Darren and Shelley Clayton, Individually and as Next Best Friends of Kinser Clayton v. Morgan County Sheriff's Department and Madison Township Fire Department (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 07 2018, 7:26 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Marcia J. Cossell MORGAN COUNTY SHERIFF’S
Lee Cossell & Crowley, LLP DEPARTMENT
Indianapolis, Indiana Daniel M. Witte
Travelers Staff Counsel Indiana
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
MADISON TOWNSHIP FIRE
DEPARTMENT
David L. Ferguson
Megan J. Schueler
Ferguson Law
Bloomington, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Darren and Shelley Clayton, March 7, 2018
Individually and as Next Best Court of Appeals Case No.
Friends of Kinser Clayton, 55A01-1708-CT-1920
Appellants-Petitioners, Appeal from the Morgan Circuit
Court
v. The Honorable Matthew G.
Hanson, Judge
Morgan County Sheriff’s Trial Court Cause No.
Department and Madison 55C01-1509-CT-1554
Township Fire Department,

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 Appellees-Respondents

Baker, Judge.

[1] Darren Clayton (Father) and Shelley Clayton (Mother) appeal the trial court’s

order granting summary judgment in favor of the Morgan County Sheriff’s

Department (the Sheriff’s Department) and the Madison Township Fire

Department (the Fire Department) on the Claytons’ claims arising from the

tragic death of their fifteen-month-old son, Kinser Clayton. The parties raise

multiple issues, but we find one dispositive—whether Father was contributorily

negligent in his son’s death. Finding that he was, and that as a result both

parents are barred from recovering from these governmental entities, we affirm.

Facts
[2] On September 15, 2014, Father was at the family home with his son, Kinser,

and Kyra, the parents’ seven-year-old daughter; Mother was at work. Father

worked from home in his garage and usually had Kinser secured in a play area

in the garage while he worked. On the afternoon in question, Father intended

to do some work that might have been dangerous for Kinser had he been in the

garage. Therefore, after Kyra came home from school, Father removed Kinser

from the garage and took him into the house, leaving him there with Kyra.

Father left the house and garage doors open so that he could maintain a line of

sight and hear what the children were doing; he also physically checked on the

children approximately every ten minutes.
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[3] At some point that evening, about ten minutes after his previous check of the

children, Father went into the house to check on them again. Kinser was not in

the play area. Father ran through the house looking for Kinser for about one

and one-half minutes. He then went outside, where he found Kinser floating in

the family’s swimming pool, unresponsive.

[4] Father took Kinser out of the water and called 911, which is operated by the

Sheriff’s Department. During the call, Father repeatedly requested guidance for

conducting CPR on his son. He was not given any guidance until

approximately three minutes into the call and it is alleged that the guidance he

was ultimately given was faulty. The Fire Department was dispatched to the

scene. Firefighters and paramedics employed by the Fire Department arrived at

the home and continued CPR, remaining onsite for about seven minutes before

transporting Kinser to a hospital. The parents claim that the treatment

provided by the Fire Department employees was negligent. Kinser was later

pronounced dead at the hospital.

[5] On January 7, 2015, the parents provided a Tort Claim notice to the Fire

Department and the Sheriff’s Department under the Indiana Tort Claim Act

(ITCA). The Tort Claim notice listed Mother and Father as “parents and best

friends” of Kinser and “demand[ed] compensation commensurate with the

child’s damages.” Appellants’ App. Vol. III p. 9-10.

[6] On September 8, 2015, the parents filed a complaint against the Fire

Department and the Sheriff’s Department, raising the following claims

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 sounding in negligence: (1) failure to train emergency operators or inadequate

training and supervision against the Sheriff’s Department; (2) failure to follow

protocol against both defendants; (3) negligence against both defendants; and

(4) negligent infliction of emotional distress against both defendants.

Appellants’ App. Vol. VII p. 107-112.

[7] On June 8, 2016, the Sheriff’s Department filed a motion for summary

judgment, and on January 31, 2017, the Fire Department filed a motion for

summary judgment. The parents opposed both motions. Following briefing

and a hearing, the trial court granted both summary judgment motions on July

28, 2017. Among other things, the trial court found that the parents’ own

contributory negligence barred their recovery. The parents now appeal.

Discussion and Decision
[8] Our standard of review on summary judgment is well established:

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. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
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. Freidline v. Shelby Ins.
Co., 774 N.E.2d 37, 39 (Ind. 2002).
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 Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).

[9] The parties raise, and the trial court considered, multiple arguments. But we

find one to be dispositive: whether the parents’ own contributory negligence

operates as a bar to their recovery.

[10] As our Supreme Court has noted, “[i]n 1986, the General Assembly altered

Indiana’s common law by adopting comparative fault as the general rule for

negligence actions.” McSwane v. Bloomington Hosp. and Healthcare Sys., 916

N.E.2d 906, 911 (Ind. 2009). The legislature specifically excluded certain

claims from this alteration, including tort claims against governmental entities

or public employees.1 Ind. Code § 34-51-2-2. For such claims, “[a] plaintiff’s

contributory negligence operates as a complete bar to recovery.” McSwane, 916

N.E.2d at 911. Under contributory negligence, “a claimant whose own

negligence was even slightly causal is barred from recovery. A court should

find a plaintiff contributorily negligent if her conduct falls below the standard to

which she is required to conform for her own protection.” Id. If only one

reasonable inference or conclusion can be drawn from the evidence, the

question of contributory negligence is a question of law for the court. Id.

[11] The parents first point out that it is well established that a child under the age of

seven years old cannot be found contributorily negligent. Creasy v. Rusk, 730

N.E.2d 659, 662 (Ind. 2000). While this is undeniably true, it is also inapposite.

1
It is undisputed that the Sheriff’s Department and the Fire Department are governmental entities.

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 What we must consider here is the parents’ contributory negligence, not the

child’s. See City of Evansville v. Senhenn, 151 Ind. 42, 47 N.E. 634, 634 (1897)

(noting that a parent’s contributory negligence does not bar recovery by a child

for the child’s injuries, but a parent’s contributory negligence to his own

recovery after his child’s injury or death does operate as a bar); Sheridan v.

Siuda, 150 Ind. App. 395, 406-08, 276 N.E.2d 883, 889-90 (1971) (same);

Indianapolis St. Ry. Co. v. Antrobus, 33 Ind. App. 663, 71 N.E. 971, 972 (1904)

(holding that “[i]f the child was the plaintiff, the negligence of the parent would

not be imputed to it; but the father is the plaintiff, and seeks to recover because

of the negligence of the defendant,” so the parents’ negligence was a proper

consideration).

[12] As the Sheridan Court noted, “‘It is the duty of a parent or other person having

the care, custody, and control of a child to exercise ordinary care for its safety,

and, where failure to do so contributes proximately with the negligence of third

persons to cause injury to the child, such parent, or other custodian, is guilty of

contributory negligence . . . .’” Sheridan, 150 Ind. App. at 408, 276 N.E.2d at

890 (quoting 67 C.J.S. Parent and Child § 46). In the case before us, although

the parents correctly point out that there are multiple issues of fact that are in

dispute, the following facts are undisputed:

• Father is Kinser’s parent.
• At the time of Kinser’s death, Father was the only adult custodian
present in the home.
• Father put fifteen-month-old Kinser inside the house with seven-year-old
Kyra while Father remained out in the garage.

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 • Father did not ensure that the children had no access to the family’s
swimming pool. Father assumes that Kinser got out of the house
through a door that Father had propped open. Appellants’ App. Vol. III
p. 54.
• While Kinser was unsupervised, he exited the house and ended up
drowning in the pool.

We find that only one reasonable inference can be drawn from these undisputed

facts, which is that Father was contributorily negligent as a matter of law. As

such, he is barred from any recovery on these claims.

[13] As to Mother, the Seventh Circuit Court of Appeals has considered whether

(under Indiana law) one parent’s contributory negligence leading to a child’s

injuries operates as a bar to recovery by the other parent. Gillam v. J. C. Penny

Co., 341 F.2d 457 (7th Cir. 1965). After a lengthy analysis of caselaw and legal

treatises, the Gillam Court found that it does bar recovery. Id. at 463 (citing,

among other things, Beasley v. United States, 81 F. Supp. 518 (E.D.S.C. 1948),

which found that the “relationship of husband and wife and of parents and

child are so closely and intimately connected that I think it fair to impute to the

mother the knowledge and contributory negligence of the father”; the Gillam

Court also concluded that “under Indiana law, contributory negligence by

[mother] would bar the recovery in the suit brought by her husband for loss of

[their child’s] services and medical expenses”). Consequently, Father’s

contributory negligence also acts as a bar to Mother’s right to recover.

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[14] This family has had to deal with an unimaginable tragedy, which we in no way

intend to minimize. Nor do we intend to cast blame or judgment on Father.

But given this State’s contributory negligence rules, we are compelled to affirm.

[15] The judgment of the trial court is affirmed.

Riley, J., and Brown, J., concur.

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