Ashlock v. Norris

• Decision Date: 28 March 1985
• Docket Number: No. 4-184,4-184
• Citation: 475 N.E.2d 1167
• Parties: Susan J. ASHLOCK, Administratrix of the Estate of Anthony Joseph Ashlock, deceased, and individually, Plaintiff-Appellant, v. Robert F. NORRIS, Defendant-Appellee. A 2.
• Court: Indiana Appellate Court

Page 1167

475 N.E.2d 1167

53 USLW 2502

Susan J. ASHLOCK, Administratrix of the Estate of Anthony Joseph Ashlock, deceased, and individually Plaintiff-Appellant, v. Robert F. NORRIS, Defendant-Appellee.

No. 4-184 A 2.

Court of Appeals of Indiana Third District.

March 28, 1985.

Jay T. Seeger, Heide, Gambs & Mucker, Lafayette, for plaintiff-appellant.

John W. Barce, Barce, Vann & Ryan, Fowler, for defendant-appellee.

GARRARD, Judge.

This is a wrongful death case premised upon the gratuitous furnishing of alcoholic beverages to a person who subsequently struck and killed plaintiff's decedent with an automobile. The trial court granted summary judgment for the defendant.

The facts favorable to the plaintiff disclose that after work on April 13, 1982, Cindy Morrow went to Butterfield's Restaurant and Lounge in Lafayette. She arrived at the lounge about 3:45 p.m. and ordered a tequila mixed drink. About 5:00 p.m. appellee Norris arrived at the lounge. He was previously acquainted with Morrow and joined her at the bar.

At 7:30 p.m. Morrow had consumed two tequila mixed drinks as well as three shots of tequila purchased for her by Norris. At about that time Morrow fell down while attempting to pick up her purse which she dropped. After resting for several moments Morrow was able to regain her feet only with Norris' assistance. He then assisted her in leaving the lounge and helped her into her car. He then spent several minutes in an unsuccessful attempt to persuade Morrow not to drive. She, however, insisted that she had to leave, and she did.

About a mile from the lounge Morrow attempted to pass a car on the right. As she did she struck and killed Anthony Ashlock who was jogging along the shoulder of the road about ten feet from the travelled portion of the highway. Morrow continued to drive down the road, approximately two miles, until she drove into a ditch.

On June 21, 1982 Susan Ashlock, individually and as administratrix of the estate of Anthony Ashlock, deceased, commenced this action for wrongful death, naming as defendants the corporate owner of the lounge, two of its bartenders and Norris. On November 8, 1983 the actions against the lounge and the two bartenders were dismissed with prejudice upon plaintiff's motion. Summary judgment was then sought by Norris and granted.

Restated, the issues presented by this appeal are whether the law permits Ashlock to pursue a claim against Norris and, if so, whether there are genuine issues of fact that preclude summary judgment.

The focal point of the first question is whether Norris owed any duty to Ashlock which he may have breached by his conduct. Ashlock cites IC 7.1-5-10-15 as creating such a duty. This statute, which is a part of the criminal penalties provisions of our alcoholic beverages statutes, provides:

"It is unlawful for a person to sell, barter, deliver or give away an alcoholic beverage to another person who is in a state of intoxication if the person knows that the other person is intoxicated."

Typically, the question of whether such a provision imposes a civil duty is the critical determination to be made. In Indiana that essential determination was made nearly twenty years ago in Elder v. Fisher (1966), 247 Ind. 598, 217 N.E.2d 847 when our Supreme Court determined that a companion section of the statute which prohibited a person from selling, bartering, exchanging, providing or furnishing an alcoholic beverage to a minor ¹ had the public safety as one of its purposes and did create a civil duty, 217 N.E.2d at 851. That case involved a retail sale by a drugstore to a minor. Subsequently, in Brattain v. Herron (1974), 159 Ind.App. 663, 309 N.E.2d 150 the First District of this court extended liability to a private person furnishing alcoholic beverages to a minor.

In Parrett v. Lebamoff (1980), Ind.App., 408 N.E.2d 1344 we recognized that IC 7.1-5-10-15 imposed a civil duty upon a retailer of alcoholic beverages, as did Judge Ratliff writing for the First District in Elsperman v. Plump (1983), Ind.App., 446 N.E.2d 1027.

Most recently our Supreme Court, while affirming a verdict for the defendants in a claim brought under IC 7.1-5-10-15, cited Parrett and Elsperman stating, "Indiana law clearly endorses the proposition that a violation of the liquor laws will result in a civil action." Whisman v. Fawcett (1984), Ind., 470 N.E.2d 73, 80.

It is true that all these decisions, except Brattain, have been litigated against either an establishment engaged in the business of selling alcoholic beverages or the bartender allegedly involved in the sale. On the other hand, as Judge Lowdermilk observed in Brattain, the legislature has chosen to draw no distinction between one who sells in violation of the statute and one who gives or furnishes in violation. Indeed the legislature has specifically defined "person" to include any "natural person" (IC 7.1-1-3-31) and has made the statutory proscription applicable to a person, rather than to a "permittee." See IC 7.1-1-3-30.

In sum, the plain language of the statute prohibits a person from giving alcoholic beverages to an intoxicated person where the donor knows the other person is intoxicated.

Having so stated we nevertheless recognize a legitimate question may be posed as to whether the legislature intended to, and whether sound public policy supports, the extension of civil liability to family, friend or acquaintance who merely furnishes "one more drink" to an intoxicated person. Considering the carnage on our public highways involving intoxicated drivers, the answer to both questions may be "yes." ² Certainly, the legislature has had ample time to respond to either Elder or Brattain if it desired to do so.

Accordingly, we conclude that Ashlock properly stated a claim for relief against Norris premised upon the alleged violation of IC 7.1-5-10-15.

The remaining question is whether there was a genuine issue of fact which would avoid summary judgment concerning Norris' knowledge of Morrow's intoxication at the time he last furnished her a drink. He urges there was not. In support, he points to his deposition, answers to interrogatories and affidavit filed in support of his motion for summary judgment. In sum these materials assert that Norris last furnished Morrow a drink about 7:00 p.m., that she did not appear to him to be intoxicated at that time, and that it was not until thirty to forty minutes later that her intoxication became apparent.

As Judge Staton explained in Jones v. City of Logansport (1982), Ind.App., 436 N.E.2d 1138, 1143 summary judgment procedure should be applied with considerable caution so that a party's right to the fair determination of a genuine issue is not jeopardized. Thus, any doubt as to a fact, or an inference to be drawn therefrom is to be resolved in favor of the party opposing the motion for summary judgment.

On the other hand, in a number of cases we have recognized that once a party has moved for summary judgment with supporting materials as required by the rule, the opposing party may not merely rest on his pleadings. Instead he must be filing his own materials, or otherwise, demonstrate that a genuine issue does exist. See, e.g., Durakool, Inc. v. Mercury Displacements Indus., Inc. (1981), Ind.App., 422 N.E.2d 680. Of course, it is enough if from the record taken as a whole it appears that a genuine issue remains. See Dallas Co. v. Tobias Studio, Inc. (1974), 162 Ind.App. 213, 318 N.E.2d 568.

It would be proper to prove by circumstantial evidence that Norris knew Morrow was intoxicated before he last provided her a drink. As the court pointed out in Elsperman, supra, there are many factors which can be considered in determining whether a person was intoxicated to another person's knowledge, including what and how much the person was known to have consumed, the time involved, the person's behavior at the time, and the person's condition shortly after leaving. 446 N.E.2d at 1031.

In the case before us the question is extremely close. Norris' knowledge of Morrow's condition is not capable of simple emphatic proof as would be the execution of a written instrument or the placement of a stop sign. It is a very fact sensitive determination.

The record bearing upon the propriety of the summary judgment consists of Norris' answers to interrogatories, affidavit and deposition. ³ As previously indicated they disclose that when Norris arrived at the lounge about 5:00 p.m. Morrow was sitting at the bar with a half-consumed tequila sunrise before her. Between then and 7:00 p.m. when...