Campbell v. Board of Trustees of Wabash College

• Citation: 495 N.E.2d 227
• Decision Date: 16 July 1986
• Docket Number: No. 06A01-8601-CV-1,06A01-8601-CV-1
• Parties: 33 Ed. Law Rep. 841 Jane M. CAMPBELL, Appellant, v. The BOARD of TRUSTEES of WABASH COLLEGE, Sigma Chi Fraternity and Delta Chi Chapter of Sigma Chi Fraternity, Appellees.
• Court: Court of Appeals of Indiana

Page 227

495 N.E.2d 227

33 Ed. Law Rep. 841

Jane M. CAMPBELL, Appellant, v. The BOARD of TRUSTEES of WABASH COLLEGE, Sigma Chi Fraternity and Delta Chi Chapter of Sigma Chi Fraternity, Appellees.

No. 06A01-8601-CV-1.

Court of Appeals of Indiana First District.

July 16, 1986.

John F. Townsend, Jr., Townsend, Hovde & Montross, Indianapolis, for appellant.

Stephen W. Terry, Jr., Alan L. McLaughlin, Baker & Daniels, Indianapolis, Peter L. Obremskey, Parr, Richey, Obremskey & Morton, Lebanon, for The Bd. of Trustees of Wabash College.

James R. Earnshaw, Harding, Henthorn & Harris, Crawfordsville, for Delta Chi Chapter of Sigma Chi Fraternity.

NEAL, Judge.

STATEMENT OF THE CASE

Plaintiff-appellant, Jane M. Campbell (Campbell), appeals an adverse judgment rendered by the Boone Superior Court in a summary judgment proceeding.

We affirm.

STATEMENT OF THE FACTS

The undisputed facts are as follows. Bruce Heslin (Heslin) was a student at Wabash College (College) in Crawfordsville, Indiana. He was also a member of Sigma Chi Fraternity, Inc. and its local chapter, the Delta Chi Chapter (Fraternity), a social fraternity located off-campus and situated in a building owned by the College but leased by the Fraternity. During the evening hours of November 17, 1982, and the early morning hours of November 18, 1982, Heslin was entertaining Campbell, a student from St. Mary of the Woods College, an all women college located in Terre Haute, Indiana. The bulk of the time that Heslin and Campbell were together that evening and morning was apparently spent in Heslin's own room at the Fraternity. While together, Heslin and Campbell consumed alcoholic beverages which Heslin himself purchased and provided. Neither Heslin nor Campbell attended a College or Fraternity sponsored event during the time period involved.

Sometime during the early morning hours of November 18, 1982, Heslin attempted to return Campbell to St. Mary of the Woods College. That attempt ended abruptly at approximately 5:00 a.m. when Heslin's automobile left State Road 475 and careened into a ditch. Campbell suffered serious injuries. Shortly after the accident occurred, it was determined that Heslin's blood alcohol level exceeded the legal limit, and he was arrested. Heslin was 21 years of age at the time of the accident.

Campbell filed this action against the Board of Trustees of Wabash College, the Sigma Chi Fraternity, Inc., and the Delta Chi Chapter of Sigma Chi Fraternity alleging that all three were negligent in that they permitted Heslin to consume an alcoholic beverage on the premises of the College and Fraternity knowing that Heslin would operate a motor vehicle after consuming the beverage.

ISSUE

Campbell contends that summary judgment was inappropriate since, as a matter of law, all three defendants had a duty to control Heslin's consumption of alcoholic beverage; a beverage which Heslin personally bought and consumed in the privacy of his own fraternity room.

DISCUSSION AND DECISION

This case comes to us at a time when the concerns of drinking and driving are paramount in the minds of a significant portion of our society. One of these concerns regards the liability of third parties for the acts of drunken drivers. Whether the third party is the commercial provider of alcoholic beverages who is experiencing enormous increases in the cost of liability insurance (if he can obtain it at all), or the host of a private party who wonders whether he can serve alcoholic beverages to friends and neighbors without subjecting himself to a multi-million dollar lawsuit against which he has little or no protection, the ramifications of third party liability are broad and sweeping. For that reason, we take this opportunity to review the law in Indiana regarding the theories under which third parties may be held liable for the negligent acts of drunk drivers. ¹

Providers of Alcoholic Beverages as Third Parties.

Traditionally, the common law did not place third party liability on providers of alcoholic beverages, whether they were commercial providers or social hosts. See Elder v. Fisher (1966), 247 Ind. 598, 217 N.E.2d 847, quoting 30 AM.JUR. Intoxicating Liquors, Sec. 520 (1958). So long as the person receiving the alcohol was a "strong and able-bodied man" the provider was not liable for any alcohol related negligent acts of the drinker. Id; see also Cruse v. Aden (1889), 127 Ill. 231, 20 N.E. 73. This perspective was founded on the principle of proximate cause; the serving of alcohol being too remote from the subsequent negligent act of the drinker, i.e. the proximate cause of the negligence was the drinking of the alcohol, not the serving of it. See State ex rel. Joyce v. Hatfield (1951), 197 Md. 249, 78 A.2d 754.

As early as 1853, Indiana had enacted a statute placing civil liability for the cost of boarding plus a fifty percent penalty on persons who caused others to become intoxicated and then refused to care for them until they were sober enough to return home unassisted. 1853 Ind.Acts Ch. 66, Sec. 7. See Struble v. Nodwift (1858), 11 Ind. 64. By 1882, the then existing liquor law specifically provided for a civil cause of action to recover damages resulting from a violation of the statute. See Ind.Rev.Stat. Ch. 80, Sec. 5323 (1881); see Dunlop v. Wagner (1882), 85 Ind. 529. However, that chapter of the statute did not prohibit the sale of alcoholic beverages to those already intoxicated. In the years to follow, numerous amendments were made to the statutes regulating the sale and use of alcoholic beverages, and by 1966, no reference regarding a civil cause of action arising from a violation of the state liquor laws still existed in the Indiana statutes. See Elder, supra. Despite that fact, our supreme court held in 1966 that a retail provider of alcoholic beverages who, in violation of statute, sold alcoholic beverages to a minor could be held civilly liable for injuries suffered by another as a result of an automobile accident occasioned by the minor after he had become intoxicated from the beverage illegally sold to him. ² Elder, supra. That decision was based on the proposition that if a statute is enacted for a purpose not "wholly different" than to prevent the injury of which the victim complains, and if the statute was designed to protect a class of persons to which the plaintiff belongs, the "duty owed" element of actionable negligence is established. Id. at 603, 217 N.E.2d at 850.

In 1980, the Third District of this court, speaking through Judge Garrard, found the reasoning upon which Elder was based applicable to an action brought under IND. CODE 7.1-5-10-15, which prohibits the sale, barter, delivery, or gift of intoxicating beverages to persons already intoxicated. Parret v. Lebamoff (1980), Ind.App., 408 N.E.2d 1344. Parret involved a situation where the administratrix of a decedent's estate brought an action against the operators of a bar. She claimed that the defendants, in violation of IND. CODE 7.1-5-10-15, had served the decedent alcoholic beverages after the decedent had already become intoxicated, and that upon leaving the bar the decedent caused an automobile accident and died as a result thereof. The Third District held that the estate could maintain a civil cause of action against the operators of the bar for having violated the statute.

In 1985, the Third District, again speaking through Judge Garrard, held that a cause of action against a person who, in violation of IND. CODE 7.1-5-10-15, gratuitously served alcoholic beverages to an already intoxicated person is available to persons subsequently injured by alcohol induced negligent acts of the intoxicated person. Ashlock v. Norris (1985), Ind.App., 475 N.E.2d 1167, trans. denied. In Ashlock, a woman entered a bar at approximately 3:45 p.m. and ordered a mixed drink. There was no evidence that she had drunk any intoxicating beverages that day before entering the bar. At approximately 5:00 p.m., the woman was accompanied by a male companion, the defendant. By 7:30 p.m., the woman had consumed one more mixed drink and three shots of tequila. The shots were provided by the defendant. At about that time, the woman dropped her purse, and, in an attempt to retrieve it, fell to the floor. She required assistance to stand and was assisted to her car by the defendant. The defendant then spent several minutes attempting to dissuade the woman from driving. She rebuffed his efforts and insisted that she had to leave. Shortly after driving away from the bar, the woman drove onto the shoulder of the road, striking and killing a jogger. In concluding that a cause of action against the male acquaintance existed in favor of the decedent's estate, the court stated that by enacting IND. CODE 7.1-5-10-15 the legislature intended to hold friends and relatives who merely provide an already intoxicated person with "one for the road" liable for injuries caused by the intoxicated person as a result of his inebriated state. Under Ashlock, liability would attach regardless of persistent efforts made to persuade the drunk not to drive, and regardless of how intoxicated the person was before the single drink was provided by a friend or relative.

The result in Ashlock is troublesome and raises serious legal and practical problems. For example, how can it be determined whether the drink which initially intoxicated the person or the drink which was provided after the point of intoxication was the drink which in fact caused the negligent act, and how can one, after mistakenly and negligently providing a drink to an intoxicated person, protect oneself from liability under the statute without exposing oneself to civil and criminal liability for assault and false imprisonment or criminal confinement. Though tempted, we will not address those problems in the instant case since to do so would be an exercise in dicta.

Non-Providers of Alcoholic Beverages as Third Parties.

Non-providers of alcoholic...