*1 CONSTRUCTION GARIUP COMPANY, (Defendant Below),
INC., Appellant FOSTER, Appellee
Andrew W. Below). (Plaintiff
No. 75S03-8803-CV-288. Indiana.
Supreme Court 2, 1988. *2 beverages. including
frеshments, Orner, an manager, Paul Gariup office months, attended fifteen for over employee beers or four three and drank p.m. 10:00 4:80 and approximately between minutes, con- Orner next 30-40 During the 80- eight shots of six between sumed *3 a participating whiskey while proof would players in which "Quarters" game of the table off quarter a attempt to bounce successful, desig- and, would if cup a into shot of whis- drink a player to nate another approximately at left the key. He later, intending tо drive p.m. or 11:00 approximately work up his wife pick residence away. The Orner miles four premises. Gariup miles from ten over was observed p.m., Orner 11:40 about At interstate a 6-lane on driving eastbound through the eastbound weaving highway, across strip. He drove median lanes lanes, contin- oncoming into the median in the westbound driving eastbound ued head-on, vehicle lanes, Foster's and struck Foster. spinal injury to resulting in serious accident police officer's During state asleep in the state fell investigation, Orner plea a entered subsequently car. He police intoxi- while a vehicle operating guilty Or- named original action Foster's cated. The claim Gariup as defendants. ner and Custer, Kutansky Stults, Zoss, L. David af- dismissed thereafter against Orner Jr., Stults, Fred M. McLean, Valparaiso, & $25,000.00 lia- received Orner's Foster ter McLean, Gary, Custer, Kutansky & Stults, executed limit and policy bility insurance appellant. for Orner. covenant-not-to-sue Jaicomo, Hartzer, & Parker Timothy J. and re reversed Appeals The Court Bend, for P.C., Hamilton, South C. John trial, concluding that for a new manded appellee. Ind.Code provision, necessarily pre (1982),1 7.1-5-10-15 § TRANSFER TO PETITION CIVIL ON negligence claim. common cludes a (1986), Co., Foster Inc. v. Gariup Const. DICKSON, Justice. conjunction In Ind.App., 497 N.E.2d trial, plaintiff-appellee Following Picadilly, Inc. v. Col our decision with granted (Foster) was Foster W. Andrew grant we Ind., N.E.2d (1988), vin de- $150,000.00 against judgment herein. transfer Gariup Construction fendant-appellant - - which issues numerous From the arose The case (Gariup). Company, Inc. review, we consolidate for presents December party on of a Christmas out 1) as follows: issues dispositive restate hosted event a traditional action, 2) statutory negligence company others employees and 4) test, in- 3) violation, breathalizer re- food and Gariup furnished premises. 7.1-5-10-15(a) (Supp.1987). Presently codified * * * structions, 5) requests admissions, The statement that there is or is 6) summary judgment. not duty begs question- essential plaintiff's
whether the interests are enti- part of a hol рublic from drivers purely social tween Foster law does thorized such common to whether the instructions improperly au- absent an "actionable relationship" be- not common law liability, the issue remains as *4 thereby nates certain minimal duties which do not ercising reasonable care. preempt recognized ed nishing of negligence theory. Gariup argues such theory in instructing While the existence of the statute does 7.1-5-10-15, 1. Common Gariup contends that the trial court erred provided persons. preclude relieve the common social not the possibility of independent by the host. context. and In Picadilly, recognize persons host to Law superseded jury upon Gariup, the statute does not intoxicated law, Negligence proscribed protect from otherwise ex- law any duty on the but Indiana common a common law we liability rather argues that to intoxicat- Action expressly the alco- the fur- general desig- in a any agree that it exists. While some states are presently expand tions lead constantly to sonable will find ment can be made than that the courts of new duties. No and policy of preventing moral blame attached to given conscious or capacity including convenience Various factors undoubtedly have been which lead the tions of policy that the sacrosanct in sion of the sum total of those considera- it ever has been formulated. it duty is as broad as the whole law of negligencе, and that no universal test for fendant's conduct. surprising to find tled should be #k many persons legal protection plaintiff of the others. Changing social condi- # duty where, recognized itself, parties # would entitled to but is better unconscious future It is therefore not to bear the [*] that 'duty' is not recognize in against the de- only administration, general general, injuries, wrongdoer, problem recognition # protection. law to * * * weight, expres- it and loss, state- # rea- But say the ing liquor liability to Indiana courts have traditionally recog gratuitous include nized that the existence of a common law providers,2 most courts continue to refuse negligence requires action judicial to determi hold social hosts serving accountable for nation of duty "a part on the liquor of the to defend adults Prosser & Keeton on ant in relation plaintiff." Torts, supra, 58, Miller v. (Supp.1988). 58-59 § (1974), Griesel 604, 261 611, Ind. 308 N.E. Indiana clearly recognizes duty 701, 2d duty 706. "The to exercise care for to refrain providing from beverag- alcoholic sаfety of another arises as a matter of es to minors or persons, intoxicated and law out of some relation existing between applies duty to include non-commercial parties, and province it is the providers. 7.1-5-7-8, 7.1-5- §§ court to determine whether such a relation 10-15. In Brattain v. (1974), Herron 159 gives rise to duty." such Neal v. Home Ind.App. 663, 674, 150, 156, 309 N.E.2d builder's, (1952), Inc. 160, 232 169, Ind. 111 Judge Lowdermilk observed: 280, N.E.2d (citing 285 Union Traction Co. Legislature has not seen fit to distin- v. Berry (1919), 514, 520, 188 Ind. 121 N.E. guish between a seller and a pro- social 655, 657). vider of beverages to a minor and it opinion Such is our determination that no such distinc- not without diffi- tion culty. logical would be We note either equitable. or following observations from Prosser & 53, at This reasoning Keeton on Torts applied likewise to ex- § (5th 857-59 1984): ed. pressly recognize the statutory duty of a 2. McGuiggan See England v. New Tel.& Tel.Co. Wiener v. Chapter Gamma Alpha Phi Tau Mass, (1986), 141; 398 Kelly 496 N.E.2d Omega v. Fraternity (1971), 258 Or. 485 P.2d (1984), Gwinell 1219; 96 N.J. 476 A.2d and
1228 may be or omission negligent act A alco- giving from refrain provider social risk unreasonable an person. involves intoxicated one to an beverages holic through either another Ind.App., harm (1985), Norris Ashlock N.E.2d of a force operation (a) continuous or omis- by the act or continued active started legislature's our Cognizant of in participation sion, or interest ongoing this in policy public development another, action (b) foreseeable depart unwilling to animal, area,3 a force Court an third person, most in followed rule general nature. hold and we jurisdictiоns, or Reckless- Negligence Risk of 302A be extended not liability shall liquor Others ness of involving cases host, except purely negli- may omission act or An duty. aof a breach real- or should realizes if the actor gent customary instructions In addition risk an unreasonable it involves ize that care, negligence, regarding negligent through the another of harm etc., cause, proximate or a conduct reckless instructed case was present person. third sufficiently supervise duty to had Persons Improper Permitting not allow party, at the guests in Activities Engage Things or Use by an 'aleoholic consumption per- a third permit in advis- Unfortunately, negligence guest. It engage in an ascribed thing or to duties, instructions use a ing these son *5 hosting a of persons the control to under activity is generally which them for beverages intoxicating know providing and or should knows actor, actor if the likely to basis. a self-serve or is guests on intends person that such in the himself thing to conduct or use of the provincе exclusive is the It to create as a manner in such activity the relation whether determine to court others. to of harm risk unreasonable rise to a gives parties existing between Conduct Control Griesel, to Duty of Master v. 317 care. Miller duty § exercise to Inc., Homebuilders, supra. of Servant supra; Neal relation out duty arose Whether duty to exercise a under A master out or guest, host and ship social his servant between so to control care reasonable a factor relationship, is not em- some his of scope of acting outside while determination factual jury's to the relevant inten- from him prevent as to ployment duty was breached. to whether as so con- or from harming others tionally expand common to refuse Thus, we while an unreason- create as to ducting himself purely liability as related liquor them, if bodily harm of risk able reference host, find such we (a) the servant The eru- error. harmless to be instructions possession in (i) premises upon the law, whether, matter as a issue is cial serv- upon which or the master care under reasonable duty a Gariup had as his only enter privileged ant is us. facts before individual servant, or from principles general analysis, In this master, (#) using a chattel are Torts (Second) the Restatement and helpful: (b) the master Harm Indirect Direct Risk of § Ind.Code beverages); and (enacted to serve in 7.1-5-7-8 § 3. See ele- (enacted asserted 7.1-5-10-15.5 § institu- Hability educational the civil limited intoxi- visible and to mi- of actual furnishing alcoholic ments tions for fur- actions prerequisites civil (enacted as 7.1-5-10-15(b) cation nors); § persons, effective nishing liquor to intoxicated customer's recognized belief reasonable 31, 1986.) accruing after as to actions for refusal action to civil defense intoxication as () knows or has reason to know that Orner, between Gariup, and third-person he has ability to control his serv- potentially exposed motorists significant ant, and danger in the event of Orner's drunk driv- ing, (i) there existed a relationship which as a knows or should know of the ne- cessity and opportunity for exercising gave matter of law rise duty such control. part Gariup to exercise ordinary and 818 Duty of Possessor of reasonable care. Land or While incorrect in nam- Chattels to ing Control host/guest Conduct of the social Licensee relationship as If permits the actor the source of person a third duty, such trial court correct in recognizing use land or chattels in possession his existenсe of duty permitting jury to determine servant, otherwise than as is, he if present, duty under a whether to exercise exercised reason- care able care in supervising so to control the the party conduct of enabling Or- person third prevent so as to ner to participate in him the drinking game intentionally harming others to become or from so inebriated. conducting himself as to create an unrea- We find no reversible error on issue. bodily sonable risk of them, harm to if the actor 2. Statutory Violation (a) knows or has reason to know that Gariup contends that there was insuffi- he has the ability to control the third cient evidence at upon trial required person, and elements permit go case to (b) knows or should know of the neces- jury on theory that Gariup violated Ind. sity and opportunity exercising 7.1-5-10-15, Code provided: such control. It is unlawful for person sell, barter, We view the issue not merely as a deliver, give away an alcoholic bever- question of Gariup's duty to control Or- age to person another who inis a state of ner's conduct party, at the but rather as person intoxication if the knows that whether Gariup had a duty to exercise rea other person is intoxicated. sonable care such as to entitle to Violation of this statute is a class B misde- determine whether was negligent meanor. *6 7.1-5-1-8. - under the circumstances in supervising the Gariup argues that violation of the activities party, at the failing stop statute require should рroof that recipi the discourage drinking game the involving Or- ent visibly was intoxicated and that ner, and continuing to furnish alcoholic person furnishing the beverage had actual beverages for Orner. knowledge of recipient's intoxication. In present case, it is uncontroverted agree We with prove that to viola that conducted party; it oc- statute, tion of the provider's knowl curred Gariup's premises; Gariup fur- edge must by be subjective shown stan nished the beverages; alcohоlic Gariup's dard, not an objective one, and that con president present was during the party; structive knowledge will not suffice to "Quarters" drinking game occurred; prove such violation. and significantly, the person, intoxicated Orner, was a Gariup employee. While The element of knowledge re may there quired be a question factual as constitute a violation of the crimi whether scope was within the nal statute of is by determined employment, it readily apparent 85-41-2-2(b): that Gariup, employer, Orner's signifi- had as A person engages in "knowing- conduct cantly greater influence and control over if, ly" engages when he conduct, in the Orner than Gariup would have had over a he is high aware of a probability that he non-employee, guest. doing so. From the facts and cireumstances unique culpability The requirement for conduct en- present case, we conclude that gaged as in "knowingly" is also by satisfied
1230 general Instrue court's The trial Trevi "intentionally." engaged conduct plain of elements 16, regarding tion 428 N.E.2d (1981), Ind.App., v. State no no ex recovery, contained of theories tiff's 35-41-2-2(a) states: Ind.Code § 263. statutory violation. reference press "intention- in conduct engages person A Gariup as contain by conduct, characterized While engages if, he when ally" count, the issues statutory violation ing so. to do objective his conscious it is not ex did instruction by this presented the misdemeanor Therefore, of violation of whether determination require pressly furnishing alcoholic proscribing statute Rather, in violated. was the statute requires person to an common principles related struction his as either had provider that proof Issue discussed negligence, as law high aof or was aware objective, conscious Gariup ex determining whether In above. providing he was that probability, under care reasonable ordinary and ercised recipient. an intoxicated beverage to entirely circumstances, therefore it was actor's Determination wheth consider jury to for the appropriate re of fact to trier requires the known" have or should Gartup "knew er upon based inferences reasonable sort intoxication. Orner's surrounding circumstances examination Perkins its existence. reasonably infer statutory violation Because 461, N.E. Ind.App. (1979),181 v. State liability, basis exclusive not the was inferred may Knowledge be 490. 2d sufficient the evidence and because v. Williams circumstancеs. facts and negli common theory of sustain 289. 395 N.E.2d (1979),271 Ind. State us to review necessary for gence, it is not of the knew provider alcohol that an Proof there whether to determine the evidence may made be intoxication recipient's Foster's actual evidence sufficient evidence. cireumstantial indirect - - - Since intoxication. knowledge of Orner's v. Norris, Elsperman supra; Ashlock to sustain is evidence there 446 N.E.2d (1983), Ind.App., Plump uphold the will liability, we theory of However, proof Fanning In re Estate general verdict. merely evi shown cannot be violation 333 N.E.2d Ind. (1975), 268 in the exercise provider, dence care, have known should Test Breathalizer statutory re intoxication. recipient's "knows that provider quirement error it was Gariup contends intoxicated," cannot person the other regarding Orner's testimony admit constructive of such by evidence satisfied results, to instruct test breathalizer knowledge. Code Vehicle the Motor regarding jury of intoxica prima facie evidence standard of the statu advising In *7 collision, was tak Orner After tion.4 alco furnishing an against prohibition tory Depart County Sheriff's Porter en person, beverage to an holic ad made to attempt was an ment where language of 12 used Instruction An test. inade a breathalizer minister "if the statute, requirement including the been taken. sample may have quate breath intoxicat person is the other person knows of at level alcohol an It indicated not misinform did This instruction ed." permit testimоny was Medical least .16%. constructive permitting jury by results the breathalizer to relate ted statute. the criminal to violate sufficient as includes of intoxication" evidence "Relevant Vehicle provisions the Motor Among alleged viola- the time of following that at statutes: evidence are the Code percent at least five-hundredths was tion there in- of intoxication" evidence facie "Prima alleged percent of an (0.05%), that at the time hundredths evidence less that ten cludes but person's (0.10%), weight by of alcohol percent was ten hundredths there violation more, weight 9-11-1-7.5. (10%), by of alcohol blood. person's 9-11~1-7. blood. Orner's level of intoxication during the scope of his authority is the act of time before he left the party. omission of the corporation. While admit- ting that the instruction Gariup correct argues that the motor vehicle law, statement of standard for Gariup intoxication is not relevant to contends that it improperly permitted prove jury Gariup's knowledge to infer of Orner's intox- "that anything any that employee ication. We find that the learned breathalizer test at any results, time was imputable coupled when to Gariup." with the We medical evi- disagree. The dence explaining instruction did significance not purport explain imputed corporate results and signs knowledge. intoxication which reject Because we would probably Gariup's have apparent been contention there is no party, togеther common law probative liability were outside evi- the statutory violation dence. In view of required actu- instructions, we do al not knowledge, find error. we find that the giving of Instruction 15 was not reversible error. Gariup also contends that the trial court erred in overruling objection its In its tendered 6, Instruction Gari- plaintiff's questioning of Orner regarding up sought to instruct jury upon the the breathalizer test Any results. error is issue of scope Orner's of employment at harmless as Gariup's expert witness Dr. the time of thе accident. This instruction Gladstone sepgrately testified without ob was properly refused beyond as the issues jection to Orner's breathalizer test results. at trial. Foster was not seeking impose (R. 490-91) vicarious liability upon Gariup for Orner's negligent driving. -Other Instructions Gariup objects to various instructions 5. Requests Admissions given, and to the failure give certain tendered instructions. To the extent such contends that the trial objections concern trial court court Instructions erred in reading to the jury its re 16, 17, 18, 19, Gariup's ten- sponses requests certain for admissions. dered On Instructions 3 and this issue we adopt the following dis issues are addressed elsewhere in opinion, this cussion from the decision of the Court of the trial court's actions were proper. Appeals. Gariup contends "Ind.Rules Procedure, trial Trial 36(B) Rule court erred in giving Instruction states that [any matter admitted under regard ing the duty of motorists to exercise ordi rule is conclusively established unless nary care. Gariup's objection at trial court on рermits motion withdrawal or "that the thrust of the case at hand doesn't amendment of the admission.' The record involve automobile negligence but involves does not reflect motion for withdrawal or a violation of a statute the defendants." amendment Gariup. (R. 521) 6, given Instruction objec without "Gariup argues also that some of its tion by Gariup, referred to the contributory responses did not constitute admissions. negligence defense. With presence of For the part, most Gariup stated thаt it the contributory negligence instruction, it was without knowledge to determine was not give error to Instruction which whether a request certain was inaccurate had the effect of advising or incorrect. 36(A) Pursuant to T.R. par- Foster would negligent only if found to ty may not make *8 response such a without a have to exercise the failed care of an ordi further statement that reasonable inquiry narily prudent person under the same or has been made or that an inquiry would be like circumstanсes. unreasonably Therefore, burdensome. the Gariup objected to Instruction responses were properly deemed admis- which explained that conduct of corporate sions and were conclusive in the action." officer, employee, agent or acting within Gariup, 497 N.E.2d at 927. custom- Picadilly served in which manner Judgment Summary supervision less much have appeared ers erred court trial the that claim Gariup's These dispensers. commercial most than judg- summary for motions its denying in common found be cannot distinctions re- contentions legal upon posited is ment the statutes. law 1 and Issues of discussions our in
jected the ac- question one would Certainly no deny- in err not did court The trial above. majority cites the statistics curacy the of summary judgment. ing unsus- mayhem to and death the regarding ir- highways which on our citizens pecting Conclusion In cause. drivers drunken responsible of judgment The granted. is Transfer statis- these added be could fact, more affirmed. court trial the hоmes, of broken examples Countless tics. families, crime and stress, abused financial J., GIVAN, C.J., SHEPARD, and of and abuse use traced can be concur. fact, how- accept the must We alcohol. dissenting with PIVARNIK, J., generally alcohol of use ever, the that J., DeBRULER, in which opinion per- of high percentage very by a accepted concurs. distribu- and use The society. in our sons very strin- beverages is dissenting. Justice, of alcoholic PIVARNIK, tion ex- and legislative by the controlled gently opinion majority thе dissent I must government. our of branches ecutive responsi- place grounds finds it wherein Inc., Co., for Gariup Construction on was bility here Foster damage severe The Picadilly, In Orner. Col- Picadilly, Paul Orner; of in the actions by Paul caused responsi- law highway common applied majority the interstate the on injured vin alcoholic of dispenser drunken a commercial bility to Brewer's Deborah result as a legisla- fact spite of in beverages representation The direct condition. estab- subject and we will on acted had laws ture passing in people tak- position contrary to the public liability State, and lished in this governed be this in Picadilly and in majority responsibility State, is the en of this policy "cuts now majority fully case controls body In this case. That legislature. our the common and statutory use, fits" and and dispensing, regarding laws appears result Indiana. beverages in arrive law to alcoholic abuse theory" of "legislative laws passing own in satisfy their very active been They have regarding to be ought abuse those who punish what and out to seek alcoholic distribution dam- and and consumption injury cause and alcohol severe society. in our it made has legislature The age to others. social commercial for a act a criminal unwilling to isit first holds majority beverages to furnish provider in rule followed general depart intoxicat- visibly person who aor minor to extend refuses and jurisdictions most actions to civil prerequisite purely As a liability to ed. liquor persons, furnishing liquor involving a cases except in host social there requires 7.1-5-10-15.5 imposes then duty and breach intoxi- and visible actual Apparently, Gariup. liability very effective became statute This cation. Gariup from majority differentiates 7.1-5-7-8, en- Ind.Code § he fact host because any other liability of the civil 1982, limited in acted other most and Orner employed furnishing alco- institutions some Orner educational fact plus guests, many There are minors. beverages to holic heavy involving game played others regulations executive statutes evidence is no drinking. There distribution. controlling of this knew even in or part host took recog- 7.1-5-10-15(b), enacted philos- A similar deadly game. foolish intox- customers' belief nized Picadilly because followed ophy
ication as a defense to civil action for refus-
al to serve beverages. say To legislature has not acted in this area and
established public policy of this State is ignore the facts clearly before us as an
appellate court. Alcohol can be obtained in
many places in this society and the abuser
will find it and use any it in or all of them.
If the law changed needs to be to more
stringently sanction those who furnish al- abusers,
eohol to it should be done legislature and not this court. I dissent
and would deny transfer.
DeBRULER, J., concurs. JONES,
Eddie Appellant
(Defendant Below), Indiana,
STATE of Appellee (Plaintiff Below).
No. 45s00-8609-CR-826.
Supreme Court of Indiana.