Indiana Court of Appeals Finds Paternal Grandmother Cannot Sue under Child Wrongful Death Statute for Grandson’s Death

The Indiana Court of Appeals recently affirmed the judgment of a trial court finding a paternal grandmother serving as personal representative of her deceased son had no standing to file a wrongful death case under Indiana’s Child Wrongful Death Statute (CWDS) for the death of her grandson. In Johnson v. Harris, a two-year-old boy drowned while swimming in his maternal grandparents’ swimming pool. The boy’s parents divorced 4-5 months after his death and the boy’s father then died four days later. Betty Johnson (“Paternal Grandmother”), as personal representative of the boy’s father’s estate, filed a wrongful death lawsuit against the mother and maternal grandparents. The mother and maternal grandparents filed a motion for summary judgment arguing the CWDS did not allow Paternal Grandmother to file a lawsuit arising from the boy’s death. The trial court granted the motion, and Paternal Grandmother appealed.

The CWDS applies when a child dies because of a wrongful act or omission causing injury or death to the child. Ind. Code § 34-23-2-1. The CWDS defines child in subsection (b) as an unmarried individual without dependents who is less than 20 years old or less than 23 years old and enrolled in a postsecondary educational institution or a career and technical education school or program. The CWDS specifically states who may bring an action under the CWDS in subsection (c): (1) the father and mother jointly, or either of them by naming the other parent as a codefendant to answer as to his or her interest, (2) the person to whom custody of the child was awarded in the case of divorce or dissolution of marriage (with the Indiana Court of Appeals noting in Johnson v. Harris that it had previously interpreted the CWDS to also permit non-custodial parents standing to bring an action for injury or death of a child), and (3) the child’s guardian. The CWDS also provides in subsection (d) that in the case of the death of a person to whom custody of a child was awarded, a personal representative shall be appointed to maintain the action for the child’s death.

Paternal Grandmother argued on appeal that she was entitled to bring the action under subsection (d) because of her son’s death and her appointment as his personal representative. She also argued she was entitled to bring the action under Indiana’s probate code, which allows personal representatives of deceased persons to maintain lawsuits for any demand due the decedent or his estate or for the recovery of property of the estate. However, the mother and maternal grandparents argued that the boy’s father was never awarded custody of the boy and no wrongful death lawsuit had been filed, thus making subsection (d) of the CWDS inapplicable.

Recognizing Indiana’s wrongful death statutes are purely statutory and strictly construed under Indiana law, the Court of Appeals agreed with the boy’s mother and maternal grandparents and held Paternal Grandmother did not have standing to sue under the CWDS.

First, the Court noted the plain language of the CWDS provided 3 categories of persons who can maintain a child wrongful death lawsuit, which did not include Paternal Grandmother. Second, as to subsection (d), the Court discerned from the plain language of the CWDS that the legislature intended parents to have the sole right to file a wrongful death lawsuit, except when both parents lack custody of the child at the time of the child’s death. For instance, the Court opined that in those cases in which both parents die before a lawsuit is filed and at least one of the parents had custody of the child, the CWDS does not allow anyone to file an action under the CWDS after the parents’ deaths. Here, the father had not filed a lawsuit under the CWDS and the mother had chosen not to. Lastly, the Court found Indiana’s probate code did not provide Paternal Grandmother standing because although Paternal Grandmother had the right to sue for damages owed to the father at the time of his death, the father’s right to file a lawsuit for his child’s death expired upon his death. Therefore, the Court affirmed the trial court’s grant of summary judgment finding Paternal Grandmother had no standing to sue for her grandson’s death under the CWDS.

You can read the full opinion here.