983 N.E.2d 174
Ind. Ct. App.2013Background
- Five-year-old Sheyenne Jenkins drowns in a sunken pool on a property owned by a former homeowner who abandoned the home during bankruptcy proceedings.
- HSBC Mortgage Services, Inc. (mortgagee) and Ian’s Point HOA and CASI (HOA management) are sued in a child wrongful death action.
- Property remained abandoned; pool with a damaged cover became dangerous; CASI and HOA did not take action despite some neighbor reports.
- HSBC, as mortgagee, had rights to protect its interest but had not foreclosed or manifested control over the property.
- Court granted summary judgment to HSBC, the HOA, and CASI, finding no duty owed to protect the child.
- Mother appeals, arguing HSBC was in possession or had a duty; HOA/CASI duties arise from the Declaration or gratuitous assumption of duty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty of possession and premises liability | Erwin argues HSBC possessed the property and owed a duty. | HSBC was not in possession and owed no duty. | HSBC had no possession or duty. |
| HOA/CASI duties under Declaration and assumption | HOA/CASI had duty under Declaration or gratuitous assumption. | No duty under Declaration; CASI did not gratuitously assume duty. | No duties established; judgment affirmed. |
Key Cases Cited
- Risk v. Schilling, 569 N.E.2d 646 (Ind. 1991) (premises liability requires possession to create duty)
- Jackson v. Scheible, 902 N.E.2d 807 (Ind. 2009) (possession and control determine duty; knowledge alone not enough)
- Federal Land Bank of Louisville v. Schleeter, 208 Ind. 9, 194 N.E. 628 (Ind. 1935) (mortgagee possession requires statutory foreclosure or voluntary transfer)
- Parker v. Hubble, 75 Ind. 580 (1881) (parol possession agreements not enforceable; possession rules apply)
- Severson v. Bd. of Trs. of Purdue Univ., 777 N.E.2d 1181 (Ind. Ct. App. 2002) (gratuitous duty requires undertaking to perform and reliance)
- Ember v. B.F.D., Inc., 490 N.E.2d 764 (Ind. Ct. App. 1986) (mere promise without more not a duty unless reliance or increased risk)
- Light v. NIPSCO Indus., Inc., 747 N.E.2d 73 (Ind. Ct. App. 2001) (reliance is central to duty when gratuitous assurances are involved)
- Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968 (Ind. 2005) (grounds for error may be waived if not raised properly)
- Trustcorp Mortg. Co. v. Metro Mortg. Co., Inc., 867 N.E.2d 203 (Ind. Ct. App. 2007) (courts review summary judgments on designated evidence; not limited to findings)