dissenting.
I respectfully dissent.
Under Indiana procedure, the party moving for summary judgment has the burden of establishing that no genuine issue of material fact exists. Cole v. Gohmann, 727 N.E.2d 1111, 1118 (Ind.Ct.App.2000). Onee the moving party has met *970this burden with a prima facie showing, the burden shifts to the non-moving party to establish that a genuine issue does in fact exist. . Id. In this respect, Indiana's summary judgment procedure abruptly diverges from federal summary judgment practice.. Jarboe v. Landmark Cmty. Newspapers of Indiana, Inc., 644 N.E.2d 118, 123 (Ind.1994). Under, the federal rule, the movant is not required to negate an opponent's claim, and need only inform the court of the basis of the motion and identify relevant portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Id. The burden then shifts to the non-moving party to make a showing sufficient to establish the existence of each challenged element upon which the non-movant has the burden of proof. Id. Indiana does not adhere to the federal methodology. Id.
Consequently, in Jarboe, 644 N.E.2d at 123, our supreme court held that because the defendants had not supported their motion for summary judgment with any designated evidence to establish the absence of a question of fact on an outcome-determinative issue, they were not entitled to summary judgment. It explained, "Merely alleging that the plaintiff has failed to produce evidence on each element . is insufficient to entitle the defendant to summary judgment under Indiana law." Id.
Here, the evidence designated by the Eagles in support of its motion for summary judgment fails to establish the absence of a question of fact on the material issues. Specifically, it fails to establish that Riley was not visibly intoxicated at the time the Eagles served him. Rather, the Eagles point to the Murdocks' failure to come forward with evidence that Riley was visibly intoxicated. . This would be sufficient under féderal practice. : It fails under Indiana practice, and accordingly, the Eagles were not entitled to summary judgment on the Murdocks' claim.
We applied this rule in Ward, 714 N.E.2d at 729-30, another dram shop case, where we determined that the tavern that furnished alcohol was not entitled to summary judgment. In doing so, we first noted the distinction between the federal and Indiana summary judgment standards. We noted that "[uinder Jarboe, it is [the tavern's] responsibility as the moving party to establish the noh-existence of every material question of fact. Here, as long as 't is unknown where [the patron] consumed alcohol sufficient to register a .22, [the tavern] has failed to meet this responsibility." Id. at 730. We therefore concluded that a question of fact remained about whether the customer was visibly intoxicated at the time the tavern served him aleohol that precluded the granting of summary. judgment. Id.
The majority states that "[the record before us 'is devoid of any independent evidence of Riley's level of intoxication." Op. at 969. I agree. Where I part with the majority is on the effect of this lack of evidence. 'As I interpret Jarboe, the burden is on the Eagles to designate evidence demonstrating that Riley was not intoxicated.. It did not do so, and, thus I believe summary judgment is inappropriate.
Based on Indiana's summary judgment standard, I believe that the trial court erred in granting the Eagles' motion for summary judgment where designated evidence failed to establish the absence of a material question of fact. Under our summary judgment framework, to be entitled to summary judgment on the Murdocks' claim, the Eagles was required to present evidence that it lacked actual knowledge of Riley's intoxication at its social room. Like Justice Boehm in his dissent from the denial of transfer in Lenhardt Tool & Die Co., Inc. v. Lumpe, 722 N.E.2d 824 (Ind. *9712000), I recognize that this standard may create a nearly impossible burden, effectively requiring defendants like the Eagles to prove a negative, but it is my belief that we are bound by precedent to conclude that summary judgment should be denied under the cireumstances present here.