Culver v. McRoberts, 99-1202

• Decision Date: 04 October 1999
• Docket Number: No. 99-1202,99-1202
• Citation: 192 F.3d 1095
• Parties: (7th Cir. 1999) Roger Culver, Plaintiff-Appellant, v. James McRoberts, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1095

192 F.3d 1095 (7th Cir. 1999)

Roger Culver, Plaintiff-Appellant, v. James McRoberts, Defendant-Appellee.

No. 99-1202

United States Court of Appeals, Seventh Circuit

Argued September 9, 1999

Decided October 4, 1999

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 95 C 282--James T. Moody, Judge.

Before Coffey, Kanne and Evans, Circuit Judges.

Kanne, Circuit Judge.

Roger Culver appeals from the district court's grant of summary judgment dismissing his causes of action against James McRoberts. Culver suffered injuries and damages as a result of a multi-car accident caused by John Crowley, who was driving while intoxicated and was later convicted of reckless homicide. Crowley became intoxicated at a social gathering held on McRoberts's boat, and Culver brought suit against McRoberts in the Northern District of Indiana for negligence per se under the Indiana Dram Shop Act and common-law negligence for failure to supervise Crowley.

The district court granted summary judgment for McRoberts on both counts finding that: (1) McRoberts did not have "actual knowledge" of Crowley's intoxication as required for negligence per se under the Indiana Dram Shop Act; (2) McRoberts did not "furnish" alcohol to Crowley as required for negligence per se under the Dram Shop Act; and (3) an independent common-law action for negligent supervision of an intoxicated social guest failed to state a claim under Indiana law.

For the reasons presented in the following discussion, we affirm the district court's grant of summary judgment on both claims for relief.

I. History

During the summer of 1993, Defendant James McRoberts raced his father's sailboat, the "Saludos," in weekly regattas on Lake Michigan from the Hammond Marina Yacht Club in Hammond, Indiana. John Crowley served as one of McRoberts's first mates aboard the Saludos and reported to the Yacht Club for their regularly scheduled race on September 1, 1993.

The race began that night between 6 p.m. and 6:45 p.m. with McRoberts, Crowley and the rest of the Saludos crew racing against approximately fifteen other boats. The race ended between 9 p.m. and 9:30 p.m. Immediately thereafter the crew of the Saludos buttoned down, cleaned the boat and put the sails below deck, finishing at approximately 10:15 p.m. After these post-race chores, McRoberts began calculating the race results for the night, and race participants from competing boats gathered at McRoberts's boat to socialize, report finish times and hear final race results.

The Saludos was a forty-foot yawl equipped with a kitchen space and galley where people regularly left liquor, beer and other beverages for these weekly post-race gatherings. As was custom, people mixed their own drinks, and approximately ten to twelve people socialized on and around the Saludos until the gathering wound down around midnight.

Between 10 p.m. and 11 p.m., Crowley had two or three drinks, which he prepared for himself. At some time during this period, McRoberts, Crowley and a number of others were engaged in a conversation about boating safety. This discussion ended by 11 p.m. Plaintiff's expert witness on toxicology submitted an affidavit stating that, based on Crowley's physical characteristics and blood-alcohol reading taken later that night, Crowley may have been visibly drunk as early as 11:05 p.m., after the boating safety discussion had ended, but would certainly have been visibly drunk by 11:30 p.m. However, several witnesses on board the Saludos at that time testified that Crowley did not stagger or slur his speech and was not visibly intoxicated that night.

Crowley believed that he may have consumed one more drink between 11 p.m. and midnight. Plaintiff does not allege that McRoberts actually observed Crowley or interacted with Crowley between 11 p.m. and midnight. Pursuant to his duties as race commodore, McRoberts was busy recording finish times, calculating the race results, conversing with visitors and reporting results to race participants. McRoberts testified that he did not observe Crowley between 11 p.m. and midnight and never was aware of what or how much Crowley was drinking.

Around midnight, McRoberts, Crowley and McRoberts's wife left the Hammond Marina Yacht Club and drove around north Hammond in search of a late-night meal. At that time, McRoberts recognized that Crowley was "buzzed", because he was more talkative, but knew that Crowley was not drunk based on his previous experiences socializing with Crowley. The threesome searched for a restaurant still open at that hour for about forty-five minutes and arrived at the Purple Steer Restaurant around 1 a.m. where they had an hour-long meal. Neither Crowley, nor anyone else, drank at the Purple Steer Restaurant. They returned to the Marina at approximately 2 a.m.

From there, Crowley drove away for home in his own car but was involved in a three-vehicle accident at 2:15 a.m. Crowley struck a semi- tractor trailer, which then catapulted the concrete center barrier and struck a second semi- tractor trailer driven by Plaintiff Roger Culver. Culver suffered serious injuries and his passenger was killed.

Lake County Police Officer Julie Hager arrived at the accident scene at 2:30 a.m. and reported that Crowley was "very unsteady on his feet," "very thick tongued" and was unable to remember the accident. Crowley pled guilty to a criminal charge of reckless homicide and stipulated that he had a blood-alcohol level of approximately .20 at the time of the accident.

On August 24, 1995, Plaintiff brought this diversity suit against McRoberts for negligence per se under the Indiana Dram Shop Act and for common-law negligence. Plaintiff sought damages suffered as a result of the accident claiming that McRoberts was negligent per se because he provided alcoholic beverages to Crowley in violation of the Indiana Dram Shop Act, and that McRoberts also was liable under a common-law theory of negligent supervision under Indiana law. On January 12, 1999, the district court entered summary judgment against Plaintiff finding that: (1) McRoberts did not have "actual knowledge" of Crowley's intoxication as required for negligence per se under the Indiana Dram Shop Act; (2) McRoberts did not "furnish" alcohol to Crowley as required for negligence per se under the Dram Shop Act; and (3) a common-law dram shop action independent of the statutory action was not cognizable under Indiana law. Plaintiff now appeals the district court's grant of McRoberts's motion for summary judgment.

II. Analysis

A. Standard of Review

We review the district court's grant of summary judgment de novo, drawing our own conclusions of law and fact from the record before us. Haefling v. United Parcel Serv., 169 F.3d 494, 497 (7th Cir. 1999). Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In determining whether a genuine issue of material fact exists, we must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, neither "the mere existence of some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, nor the existence of "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), is sufficient to defeat a motion for summary judgment. A genuine issue of fact "exists only when a reasonable jury could find for the party opposing the motion based on the record as a whole." Pipitone v. United States, 180 F.3d 859, 861 (7th Cir. 1999) (Citation omitted).

B. Negligence Per Se Under the Indiana Dram Shop Act

Under Indiana law, a person who provides an alcoholic beverage to someone who that person knows is intoxicated may be liable for tort damages caused later by that intoxicated person. The Indiana Dram Shop Act provides that: "[i]t 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." Ind. Code sec. 7.1-5-10-15(a) (1998).

Indiana law imposes civil liability on persons who violate the Dram Shop Act for damages arising from the intoxicated person's subsequent tortious conduct where: "(1) the person furnishing the alcoholic beverage had actual knowledge that the person to whom the alcoholic beverage was furnished was visibly intoxicated at the time the alcoholic beverage was furnished; and (2) the intoxication of the person to whom the alcoholic beverage was furnished was a proximate cause of the death, injury, or damage alleged in the complaint." Ind. Code sec. 7.1-5-10-15.5(b) (1998); see Whisman v. Fawcett, 470 N.E.2d 73, 80 (Ind. 1984) ("Indiana law clearly endorses the proposition that a violation of the liquor laws will result in a civil action."); Muex v. Hindel Bowling Lanes, Inc., 596 N.E.2d 263, 266 (Ind. Ct. App. 1992); Ashlock v. Norris, 475 N.E.2d 1167, 1169 (Ind. Ct. App. 1985).

Plaintiff argued before the district court that McRoberts violated the Dram Shop Act because McRoberts "furnished" alcoholic beverages to Crowley by virtue of the availability of alcohol on McRoberts's boat, and McRoberts had "actual knowledge" that Crowley was intoxicated when those drinks were furnished. The district court granted summary judgment for McRoberts on both elements finding that McRoberts did not "furnish" beverages to Crowley under the meaning of the Dram Shop Act and that McRoberts, in any case, did not have actual knowledge that...