ANDROUSKY v. Walter
2012 Ind. App. LEXIS 256
| Ind. Ct. App. | 2012Background
- James Androusky II, as personal representative, sued Cole Walter after three-year-old James drowned in Walter’s residential pool.
- Open, unfenced backyard pool; Mother, Hollingsworth, and three children were temporarily staying with Walter without a properly supervised setup.
- Walter allowed them to stay one night; next day, James went outside and drowned in the pool.
- Father previously drafted a 2009 document attempting to terminate parental rights in exchange for non-enforcement of child support; relationship with Mother ended in 2008.
- Trial produced a jury verdict for Walter; court gave instructions on licensee vs. invitee, abandonment defense, pool safety regulation, and parental supervision duty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Licensee vs. invitee status instruction | Father argues no invitee status; James was a social guest | Walter contends James was licensee, not invited social guest | Court did not abuse discretion; status could be licensee depending on circumstances |
| Abandonment defense instruction | Father argues no abandonment evidence to support instruction | Walter asserts evidence shows token efforts and abandonment | Instruction supported by the record; no abuse of discretion |
| Administrative pool regulation instruction | Father claims misinterpretation of regulation requiring fence isolation | Walter relies on plain reading allowing home and yard as enclosure | Instruction proper; regulation read to permit fence sharing with home as enclosure; violation not per se negligence; any error, harmless |
| Duty to supervise instruction (Harradon framework) | Father claims instruction misstates duty owed by Walter | Walter argues duty rests with parents when present | Instruction not entirely correct but did not affect substantial rights; finding that Walter did not breach duty and that lack of supervision by Mother was sole proximate cause |
Key Cases Cited
- Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991) (invitation test; social guests entitled to invitee status)
- Rhoades v. Heritage Inv., LLC, 839 N.E.2d 788 (Ind. Ct. App. 2005) (distinguishes invitation versus permission to enter premises)
- Christmas v. Kindred Nursing Ctr. Ltd. P'ship, 952 N.E.2d 872 (Ind. Ct. App. 2011) (invitation vs permission; duty analysis for entrants)
- Zimmerman v. Moore, 441 N.E.2d 690 (Ind. Ct. App. 1982) (negligence evidence standard for regulatory violations as evidence)
- Town of Kirklin v. Everman, 29 N.E.2d 206 (Ind. 1940) (negligence evidenced by regulatory violations relationships)
- Lachenman v. Stice, 838 N.E.2d 451 (Ind. Ct. App. 2005) (negligence evidence regarding regulatory violation)
- Harradon v. Schlamadinger, 913 N.E.2d 297 (Ind. Ct. App. 2009) (child invitee duty; parents’ presence affects breach analysis; appellate standard cited)
- Kelly v. Ladywood Apartments, 622 N.E.2d 1044 (Ind. Ct. App. 1993) (attractive nuisance doctrine inapplicable when parent present and aware of danger)
- Dunifon v. Iovino, 665 N.E.2d 51 (Ind. Ct. App. 1996) (pleasantries/visitor status context)