concurring in result.
I agree with the result reached by the majority but write separately to address various issues raised in this case.
The majority mentions several Restate ment provisions en route to its conclusion, and I think most are inapplicable in light of the allegations raised in Jerry's complaint. Restatement section 315 discusses the duty to control third parties:
There is no duty so to control the conduct of a third person as to prevent him from eausing 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 to the other a right to protection.
Restatement (Second) of Torts § 315 (1965). The "special relations" referred to in Subsection (a) are specified in Restatement sections 316 through 319. Id. § 315 emt. c. Section 316 discusses parents and their minor children. Section 317 pertains to masters and servants. Section 318 involves owners and licensees. None of those relationships is presented here. Section 319 specifies that "[olne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm." This Court has previously observed that Section 319 is directed toward "situations in which a dangerous person is in the custody of someone else, as when a person is hospitalized due to a contagious disease or a mental illness manifested by violence." Sports, Inc. v. Gilbert, 431 N.E.2d 534, 536 (Ind.Ct.App.1982). There is no allegation of a custodian/ward relationship in this case. I would therefore conclude that Section 315 and corresponding Section 319 do not apply in the instant situation. See 34 Am. Jur. Trials 499, Failure to Protect the Public From an Intoxicated Driver § 22 (1987) ("Most courts have refused to impose liability for the actions of a drunken driver on a nonsupplier of liquor under such a theory
Likewise, Section 324A, which involves gratuitous or contractual undertakings, is inapplicable:
*523One 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 lHability 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.
Jerry's allegations fail to disclose any undertaking within the contemplation of Section 324A. The complaint in no way indicates how Shannon agreed to "render services" for Candice beyond devising a plan to follow her home. As the majority puts it, this is a case in which "a person assisted the intoxicated in driving." Op. at 521. However, helping a drunk driver get behind the wheel and drive herself somewhere is not a service one could "recognize as necessary for the protection of a third person." Rather, it is the opposite: a service which one should recognize as patently dangerous.
That leaves us with the final provision at issue, Restatement (Second) of Torts seetion 876. Section 876 pertains to aiding, abetting, or conspiring to commit a tort. It states as follows:
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
The comment to Subsection (b) explains that if "encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfea-sor and is responsible for the consequences of the other's act." Restatement (Second) of Torts § 876 emt. d. "What counts as substantial aid or encouragement no doubt depends heavily on the facts." 2 Dan B. Dobbs, The Law of Torts § 340 (2001). Here the complaint alleges that Shannon "actively devised and engaged in a plan with Candice, wherein Shannon would follow Candice as she drove her car home," Appellant's App. p. 27, and that "[alfter the collision, Candice, in concert with her mother, Shannon, consciously elected to leave the seene." Id. at 28. Given our duty to review a ruling on a motion to dismiss by looking at the pleadings in the light most favorable to the non-movant with every reasonable inference construed in the non-movant's favor, I believe that under these allegations, Shannon could conceivably be liable for aiding or encouraging Candice's driving while intoxicated and leaving the seene of an accident. I therefore agree that 12(B)(6) dismissal was improper. See Simmons v. Homatas, 386 Ill.App.3d 998, 325 Ill.Dec. 898, 898 N.E.2d 1177, 1183-85 (2008) (finding defendant strip club subject to Hability under Section 876 for, among other things, facilitating patron's intoxication and placing him behind the wheel).
Finally, I wish to express my disagreement with the majority's comments about Shannon and Candice's cell phone conver*524sation. The majority concludes that Shannon may have breached her own duty of care "by calling and distracting a person she knew was operating a vehicle while under the influence of alcohol." Op. at 522. Perhaps the content of the cell phone conversation may evidence Shannon's aid or encouragement of Candice's tortious conduct. But I do not believe that merely calling someone on the phone knowing that the person is driving and intoxicated constitutes a tortious act on its own. See also Jay M. Zitter, Annotation, Civil Liability Arising from Use of Cell Phone While Driving, 36 A.L.R.6th 443 (2008).
For the foregoing reasons, I concur in result.