Davis v. Stinson

• Decision Date: 02 June 1987
• Docket Number: No. 55A04-8701-CV-12,55A04-8701-CV-12
• Citation: 508 N.E.2d 65
• Parties: Alton R. DAVIS and Davis Equipment Company, Inc., Appellants (Defendants Below), v. Deborah STINSON, Individually and as Administratrix of the Estate of Steven D. Stinson, Deceased, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 65

508 N.E.2d 65

Alton R. DAVIS and Davis Equipment Company, Inc., Appellants (Defendants Below), v. Deborah STINSON, Individually and as Administratrix of the Estate of Steven D. Stinson, Deceased, Appellee (Plaintiff Below).

No. 55A04-8701-CV-12.

Court of Appeals of Indiana Fourth District.

June 2, 1987.

Rehearing Denied July 20, Sept. 10, 1987.

M. Michael Stephenson, McNeely, Sanders & Stephenson, Shelbyville, for appellants.

Joseph J. Reiswerg, Mantel, Mantel & Reiswerg, Indianapolis, for appellee.

CONOVER, Presiding Judge.

Defendants-Appellants Alton R. Davis and Davis Equipment Co., Inc. (Davis) appeal the denial of their summary judgment motion in favor of the estate of Steven Stinson (Stinson).

We reverse.

ISSUES

Davis presents one issue for our review, whether an intoxicated driver is contributorily negligent as a matter of law barring recovery from a social host who provides the driver with alcohol.

We raise a second issue sua sponte: whether the intoxicated driver's operation of an automobile upon a public highway constitutes wilful and wanton misconduct which bars recovery in this action.

FACTS

On December 3, 1981, Stinson attended a party held by his employer, Davis, after work. Davis supplied alcohol for the guests at the party. Stinson left the party and died in a single car accident. An autopsy revealed Stinson had a blood alcohol level of .22 percent.

Stinson's estate filed suit on December 1, 1983. The complaint alleged the sole cause of the accident was Stinson's intoxication. Thereafter, Davis filed a motion for summary judgment claiming Stinson was contributorily negligent as a matter of law. The trial court denied the motion, then certified its summary judgment ruling for interlocutory appeal.

DISCUSSION AND DECISION

Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Creighton v. Caylor-Nickel Hospital, Inc. (1985), Ind.App., 484 N.E.2d 1303, 1305-1306. The burden is on the moving party in a summary judgment motion to establish the lack of any genuine issue of material fact. Ancich v. Mobil Oil Corp. (1981), Ind.App., 422 N.E.2d 1320, 1322, reh. denied.

Finally, we will sustain the trial court's judgment on any legal theory or basis consistent with the facts disclosed by the record. Thompson v. Public Service Co. of Indiana (1986), Ind.App., 499 N.E.2d 788, 790, reh. denied.

Stinson's suit is premised upon IND.CODE 7.1-5-10-15 which reads in pertinent part,

Sec. 15. Sale to Intoxicated Person Prohibited. 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. As amended by Acts 1978, P.L. 2, SEC. 721. (Emphasis supplied).

Our courts have consistently held IC 7.1-5-10-15 imposes a duty which will serve as a premise for a civil action for damages against tavern owners. Parrett v. Lebamoff (1980), Ind.App., 408 N.E.2d 1344, 1345. It is readily apparent the "give away" language in that section was intended to render a social host also liable to such an action.

Here, Davis contends Stinson was contributorily negligent as a matter of law. While we agree Stinson cannot maintain his action, it is because he was guilty of contributory wilful and wanton misconduct as a matter of law, not because he was contributorily negligent.

The trial court held here

* * *

(d) that knowledge and appreciation of a peril are essential elements of contributory negligence in Indiana and knowledge alone is not sufficient to charge a party with contributory negligence (Lau [sic] v. Yukon Delta, Inc. 458 N.E.2d (1984); Smith v. Insurance Company of North America [Ind.App., 411 N.E.2d 638] (1980))

(e) that a genuine question of fact exists as to Stinson's knowledge and appreciation of the peril of operating his vehicle on the evening in question

(R. 173). ¹ However, contributory negligence and the applicable principles the trial court discussed are no longer viable issues in cases where the intoxicated driver or his representatives sue for his injuries or death resulting from his driving an automobile on a highway.

Justice Givan recently said,

... it is high time we publicly stated the intoxicated driver is guilty of willful and wanton misconduct when he deliberately assumes control of an automobile and places it upon a public highway.

Williams v. Crist (1985), Ind., 484 N.E.2d 576, 578, (Pivarnik, J. concurs, Shepard, J. and DeBruler, J. concur in result, Prentice, J. dissents). Here, Stinson drove his automobile upon a public highway while intoxicated, and this conduct proximately caused his death. Thus, he was guilty of contributory wilful and wanton misconduct under Williams as a matter of law.

In Parrett, supra, decedent's estate brought an action against a tavern which served alcohol to the decedent after he was intoxicated in violation of IC 7.1-5-10-15. Decedent died in an accident while driving his automobile after leaving the tavern. The trial court dismissed the estate's complaint for failure to state a claim pursuant to Ind. Rules of Procedure, Trial Rule 12(B)(6). This court reversed.

The Parrett court held an earlier version of IC 7.1-5-10-15 was the basis for a civil suit, and contributory negligence was a defense applicable to such suits. It said

Accordingly, we conclude that contributory negligence may constitute a defense to the action. A number of other jurisdictions have arrived at the same result. See, e.g., Swartzenberger v. Billings Labor Temple Ass'n. (1978), Mont., , 586 P.2d 712; Ramsey v. Anctil (1965), 106 N.H. 375, 211 A.2d 900; Annot., 54 A.L.R.2d 1152. (Footnote omitted).

Parrett, supra, 408 N.E.2d at 1346. ²

However, contributory negligence is no defense where defendant is guilty of wilful and wanton misconduct. Discussing this subject we continued, saying

However, we further conclude that dismissal of plaintiff's complaint at the stage of the proceedings where it occurred was unwarranted. Our courts have traditionally held that a plaintiff's negligence will not bar his recovery where the actions of the defendant are wilful, wanton or reckless. See, e.g., McKeown v. Calusa (1977), Ind.App., , 359 N.E.2d 550. That doctrine has application to proceedings such as this one. Ewing v. Cloverleaf Bowl (1978), 20 Cal.3d 389, 143 Cal.Rptr. 13, 572 P.2d 1155.

Parrett, id. Parrett was decided before Williams, however.

Because driving an automobile upon a public highway while intoxicated constitutes wilful and wanton misconduct, such driving is now a complete defense to any action an intoxicated driver or his representative brings against his social host, even though...