Barnes, J.
Case Summary
In this interlocutory appeal, the Daviess-Martin Joint County Parks & Recreation Department (“Parks Board”), Daviess County, Indiana (“the County”), and the Daviess County Health Department (“Health Department”) (collectively, the “Appellants”) appeal the trial court’s denial of their motions for summary judgment regarding a negligence claim by the Estate of Waylon Abel by John Abel, Personal Representative, and John Abel on behalf of the dependent children of Waylon Abel (collectively, “the Estate”). We reverse and remand.
Issue
Appellants raise several issues, and we find one dispositive: whether the Appellants owed a duty to Abel. [Footnote omitted.]
….
With our supreme court’s opinions in Rogers and Goodwin in mind, we will analyze whether the County, Parks Board, or the Health Department owed a duty to Abel.
….
Under the Rogers/Goodwin analysis, it is unclear whether the infection by the amoeba would be considered a “condition of the land” or the result of an activity on the land or a third party’s conduct. Exposure to the amoeba, which is effectively a wild animal, does not seem to fit squarely into either category. Regardless, under either analysis, we conclude that neither the County nor the Parks Board owed a duty to Abel.
….
There is no designated evidence indicating that either the County or the Parks Board knew of Naegleria fowleri. The designated evidence also indicates that a PAM infection, especially in Indiana, is very rare. In fact, Abel was the first known PAM infection in Indiana’s history. There is no rapid, standardized testing method to detect and quantitate Naegleria fowleri. Even if the County or the Parks Board had tested for Naegleria fowleri, there is no quantifiable relationship between finding Naegleria fowleri in the water and predicting the occurrence of the PAM infection. Under these circumstances, there is no designated evidence that the County or the Parks Board knew or by the exercise of reasonable care would have discovered the existence of the Naegleria fowleri or realized that it involved an unreasonable risk of harm to invitees, and the County and Parks Board did not owe Abel a duty under this analysis.
If we engage in the analysis set out in Rogers and Goodwin, we likewise conclude that the County and Parks Board were entitled to summary judgment because no duty to Abel existed. The focus in the Rogers and Goodwin analysis was foreseeability. We must look at the “broad type of plaintiff” and the “broad type of harm,” and we will find a duty where “reasonable persons would recognize it and agree that it exists.” Rogers, 63 N.E.3d at 325. Thus, we must determine whether it was reasonably foreseeable for a lake owner/operator to expect a swimmer to contract a PAM infection. Prior to Abel’s death, there had been no known Indiana PAM infections. Out of millions of recreational swimming water exposures each year, only 132 people were diagnosed with the infection between 1962 and 2013. Even if a swimmer is exposed to Naegleria fowleri, the likelihood of contracting the PAM infection is rare. The majority of those infections were found in southern states. Under these circumstances, it was not reasonably foreseeable that Abel would contract a PAM infection, and the County and the Parks Board did not owe a duty to Abel. The trial court erred when it denied the County’s and the Parks Board’s motions for summary judgment.
….
Conclusion
Although the circumstances here were tragic, we conclude that the County, Parks Board, and Health Department did not have a duty to Abel. Consequently, the trial court erred when it denied their motions for summary judgment. We reverse and remand with instructions to enter summary judgment in favor of the County, the Parks Board, and the Health Department.
Reversed and remanded.
Kirsch, J., concurs. Robb, J., concurs in result with opinion.
Robb, Judge, concurring in result.
I respectfully concur in result. Although I agree the trial court’s decision should be reversed, I cannot agree that it should be reversed on the basis the Appellants owe no duty to Abel….My objection to deciding this case based on “duty” is that declaring as a matter of law the Appellants had no duty here means that even though the presence of the amoeba is now specifically known within the Park and the serious consequences of infection are clear, the Appellants would be absolved of any responsibility with respect to foreseeable harm the presence of the amoeba might cause going forward….Although the organism had not previously been identified in this body of water, I believe the ubiquitous nature of this amoeba should have put the Appellants on notice that it was most likely present in their lake and satisfies the foreseeability element of duty.
Having said that, I do not believe the Appellants breached their duty. See Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007) (stating the plaintiff is required to prove a duty owed by the defendant, a breach of that duty, and injury proximately caused by the breach to prevail on a claim of negligence). Although they should have foreseen the amoeba could be present in the lake, based on the peculiarities of this organism, the rate of infection compared to the rate of exposure, and the fact that no one had previously contracted PAM in Indiana let alone in the Park, I would hold the Appellants could not have anticipated that harm would come to Abel from using the lake on this occasion. I therefore concur in reversing the trial court’s denial of the Appellants’ motions for summary judgment.