Indiana Appeals Court Upholds Ruling in Favor of Fire Department

The Indiana Court of Appeals has ruled in favor of the Madison Township Fire Department in the wrongful death case of a toddler who drown in his backyard swimming pool. Kinser Clayton died on September 15, 2014 after falling into the family’s swimming pool. He was 15 months old at the time.

Kinser’s parents sued the Morgan County Sherriff’s Department and the Madison Township Fire Department alleging dispatchers failed to promptly give Kinser’s father CPR instructions and firefighters were negligent in the treatment they provided. According to the decision:

  • 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.
  • 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.
  • 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.

The trial court ruled in favor of both the fire department and the sheriff’s department concluding the father was contributorily negligent for Kinser’s death, and thus barred under Indiana law from suing a governmental entity. The Clayton’s appealed.

The Court of Appeals noted that when Indiana adopted comparative negligence in 1986, the legislature adopted several exceptions. “The legislature specifically excluded … tort claims against governmental entities or public employees. Ind. Code § 34-51-2-2. For such claims, ‘[a] plaintiff’s contributory negligence operates as a complete bar to recovery.’”

The court further held that the father’s contributory negligence barred both parents from recovering from a governmental entity. The court also rejected the argument that the contributory negligence would have to have been by Kinser, not his parents, to bar recovery.

  • The parents … point out that it is well established that a child under the age of seven years old cannot be found contributorily negligent.
  • While this is undeniably true, it is also inapposite. What we must consider here is the parents’ contributory negligence, not the child’s.
  • “‘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.”

Here is a copy of the decision: Clayton v Morgan County

It is worth noting that most states do not apply the contributory negligence rule in the same manner as Indiana. It is an “old school” doctrine that most states have abolished as unfair and unnecessary under comparative negligence principles.


About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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