August 2018 - Parks & Recreation - 34

LAW REVIEW

health and how public health officials would measure and enforce
such a standard. "
Under these circumstances, the
appeals court found no 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. " On the contrary, the appeals court found pretrial evidence
indicated " a PAM infection, especially in Indiana, is very rare. " In
fact, the appeals court noted, " Abel
was the first known PAM infection
in Indiana's history. "
Accordingly, in the opinion of
the appeals court, the County and
Parks Board did not owe Abel
a duty to test the lake water because there was " no rapid, standardized testing method to detect
and quantitate Naegleria fowleri. "
Moreover, even if the County or
the Parks Board had tested for
Naegleria fowleri, there was " no
quantifiable relationship between
finding Naegleria fowleri in the water and predicting the occurrence
of the PAM infection. "
In general, CDC does not recommend testing untreated rivers

Virtual visit to West Boggs Lake
on YouTube: Boggs Lake
https://www.youtube.com/
watch?v=QvPpUxC0NOw

Parks & Recreation

and lakes for Naegleria fowleri
because the amoeba is naturally
occurring and there is no established relationship between detection or concentration of Naegleria fowleri and risk of infection.
According to the CDC, recreational water users should assume that there is a low-level risk
when entering all warm freshwater, particularly in southern-tier
states. There are no means yet
known that would control natural Naegleria fowleri levels in
lakes and rivers.

Reasonably Foreseeable?
In reaching this determination,
the appeals court also considered
" whether it was reasonably foreseeable for a lake owner/operator
to expect a swimmer to contract a
PAM infection. " Moreover, in determining whether Abel was owed
a legal duty of care, the appeals
court would consider the " broad
type of plaintiff " and the " broad
type of harm " to determine if
" reasonable persons would recognize it and agree that it exists. " In
so doing, the appeals court would
determine whether " there had
been no known Indiana PAM infections " prior to Abel's death. In

First responders rescue man
from West Boggs Lake
https://www.youtube.com/
watch?v=24smQLWGcJk

| AU G U ST 2 0 1 8 | W W W. PA R K S A N D R E C R E AT I O N . O R G

the opinion of the appeals court,
" it was not reasonably foreseeable
that Abel would contract a PAM
infection " :
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.
As a result, the appeals court held
" the County and the Parks Board
did not owe a duty to Abel " and the
trial court had erred when it denied
the County's and the Parks Board's
motions for summary judgment.

Public Health Concerns
The appeals court also reviewed
the Estate's complaint against
the defendant health department.
Under state law, a local health department had the authority and
responsibility to control communicable diseases. That being the
case, an environmental health
specialist for the county had indicated the health department's
primary purposes were " to ensure
the safe preparation of food for

Electrofishing Indiana DNR
https://www.youtube.com/
watch?v=fHfwaVtJH80

August 2018 - Parks & Recreation

Table of Contents for the Digital Edition of August 2018 - Parks & Recreation