Hawn v. Padgett, 39A01-9202-CV-38
| Decision Date | 09 September 1992 |
| Docket Number | No. 39A01-9202-CV-38,39A01-9202-CV-38 |
| Parties | Michael HAWN and Brian Rauck, Appellant-Plaintiff and Defendant Below, Respectively, v. Rebecca PADGETT and Lisa Ball, Appellee-Defendants. Michael Fleming, Frank Partipilo, the State of Indiana, and the Department of Natural Resources, Non-Active Parties On Appeal. |
| Court | Indiana Appellate Court |
John B. Drummy, Kightlinger & Gray, Indianapolis, for Brian Rauck.
Edwin S. Sedwick, Sedwick & Sedwick, Jeffersonville, for Michael Hawn.
Peter J. Sewell, Segal and Shanks, Jeffersonville, for Rebecca Padgett.
Samuel E. Day, Barbara W. Gernert, Wyatt, Tarrant, Combs & Orbison, New Albany, for Lisa Ball.
Plaintiff-appellant Michael Hawn (Hawn) initiated a negligence action against defendant-appellees Rebecca Padgett (Rebecca) and Lisa Ball (Lisa) to recover for personal injuries he sustained while asleep in the back of a pick-up truck driven and wrecked by Scott Fleming (Scott). Hawn alleged Rebecca and Lisa negligently allowed Scott, an intoxicated minor, to drive the truck after abandoning their efforts to prevent Scott from driving while intoxicated. Rebecca and Lisa filed motions for summary judgment which the trial court granted on the basis that neither owed a duty to Hawn. Hawn challenges this ruling.
We affirm.
On May 14, 1988, Rebecca and Lisa were camping at Deam Lake State Park in Borden, Indiana. Michael Fleming, Frank Partipilo and Hawn were at the campsite next to Rebecca and Lisa. Although Rebecca and Lisa had not arranged in advance to meet anyone at the campground, they were acquaintances of the three men, and the group shared a picnic table at Rebecca and Lisa's campsite until approximately midnight. Throughout the evening, the three men drank beer from a pony keg located inside their tent.
At approximately 1:00 a.m., Scott, the younger brother of Michael Fleming, arrived at the campsite with Jerome Schaefer and Brian Rauck. These three, all minors, had been drinking and Scott had passed out in the back seat of the car. Michael Fleming removed his brother from the car, put him on a lawn chair and covered him with a blanket. Sometime between 3:00 and 5:00, a.m., and after taking a valium, Hawn set up a cot in the back of the pickup truck and went to sleep. Scott and Michael Fleming's father owned the pickup truck, and Michael Fleming had permission to drive the vehicle that evening. Michael Fleming left the keys to the truck in the ignition throughout the entire evening.
After Hawn got into the back of the truck, only Scott, Rebecca and Lisa remained awake. Scott asked the girls for a cigarette, but neither of the girls had any. Scott then stated he was going to drive his father's truck to purchase some. Rebecca and Lisa acknowledge Scott was too intoxicated to drive and admit taking the keys to the truck to prevent him from doing so. The girls also fed Scott and tried to dissuade him from driving as they walked him around the area.
When they returned to the campsite, Scott angrily demanded the keys. Rebecca and Lisa refused and took the keys with them into their tent. Scott continued his demands, threatening the girls and eventually physically assaulting Lisa. In response to Scott's anger, the girls threw the keys out of the tent. Scott found the keys and, with Hawn still asleep in the pickup's bed, left for the store. Hawn suffered personal injuries when Scott drove the truck into a tree.
When reviewing a grant of summary judgment, we apply the same standards as the trial court, and examine all pleadings, admissions, answers to interrogatories, depositions, and affidavits filed with the court in the light most favorable to the party opposing the summary judgment motion. Moore v. Sitzmark Corp. (1990), Ind.App., 555 N.E.2d 1305, 1306-07. Summary judgment is appropriate only when no genuine issues of material fact exist and when the moving party is entitled to judgment as a matter of law. Id. at 1307. When a defendant is the moving party, it is entitled to summary judgment as a matter of law if it can demonstrate that either the undisputed material facts negate at least one element of the plaintiff's claim, or if it raises a valid affirmative defense which bars the plaintiff's claim. Id. If a defendant cannot make one of these showings, summary judgment is inappropriate. Id.
Hawn's action against Rebecca and Lisa sounds in negligence. To recover on a negligence theory, a plaintiff must establish three elements: (1) a duty on the part of the defendant to conform her conduct to a standard of care arising from her relationship with the plaintiff, (2) a failure of the defendant to conform her conduct to the requisite standard of care required by the relationship, and (3) an injury to the plaintiff proximately caused by the breach. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 995. Imposition of a duty is limited to those instances where a reasonably forseeable victim is injured by a reasonably forseeable harm. Id. at 997. Absent a duty, however, there can be no breach and no recovery under a negligence theory. Stephenson v. Ledbetter (1992), Ind., 596 N.E.2d 1369, 1371. Here, we need consider only the first element relating to the existence of a duty.
"Whether a defendant owes a duty of care to a plaintiff is a question of law for the court to decide." Id.; Gariup Construction Co., Inc. v. Foster (1988), Ind., 519 N.E.2d 1224, 1227; Miller v. Griesel (1974), 261 Ind. 604, 611, 308 N.E.2d 701, 706. "The duty to exercise care for the safety of another arises as a matter of law out of some relation existing between the parties, and it is the province of the court to determine whether such a relation gives rise to such duty." Neal v. Homebuilder's, Inc. (1952), 232 Ind. 160, 169, 111 N.E.2d 280, 285.
Hawn claims the undisputed facts demonstrate Rebecca and Lisa assumed a duty to prevent Scott from driving while intoxicated because the girls' gratuitous intervention gave rise to a special relationship when one did not otherwise exist. Rebecca and Lisa maintain the undisputed facts reveal they did not assume a duty of care to either Scott or Hawn.
The negligence of Rebecca and Lisa, if any, is properly characterized as nonfeasance, a failure to act, because they allegedly failed in their duty to prevent Scott from driving while intoxicated. Before we examine whether any duty arose, we note that unless a plaintiff shows an affirmative act of misconduct by a defendant, negligence arising from nonfeasance must be premised on a special relationship between the parties. Lather v. Berg (1988), Ind.App., 519 N.E.2d 755, 759.
When addressing the duty to control the conduct of others, Indiana courts generally follow the principles set forth in the Restatement (Second) of the Law on Torts. See Sports, Inc. v. Gilbert (1982), Ind.App., 431 N.E.2d 534, trans. denied. The basic principle of this duty is stated as follows:
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
Restatement of the Law on Torts Sec. 315 (2d ed. 1965).
In Lather, supra, our court examined a factual scenario which parallels this case. Our court affirmed a summary judgment entered in favor of teenage...
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