

569 N.E.2d 637 (Ind. 1991), had expressed the landowner-invitee duty in

different ways—some broadly and some in a “more limited fashion.” Id. at

322. The court determined that:

When a physical injury occurs as a result of a condition on the
land, the three elements described in Restatement (Second) of
Torts section 343 accurately describe the landowner-invitee duty.
And because Burrell involved an injury due to a condition on the
land, it accordingly framed the landowner-invitee duty in terms
of section 343. But as mentioned above, other portions of Burrell
spell out the landowner-invitee duty broadly. This broad
formulation recognized that while section 343 limits the scope of
the landowner-invitee duty in cases involving injuries due to
conditions of the land, injuries could also befall invitees due to
activities on a landowner’s premises unrelated to the premises’
condition—and that landowners owe their invitees the general
duty of reasonable care under those circumstances, too.

Id. at 322-23.

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[18] The court, however, clarified the duty of a landowner to an invitee in the

context of a dangerous activity on the land. The court noted that the “critical

element” in deciding whether a duty exists in cases “where an invitee’s injury

occurs not due to a dangerous condition of the land but due to some harmful

activity on the premises . . . is foreseeability.” Id. at 324. The court held that

“the landowner-invitee ‘duty to protect’ generally applies to dangerous activities

on the land and that a court must analyze the foreseeability of harm before

extending this duty to a particular situation.” Id. “This inquiry simply

acknowledges that the landowner-invitee ‘duty to protect’ is not limitless,

because some harms are so unforeseeable that a landowner has no duty to

protect an invitee against them.” Id. Confusion over how to incorporate the

foreseeability into the duty analysis existed, though, because foreseeability is “a

component of both duty and proximate cause.” Id. at 325. In an effort to

provide “clarity for practitioners and courts alike,” our supreme court held:

When foreseeability is part of the duty analysis, as in landowner-
invitee cases, it is evaluated in a different manner than
foreseeability in the context of proximate cause. Specifically, in
the duty arena, foreseeability is a general threshold determination
that involves an evaluation of (1) the broad type of plaintiff and
(2) the broad type of harm. In other words, this foreseeability
analysis should focus on the general class of persons of which the
plaintiff was a member and whether the harm suffered was of a
kind normally to be expected—without addressing the specific
facts of the occurrence. Goodwin v. Yeakle’s Sports Bar and Grill,
Inc., No. 27S02-1510-CT-627, 62 N.E.3d 384, 388-89, 2016 WL
6573824 (Ind. Oct. 26, 2016) (evaluating why this is the
appropriate framework in determining foreseeability in the duty
context). We believe this analysis comports with the idea that

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 “the courts will find a duty where, in general, reasonable persons
would recognize it and agree that it exists.” Gariup Constr. Co.,
Inc. v. Foster, 519 N.E.2d 1224, 1227 (Ind. 1988) (quoting Prosser
& Keeton on Torts § 53, at 357-59 (5th ed. 1984)).

Id.

[19] Applied to the facts of the case, the court noted that it had “repeatedly stated

that a landowner has a duty to take reasonable precautions to protect invitees

from foreseeable criminal attacks.” Id. at 326. The court looked at whether a

duty should be imposed on the homeowner to take precautions to prevent a co-

host from fighting with and injuring a guest at the party. The court determined

that it was “not reasonably foreseeable for a homeowner to expect this general

harm to befall a house-party guest” and that the homeowner was not “an

insurer for all social guests’ safety.” Id. Consequently, the homeowner had no

duty to take reasonable precautions to protect the victim from her boyfriend’s

conduct. The homeowner did, however, have a duty to her social guest to

protect him from exacerbation of an injury occurring in her home, and although

reasonable persons would recognize such a duty, questions of breach and

proximate cause remained for the fact-finder. Id. at 327.

[20] On the same day that Rogers was handed down, our supreme court also handed

down Goodwin v. Yeakle’s Sports Bar and Grill, 62 N.E.3d 384 (Ind. 2016). In

Goodwin, customers of a bar were shot by another patron, and the three victims

filed a negligence complaint against the bar. The trial court found that the

criminal acts were unforeseeable and that the bar did not have a duty to

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anticipate and take steps to prevent the shooter’s conduct. On appeal, our

supreme court further explained duty in the context of whether a landowner

owes an invitee a duty to take reasonable care to protect an invitee from third-

party criminal attacks. Our supreme court held:

[B]ecause foreseeability is—in this particular negligence action—
a component of duty, and because whether a duty exists is a
question of law for the court to decide, the court must of
necessity determine whether the criminal act at issue here was
foreseeable. This is not a “redetermination” of the duty a
landowner owes its invitees. Rather, the focus is on the point
and manner in which we evaluate whether foreseeability does or
does not exist. See [Paragon Family Restaurant v. Bartolini, 799
N.E.2d 1048, 1053 (Ind. 2016)]. And that point initially rests
with the trial court as gatekeeper.

Goodwin, 62 N.E.3d at 389. The court then held that, “for purposes of

determining whether an act is foreseeable in the context of duty we assess

‘whether there is some probability or likelihood of harm that is serious enough

to induce a reasonable person to take precautions to avoid it.’” Id. at 392

(quoting Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 367 (Tenn. 2008)).

Applying these principles to the facts at issue, our supreme court held:

The broad type of plaintiff here is a patron of a bar and the harm
is the probability or likelihood of a criminal attack, namely: a
shooting inside a bar. But even engaging in a “lesser inquiry” we
conclude that although bars can often set the stage for rowdy
behavior, we do not believe that bar owners routinely
contemplate that one bar patron might suddenly shoot another.
To be sure, we doubt there exists a neighborhood anywhere in
this State which is entirely crime-free. Thus, in the broadest

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 sense, all crimes anywhere are “foreseeable.” But to impose a
blanket duty on proprietors to afford protection to their patrons
would make proprietors insurers of their patrons’ safety which is
contrary to the public policy of this state. See [Delta Tau Delta,
Beta Alpha Chapter v. Johnson, 712 N.E.2d 968, 971 (Ind. 1999)].
Further such a blanket duty would abandon the notion of liability
based on negligence and enter the realm of strict liability in tort
which “assumes no negligence of the actor, but chooses to
impose liability anyway.” Cook v. Whitsell-Sherman, 796 N.E.2d
271, 276 (Ind. 2003). We decline to impose such liability here.
In sum we hold that a shooting inside a neighborhood bar is not
foreseeable as a matter of law.

Id. at 393-94 (footnote omitted). Consequently, the court held that the trial

court properly granted summary judgment in the bar’s favor.

[21] With our supreme court’s opinions in Rogers and Goodwin in mind, we will

analyze whether the County, Parks Board, or the Health Department owed a

duty to Abel.

I. Daviess County & Parks Board

[22] Daviess County is a landowner of West Boggs Park, and the Parks Board is the

operator of the Park. We will analyze the duty of the County and the Parks

Board together because, under the Restatement (Second) of Torts § 328E

(1965), a “possessor of land” is “a person who is in occupation of the land with

intent to control it . . . .” The Parks Board is the operator of West Boggs Park

pursuant to Indiana Code Section 36-10-3-29, which authorized the

establishment of a joint department of parks and recreation.

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[23] Under the Rogers/Goodwin analysis, it is unclear whether the infection by the

amoeba would be considered a “condition of the land” or the result of an

activity on the land or a third party’s conduct. Exposure to the amoeba, which

is effectively a wild animal, does not seem to fit squarely into either category.

Regardless, under either analysis, we conclude that neither the County nor the

Parks Board owed a duty to Abel.

[24] If we engage in the standard analysis regarding a landowner’s duty to an invitee

for a condition of the land, we apply the Restatement (Second) of Torts section

343, which provides:

A possessor of land is subject to liability for physical harm caused
to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover
the condition, and should realize that it involves an unreasonable
risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger,
or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the
danger.

Rogers, 63 N.E.3d at 322.

[25] We first focus on whether the County and Parks Board knew or by the exercise

of reasonable care would have discovered the condition and should have

realized that it involved an unreasonable risk of harm to invitees. The Estate

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 admits that “there are currently no known methods of eradicating or controlling

the Amoeba in” lakes. Appellees’ Br. p. 8. However, the Estate argues that,

given the published CDC materials regarding Naegleria fowleri, the County and

Parks Board should have warned swimmers of the possible risks associated with

Naegleria fowleri. According to the Estate, the County and the Parks Board

knew or should have known by the exercise of reasonable care that Naegleria

fowleri was present in the lake, and they should have “follow[ed] the CDC

recommendation that recreational users of warm water bodies of water across

the U.S. should be warned about the de facto presence of the Amoeba in the

water, its risks, and precautions necessary to protect themselves against

infection.” Appellees’ Br. p. 21.

[26] The County designated evidence that the potential presence of Naegleria fowleri

was never brought to the attention of the County’s Board of Commissioners or

“otherwise contemplated during Board meetings” prior to Abel’s death.

Appellants’ App. Vol. II p. 85. Prior to August 7, 2012, the Parks Board

Superintendent had never heard of Naegleria fowleri. The County did not

conduct any water testing at the lake; rather, the Parks Board, which operated

the Park for the County, did so. The Parks Board oversees the lake operations

“including compliance with the applicable health and environmental

regulations governed by Federal, State, and local officials.” Id. at 218. It

routinely tests the water as required by the Indiana State Department of Health,

but those requirements do not include testing for Naegleria fowleri. There had

never been a known Naegleria fowleri infection in Indiana prior to Abel’s death.

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[27] Information from the CDC, which was designated by the defendants,

established that there is no routine or rapid test for the presence of Naegleria

fowleri. 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

Naegleria fowleri because the ameba is naturally occurring and there is no

established relationship between detection or concentration of Naegleria fowleri

and risk of infection.” Id. at 106. 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. “There are no means

yet known that would control natural Naegleria fowleri levels in lakes and rivers.”

Id. at 104.

[28] There is no designated evidence indicating that either the County or the Parks

Board knew of Naegleria fowleri. The designated evidence also indicates that a

PAM infection, especially in Indiana, is very rare. In fact, Abel was the first

known PAM infection in Indiana’s history. There is no rapid, standardized

testing method to detect and quantitate Naegleria fowleri. Even if the County or

the Parks Board had tested for Naegleria fowleri, there is no quantifiable

relationship between finding Naegleria fowleri in the water and predicting the

occurrence of the PAM infection. Under these circumstances, there is no

designated evidence that the County or the Parks Board knew or by the exercise

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 of reasonable care would have discovered the existence of the Naegleria fowleri or

realized that it involved an unreasonable risk of harm to invitees, and the

County and Parks Board did not owe Abel a duty under this analysis.

[29] If we engage in the analysis set out in Rogers and Goodwin, we likewise conclude

that the County and Parks Board were entitled to summary judgment because

no duty to Abel existed. The focus in the Rogers and Goodwin analysis was

foreseeability. We must look at the “broad type of plaintiff” and the “broad

type of harm,” and we will find a duty where “reasonable persons would

recognize it and agree that it exists.” Rogers, 63 N.E.3d at 325. Thus, we must

determine whether it was reasonably foreseeable for a lake owner/operator to

expect a swimmer to contract a PAM infection. Prior to Abel’s death, there

had been no known Indiana PAM infections. Out of millions of recreational

swimming water exposures each year, only 132 people were diagnosed with the

infection between 1962 and 2013. Even if a swimmer is exposed to Naegleria

fowleri, the likelihood of contracting the PAM infection is rare. The majority of

those infections were found in southern states. Under these circumstances, it

was not reasonably foreseeable that Abel would contract a PAM infection, and

the County and the Parks Board did not owe a duty to Abel. The trial court

erred when it denied the County’s and the Parks Board’s motions for summary

judgment.

II. Health Department

[30] The Estate also included the Health Department in its complaint, and the trial

court denied the Health Department’s motion for summary judgment. Where a
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 duty has not been established by law, “we use a three-part balancing test under

which we consider: (1) the relationship between the parties, (2) the reasonable

foreseeability of harm, and (3) public policy concerns.” Neal, 68 N.E.3d at

1117 (citing Webb, 575 N.E.2d at 995, disapproved in other circumstances by

Goodwin, 62 N.E.3d at 391).

[31] The purpose of a local health department is discussed in Indiana Code Section

16-20-1-21, which provides:

Each local health board has the responsibility and authority to
take any action authorized by statute or rule of the state
department to control communicable diseases. The board of each
local health department or a designated representative may make
sanitary and health inspections to carry out this chapter and IC
16-20-8 [dealing with food inspections].

In the designated evidence, the Environmental Health Specialist for Daviess

County noted that the Health Department’s primary purposes “are to ensure

the safe preparation of food for county residents and the sanitary installation

and operation of septic systems.” Appellants’ App. Vol. II p. 78. The Health

Department did not conduct any water testing at the lake; rather, the Parks

Board did so. The Environmental Health Specialist noted that, “[a]t no time

during [his] education, training, certification, or continuing education had [he]

heard naegleria fowleri mentioned, discussed, cautioned against or otherwise

stated.” Id.

[32] The Health Department argues that there was no special relationship between

the Health Department and Abel; the only relationship was one of citizen and
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 public agency that promotes public welfare. As discussed in the context of the

County and Parks Board, the foreseeability harm element also disfavors a

finding of duty here. As for public policy, given that the PAM infection is

extremely rare, the infection is due to an amoeba that is comparable to a wild

animal, there is no rapid, standardized testing method for the presence of

Naegleria fowleri, and there is no known treatment available for lake water, we

do not believe that a blanket imposition of “duty” under these circumstances

promotes public policy. We conclude that, like the County and Parks Board,

the Health Department did not have a duty here.

Conclusion
[33] Although the circumstances here were tragic, we conclude that the County,

Parks Board, and Health Department did not have a duty to Abel.

Consequently, the trial court erred when it denied their motions for summary

judgment. We reverse and remand with instructions to enter summary

judgment in favor of the County, the Parks Board, and the Health Department.

[34] Reversed and remanded.

Kirsch, J., concurs.

Robb, J., concurs in result with opinion.

Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017 Page 20 of 23
 IN THE
COURT OF APPEALS OF INDIANA

Daviess-Martin County Joint Court of Appeals Case No.
Parks and Recreation 19A04-1607-CT-1563
Department, Daviess County
Indiana, and Daviess County
Health Department,
Appellants-Defendants,

v.

The Estate of Waylon W. Abel,
by
John Abel, Personal
Representative, and
John Abel on Behalf of Waylon
W. Abel’s Dependent Children,
Faith Abel, John Abel, and
Gabriel Abel,
Appellees-Plaintiffs.

Martin County Indiana, Martin
County
Health Department and The State of
Indiana,

Rule 17(A) Third-Parties-Defendants.

Robb, Judge, concurring in result.

[35] I respectfully concur in result. Although I agree the trial court’s decision should

be reversed, I cannot agree that it should be reversed on the basis the Appellants

owe no duty to Abel. As the majority notes, as owners/operators of the Park,

Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017 Page 21 of 23
the Appellants have a duty to recreational users of their freshwater lake to

maintain it in “reasonably safe manner.” Slip op. at ¶ 14 (quoting Benton v. City

of Oakland City, 721 N.E.2d 224, 230 (Ind. 1999)). I am unwilling to say the

Appellants have no duty as a matter of law to test for, warn against, or treat

Naegleria fowleri because even though no one using the Park had contracted

PAM prior to Abel, the de facto presence of the amoeba in freshwater lakes and

the devastating consequences of infection were known generally. My objection

to deciding this case based on “duty” is that declaring as a matter of law the

Appellants had no duty here means that even though the presence of the

amoeba is now specifically known within the Park and the serious

consequences of infection are clear, the Appellants would be absolved of any

responsibility with respect to foreseeable harm the presence of the amoeba

might cause going forward. Cf. N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462,

465 (Ind. 2003) (noting the three-part balancing test articulated in Webb v. Jarvis,

575 N.E.2d 992 (Ind. 1991), for determining whether a duty exists “is a useful

tool in determining whether a duty exists . . . only in those instances where the

element of duty has not already been declared or otherwise articulated”). Even

though there had been no known cases of PAM in Indiana prior to this and

even though an extremely small number of cases have occurred nationally, the

common existence of the amoeba in warm freshwater lakes has been known for

at least five decades. I would say owners and operators of freshwater

recreational areas do have a duty to know about the amoeba; the harm it can

cause; and the options for and efficacy of testing, treatment, and warnings to

users. That the Appellants’ did not test for, treat, or warn of the possible
Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017 Page 22 of 23
 presence of the amoeba was not because they made a conscious choice based on

available research and recommendations, but because they were simply

unaware. Although the organism had not previously been identified in this

body of water, I believe the ubiquitous nature of this amoeba should have put

the Appellants on notice that it was most likely present in their lake and satisfies

the foreseeability element of duty.

[36] Having said that, I do not believe the Appellants breached their duty. See Ford

Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007) (stating the plaintiff is

required to prove a duty owed by the defendant, a breach of that duty, and

injury proximately caused by the breach to prevail on a claim of negligence).

Although they should have foreseen the amoeba could be present in the lake,

based on the peculiarities of this organism, the rate of infection compared to the

rate of exposure, and the fact that no one had previously contracted PAM in

Indiana let alone in the Park, I would hold the Appellants could not have

anticipated that harm would come to Abel from using the lake on this occasion.

I therefore concur in reversing the trial court’s denial of the Appellants’ motions

for summary judgment.

Court of Appeals of Indiana | Opinion 19A04-1607-CT-1563 | June 19, 2017 Page 23 of 23