Dec 14 2015, 8:57 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew L. Teel Jane E. Malloy Lindsey C. Swanson Ashley A. O’Neil Haller & Colvin, P.C. Malloy Law, LLC Fort Wayne, Indiana Fort Wayne, Indiana
IN THE COURT OF APPEALS OF INDIANA
F. John Rogers, as Personal December 14, 2015 Representative of Paul Michalik, Court of Appeals Cause No. Deceased, and R. David Boyer, 02A05-1506-CT-520 Trustee of the Bankruptcy Estate Appeal from the Allen Superior of Jerry Lee Chambers, Court The Honorable Craig J. Bobay, Appellants, Judge Trial Court Cause No. v. 02D02-1204-CT-191
Angela Martin and Brian Paul Brothers,
Appellees.
Barnes, Judge.
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 1 of 15 Case Summary [1] F. John Rogers, as the personal representative of Paul Michalik, deceased, and
R. David Boyer, as trustee of the bankruptcy estate of Jerry Chambers,
(collectively “the Appellants”) appeal the trial court’s granting of a motion to
strike and a motion for summary judgment filed by Angela Martin. We reverse
and remand.
Issues [2] The Appellants raise two issues.1 We address the dispositive issues, which we
restate as:
I. whether the trial court properly granted summary judgment on the Appellants’ Dram Shop Act claim; and
II. whether the trial court properly granted summary judgment on the Appellants’ claim that Martin negligently failed to render aid.
Facts [3] In May 2010, Martin was in a romantic relationship with Brian Brothers, who
had lived with Martin since 2006 in a house owned by Martin. Martin made
substantially more money than Brothers, who cashed his paychecks and gave
1 The Appellants also argue that the trial court improperly granted Martin’s motion to strike exhibits to her deposition, which were designated by the Appellants in response to Martin’s motion for summary judgment. Martin argues that the photos of Michalik dead in Martin’s yard were unauthenticated and that the police report contained unsworn statements, which were inadmissible under Trial Rule 56(E). However, because we resolve the propriety of summary judgment without considering the challenged evidence, we need not decide this issue.
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 2 of 15 most of the money to Martin. Martin then deposited the money in her personal
checking account, which was used to pay bills and other household expenses.
Brian used the debit card associated with Martin’s checking account to make
purchases and withdraw money.
[4] The couple decided to have a birthday party for Brothers on May 8, 2010. They
invited friends, family, and coworkers, and guests were allowed to bring their
significant others. Brothers bought a keg of beer, which he paid for using the
debit card associated with Martin’s checking account, and set it up in the
garage. About fifty people attended the party, including Brother’s coworker
Jerry Chambers and his significant other Paul Michalik. Generally, guests
served themselves from the keg. However, a pitcher was used to take beer from
the keg to the basement. At one point, Martin used the pitcher to take beer to
the basement. It is possible that Brothers was playing poker at that time.
[5] At around 2:00 a.m., about ten guests remained, playing cards in basement, and
Martin went to bed. She was awoken at approximately 3:30 a.m. by Brothers,
who told her that, when he asked Chambers and Michalik to leave, a fist fight
ensued, during which he fought Chambers and Michalik and punched
Chambers in the nose. Brothers asked for Martin’s help getting Chambers and
Michalik to leave. When Martin went to the basement, Michalik was lying
unconscious on the floor. Brothers and Chambers checked for a pulse and
confirmed that Michalik was breathing. Martin returned to bed as Brothers and
Chambers carried Michalik upstairs to leave. When Brothers came to bed,
Martin asked if Chambers and Michalik had left. Brothers said no, and Martin
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 3 of 15 instructed him to make sure the men got into their car and left. Shortly
thereafter, police arrived, and Michalik was found dead in Martin’s yard.
[6] The Appellants filed a complaint against Martin and Brothers alleging in part
that Martin violated the Dram Shop Act by furnishing alcohol to Brothers and
that Martin failed to render aid to Michalik. Martin filed a motion for
summary judgment, and the Appellants responded. Martin then replied, and a
hearing was held. The trial court granted Martin’s motion for summary
judgment. The Appellants now appeal.
Analysis [7] Summary judgment is proper only where the designated evidence shows that
there are no genuine issues of material fact and that the moving party is entitled
to a judgment as a matter of law. Ind. Trial Rule 56(C). We review summary
judgment de novo and apply the same standard as the trial court. Young v.
Hood’s Gardens, Inc., 24 N.E.3d 421, 423 (Ind. 2015). “We consider only those
materials properly designated pursuant to Trial Rule 56 and construe all factual
inferences and resolve all doubts as to the existence of a material issue in favor
of the non-moving party.” Id. at 424. “Summary judgment is appropriate when
the undisputed material evidence negates one element of a claim.” Estate of
Mintz v. Connecticut Gen. Life Ins. Co., 905 N.E.2d 994, 998 (Ind. 2009).
I. Dram Shop Act Liability
[8] The Appellants allege that Martin is liable under Indiana’s Dram Shop Act.
“In Indiana, common law liability for negligence in the provision of alcoholic
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 4 of 15 beverages is restricted to cases involving the breach of a statutory duty.” Rauck
v. Hawn, 564 N.E.2d 334, 337 (Ind. Ct. App. 1990). Because Brothers was not a
minor, Indiana Code Section 7.1-5-10-15 identifies the specific conduct giving
rise to liability. See id. That statute prohibits a person from, knowing that
another person is intoxicated, selling, bartering, delivering, or giving away an
alcoholic beverage to the intoxicated person. Ind. Code § 7.1-5-10-15.2
However, civil liability is limited by Indiana Code Section 7.1-5-10-15.5, which
provides in part:
(a) As used in this section, “furnish” includes barter, deliver, sell, exchange, provide, or give away.
(b) A person who furnishes an alcoholic beverage to a person is not liable in a civil action for damages caused by the impairment or intoxication of the person who was furnished the alcoholic beverage unless:
(1) the person furnishing the alcoholic beverage had actual knowledge that the person to whom the alcoholic beverage was furnished was visibly intoxicated at the time the alcoholic beverage was furnished; and
(2) the intoxication of the person to whom the alcoholic beverage was furnished was a proximate cause of the death, injury, or damage alleged in the complaint.
2 This statute was modified in 2014, but the substance of the statute remained the same.
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 5 of 15 The Dram Shop Act represents a legislative judgment that providers of
alcoholic beverages should be liable for the reasonably foreseeable
consequences of knowingly serving visibly intoxicated persons. Pierson v. Serv.
Am. Corp., 9 N.E.3d 712, 716 (Ind. Ct. App. 2014) trans. denied. We have held
that the legislature intended, and public policy supports, “the extension of civil
liability to family, friend or acquaintance who merely furnishes ‘one more
drink’ to an intoxicated person.” Ashlock v. Norris, 475 N.E.2d 1167, 1169 (Ind.
Ct. App. 1985).
[9] Martin moved for summary judgment only on the basis that she did not furnish
alcohol to Brothers. “In each case where it has been held that a defendant
furnished alcohol to another for his or her use in violation of the statutes, the
supplier was ‘the active means’ by and through which the liquor was placed in
the custody and control of the intoxicated person.” Rauck, 564 N.E.2d at 337
(citing Lather v. Berg, 519 N.E.2d 755, 761 (Ind. Ct. App. 1988)). The
Appellants contend that, because Martin’s debit card was used to purchase the
keg and she delivered a pitcher of beer while Brothers might have been playing
poker, there are genuine issues of material fact regarding whether she furnished
alcohol to Brothers. In response, Martin asserts that she was not the active
means by which Brothers acquired the alcohol because Brothers procured the
keg using a debit card associated with an account in which his money was
deposited and jointly hosted the party with Martin at the home they shared.
[10] In support of her assertion that she is not liable, Martin cites Lather, in which
three teens, Joseph Berg, Ronald Bailey, and Keith Murphy, “together devised
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 6 of 15 the plan” to ask someone to buy the liquor for them. Lather, 519 N.E.2d at 763.
After acquiring the alcohol, one of the teens drove drunk, was involved in a
high-speed chase, and crashed into a patrol car, killing the officer. In
determining that summary judgment for Murphy’s cohorts was proper, we
observed:
we have found no case in Indiana or elsewhere holding that conduct such as that presented here constitutes furnishing an alcoholic beverage to another person. It is not for this court to declare “that they who drink together should pay together if one of the group injures a third party.” Any such consequence is a policy determination for the legislature.
Id. (citations omitted).
[11] The extremely fact sensitive nature of these cases makes comparison difficult.
For example, in Lather the issue of joint control was relevant where Berg poured
Murphy’s first drink and, thereafter, Murphy poured his own drinks or drank
straight from the bottle of alcohol and, for the most part, Berg and Murphy
shared the bottle of alcohol. We observed that “Berg and Murphy clearly
acquired possession of the liquor simultaneously . . . and exercised joint control
over it throughout the evening.” Id. We concluded, “Berg did not deliver or
transfer any alcohol to Murphy which Murphy did not already possess.” Id.
[12] Here, however, the issue is not the joint control of a single bottle of alcohol;
instead, the issue is whether Martin furnished Brothers beer from a keg, which
was purchased by Martin and Brothers and shared with their guests. Although
Brothers testified that he poured all of his own beer from the keg, Martin Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 7 of 15 testified that she served a pitcher of beer to the poker players in the basement
and it is possible Brothers was at the table.
[13] In Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014), our supreme court
reminded us that summary judgment allows a trial court to dispose of cases
where only legal issues exist; it is not a summary trial. “Indiana consciously
errs on the side of letting marginal cases proceed to trial on the merits, rather
than risk short-circuiting meritorious claims.” Id. at 1004. The possibility that
Martin served beer to Brothers, even if they jointly acquired the keg itself, is
sufficient, though minimally so, to raise a factual issue to be resolved at trial.3
See id. As such, Martin has not negated an element of the Appellants’ claim so
as to justify summary judgment on this claim.
II. Failure to Render Aid
[14] Martin also sought summary judgment on the Appellants’ claim that Martin
failed to render aid to Michalik. To recover on a theory of negligence, the
Appellants must establish: (1) Martin’s duty to conform her conduct to a
standard of care arising from her relationship with Michalik; (2) Martin’s failure
to conform her conduct to that standard of care; and (3) an injury to Michalik
proximately caused by the failure. See Estate of Heck v. Stoffer, 786 N.E.2d 265,
268 (Ind. 2003).
3 Again, because Martin moved for summary judgment only on the issue of whether she furnished alcohol to Brothers, whether Brothers was visibly intoxicated is not an issue before us today.
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 8 of 15 A. Duty to Render Aid
[15] Whether a defendant has a duty to conform his or her conduct to a certain
standard for the plaintiff’s benefit is a question of law for the court to decide.
Id. Courts will generally find a duty where reasonable persons would recognize
and agree that it exists. Id.
[16] “As a general rule, an individual does not have a duty to aid or protect another
person, even if he knows that person needs assistance.” Baker v. Fenneman &
Brown Properties, LLC, 793 N.E.2d 1203, 1206 (Ind. Ct. App. 2003). As we
discussed in Baker, the Restatement (Second) of Torts § 314A describes certain
circumstances in which a party has a duty to render aid. Section 314(A)
provides:
(1) A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 9 of 15 (4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.
[17] Martin contends that she did not owe Michalik a duty to render aid because
Section 314A does not impose such a duty on a social host. Although this
provision does not expressly impose a duty to render aid on a social host, it was
not intended to be an exclusive list of relationships that create a duty to render
aid. See Restatement (Second) § 314A cmt b (“The relations listed are not
intended to be exclusive, and are not necessarily the only ones in which a duty
of affirmative action for the aid or protection of another may be found.”).
Thus, although Section 314A does not specifically include a social host/guest
relationship, it does not exclude the imposition of such a duty.
[18] In circumstances where the element of duty has not already been declared or
otherwise articulated, the three-part balancing test articulated in Webb v. Jarvis,
575 N.E.2d 992 (Ind. 1991), is a useful tool in determining whether a duty
exists. See N. Indiana Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003).
“This analysis involves a balancing of three factors: (1) the relationship between
the parties, (2) the reasonable foreseeability of harm to the person injured, and
(3) public policy concerns.” Kramer v. Catholic Charities of Diocese of Fort Wayne-
S. Bend, Inc., 32 N.E.3d 227, 233 (Ind. 2015) (citing Webb, 575 N.E.2d at 996).
[19] Regarding the relationship between the parties, Michalik was a guest in the
home Martin shared with Brothers. Although Michalik was not specifically
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 10 of 15 invited to the party, Chambers was personally invited, and Michalik was there
as Chambers’s significant other. There is designated evidence showing that it
was “okay” for Chambers to bring his significant other. App. p. 138.
[20] In the context of premises liability, our supreme court has held, “A landowner
owes to an invitee or social guest ‘a duty to exercise reasonable care for his
protection while he is on the landowner’s premises.’” Pfenning v. Lineman, 947
N.E.2d 392, 406 (Ind. 2011) (quoting Burrell v. Meads, 569 N.E.2d 637, 639
(Ind. 1991)). The Burrell court reasoned, “If a landowner induces a social guest
to enter his land by express or reasonably implied invitation, then the
landowner leads that guest, like any other entrant, to believe that the land has
been prepared for his safety.” Burrell, 569 N.E.2d at 643. We see no reason
why a social host should be required to keep the premises reasonably safe for
social guests but should not have a duty to render aid to an injured guest on his
or her property. Thus, the social host/guest relationship is a special
relationship as it relates to a duty to render aid.
[21] “Regarding the reasonable foreseeability of harm, ‘we examine what forces and
human conduct should have appeared likely to come on the scene, and we
weigh the dangers likely to flow from the challenged conduct in light of these
forces and conduct.’” Kramer, 32 N.E.3d at 234 (quoting Webb, 575 N.E.2d at
997). “‘Foreseeability does not mean that the exact hazard or precise
consequence should have been foreseen, but it also does not encompass
anything that might occur.’” Id. (citation omitted). Here, Martin was awoken
by Brothers, who was upset because Chambers and Michalik refused to leave
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 11 of 15 and “attacked him and . . . he fought them both.” App. p. 149. Martin knew
that Brothers had punched Chambers in the nose and, when Martin saw
Chambers, he had blood on his face. Although Michalik did not appear to
Martin to be injured from the fight, when Martin saw him he was lying
unconscious on the floor. Brothers and Chambers checked Michalik’s pulse
and confirmed he was breathing. Then, Michalik had to be carried out of the
house by Brothers and Chambers. These facts establish that harm to
Michalik—from the fight or intoxication or a combination of both—was
reasonably foreseeable.
[22] Finally, regarding public policy, Martin contends that imposing a duty to
render aid on a host places an onerous burden on people with no medical
training to diagnose injuries and determine what aid is appropriate. In Baker,
we rejected a similar argument after recognizing that the duty to render aid only
requires one to “‘exercise reasonable care under the circumstances.’” Baker, 793
N.E.2d at 1210 (quoting Restatement (Second) § 314A cmt e).
[23] In the context of an invitee/invitor relationship, our supreme court
acknowledged “that, under some circumstances, moral and humanitarian
considerations may require one to render assistance to another who has been
injured, even though the injury was not due to negligence on his part and may
have been caused by the negligence of the injured person.” L.S. Ayres & Co. v.
Hicks, 220 Ind. 86, 94, 40 N.E.2d 334, 337 (1942). The L.S. Ayres court
acknowledged that other relationships may impose a similar obligation but
declined to further pursue that inquiry at that time. Id. at 95; 40 N.E.2d at 337.
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 12 of 15 Having determined that the social host/guest relationship is a special
relationship, we believe that the same moral and humanitarian concerns require
a social host to render assistance to an injured person in his or her home
regardless of the cause of the injury.
[24] Thus, having considered the relationship between a social guest and a host, the
foreseeability of harm to someone who is unconscious after an evening of
drinking and a fist fight, and the moral and humanitarian concerns of requiring
one to aid an injured guest in his or her home, we conclude that Martin had a
duty to exercise reasonable care under the circumstances. This conclusion is
consistent with our holding in Baker, in which we held a business invitor had a
duty provide assistance to a patron even though the business was not
responsible for the patron’s illness. See Baker, 793 N.E.2d at 1210.
B. Breach of Duty to Render Aid
[25] Martin argues that, even if she had a duty to render aid, she did not breach her
duty as matter of law. “Whether a particular act or omission is a breach of duty
is generally a question of fact for the jury.” Sharp, 790 N.E.2d at 466. Breach
can be a question of law where the facts are undisputed and only a single
inference can be drawn from those facts. Id.
[26] Comment f to Section 314(A) explains that the defendant:
is not required to take any action beyond that which is reasonable under the circumstances. In the case of an ill or injured person, he will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick man
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 13 of 15 over to a physician, or to those who will look after him and see that medical assistance is obtained. He is not required to give any aid to one who is in the hands of apparently competent persons who have taken charge of him, or whose friends are present and apparently in a position to give him all necessary assistance.
[27] Here, when Martin saw Michalik lying on the basement floor, she asked if he
was okay and Chambers and Brothers checked his pulse and confirmed that he
was breathing. Martin stated that she thought Michalik was “just passed out
from drinking too much or something” and suggested that Chambers “take him
and make sure he doesn’t have any alcohol poisoning.” App. p. 209 (quotation
omitted). Chambers and Brothers then carried Michalik upstairs by his arms
and legs, and Martin went back to her room. When Brothers eventually came
to bed, Martin asked if everything was taken care of, and Brothers said no and
indicated they had not left the property.
[28] Martin contends that she did not breach any duty owed to Michalik because,
when she left Michalik, he was not left unattended; he was being carried
upstairs by Brothers and Chambers. In response, the Appellants question
Chambers’ competency to care for Michalik. Whether Martin’s actions were
reasonable under these facts is a quintessential question of fact for the jury to
decide. Martin has not shown that the question of breach can be decided as a
matter of law.
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 14 of 15 Conclusion [29] Because there is a question of fact regarding whether Martin furnished alcohol
to Brothers, the trial court erroneously granted summary judgment to Martin on
the Appellants’ Dram Shop Act claim. Further, we conclude that Martin, as a
social host, owed Michalik a duty to render aid, and questions of fact remain
regarding whether she breached that duty. We reverse and remand.
[30] Reversed and remanded.
Kirsch, J., and Najam, J., concur.
Court of Appeals of Indiana | Opinion 02A05-1506-CT-520 | December 14, 2015 Page 15 of 15