Estate of Cummings Ex Rel. Heck v. PPG Industries, Inc.

BARTEAU, Judge,

dissenting.

I respectfully dissent to Part III because I believe summary judgment was finappropriate on the common law negligence claim. The three-part Webb analysis identified by the majority leads to the conclusion that PPG did owe a duty to Cummings and Franklin. Whether PPG breached that duty, proximately causing Cummings's and Franklin's injuries, are questions of fact for the jury to determine.

First, we must determine whether a relationship exists between PPG and the plaintiffs that will support a duty. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 995, reh'g denied. In Gariup Const. Co., Inc. v. Foster (1988), Ind., 519 N.E.2d 1224, the supreme court found such a relationship where the employer had a party for its employees and served alcohol. The majority distinguishes Gariup by emphasizing that the shift party was not held on PPG's property, and that Duffy, as a minor, was not privileged to drink at the tavern as one of PPG's employees. I do not believe that these distinctions are enough to conclude that a relationship does not exist that would support a duty to motorists like Cummings and Franklin.

PPG involved itself in the employees' shift party by suggesting the party and giving money to the employees to help pay for the party. Although the party was held at a tavern and the tavern employees actually dispensed the alcohol, PPG nevertheless sponsored the party for its employees and Duffy was present at the tavern as a PPG employee. Under the rationale of Gariup, this is sufficient to establish the necessary relationship that would support a duty to exercise care with respect to motorists.

The majority finds it significant that PPG had instructed that no minors would be allowed to attend the party and that it was the tavern's responsibility to ask for identification from the persons present. However, those facts are relevant in determining whether PPG breached the duty, not whether a duty exists in the first place.

Second, we must determine whether the injuries to Cummings and Franklin were foreseeable. Webb, 575 N.E.2d at 995. Contrary to the majority's view, I believe there is no question that injuries to motorists at the hands of a drunk driver are foreseeable when one sponsors a party at which alcohol will be served.

*313Third, public policy concerns must be considered. I disagree with the majority that public policy concerns weigh against imposing a duty where PPG did not itself check identifications or dispense the alcohol. Again, I believe the delegation of those responsibilities to the tavern go to the issue of whether PPG exercised reasonable care, not whether they had a duty to exercise reasonable care. I believe public policy should impose a duty to exercise reasonable care to prevent drunk driving when one sponsors a party at which alcohol will be served.

The three Webb factors-relationship, foreseeability and public policy-weigh in favor of imposing a duty on PPG to exercise reasonable care. Thus, I conclude that a duty does exist. Remaining to be answered is whether PPG did exercise reasonable care. Whether the duty was breached presents a question of fact for the jury and summary judgment is inappropriate.

I would reverse the trial court's grant of summary judgment in favor of PPG on the negligence claim.