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,


Court of Appeals of Indiana | Memorandum Decision 55A01-1708-CT-1920 | March 7, 2018           Page 1 of 8
      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.
      Court of Appeals of Indiana | Memorandum Decision 55A01-1708-CT-1920 | March 7, 2018   Page 2 of 8
[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


      Court of Appeals of Indiana | Memorandum Decision 55A01-1708-CT-1920 | March 7, 2018   Page 3 of 8
      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).
      Court of Appeals of Indiana | Memorandum Decision 55A01-1708-CT-1920 | March 7, 2018   Page 4 of 8
       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.


       Court of Appeals of Indiana | Memorandum Decision 55A01-1708-CT-1920 | March 7, 2018                Page 5 of 8
       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.

       Court of Appeals of Indiana | Memorandum Decision 55A01-1708-CT-1920 | March 7, 2018   Page 6 of 8
           • 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.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1708-CT-1920 | March 7, 2018   Page 7 of 8
[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.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1708-CT-1920 | March 7, 2018   Page 8 of 8
