Governmental Liability

W.D. v. City of Nappanee (Ind. Ct. App. June 6, 2012)

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.