*1 case, present Progres- In the Kruse and negligently nose and injuries. treat her giv- sive admitted the accident Under these circumstances: ing rise to this action. The evidence was The blameless tort victim should not bear undisputed that Whitaker had suffered expense litigating with his doctor injury her neck some and back as a certainly and should not bear the risk of accident, although result of the the extent having pay charges tort-caused injury disputed. only of that was issue escapes, tort-feasor since neither item is Progressive through raised Kruse and to the victim's fault. attributable expert their witnesses was whether Whit Bakeries, Hillebrandt v. Holsum Inc. had physicians aker's chosen the correct La.Ct.App., 267 So.2d treating course action her neck and gave Because the trial court an instruc- injuries. Progressive's Kruse and back ex- jury tion to the clearly which was a mis- pert dispute witnesses did not that Whit- law, statement of the and a review of the injuries aker had suffered back and neck evidence indicates that the verdict could from the automobile accident or that Whit- certainly have differed if correct instruc- qualified physicians aker had selected given, tions were we reverse and remand injuries. treat her There was no evidence this action to the trial court for a new trial that the course of treatment chosen damages issue. physicians experimental; was rather it was Reversed and remanded. merely alleged given options avail- able, Progressive's expert Kruse and wit- CONOVER, JJ., MILLER and concur. nesses would have elected to continue con- perform servative treatments rather than

surgery.

There was no evidence Whit

aker's initial decision to seek medical care Rather, inappropriate unnecessary. injuries

she took actions to have her treat physicians'

ed and followed her advice. Progressive's instruction, jury Kruse and CAMPBELL, Appellant, Jane M. court, given by which was the trial in jury structed the that Whitaker could not injuries

recover for her if the evidence indi BOARD TRUSTEES of WABASH operation performed cated that COLLEGE, Sigma or, essence, unnecessary that Whitaker's Chapter Delta Chi Frater- physicians misdiagnosed and mistreat nity, Appellees. injuries. clearly ed her This instruction No. 06A01-8601-CV-1. erroneous and necessitates the reversal of Indiana, negli Appeals this action. Given admission Court of gence undisputed and the evidence that District. First Whitaker suffered back and neck July16,1986. properly the accident for which she treatment, sought it was clear that Whit damages

aker had suffered some for which

she was entitled to recover.

It was foreseeable that the rear-end colli- passengers

sion could in the cause

impacted vehicle. It was also foreseeable

that the have to seek medical victim would physicians might

treatment and that her

misdiagnose properly diag- and mistreat or *2 Jr., Townsend, Townsend,

John F. Hovde Montross, Indianapolis, appellant. &

Stephen Jr., Terry, W. McLaugh- Alan L. lin, Daniels, Baker & Indianapolis, Peter L. Parr, Obremskey, Richey, Obremskey & Morton, Lebanon, for The Bd. of Trustees College. Wabash Earnshaw, Harding,

James R. Henthorn Harris, Crawfordsville, & for Delta Chi Chapter Sigma Fraternity.

NEAL, Judge.

STATEMENT THE OF CASE Plaintiff-appellant, Campbell Jane M. (Campbell), appeals judgment an adverse Superior rendered the Boone Court in a summary judgment proceeding.

We affirm.

STATEMENT OF THE FACTS undisputed facts are as follows. (Heslin) Bruce Heslin awas student College (College) Wabash in Crawfords- ville, Indiana. He was also a member of Fraternity, Inc. and its local chapter, Chapter the Delta Chi (Fraternity), off-campus social located building situated in a owned Fraternity. During but leased evening 17, 1982, hours of November early morning hours of November entertaining Campbell, Heslin was Mary student from St. of the Woods Col- lege, an all women located in Terre Haute, Indiana. The bulk of the time that Campbell together Heslin and evening morning apparently spent in Heslin's Fraternity. own room at the together, While Heslin and con- sumed alcoholic which Heslin purchased provided. himself Neither beverages to friends and College or serve alcoholic Campbell attended a nor Heslin sponsored during neighbors subjecting event the time himself to a without period involved. dollar lawsuit multi-million protection, the ramifica he has little or no during early morning Sometime party liability are tions of third broad 18, 1982, Heslin at- of November hours reason, For that we take this sweeping. Mary of Campbell to St. tempted to return *3 opportunity to review the law in Indiana College. attempt That ended the Woods regarding the theories under which third when approximately 5:00 a.m. abruptly at may negligent parties be held liable for the Road 475 automobile left Heslin's State acts of drunk drivers.1 Campbell suf- into a ditch. and careened Shortly after the injuries. serious fered Beverages Providers Aleoholic as Third of occurred, determined that it was accident Parties. alcohol level exceeded Heslin's blood Traditionally, the common law did not limit, arrested. Heslin legal and he was party liability providers on of place third of the years age 21 at the time beverages, they were alcoholic whether accident. providers hosts. commercial or social See against Campbell filed this action 598, (1966), Fisher 247 Ind. Elder v. College, the of Trustees of Wabash Board 847, quoting Intoxicating 30 am.Jur. N.E.2d Inc., Fraternity, and the Delta Sigma Chi (1958). long as the Liquors, See. 520 So alleg- Fraternity Chapter of receiving "strong the alcohol was a negligent in that ing all three that were provider man" the and able-bodied an alco- they permitted Heslin to consume any alcohol related acts liable for beverage premises of the Col- holic on the Id; v. Aden of the drinker. see also Cruse knowing that Heslin lege 231, (1889), per This 127 Ill. 20 N.E. 73. after con- operate a motor vehicle would principle spective was founded beverage. suming the cause; serving of alcohol proximate subsequent neg being remote from the too ISSUE drinker, proximate i.e. the ligent act of the summary judg- that contends drinking of negligence was the cause of the since, a matter inappropriate ment was alcohol, serving it. not the See law, defendants had a all three (1951), 197 Joyce ex rel. v. State Hatfield consumption Heslin's of alcoholic control 249, A.2d 754. Md. beverage person- Heslin beverage; a had enacted a early as As ally bought privacy consumed in the liability for the cost of placing civil statute fraternity room. his own fifty percent penalty on boarding plus a AND DECISION DISCUSSION in caused others become persons who care for them then refused to toxicated and case comes to us at a time when This enough to return they sober until driving para- concerns 1853 Ind.Acts Ch. home unassisted. significant portion mount in the minds of a (1858), 11 v. Sec. See Struble society. Nodwift of these concerns re- of our One existing liquor By the then Ind. 64. parties of third for the gards the a civil cause of specifically for law the third of drunken drivers. Whether acts resulting damages from a recover action to provider of aleohol- party is the commercial statute. Ind.Rev.Stat. of the See violation beverages experiencing enormous ic who is liability insurance Dunlop in the cost of see increases Ch. See. However, 85 Ind. 529. all), Wagner (if or the host of a he can obtain it at prohibit the statute did not chapter he can of the whether private who wonders Driving: Road" Becomes One When "One of third excellent discussion 1. For an for drivers, Courts, party liability see virurev. 1119 for the acts of drunk Comment, Liability Party Drunken Third beverages already sale of District, alcoholic In again speak Third Garrard, ing through Judge follow, held years intoxicated. In the numer that a person who, cause of action ous amendments in were made to statutes 7.1-5-10-15, violation of IND. gra CODE regulating the sale and use of alcoholic tuitously beverages served alcoholic to an beverages, no reference re already intoxicated is available to garding arising a civil cause of action from persons subsequently injured by in alcohol liquor a violation of the state laws still duced acts per of the intoxicated Elder, existed the Indiana statutes. See son. Ind.App., Ashlock v. Norris fact, supra. Despite supreme our In denied. Ash provider court held 1966 that a retail lock, a woman approxi entered a bar at who, beverages alcoholic violation of mately p.m. 8:45 and ordered a mixed statute, beverages sold alcoholic to a minor drink. There was no evidence that she had civilly could be held liable for suf any intoxicating drunk day *4 by fered another as a result of an automo entering before the bar. At approximately by bile accident occasioned the minor after p.m., 5:00 accompanied the woman was by he had become intoxicated from the bever companion, male the By defendant. 7:30 Elder, age illegally supra. sold to him.2 p.m., the woman had consumed one more proposition That decision was based mixed drink tequila. and three shots of purpose if a statute is enacted for a The by shots were the defendant. "wholly prevent different" than to the time, dropped At about that the woman her complains, of which the if victim and and, purse, attempt it, in an to retrieve fell designed protect the statute was a class to the required floor. She assistance to stand and was assisted to her car the persons plaintiff belongs, to which the defendant. The spent defendant then sev "duty neg the owed" element of actionable attempting eral minutes to dissuade the ligence is established. Id. at driving. woman from She rebuffed his ef N.E.2d at 850. forts and insisted that she had to leave. court, In the Third District of this Shortly bar, driving away after from the speaking through Garrard, Judge found the woman drove onto the shoulder of the reasoning upon which Elder was based road, striking killing jogger. and In con applicable brought to an action under IND. cluding against that a cause of action 7.1-5-10-15, prohibits CODE acquaintance existed in favor of the male sale, barter, delivery, gift intoxicating or estate, decedent's the court stated that persons already intoxicated. enacting legis IND. CODE 7.1-5-10-15 the (1980), Ind.App., Parret v. Lebamoff lature intended to hold friends and rela N.E.2d 1344. Parret involved a situation merely provide tives already who an intoxi where the administratrix of decedent's person with cated "one for the road" liable brought against opera- estate an action per caused the intoxicated tors of a bar. She claimed that the defend- son as a result of his inebriated state. Ashlock, liability ants, Under would attach re in violation of IND. CODE 7.1-5-10- gardless persistent 15, had per efforts made to the decedent alcoholic served bever- drive, ages already regard after the suade the drunk not to and decedent be- intoxicated, less of how intoxicated the upon leaving come and that single provided by before the drink was an bar the decedent caused automobile acci- friend or relative. dent and died as a result thereof. The Third District held that the estate could result Ashlock is troublesome and legal maintain a cause practical problems. raises serious and civil of action operators having of the bar for violated the example, For how can it be determined initially whether the drink which intoxicat- statute. 2. We note that the instant case does not acts of a minor who involve had consumed alcoholic party liability resulting negligent beverages. third from the ed or the pro- 1982), drink which 694 F.2d cert. denied point vided after the intoxication was the U.S. 103 S.Ct. 1334; 77 L.Ed.2d drink which in fact negligent caused the Trojan Harris v. Fireworks Co. act, one, and how can mistakenly after App.3d Cal. 174 Cal.Rptr. we have negligently providing a drink to an intoxi- found no Indiana cases which have in fact person, protect cated oneself from liability held a party third liable for such under the under the statute without exposing oneself doctrine. But dissenting opinion in cf to civil and eriminal liability for assault City v. Michael of Crawfordsville imprisonment false or Ind., criminal confine- 487 N.E.2d 159. Though ment. tempted, we will not ad- theory negligent entrustment of dress problems in the instant case an automobile is exception an to the com since to do so would be an exercise in dicta. mon law rule that one who owns an Non-Providers Beverages Alcoholic automobile and lends it to another does not Third Parties. become liable for the lendee's acts while the latter operating the ve Non-providers of alcoholic beverages hicle. 7A Am.Jur.2D Automobiles may also subject be third Highway Sec. 641 the acts of drunk drivers. Cases within Traffic recognizes exception which holds that if jurisdiction without our have found an owner/possessor entrusts an automobile non-providers liable based on at least one either to intoxicated, one who is separate legal three or to responde- theories: one whom owner/possessor knows superior; entrustment; *5 should will become intoxicated and duty to control the conduct of others. See know vehicle, then drive the Comment, Third Party Liability for owner/possessor the injuries liable for by caused the intoxicat Drunken Driving: When "One the for ed Alspach driver. v. McLaughlin Road" Courts, Becomes One the for 144 Ind.App. 247 N.E.2d trans. (1984). VILLLREV.1119 denied; Chevrolet, see North Side Inc. v. The respondeat doctrine of superior basi Clark 107 Ind.App. 25 N.E.2d cally states special that because a relation 1011; am.Jur.2D, see 7A also supra, Sec. ship exists between the party and party, a third the party third is liable for addressing When duty the to control the the negligence tortfeasor's though even the others, conduct of the courts of Indiana party may third have been negli free from generally principles follow the set forth in gence altogether. See Prosser and (Second) the Restatement of the Law on oN ON THE (W. Law or Torts See. 69 See, Torts. eg., Sports, 1984). Keeton 5th ed. Inc. v. Gilbert The common law (1982), Ind.App., 431 N.E.2d 534. The ba recognizes four different types of relation principle sic duty of this is stated as fol ships sufficiently close so as to invoke lows: the They (1) doctrine. employer/em are: ployee; (2) principal/agent; (8) joint duty enter "There is no so to control the con- duct of a third prevent as to him prise; (4) family (the and purpose "family purpose" relationship is recognized causing physical in from harm to another unless Indiana. Pierce v. Horvath 142 Ind. (a) special

App. a denied.) relation exists between trans. Keeton, actor and the third See Prosser supra, Sec. 72, imposes duty upon a the actor to control person's conduct, the third or Though there are examples where third (b) special a relation exists between parties may be held liable under the re- the actor and the gives other which spondeat superior doctrine for the alcohol right the other protection." a others, induced acts of as indi cated jurisdictions, decisions in other see Restatement of the Law on Torts Sec. 315 (4th Chastain v. Systems, Litton Inc. Cir. (2d 1965). ed. up make specific The duties which Colleges sible for their own actions. expected fraternities are not to assume a principle are: basic anything parentis loco or (1) role akin in a duty parent a to control the The Although may insurer. there be (/d., 316); child See. conduct of his university or situations where will (2) to control the duty The of a "master" required to control a drunk be driver (Id., his "servants" See. conduct of injuries liability order to avert for sus- 817); another, is not tained instant case (8) possessor of land or duty The of a suggests such a situation. No evidence to control the conduct of his chattels College Fraternity or the that either 318); (Id., licensee Sec. beverages, Heslin with alcoholic (4) duty charge per- of those College Fraternity that the or knew that having dangerous propensities sons Heslin ever drank alcoholic or (Id., 319); persons to control such See. particu- that he would be on that night, College Fraternity or that or lar (5) having custody duty of knew that Heslin would drive an automo- of oth- another to control conduct becoming after bile intoxicated. 820). (Id., ers See. effect, Campbell, asserts liability, Campbell's theory of third College Fraternity since the knew that College and ie. fraternity some student members would on Heslin's for their failure to control liable drive, drink occasion each drinking activity, neatly does not fit into adopt policy condemning and discour Rath any of the theories discussed above. aging activity, such and that a breach of Ashlock, er, supra, Campbell has looked to duty subjects and Frater Notre University and Bearman injuries nity to sustained (1983), Ind.App., 458 N.E.2d Dame result of a student others as a denied, (holding University lia driving. member's drunk None of the suffered when drunken ble recognized above discussed and duties game spectator fell on another football party liability third comes close theories of *6 spectator),3 has determined that supporting Campbell this assertion. adopted policy placing civil has point, know of authority cites no and we to foresee drunk upon those who are able The cases cited none. supervision driving by those under their distinguishable on their facts. See Whit fail to act to curtail the but who (1985), Colo. University lock v. Denver of applied policy then has activity, and (case involving the App., 712 P.2d 1072 not students, College and its and to the danger, use of alcohol but rather a known if we Fraternity and its members. Even trampoline, particular fraternity i.e. a at a expansion to entertain such a broad were house); Francisco Com Peterson v. San duty to control the conduct of oth of the (1984), 36 Cal.3d munity College District ers, the instant case are not at the facts of (case Cal.Rptr. 685 P.2d urged by Camp all to the result favorable involving of alcohol but rather not the use bell. campus in an area of where a sexual attack unpublicizedattacks very similarbut other College students and very place); Mullins v. Pine Manor children.4 had taken members are not Save (1983), 389 Mass. they College are adult citi legal exceptions, few (case involving the use of alcohol zens, able, willing respon- ready, to be changed commentary on the an 4. For an excellent was decided on the basis that 3. Bearman college administration vis-a-vis role of students, place public operator entertainment of a of the Honorable see the comments keep premises safe for its owes a (3rd Rawlings Judge Bradshaw v. Aldisert invitees. Cir.1979), 612 F.2d 135. in an area attack sexual rather a but security & ELEC assumed MECHANICAL college had BRENNEMAN Heating INC., TRICAL, Korschot's & Regents v. and Zavala responsibilities); 125 Cal. Inc., Conditioning, University of California Lumber Closson Air (case involv Cal.Rptr. 185 Co., Inc., App.3d Co., and Gener Hoosier Glass Inc., be incurred after Lafayette, injuries to student Defend

ing al Builders spon university coming intoxicated ants-Appellants, alcoholic at which event sored attempt to reach served). In her BANK OF LO NATIONAL The FIRST us Campbell asks "deep pocket", proverbial Co., GANSPORT, Investment Cass the conduct duty to control to extend Investment, Partnership, Cass Limited We decline extent. to an absurd others Smith, Inc., Corporation, E. John invitation. Engi Smith, Independence Donald R. uncontested, being The facts Co., Inc., neering, Tile Gillis Jack judgment entitled Fraternity were Block, Roofing, Concrete Carter Crews of law. as a matter Inc., Elevators, Inc., Treasurer of Amco Indiana, affirmed. Summary judgment County, and State Cass (All below, except Indiana, defendants Bank of National opinion. The First RATLIFF, with Plaintiff J. concurs Logansport)-Appellee. by designation) YOUNG, (sitting PJ. 2-885A251. No. concurs. Indiana, Appeals Court concurring. RATLIFF, Judge, District. Second language in in the concur I cannot July the hold- criticizes opinion which majority v. Norris in Ashlock court ing of this N.E.2d

(1985), Ind.App., 475 Ashlock, however, agree, I

denied. properly, decided I believe was case which position. Campbell's not sustain

does district point out this also I would liability upon one who imposing upheld

has intoxicated beverages to an alcoholic

serves inflicts subsequently

person who his result of person as a

upon a third vehicle. El of a motor operation

drunken *7 (1983), Ind.App., 446 Plump

sperman v. However, clear Elsperman,

N.E.2d 1027. case and this distinguishable from

ly liability upon imposing support to

lends no fraternity. college or the

either the unwarranted majority's

Except for AsAhlock, I concur.

criticism of