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[APPEALS] Johnson v. Harris, No. 20A-CT-2384

By Courts

Wednesday, July 21, 2021 11:00am to 11:40am

[APPEALS] Johnson v. Harris, No. 20A-CT-2384
Court of Appeals of Indiana Courtroom View map

Statehouse, Room 413, Indianapolis, IN, 46204

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This case questions who may file a wrongful death suit arising from a child’s death. Betty Johnson’s two-year-old grandson died tragically from drowning while visiting the home of his maternal grandparents, Ralph and Pamela Harris. The child’s parents, Bobby and Michelle Nicley, divorced shortly afterward, and Bobby retained counsel to file a wrongful death action against the Harrises. Bobby died, and Johnson, as administrator of Bobby’s estate, eventually filed the wrongful death action, naming Michelle Nicley and the Harrises as defendants.

        The trial court granted summary judgment to the defendants, ruling that Indiana Code § 34-23-2-1—the statute governing child wrongful death actions—did not authorize Johnson to file the lawsuit. The trial court concluded that only Michelle Nicley, as the lone surviving parent of the deceased child, could file the lawsuit under these circumstances.

        Johnson appeals, claiming that the trial court erred because Indiana Code § 29-1-13-3 authorizes a personal representative to file suit to recover damages due the decedent or his estate “for the recovery of possession of any property of the estate.” Her argument is that her son, during his lifetime, was due damages for the negligence which allegedly caused his son’s death; therefore, Johnson was entitled under Indiana Code § 29-1-13-3 to file the wrongful death action as representative of his estate. In response, the Appellees argue that Indiana Code § 29-1-13-3 is inapplicable and, in any case, cannot expand the list of people in Indiana Code § 34-23-2-1 who may bring a wrongful death action as a result of a child’s death.

The scheduled panel members are Judges Kirsch and Judge Altice.

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