Rachel Neal v. IAB Financial Bank, f/k/a Grabill Bank

FILED
Feb 02 2017, 8:39 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Karl J. Veracco Scott L. Bunnell
Larry L. Barnard Andrew S. Williams
Carson Boxberger LLP Michelle K. Floyd
Fort Wayne, Indiana Fort Wayne, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Rachel Neal, February 2, 2017
Appellant-Plaintiff, Court of Appeals Case No.
02A03-1604-CT-1002
v. Appeal from the Allen Superior
Court
IAB Financial Bank, f/k/a The Honorable David J. Avery,
Grabill Bank, Judge
Appellee-Defendant. Trial Court Cause No.
02D09-1409-CT-446

May, Judge.

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[1] Rachel Neal appeals a summary judgment in favor of IAB Financial Bank (“the

Bank”). She argues the trial court erred in finding the Bank owed no duty

toward her.1 We affirm.

Facts and Procedural History
[2] On September 27, 2012, Gabriel Biddle drove into the Bank’s parking lot

because he had a flat tire. Bank employees suggested Biddle move his car into

the farthest teller lane because it would be easier to change the tire there. To do

so, he entered the teller lane through the exit. He moved his car without

difficulty or complications.

[3] The Bank employees who spoke with Biddle said he appeared “somewhat

unaware and unsettled,” (Appellee’s App. at 6), but they assumed he was

frustrated with needing to change the tire. They did not see any alcohol

containers in the car, observe that his eyes were bloodshot, or smell alcohol.

They did not suspect he was intoxicated. They did not take possession of

Biddle’s keys or exert any control over his car. The Bank employees testified

they were not trained, as part of their jobs, to identify whether an individual is

intoxicated.

1
We held oral argument in this case on December 7, 2016, at the Allen County Courthouse in Fort Wayne.
We thank court staff for their hospitality and commend counsel for their well-prepared advocacy.

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[4] The Bank employees helped Biddle change his tire, and afterward they noticed

he “kind of staggered.” (Id.) Biddle got into his car and left the Bank property.

After he left, the Bank employees questioned whether there was something

wrong with Biddle and began to speculate he might have been drinking. The

Bank’s assistant manager, Tyler Shawgo, called 911 to report the Bank

employees’ suspicion that Biddle “might be driving drunk.” (Appellant’s App.

at 54.) During the 911 call, Shawgo told the dispatcher Biddle “just didn’t

kinda [sic] seem to know what was going on . . . he just did not seem all O.K. –

he was kind of staggering and wasn’t really aware of what was . . . .” (Id. at

55.) The dispatcher asked Shawgo “so he appeared like he had been drinking?”

and Shawgo replied “Mmmm-hmmmm.” (Id.) Biddle was later involved in a

traffic accident that injured Neal.

[5] Neal sued the Bank,2 alleging she would not have been injured in the accident

but for the Bank employees’ negligent act of helping Biddle change his tire so he

could get back on the road. She claimed the Bank assumed a duty of care

toward her and other motorists when its employees helped change the tire. The

trial court granted the Bank’s motion for summary judgment. It determined

that under Indiana law, a party cannot be held liable for a drunk driver causing

injuries to a third party unless it furnished the drunk driver alcohol, maintained

2
The parties do not dispute the Bank employees were acting within the scope of their employment and,
therefore, the Bank would be vicariously liable for employees’ actions if employees were found to be
negligent. See Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 147 (Ind. 1999) (under theory of respondeat
superior, an employer can be held liable for the wrongful acts of his employee which are committed within the
scope of employment).

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 a legal right to control the vehicle, or had a special relationship with the other

parties.

Discussion and Decision
[6] We review summary judgment using the same standard as the trial court:

summary judgment is appropriate only where the designated evidence shows

there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016).

All facts and reasonable inferences are construed in favor of the non-moving

party. City of Beech Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). Where the

challenge to summary judgment raises questions of law, we review them de

novo. Rogers, 63 N.E.3d at 320.

[7] To prevail on a claim of negligence, Neal must demonstrate (1) the Bank owed

a duty to Neal; (2) the Bank breached that duty by allowing its conduct to fall

below the applicable standard of care; and (3) the Bank’s breach of duty

proximately caused a compensable injury to Neal. Id. at 321. Absent a duty,

there can be no breach. Id. The trial court found the Bank had no duty to Neal.

[8] Neal contends the trial court erred in entering summary judgment in favor of

the Bank on the premise it had no duty. Specifically, she argues “the Bank

gratuitously assumed a duty when its employees acted to assist a visibly

intoxicated Biddle to change his tire.” (Appellant’s Br. at 6.) The Bank argues

it assumed no duty to Neal because it “did not specifically and deliberately

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 undertake any service or obligation to ensure Biddle, Neal, or other drivers on

the public roadway were safe from drunk drivers.” (Appellee’s Br. at 16.)

[9] Whether a duty exists is a question of law for the court to decide. Rogers, 63

N.E.3d at 321. We therefore review de novo whether the Bank owed Neal a

duty. See id. at 320 (reviewing existence of duty de novo). Where the element of

duty has “already been declared or otherwise articulated,” judicial

determination of the existence of a duty is unnecessary. Id. In determining

whether a duty exists when it has not been established by law, we use a three-

part balancing test under which we consider: (1) the relationship between the

parties, (2) the reasonable foreseeability of harm, and (3) public policy concerns.

Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. Ct. App. 1991), disapproved in other

circumstances by Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 391

(Ind. 2016) (holding the Webb v. Jarvis three-part test for determining the

existence of a duty is inappropriate in landowner-invitee cases).3 We examine

each factor in turn.

3
On October 26, 2016, after the briefs were filed but before oral argument in this case, the Indiana Supreme
Court handed down two decisions, Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016), and
Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016), both of which expressly disapproved the Webb v. Jarvis
framework for determining duty in landowner-invitee cases. Our Indiana Supreme Court noted “balancing
all of the Webb factors in landowner-invitee cases is not necessary,” because it is “well-established” that “two
of the three factors, relationship and public policy, [weigh] in favor of establishing a duty between a social
host and his guest.” Rogers, 63 N.E.3d at 323-24. The “critical element” for determining whether a duty
exists in such situations, the court reasoned, is foreseeability of harm. Id.
The extent to which the Goodwin and Rogers framework for determining duty applies in negligence actions
more generally remains to be decided. Here, we are not addressing the duty of a landowner to its invitee, but
rather the duty of a third party to a motorist injured by an intoxicated driver. Unlike in landowner-invitee
cases where there is already a well-established “duty to protect” owed by landowners to invitees, see Rogers,
63 N.E.3d at 324, Indiana courts are generally reluctant to impose a duty on individuals to control the

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 (1) Relationship between the Parties

[10] When addressing the duty to control the conduct of others, Indiana courts

generally follow the principles set forth in the Restatement (Second) of Torts,

which states:

There is no duty so to control the conduct of a third person as to
prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person
which imposes a duty upon the actor to control the third
person’s conduct, or

(b) a special relation exists between the actor and the other which
gives the other a right to protection.

Hawn v. Padgett, 598 N.E.2d 630, 633 (Ind. Ct. App. 1992) (quoting

Restatement (Second) of Torts § 315 (1965)).

[11] However, a duty of care may arise where one party assumes such a duty, either

gratuitously or voluntarily. Yost v. Wabash College, 3 N.E.3d 509, 517 (Ind.

2014). “The assumption of such a duty creates a special relationship between

actions of a third person unless there is a “special relationship.” See Spierer v. Rossman, 798 F.3d 502, 512 (7th
Cir. 2015) (finding no special relationship existed between social peers who drank alcohol together); Hawn v.
Padgett, 598 N.E.2d 630, 633 (Ind. Ct. App. 1992) (finding no special relationship existed between
acquaintances who were camping and drinking alcohol together); Lather v. Berg, 519 N.E.2d 755, 759 (Ind.
Ct. App. 1988) (holding negligence arising from nonfeasance must be premised on a special relationship
between the parties), reh’g denied. In light of that factual difference, we find it especially critical to consider
the relationship of the parties and public policy concerns in determining whether a duty exists here.
Accordingly, we hold application of the Webb v. Jarvis three-part balancing test is appropriate. To the extent
Goodwin and Rogers establish a new framework for determining foreseeability, see Rogers, 63 N.E.3d at 325,
we adopt that framework and apply it herein within the larger Webb v. Jarvis test for determining duty.

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 the parties and a corresponding duty to act in the manner of a reasonably

prudent person.” Id. (emphasis added). This concept is expressed in

Restatement (Second) of Torts § 324A (1965), which provides:

One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
the protection of a third person or his things, is subject to liability
to the third person for physical harm resulting from his failure to
exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of
such harm, or

(b) he has undertaken to perform a duty owed by the other to the
third person, or

(c) the harm is suffered because of reliance of the other or the
third person upon the undertaking.

[12] The assumption of this duty requires “affirmative, deliberate conduct” making

it apparent the actor specifically undertook to perform the task he is charged

with having performed negligently, because “without the actual assumption of

the undertaking there can be no correlative legal duty to perform that

undertaking carefully.” Yost, 3 N.E.3d at 517. It is therefore “essential to

identify and focus on the specific services undertaken,” for “liability attaches

only for the failure to exercise reasonable care in conducting the ‘undertaking.’”

Id. “Where the record contains insufficient evidence to establish such a duty,

the court will decide the issue as a matter of law.” Id.

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[13] “[A]s a general rule under the gratuitous undertaking concept, a person other

than the driver is not liable for damages caused by the negligent acts of the

driver unless that person has a special relationship that gives him or her the

right to control the vehicle.” Buchanan ex rel. Buchanan v. Vowell, 926 N.E.2d

515, 520 (Ind. Ct. App. 2010). Under this rule, we have held there is no duty to

try to prevent an intoxicated person from driving. Hawn, 598 N.E.2d at 634.

We have drawn a distinction, however, between “preventing” an intoxicated

person from driving and “assisting” an intoxicated person in driving. See

Buchanan, 926 N.E.2d at 521 (holding a person who assisted an intoxicated

person in driving may be liable to a third party injured by the intoxicated

driver).

[14] In Hawn, a group of friends went camping and drank alcohol. The defendants

attempted to prevent Scott, a drunk friend, from driving by taking his keys.

However, Scott became belligerent, so the defendants returned Scott’s keys to

him. Scott subsequently drove his truck into a tree, injuring the plaintiff, Hawn,

who was asleep in the back of the truck. Id. at 632. Hawn sued the other two

campers, arguing they “assumed a duty to prevent their friend from driving

while intoxicated because [their] gratuitous intervention gave rise to a special

relationship when one did not otherwise exist.” Id. at 632.

[15] We first noted the general rule that, in the absence of a special relationship,

there is no duty to control the conduct of a third person to prevent him from

causing physical harm to another. Id. at 633 (citing Restatement (Second) of

Torts § 315). However, we noted the law may impose a duty to control the

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 conduct of a third party when three factors are demonstrated: (1) where a

person is in need of supervision or protection (such as a child, intoxicated

person, or business invitee); (2) from someone who is in a superior position to

provide it (such as a parent, supplier of alcohol, business owner, or hospital);

and (3) that person has a right to intervene or control the actions of the other

person. Id. (citing Sports, Inc. v. Gilbert, 431 N.E.2d 534, 538 (Ind. Ct. App.

1982), trans. denied). We then reasoned the two defendants “were merely

acquaintances of Scott and Hawn[,] . . . were not charged with their supervision

or protection, and had no right to control their actions.” Id. Furthermore, the

defendants “did not supply Scott or Hawn with alcohol or other drugs.” Id.

We concluded “no special relationship arose between them,” and therefore

“they did not assume a duty to control Scott.” Id. In holding the friends were

not liable, we reasoned:

[C]ourts should be reluctant to extend liability to those who
gratuitously attempt to prevent intoxicated individuals from
driving. A finding of liability in this case would encourage others
to take no action rather than incur the risk of liability for failing
to successfully control an intoxicated motorist.

Id. at 634 n.2.

[16] We revisited the concept of gratuitous undertakings in Buchanan. There,

Vowell and her daughter drank alcohol together at a work event to such an

extent that the daughter was legally intoxicated. Instead of calling a cab,

Vowell and her daughter devised a plan wherein each would drive her own car

home, with the daughter in a lead car and Vowell trailing behind, as the two
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 spoke to each other on their cell phones. On the way home, the daughter struck

a pedestrian, causing injuries. The pedestrian brought suit against Vowell

claiming negligence, but the trial court dismissed the pedestrian’s complaint

under Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief

could be granted. Id. at 518.

[17] On appeal, we reversed, concluding the pedestrian sufficiently stated a claim for

negligence. We held the mother gratuitously assumed a duty to prevent her

daughter from injuring others when she agreed to make sure her daughter drove

home successfully. Id. at 521. In so holding, we reiterated that courts should be

reluctant to extend liability to those who gratuitously attempt to prevent

intoxicated individuals from driving. Id. at 520 (citing Hawn, 598 N.E.2d at 634

n.2). However, we distinguished Hawn because Buchanan involved a defendant

who tried not to prevent an intoxicated driver from driving, but rather to assist

her with driving. Id. at 520-21. We noted the allegations in the complaint

demonstrated Vowell “went beyond the actions of the defendants in Hawn” and

“agreed to enter into a concerted activity whereby [Vowell] would follow the

drunken [daughter].” Id. at 521-22. Thus, because Vowell “encouraged [her

daughter’s] tortious activity,” we concluded a duty could exist under the theory

of gratuitous undertakings. Id. at 522.

[18] Neal urges us to conclude, under Buchanan, the Bank assumed a duty to her and

other motorists when its employees undertook to help change Biddle’s tire,

which allowed him to get back on the road. We hold Buchanan is

distinguishable.

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[19] Here, Biddle, who had no relationship with the Bank, pulled into the Bank

parking lot in the middle of the day with a flat tire. It was not until after the

Bank employees finished helping him change the tire, and Biddle was on his

way, that the Bank employees became concerned Biddle might be intoxicated.

The Bank’s assistant manager then called 911 to report the incident because

“they were concerned for Biddle’s safety and for the safety of the motoring

public.” (Appellant’s App. at 62.) Unlike in Buchanan, where Vowell was the

mother of the intoxicated driver, here, there was no relationship between Biddle

and the Bank employees. In addition, the nature of the Bank employees’

conduct here is drastically different than Vowell’s, as Vowell deliberately

assisted her daughter in committing tortious behavior, i.e., Vowell was on the

telephone to help her daughter drive while intoxicated. Here, Biddle happened

upon the Bank employees with a flat tire, and the Bank employees, acting out of

a Good Samaritan reflex, simply helped a distressed motorist change his tire.

[20] We hold the relationship between the parties here is more like the one discussed

in Hawn. In Hawn, we reasoned no special relationship arose between the

defendants and either Scott or Hawn because the defendants were not charged

with their supervision or protection, and had no right to control their actions.

Hawn, 598 N.E.2d at 634. Similarly, here, the Bank employees were not in a

superior position to supervise or protect Biddle, nor did they have any right or

duty to control his actions.

[21] Moreover, we must emphasize the importance of identifying the specific

services undertaken here. See Yost, 3 N.E.3d at 517 (recognizing it is “essential

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 to identify and focus on the specific services undertaken,” for “liability attaches

only for the failure to exercise reasonable care in conducting the

‘undertaking’”). Neal lumps the Bank’s actions together as “assisting a visibly

intoxicated driver in changing a flat tire,” (Appellant’s Br. at 3), and would

have us hold that changing the tire was “assistance with driving.” However, as

we held above, the Bank employees did not assist Biddle with driving in the

way that Vowell helped her daughter. The specific service undertaken here was

to change the tire. And Neal does not allege that in doing so, the Bank failed to

use reasonable care, which caused an accident between Biddle and Neal. We

therefore cannot say it is apparent the Bank specifically and deliberately

undertook to protect the public roadways, and therefore Neal, from an

intoxicated driver.

[22] Because we find no special relationship existed between the Bank and Biddle,

or between the Bank and Neal, and the Bank did not create any special

relationship by gratuitously assuming a duty, we conclude the relationship of

the parties weighs in favor of no duty here.4

(2) Foreseeability

4
We also note no liability arises here under the Indiana Dram Shop Act, as the Bank did not furnish alcohol
to Biddle. See Ind. Code § 7.1-5-10-15.5 (2016) (requiring a person furnishing alcohol have actual knowledge
the person to whom alcohol was furnished was visibly intoxicated at the time the alcohol was furnished
before liability may arise).

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[23] We likewise find a lack of foreseeability that weighs against finding the Bank

had a duty to Neal. When foreseeability is part of the duty analysis, it is “a

general threshold determination that involves the evaluation of (1) the broad

type of plaintiff and (2) the broad type of harm.” Rogers, 63 N.E.3d at 325.

This foreseeability analysis focuses on “the general class of persons of which the

plaintiff was a member and whether the harm suffered was of a kind normally

to be expected – without addressing the specific facts of the occurrence.” Id.

This analysis “comports with the idea that ‘the courts will find a duty where, in

general, reasonable persons would recognize it and agree that it exists.’” Id.

[24] Applying this foreseeability analysis to the case at hand, our inquiry is whether

a duty should be imposed on the Bank, a financial institution, to take

precautions to protect motorists on the public roadways from the potential of a

stranded motorist being intoxicated, before it gratuitously attempts to render aid

to that stranded motorist. Being stranded due to a flat tire is commonplace on

roadways. And, we acknowledge, the incidence of intoxicated drivers on

roadways continues to be higher than ideal. However, we cannot say drunk

drivers routinely stop at places of business seeking aid during the middle of the

day. It is therefore not reasonably foreseeable to a third person - whether it be

an individual or business - who acts as Good Samaritan, that a stranded

motorist to whom they render aid will harm another motorist on the public

roadway. To require every individual who undertakes to aid a stranded

motorist to safeguard against the possibility that motorist may be intoxicated

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 would be requiring those individuals to ensure the safety of all motorists. We

do not believe reasonable persons would recognize such a duty exists.

[25] To the extent Neal argues there is a general duty “not to assist an intoxicated

person in driving,” (see Appellant’s Br. at 7), we agree. We held so in Buchanan.

Indeed, the Seventh Circuit Court of Appeals noted in its analysis of Buchanan,

the consequences of Vowell’s decision to assist her daughter in driving drunk

were “predictably tragic.” Spierer v. Rossman, 798 F.3d 502, 512 (7th Cir. 2015).

But for reasons already discussed above, the facts here are distinguishable from

those in Buchanan. Thus, we cannot say the harm to Neal was foreseeable.

(3) Public Policy

[26] Lastly, public policy considerations weigh heavily against finding the Bank

owed a duty to Neal. Here, roughly five minutes after Biddle left the Bank’s

premises, Shawgo called 911 to report the incident. The 911 call indicates

Shawgo did not need any emergency services, but “just want[ed] to get [the

information about Biddle] out and make sure that he [was] safe and everybody

else [was] safe.” (Appellant’s App. at 56.) While Neal argues this case is

distinguishable from Hawn because Hawn “does not involve a claim of assisting

a drunk driver in returning to the roadway, but merely failing to prevent a

drunk from doing so,” (Appellant’s Br. at 10), we actually find the policy

implications here closely parallel those discussed in Hawn.

[27] Like in Hawn, where the camping friends attempted to prevent their friend from

driving intoxicated out of concern for safety, the Bank employees here called

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 911 out of concern for safety upon concluding Biddle might be intoxicated.

Imposing liability here would punish the Bank for calling 911 to report concern

for Biddle’s safety and for the safety of the motoring public. It would, as we

stated in Hawn, encourage others in the future to take no action when they

believe they encountered an intoxicated person, rather than incur the risk of

liability. Hawn, 598 N.E.2d at 634 n.4. We are reluctant to so hold.

[28] In the same way, we note public policy should encourage rendering aid or

assisting stranded motorists on the roadways, not dis-incentivize it. Were we to

impose a duty on all individuals to consider the potential risk of harm to third

persons before helping motorists in peril, it would require those individuals to

weigh their personal risk of exposure to liability to third persons injured by the

motorist against the motorist’s immediate need for assistance. We refuse to

impose such a duty.

[29] In so holding, we do not unequivocally suggest actors who help motorists never

have a duty toward unknown third persons foreseeably at risk of injury resulting

from negligent conduct of the driver. But where, like here, there was no prior

relationship between the Bank and either Biddle or Neal, nor evidence of an

actor’s knowledge of the motorist’s intoxication, imposing a duty on Good

Samaritans that could discourage providing assistance to motorists in need of

aid is contrary to public policy. As the Court of Appeals for the Seventh Circuit

recently noted, “[t]here is simply no case where Indiana courts have recognized

responsibility on the part of a person to ensure the safety of intoxicated persons

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 with whom they have unexpectedly come into contact.” Spierer, 798 F.3d at

513. We decline to recognize such a duty today.

Conclusion
[30] Because all three of the Webb factors lean against imposing a duty here, the trial

court did not err in concluding the Bank owed no duty to Neal. Accordingly,

we affirm the trial court’s summary judgment in favor of the Bank.

[31] Affirmed.

Crone, J., and Altice, J., concur.

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