Aug 05 2015, 9:30 am
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Christopher A. Pearcy James H. Young
Theodore J. Blanford Young & Young
Hume Smith Geddes Green & Simmons, Indianapolis, Indiana
LLP
Edward R. Hannon
Indianapolis, Indiana
Steuerwald Hannon & Witham, LLP
Danville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BGC Entertainment, Inc. d/b/a August, 5, 2015
Brad’s Gold Club and 3551 Court of Appeals Case No.
Lafayette Road Corp. d/b/a 49A05-1408-CT-373
Brad’s Gold Club, Appeal from the Marion Superior
Court.
Appellants-Defendants,
The Honorable Patrick L. McCarty,
v. Judge.
Cause No. 49D03-0801-CT-1607
Jerry Coleman Buchanan, by His
Father and Guardian, Odell
Buchanan,
Appellee-Plaintiff
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellants-Defendants, BGC Entertainment, Inc. d/b/a Brad’s Gold Club and
3551 Lafayette Road Corp. d/b/a Brad’s Gold Club (collectively, BGC), appeal
the trial court’s denial of summary judgment in a negligence action brought by
Appellee-Plaintiff, Jerry Coleman Buchanan (Buchanan), by his father and
guardian, Odell Buchanan.
[2] We affirm.
ISSUES
[3] BGC raises two issues on appeal, which we restate as the following:
(1) Whether the trial court erred in denying its motion for summary judgment
regarding its liability under Indiana’s Dram Shop Act; and
(2) Whether the trial court erred in denying its motion for summary judgment
regarding its liability under the common law.
[4] Buchanan raises one issue on cross-appeal, which we restate as follows:
Whether the trial court erred in denying his motion for partial summary
judgment regarding the issue of BGC’s imputed knowledge.
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FACTS AND PROCEDURAL HISTORY 1
[5] Shortly before 9:00 p.m. on July 28, 2007, Candice Vowell (Vowell) arrived at
BGC—a bar and adult entertainment club—in Indianapolis, Indiana, to begin
her shift as a cocktail waitress. Vowell’s mother, Shannon Vowell (Shannon),
was also a cocktail waitress at BGC, and they were both scheduled to work that
night until the bar closed at 3:00 a.m. BGC has a policy that prohibits its
bartenders and waitresses from consuming any alcohol while working, although
they are permitted to have one free drink at the end of their shifts. Yet, Vowell
explained that shortly after she clocked in, the whole staff joined together to
have a shot of vodka in commemoration of the Brickyard 400 NASCAR race,
which would occur the following day at the Indianapolis Motor Speedway.
[6] In light of the Brickyard 400 weekend festivities, BGC had a large crowd of
patrons throughout the night. During her six-hour shift, Vowell stated that she
did not consume any additional alcoholic beverages. After the bar closed and
while the staff was completing their usual end-of-shift reporting and clean-up,
one of the bartenders poured a shot of vodka for Vowell as her complimentary
end-of-shift drink. According to Vowell, her drink was 2.5 ounces rather than
the standard 1.25-ounce shot. At approximately 3:30 a.m., both Vowell and
Shannon clocked out, and neither of them doubted that Vowell was fit to drive
herself home. Because Vowell and Shannon lived in the same apartment
1
An oral argument for this case was held on July 7, 2015, at the Indiana Court of Appeals courtroom in
Indianapolis, Indiana. We would like to thank the attorneys for their excellent advocacy.
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complex, Shannon drove behind Vowell. For the duration of their drive home,
Vowell and Shannon spoke to each other via cell phone.
[7] As Vowell and Shannon drove east on Kessler Boulevard, a black male wearing
no shirt and dark pants—later identified as Buchanan—was walking west “in
the middle of the [eastbound] lane.” (Appellants’ App. p. 136). Near the
intersection of Kessler Boulevard and Ditch Road, Vowell collided with
Buchanan, whom she had not seen walking in the roadway. The impact
shattered Vowell’s windshield, and she informed Shannon that she had “just hit
something,” and Shannon indicated that she saw a white plastic bag fly up into
the air. (Appellants’ App. p. 161). Although they were unsure of what Vowell
had crashed into, neither Vowell nor Shannon stopped to investigate. Instead,
because Vowell could no longer see through her windshield, Shannon drove
around her in order to guide Vowell the rest of the way home. An oncoming
motorist, Ryan McCullough (McCullough), had witnessed the entire event. He
described that upon impact with the front of Vowell’s vehicle, Buchanan
bounced up and smashed into the windshield before flipping two times in the
air and falling to the ground. McCullough noted that neither Vowell’s vehicle
nor Buchanan made any attempt to avoid the collision. McCullough reported
the hit-and-run to 9-1-1 and waited with Buchanan, who was lying
unresponsive in the street, until emergency personnel arrived.
[8] When Vowell arrived home, she awoke her husband in a panic and told him
that she had hit something with her vehicle. Vowell’s husband went outside to
inspect her vehicle, and after observing the shattered windshield and the
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substantial front-end damage, he left in his own vehicle to see if he could
determine what she had struck. When he returned a little while later, Vowell’s
husband informed her that an ambulance and police vehicles were at the scene
because she had hit a pedestrian—i.e., Buchanan. At approximately 6:00 a.m.,
Vowell called the police to report her involvement in the accident.
[9] Detective Bruce Wright (Detective Wright) of the Marion County Fatal
Alcohol Crash Team arrived at Vowell’s apartment to investigate. After
administering Vowell’s Miranda warnings, Detective Wright “detected an odor
of an alcoholic beverage about [her] person,” and Vowell admitted that she had
consumed “a shot of ‘3 Olives Vodka’ at her place of employment immediately
prior to driving her vehicle.” (Appellants’ App. p. 89). Detective Wright also
examined Vowell’s vehicle parked in front of her apartment and “noticed blood,
pieces of flesh and hair in the shattered windshield.” (Appellants’ App. p. 252).
After Vowell agreed to submit to a chemical test, Detective Wright transported
her to Wishard Hospital for a blood draw. Three hours after the accident, at
7:08 a.m., Vowell’s blood alcohol content (BAC) was 0.06%. Two expert
toxicologists concluded that Vowell’s BAC at the time of the accident would
have been approximately 0.10% to 0.128%. Based on her BAC, both experts
also agreed that Vowell’s alcohol intake must have exceeded the two shots of
vodka that she claimed to have consumed at BGC.
[10] As a result of the collision, Buchanan sustained severe brain trauma, a broken
nose, and fractures to both lower bones in his right leg. On July 14, 2008,
pursuant to a plea agreement, Vowell pled guilty to one Count of operating a
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motor vehicle while intoxicated causing serious bodily injury, a Class D felony,
Ind. Code § 9-30-5-4(a)(1)(A) (2013). She was subsequently sentenced to 365
days, entirely suspended to probation.
[11] On February 18, 2009, Buchanan filed an Amended Complaint. In part,
Buchanan alleged that BGC violated its statutory and common law duty “to
make sure that its employees did not become intoxicated during and after their
employment by consumption of alcoholic beverages provided by [BGC], before
they took to the streets on their way home from work.” (Appellants’ App. p.
13). On January 31, 2014, Buchanan filed a motion for partial summary
judgment, contending that Vowell’s actual knowledge of her own intoxication
should be imputed to BGC as her employer. On February 28, 2014, BGC filed
a cross-motion for summary judgment, arguing that BGC was not liable for the
damages caused by Vowell’s intoxication under either the Dram Shop Act or
the common law because there is no evidence that BGC had actual knowledge
that Vowell was visibly intoxicated at the time she was served an alcoholic
beverage. On April 21, 2014, the trial court conducted a summary judgment
hearing. On June 20, 2014, the trial court issued its Order, denying the parties’
cross-motions based upon existing questions of material fact.
[12] BGC and Buchanan now appeal. Additional facts will be provided as
necessary.
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DISCUSSION AND DECISION
I. Standard of Review
[13] On review of the grant or denial of summary judgment, our court applies the
same standard as used by the trial court. Merchants Nat’l Bank v. Simrell’s Sports
Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind. Ct. App. 2000). “Summary
judgment ‘should not be used as an abbreviated trial, even where the proof is
difficult or where the court may believe that the non-moving party will not
succeed at trial.’” Pierson ex rel. Pierson v. Serv. Am. Corp., 9 N.E.3d 712, 715
(Ind. Ct. App. 2014), trans. denied. Thus, summary judgment is appropriate
only “if the designated evidentiary matter shows that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Ind. Trial Rule 56(C). We must construe all facts and any
inferences reasonably derived from those facts in favor of the non-moving party.
Id. In doing so, we may only consider matters that were designated to the trial
court during the summary judgment proceedings, and we make no
determinations as to evidentiary weight or credibility. Estate of Cummings v. PPG
Indus., Inc., 651 N.E.2d 305, 307 (Ind. Ct. App. 1995), reh’g denied, trans. denied.
[14] The party moving for summary judgment bears the burden of proving the
absence of a genuine issue of material fact. Vanderhoek v. Willy, 728 N.E.2d
213, 215 (Ind. Ct. App. 2000). Thereafter, the non-moving party must set forth
specific facts showing the existence of a genuine issue of material fact. Id. We
will find a genuine issue of material fact “where the facts concerning an issue
that would dispose of the litigation are in dispute or where the undisputed
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material facts are capable of supporting conflicting inferences on such an issue.”
Id. In addition, even if the material facts are undisputed, we will nevertheless
find summary judgment to be inappropriate if the record reveals an incorrect
application of the law to the facts. Id.
II. Dram Shop Liability Claim
[15] Indiana’s Dram Shop Act “represents a legislative judgment that providers of
alcoholic beverages should be liable for the reasonably foreseeable
consequences of knowingly serving alcohol to visibly intoxicated persons.” Id.
At the time of the accident, Indiana Code section 7.1-5-10-15(a) (2004) (Dram
Shop Criminal Provision) provided that “[i]t is unlawful for a person to sell,
barter, deliver, or give away an alcoholic beverage to another person who is in a
state of intoxication if the person knows that the other person is intoxicated.” 2
In order to be held civilly liable for violating the Dram Shop Criminal
Provision, Indiana Code section 7.1-5-10-15.5(b)(1) (Dram Shop Civil
Provision) requires that a person who furnishes an alcoholic beverage to an
intoxicated person must have “had actual knowledge that the person to whom
the alcoholic beverage was furnished was visibly intoxicated at the time the
alcoholic beverage was furnished.” 3 To “‘furnish’ an alcoholic beverage, a
2
Effective July 1, 2014, the Dram Shop Criminal Provision was amended to provide that “[a] person who,
knowing that another person is intoxicated, sells, barters, delivers, or gives away an alcoholic beverage to the
intoxicated person commits a Class B misdemeanor.” I.C. § 7.1-5-10-15(a) (2014).
3
Buchanan devotes a significant portion of his argument repudiating BGC’s reference to the Dram Shop
Civil Provision as an immunity statute. However, this court has previously referred to Indiana Code section
7.1-5-10-15.5 as an immunity provision. See Thompson v. Ferdinand Sesquicentennial Comm., Inc., 637 N.E.2d
178, 180 (Ind. Ct. App. 1994). Furthermore, Indiana Code chapter 34-30-2 identifies various “[s]tatutes
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defendant must be found to have possessed or controlled the alcoholic
beverages consumed.” Vanderhoek, 728 N.E.2d at 215. Also, the person’s
intoxication must have been a proximate cause of the death, injury, or damage
alleged in the civil complaint. I.C. § 7.1-5-10-15.5(b)(2).
A. Appeal: Evidence of Visible Intoxication
[16] BGC contends that it is entitled to summary judgment under the Dram Shop
Act because there is no evidence to establish that it had actual knowledge of
Vowell’s visible intoxication “when [BGC] furnished her alcohol, or at any
point that night.” (Appellants’ Br. p. 14). In determining whether the furnisher
of alcohol had actual knowledge that he was furnishing alcohol to an
intoxicated individual, “[t]he furnisher’s knowledge must be judged by a
subjective standard.” Delta Tau Delta, Beta Alpha Ch. v. Johnson, 712 N.E.2d
968, 974 (Ind. 1999), declined to follow on other grounds by Paragon Family Rest. v.
Bartolini, 799 N.E.2d 1048 (Ind. 2003). “Absent an admission that the person
furnishing alcohol had actual knowledge of the other’s intoxication, the trier of
fact must look to reasonable inferences based upon an examination of the
surrounding circumstances.” Id.
Actual knowledge of intoxication can be inferred from indirect or
circumstantial evidence such as “what and how much the person was
known to have consumed, the time involved, the person’s behavior at
the time, and the person’s condition shortly after leaving.” Where,
outside [Indiana Code title] 34 [t]hat [c]onfer [i]mmunity.” (Emphasis added). The Dram Shop Civil Provision
is included in this list. See I.C. § 34-30-2-23.
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however, there is insufficient evidence to support actual knowledge,
the issue may be resolved as a matter of law.
Id. (internal citation omitted).
[17] There is no dispute that Vowell consumed at least two shots of vodka at BGC
on the night of the accident, but a review of the designated evidence reveals no
admission or testimony by witnesses that she was visibly intoxicated at any
point during her shift. According to their depositions, the two BGC bartenders
on duty that evening have no recollection of serving any alcohol to Vowell.
Vowell averred in her deposition that after she consumed her end-of-shift drink,
she felt fine to drive and nobody told her she should not drive. Shannon also
believed Vowell was fit to drive herself. In Delta Tau Delta, the Indiana
Supreme Court found that even assuming that a member of the fraternity had
furnished the intoxicated person with alcohol, “there [was] no evidence that
[he] exhibited visible signs of intoxication for a [fraternity member] to notice”—
i.e., the intoxicated person “may have been more talkative than usual, but he
was not rowdy or stumbling or having verbal difficulties.” Id. at 974-75.
Similarly, in the present case, there is no designated evidence that Vowell
exhibited any indicia of intoxication at the time she was furnished alcoholic
beverages. She was not rowdy or boisterous, and she did not exhibit any typical
signs of physical intoxication such as watery/bloodshot eyes, slurred speech, or
unsteadiness in balance. See Murdock v. Fraternal Order of Eagles, 779 N.E.2d
964, 969 (Ind. Ct. App. 2002), reh’g denied, trans. denied.
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[18] BGC also relies heavily on its expert toxicologist, Dr. Michael McCabe (Dr.
McCabe), who used reverse extrapolation to determine that Vowell’s BAC at
the time she was last furnished a drink would not have exceeded 0.063%.
According to Dr. McCabe, the BAC threshold for visible intoxication is 0.15%.
In particular, Dr. McCabe explained in his affidavit:
The progressive impairing effects of alcohol (i.e., loss of inhibitions,
followed by impaired judgment, followed by delayed reaction time,
followed by loss of motor coordination) are a function of the sensitivity
of the specific brain regions controlling these processes to alcohol.
Although alcohol affects people differently, progressive impairment of
these [central nervous system]-controlled activities has been associated
with relatively well-defined BAC levels as indicated above. Visible
signs of intoxication generally fall into the categories of delayed
reaction time (e.g., slurred speech) and loss of motor coordination
(e.g., staggering). Impairment in these activities has been associated
with relatively well-defined BAC levels. Scientific studies have also
established that visible signs of intoxication are present in the majority
(i.e., more than 50%) of social drinkers at BACs of about 0.15%.
There is no testimony or evidence that indicates that Vowell was
visibly intoxicated while she allegedly was served a shot of Three
Olives Cherry Vodka at [BGC], nor does Vowell’s measured or
calculated blood alcohol concentration predict that [s]he was visibly
intoxicated at the time of service at [BGC]. Furthermore there is a
discrepancy between Vowell’s subjective recall of what she had had to
drink and toxicological analysis of her alcohol dose. Accordingly,
given the prolonged duration of time that elapsed between when
Vowell fled the scene of the accident (i.e., 2 hours), there is no
scientific reason that supports incorporating consumption of the
additional drinks during the timeframe that she was served at [BGC]
versus the time period she was at home.
(Appellants’ App. pp. 246-47) (footnote omitted).
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[19] The threshold for visible intoxication as being 0.15% is not specifically disputed
by Buchanan’s toxicology expert, Dr. Daniel McCoy, or any of his other
designated materials. Nonetheless, whether or not the expert opinion of a
toxicologist who has extrapolated BAC levels creates an inference as to the
subjective knowledge of the BGC bartender who purportedly furnished alcohol to
Vowell is a matter for the trier of fact. See Booker, Inc. v. Morrill, 639 N.E.2d
358, 362-63 (Ind. Ct. App. 1994) (finding the toxicologist’s opinion that
someone with a BAC of 0.21% would manifest physical signs of intoxication
such as impaired balance and mental confusion constituted circumstantial
evidence from which the trier of fact could conclude that the intoxicated person
exhibited these signs of visible intoxication in the presence of the furnisher of
alcohol).
[20] Moreover, despite Vowell’s claim to have only consumed a 1.25-ounce shot at
the beginning of her shift and a 2.5-ounce shot at the end of her shift, the
undisputed toxicology evidence proves that she must have consumed more
alcohol than she recalled to register a BAC of 0.10% to 0.128% within half an
hour of leaving BGC. See Pierson ex rel. Pierson, 9 N.E.3d at 719 (“Ultimately, it
is the role of the fact-finder, and not the court in summary judgment
proceedings, to determine issues of credibility or relative weight of the
evidence—for example, whether self-reporting of alcohol consumption was
inaccurate or an expert opinion based upon a toxicology report was flawed.”).
In Ward v. D & A Enterprises of Clark Cnty., Inc., 714 N.E.2d 728, 730 (Ind. Ct.
App. 1999), the tavern argued that the intoxicated person consumed only one
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beer on its premises and stated that it was unknown where he consumed
sufficient alcohol to register a BAC of 0.22%. Our court found that it was the
tavern’s responsibility
as the moving party to establish the non-existence of every material
question of fact. . . . [A]s long as “it is unknown where [the
intoxicated person] consumed alcohol sufficient to register a .22,” [the
tavern] failed to meet this responsibility. In the absence of designated
evidence that [the intoxicated person] consumed the alcohol
elsewhere, there is a material question of fact as to whether [the
intoxicated] person consumed at [the tavern] which, on the basis of the
designated material, is the only place [the intoxicated person] drank
alcohol. Moreover, when viewed most favorably to the non-moving
party, the fact that [the tavern] served even one beer to a person who
shortly thereafter was in a state of serious intoxication gives rise to a
question of fact whether [the intoxicated person] was visibly
intoxicated at the time.
Id.
[21] Dr. McCabe also posited several possible scenarios to explain how Vowell
could have registered a BAC of 0.06% more than three hours after the accident:
first, Vowell could have consumed only the two drinks at BGC as she claimed,
and subsequently consumed additional alcoholic beverages between the time of
the accident and the administration of her breathalyzer test; second, contrary to
her sworn deposition, Vowell could have consumed more than two shots of
vodka during her shift at BGC. Vowell stated in her deposition that she did not
consume any alcohol prior to her arrival at BGC or after leaving BGC. Similar
to the present case, in Pierson ex rel. Pierson, an individual struck a pedestrian
with his vehicle following his consumption of alcohol at Lucas Oil Stadium. 9
N.E.3d at 714. Because the designated evidence was capable of supporting
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several scenarios—that is, either the intoxicated person “drank before and
during the game to the point where he would have exhibited signs of
intoxication observable by the stadium volunteer selling him beer; [he] drank to
excess only after leaving the stadium; or [he] was intoxicated inside the stadium
but did not exhibit visible signs of intoxication”—we found that there was a
genuine issue of material fact “as to whether a [stadium vendor] agent served
[the intoxicated person] even a single drink with actual knowledge of his visible
intoxication.” Id. at 718-19.
[22] It is further undisputed that Vowell was involved in an accident shortly after
leaving BGC, and her BAC exceeded the legal limit at the time of the accident.
Also, Vowell’s husband and Detective Wright each detected the odor of alcohol
on Vowell’s breath, respectively twenty minutes and two hours after the
accident. In Vanderhoek, Terry Neil (Neil) was served at least three beers at the
Fraternal Order of Eagles (FOE) and had not consumed any alcohol prior to his
arrival at the FOE. 728 N.E.2d at 217. Although Neil did not exhibit any signs
of intoxication while at the FOE, he was involved in an accident shortly after
his departure. Id. At the time of the accident, the police officer observed a
strong odor of alcohol on Neil’s breath and noted that Neil’s eyes were watery
and bloodshot, his dexterity was slow, and he “exhibited unsteadiness in
balance; slurred, confused, mumbling and profane speech; and an attitude
characterized as angry and crying.” Id. at 214. Neil also failed several field
sobriety tests and registered a BAC of 0.15%. Id. Our court concluded that,
based on these facts, “a trier of fact could reasonably infer that the FOE had
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actual knowledge of Neil’s intoxication at the time he was served.” Id. at 217.
Although Vowell did not fail any sobriety tests or exhibit any other indicia of
visible intoxication, we find that whether it may be inferred from the BAC and
the odor of alcohol that BGC had actual knowledge that Vowell was visibly
intoxicated at the time she was furnished alcoholic beverages is a matter best
left for the trier of fact. Therefore, we affirm the trial court’s denial of summary
judgment.
B. Cross-Appeal: Imputed Knowledge
[23] On cross-appeal, Buchanan claims that the trial court erroneously denied his
motion for partial summary judgment. Specifically, he insists that the “‘actual
knowledge of visible intoxication’ . . . threshold exists for instances where a
server/furnisher must judge the intoxication of another person.” (Appellee’s Br.
p. 7) (emphasis added). Here, because the intoxicated person is an agent of
BGC—i.e., the alcohol furnisher—Buchanan argues that “the actual/subjective
knowledge [Vowell] has as to her own level of intoxication is a given. It is what
it is. It is tied to how much she knows she drank and when she drank it—
whether or not she admits these facts.” (Appellee’s Br. pp. 6-7). According to
Buchanan, BGC had actual knowledge of Vowell’s visible intoxication because
Vowell’s “own knowledge of her personal level of intoxication while acting as a
server for [BGC] must be imputed to [BGC] with each drink she consumed
while on the clock.” (Appellee’s Br. p. 11).
[24] “Imputed knowledge is a tenet of agency law, and is based upon an underlying
legal fiction of agency—the identity of principal and agent when the agent is
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engaged in the principal’s business.” Stump v. Ind. Equip. Co., 601 N.E.2d 398,
403 (Ind. Ct. App. 1992), reh’g denied, trans. denied. Imputed knowledge is
premised upon another facet of agency law—the doctrine of respondeat
superior. Id. In certain circumstances, respondeat superior confers liability
upon an employer “‘for the wrongful acts of his employee which are committed
within the scope of employment.’” Southport Little League v. Vaughan, 734
N.E.2d 261, 268 (Ind. Ct. App. 2000) (quoting Sword v. NKC Hosps., Inc., 714
N.E.2d 142, 147 (Ind. 1999)), trans. denied. Buchanan did not raise a claim of
respondeat superior or vicarious liability in his Amended Complaint or motion
for partial summary judgment, but he did seek a determination that Vowell’s
knowledge must be deemed imputed to BGC as her employer. On appeal, he
argues that this court should declare, as a matter of law, that the “[k]nowledge
of [Vowell] as to her own alcohol consumption while serving as an employee of
[BGC], during the course of her employment and within the scope of her
authority, is knowledge of [BGC], itself, regardless of whether [Vowell] shared
her knowledge with anyone else.” (Appellee’s Br. p. 28).
[25] Under the rule of imputed knowledge, “the law imputes the agent’s knowledge
to the principal, even if the principal does not actually know what the agent
knows.” Southport Little League, 734 N.E.2d at 274. More specifically,
knowledge of material facts acquired by an agent in the course of his
employment, and within the scope of his authority, is the knowledge
of the principal, and where no actual knowledge of the principal is
shown, the rule will be given the effect on the theory of constructive
knowledge, resting on the legal principle that it is the duty of the agent
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to disclose to his principal all material facts coming to his knowledge,
and upon the presumption that he has discharged that duty.
Id. at 275. However, when an agent, acting within the scope of employment,
“commits an independent tort for his own benefit,” the principal must have
“some knowledge or reason to know of the agent’s conduct” before liability will
attach pursuant to the imputed knowledge doctrine. Id.
[26] In the present case, the designated evidence reveals that the scope of Vowell’s
duties entailed ferrying alcoholic beverages to the customers as they ordered
them and properly accounting for the beverages that were purchased. Paul
Jersild (Jersild), the owner of BGC at the time of the accident, averred in his
deposition that BGC’s waitresses and bartenders were trained to recognize the
physical signs of intoxication and were instructed to “not serve already
intoxicated people.” (Appellants’ App. p. 82). Jersild also indicated that, with
the exception of an end-of-shift drink, BGC’s policy prohibited Vowell from
consuming any alcohol during her shift. Based on the toxicologists’ opinions,
Vowell must have consumed more than two shots of vodka to register a BAC of
0.06% at 7:00 a.m. 4 Furthermore, there is evidence in the record indicating that
Vowell had previously violated BGC’s policy by becoming intoxicated during
her shift and for which she was never reprimanded. Such a history of drinking
on the job could create an inference that BGC had reason to know that Vowell
4
Buchanan infers that Vowell was sneaking beverages for herself throughout her shift, whereas BGC
contends that the evidence reveals only that BGC furnished Vowell with two drinks.
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would consume alcohol during her shift so as to give rise to liability under the
imputed knowledge doctrine.
[27] However, notwithstanding whether Vowell’s knowledge should be imputed to
BGC based on her past conduct, the designated evidence merely establishes that
she did not have any knowledge of her own intoxication at the time she was last
served a drink. Buchanan submits that Vowell knew she was intoxicated and
fled from the scene of the accident out of fear that the police would recognize it
as well. Yet, Vowell clarified that she believed she was “fine” to drive herself
home, and she did not become concerned about her level of intoxication until
after the accident when she learned from her husband that she “[reeked] of
alcohol.” (Appellant’s App. pp. 45, 300). Vowell also explained that she did
not realize what she had hit, and she was too afraid to stop because she had
“heard of too many stories in general with . . . people putting stuff out [in the
road] to make you stop because somebody is going to come and grab you out of
your car.” (Appellants’ App. p. 161). Thus, at the time she was last furnished a
drink, a question of fact remains regarding the knowledge of intoxication to be
imputed to BGC. Therefore, Buchanan’s partial motion for summary judgment
was properly denied.
II. Common-Law Negligence Claim
[28] In his Complaint, Buchanan also alleged that BGC was liable under the theory
of common-law negligence. At the outset, we note that the parties disagree as
to the applicability of the common law versus the Dram Shop Act. BGC argues
that the “actual knowledge of visible intoxication” standard of the Dram Shop
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Civil Provision also applies in a common-law claim for negligence because the
statute plainly states that it “applies to all civil actions against persons who
furnish alcoholic beverages to ‘a person.’” Thompson v. Ferdinand
Sesquicentennial Comm., Inc., 637 N.E.2d 178, 180 (Ind. Ct. App. 1994)
(emphasis added). As such, arguing that there is no evidence of actual
knowledge of visible intoxication, BGC claims that it is entitled to summary
judgment as to Buchanan’s common-law claim. Alternatively, BGC contends
that the Dram Shop Civil Provision preempts Buchanan’s common-law
negligence claim regarding the furnishing of alcohol. In turn, Buchanan posits
that he has “a common law cause of action arising out of [BGC] providing
alcohol to [Vowell] that is separate and distinct from any statutorily based cause
of action.” (Appellant’s Br. p. 25) (relying on Picadilly, Inc. v. Colvin, 519
N.E.2d 1217 (Ind. 1988), and Gariup Const. Co. v. Foster, 519 N.E.2d 1224 (Ind.
1988)). We need not address whether the actual knowledge of visible
intoxication standard applies in claims of common-law negligence or whether
the common law is preempted by the Dram Shop Act because, independent of a
claim arising from the furnishing of alcohol, we find that Buchanan can proceed
under the common-law theory of negligent supervision.
[29] In order to establish a claim of negligence, Buchanan must demonstrate (1) that
BGC owed him a duty; (2) that BGC breached that duty; and (3) that the
breach proximately caused his injury. See Delta Tau Delta, 712 N.E.2d at 970-
71. In the case at hand, Buchanan seeks to hold BGC liable based on an
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alleged breach of its duty to supervise Vowell’s conduct. In particular, he
asserts:
Public policy must promote and encourage supervision of employees
particularly when the dangers of driving when intoxicated are
considered. Conversely, public policy must discourage (1) allowing
employees to drink on the job; (2) failing to enforce “rules” against
drinking on the job; (3) providing end of work drinks to employees
who have been in control of and drinking the employer’s alcohol
product while on the job; and/or (4) giving to an employee at the end
of a shift a single drink large enough to assure that once consumed the
employee will be drunk.
(Appellee’s Br. p. 25).
[30] To prevail on summary judgment, BGC “must show that the undisputed facts
negate at least one element of [Buchanan’s] cause of action.” Pierson ex rel.
Pierson, 9 N.E.3d at 714-15. Summary judgment “is ‘rarely appropriate’” in
negligence cases. Id. at 715 (quoting Rhodes v. Wright, 805 N.E.2d 382, 387
(Ind. 2004)). “This is because negligence cases are particularly fact sensitive
and are governed by a standard of the objective reasonable person—one best
applied by a jury after hearing all of the evidence.” Rhodes, 805 N.E.2d at 387.
However, whether a legal duty is owed by one party to another is generally a
question of law for the court to determine. Pierson ex rel. Pierson, 9 N.E.3d at
715.
[31] In general, “[t]here is no duty to control the conduct of a third person to prevent
his causing harm to another unless a special relation exists between the actor
and the third person imposing a duty upon the actor to control the third
person’s conduct or a special relation exists between the actor and the other
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which gives the other a right of protection.” Foster v. Purdue Univ. Ch., Beta Mu
of Beta Theta Pi, 567 N.E.2d 865, 871 (Ind. Ct. App. 1991) (citing Restatement
(Second) of Torts, § 315), trans. denied. Indiana courts have previously
recognized the relationship of master-servant “as imposing on the actor a duty
to control the conduct of a third person.” Lather v. Berg, 519 N.E.2d 755, 767
(Ind. Ct. App. 1988), reh’g denied. Accordingly, under negligent supervision, an
employer may be liable if “an employee steps beyond the recognized scope of
his [or her] employment to commit a tortious injury upon a third party.” Scott
v. Retz, 916 N.E.2d 252, 257 (Ind. Ct. App. 2009) (internal quotation marks
omitted). The parties do not dispute that Vowell consumed alcohol while on
BGC’s premises and while on duty as an employee, and BGC’s bartenders were
responsible for dispensing the alcoholic beverages. See Estate of Cummings, 651
N.E.2d at 311. Because Vowell was subject to BGC’s direction and control
when she consumed alcohol during her shift, the employer-employee
relationship gave rise to a duty for BGC to supervise or otherwise control
Vowell’s behavior.
[32] “Although the existence of duty is a matter of law for the courts to decide, a
breach of duty is usually a matter left to the trier of fact.” King v. Ne. Sec., Inc.,
790 N.E.2d 474, 484 (Ind. 2003), reh’g denied. “Only where the facts are
undisputed and lead to but a single inference or conclusion may the court as a
matter of law determine whether a breach of duty has occurred.” Id. In this
case, the parties heavily dispute the amount of alcohol Vowell consumed at
BGC and the extent to which BGC failed to implement/enforce procedures to
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prevent its employees from becoming intoxicated on the job and subsequently
causing injury to third parties. Because there is a genuine issue of material fact
as to whether BGC breached its duty, we find that summary judgment was
inappropriate on the issue of common-law negligence.
CONCLUSION
[33] Based on the foregoing, we conclude that the trial court properly denied BGC’s
motion for summary judgment under the Dram Shop Act because there is a
genuine issue of fact concerning whether BGC furnished alcohol to Vowell with
actual knowledge that she was visibly intoxicated. The trial court also properly
denied BGC’s summary judgment motion as it pertains to the common law
because there is a genuine issue of material fact as to whether BGC breached its
duty to supervise Vowell’s conduct during her shift. We further conclude that
the trial court appropriately denied Buchanan’s cross-motion for summary
judgment because, even assuming the imputed knowledge doctrine applies, the
designated evidence establishes that Vowell had no knowledge of her own level
of intoxication to be imputed to BGC.
[34] Affirmed.
[35] Bailey, J. and Barnes, J. concur
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