F. John Rogers, as Personal Representative of Paul Michalik, and R. David Boyer, Trustee of the Bankruptcy Estate of Jerry Lee Chambers v. Angela Martin and Brian Paul Brothers

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.

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 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.

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 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

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 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

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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.

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 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

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 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
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 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.

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 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.

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 (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

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 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

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 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.

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 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

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 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.

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 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.

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