Rauck v. Hawn

• Decision Date: 27 December 1990
• Docket Number: No. 39A01-9003-CV-108,39A01-9003-CV-108
• Citation: 564 N.E.2d 334
• Parties: Brian RAUCK, Appellant (Defendant Below), v. Michael HAWN, Appellee (Plaintiff Below), and Jerome Schafer, Jr., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 334

564 N.E.2d 334

Brian RAUCK, Appellant (Defendant Below), v. Michael HAWN, Appellee (Plaintiff Below) and Jerome Schafer, Jr., Appellee (Defendant Below).

No. 39A01-9003-CV-108.

Court of Appeals of Indiana First District.

Dec. 27, 1990.

Peter G. Tamulonis, Donald L. Dawson, John B. Drummy, Kightlinger & Gray, Indianapolis, for appellant.

Edwin S. Sedwick, Sedwick & Sedwick, and Ernest W. Smith, Jeffersonville, for appellee.

ROBERTSON, Judge.

Brian Rauck, defendant below, appeals the denial of his motion for summary judgment and the entry of summary judgment in favor of co-defendant, Jerome Schafer, Jr.

We affirm.

Plaintiff Michael Hawn sustained injury on the morning of May 15, 1988 when defendant Scott Fleming, the brother of a friend with whom Hawn had been camping, drove the pickup truck in which Hawn was sleeping into a tree. Over the prior twelve hours, Fleming had consumed alcohol with Hawn, his brother Mike, and the other co-defendants, among them, Fleming's buddies, appellant Rauck and Jerome (Chip) Schafer. Hawn alleges in his complaint that Rauck and Schafer were negligent per se in that they "furnished" alcohol to Fleming in violation of IND.CODE 7.1-5-7-8 or I.C. 7.1-5-10-15 and their negligence was a proximate cause of his injuries.

Both Rauck and Schafer moved for summary judgment on the ground that the undisputed facts established they did not furnish alcohol to Fleming within the meaning of the statutes. The trial court agreed with Schafer but found a genuine issue of material fact concerning Rauck's conduct.

Rauck characterizes the undisputed evidence as showing that he, like Schafer, acted in concert with Fleming to obtain and drink intoxicants, specifically whiskey and beer. Hence, he argues that he should be entitled to a summary judgment on the same basis as Schafer. In the alternative, if the record shows his conduct to be legally distinguishable on the ground that he affirmatively supplied whiskey to the others, Rauck challenges the summary judgment in favor of Schafer by pointing to facts which he contends establish Schafer likewise exercised possession and control over the beer consumed by Fleming such as to preclude a determination that Schafer did not furnish alcohol to Fleming. Lastly, Rauck maintains that as a matter of law, his acts could not have been the proximate cause of Hawn's injuries since the events which transpired were not reasonably foreseeable by him and were too remote. Should we determine the trial court correctly granted Schafer's motion for summary judgment, appellee Hawn argues that Rauck should not now be permitted to name Schafer as a nonparty pursuant to I.C. 34-4-33-10(c).

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions, affidavits and testimony show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). Summary judgment deprives the non-moving party of the right to a trial; hence, the burden is upon the movant to establish that no genuine issue of fact exists. McKenna v. City of Fort Wayne (1981), Ind.App., 429 N.E.2d 662. A fact issue is genuine if it cannot be completely resolved by reference to undisputed facts. American Family Mutual Ins. Co. v. Kivela (1980), Ind.App., 408 N.E.2d 805. Thus, summary judgment is inappropriate where the information before the court reveals a good faith dispute as to the inferences to be drawn from the evidence. Sink & Edwards, Inc. v. Huber, Hunt & Nichols, Inc. (1984), Ind.App., 458 N.E.2d 291. If after considering the factual materials, any doubt remains as to the existence of a genuine issue of material fact, summary judgment is inappropriate. Carrell v. Ellingwood (1981), Ind.App., 423 N.E.2d 630.

In Indiana, common law liability for negligence in the provision of alcoholic beverages is restricted to cases involving the breach of a statutory duty. Gariup Construction Co. v. Foster (1988), Ind., 519 N.E.2d 1224, 1227-28. Indiana Code 7.1-5-7-8 and I.C. 7.1-5-10-15 identify the specific conduct, proof of which will provide evidence of negligence. Picadilly, Inc. v. Colvin (1988), Ind., 519 N.E.2d 1217, 1219. However, a person may not be held civilly accountable for furnishing, i.e., bartering, delivering, selling, exchanging, providing or giving away, an alcoholic beverage pursuant to these sections unless the person furnishing the alcohol had actual knowledge that the person to whom it was being furnished was visibly intoxicated at the time the alcoholic beverage was furnished, and, 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. I.C. 7.1-5-10-15.5.

Indiana Code 7.1-5-10-15 makes it "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 the other person" to be intoxicated, while I.C. 7.1-5-7-8 prohibits the reckless sale, barter, exchange, provision or furnishing of an alcoholic beverage to a minor. In construing these sections, we have held that one who buys a drink for an intoxicated friend the donor knows to be intoxicated may be found to have engaged in the conduct proscribed by I.C. 7.1-5-10-15. Ashlock v. Norris (1985), Ind.App., 475 N.E.2d 1167, trans. denied. On the other hand, a person who merely loans money he knows will be used to purchase alcohol but neither possesses nor controls the liquor itself, does not furnish alcohol to a minor within the meaning of I.C. 7.1-5-10-8. Lather v. Berg (1988), Ind.App., 519 N.E.2d 755. Similarly, one minor cannot be said to have furnished alcohol to another if the minors acquire possession of the liquor simultaneously and exercise joint control over it thereafter. Id.; see also, Bowling v. Popp (1989), Ind.App., 536 N.E.2d 511. In each case where it has been held that a defendant furnished alcohol to another for his or her use in violation of the statutes, the supplier was "the active means" by and through which the liquor was placed in the custody and control of the intoxicated person. Lather, 519 N.E.2d at 761.

The record indicates that Rauck, Schafer, and Fleming, all minors, encountered Fleming's brother Mike at a local convenience store. Mike agreed to purchase a case of beer which ultimately was shared by the three minors. Scott Fleming did not appear to have had anything to drink at that time. Fleming and Rauck testified that sometime later, after the threesome cruised the riverfront and consumed some of the beer, the three agreed that they wanted whiskey. Schafer says there was no agreement to buy the whiskey; it was Rauck's idea to get it and Rauck bought it. Each of the deponents testified that Rauck approached an individual outside the liquor store, asked the stranger if he would purchase a fifth of whiskey for him, and gave the stranger the money to make the purchase. The stranger then brought the bottle back to the car and handed it to Rauck. Rauck passed the bottle to Fleming and Schafer.

There is thus a dispute in the record over whether the three minors agreed to jointly acquire the whiskey, which must be resolved adversely to Rauck for purposes of summary judgment. There is no dispute that Rauck actively solicited assistance to purchase the liquor, paid for it himself, and exercised possession and control over it before offering it to Fleming. The case for a statutory violation is therefore even more compelling on the facts least favorable to Rauck than in Ashlock where the defendant purchased the drink for his intoxicated friend. Rauck not only devised the plan and purchased the whiskey, admittedly through an intermediary, but he also exercised possession and control over the bottle once it had been acquired. Moreover, the facts least favorable to Rauck suggest that Rauck exercised exclusive control over the bottle once he acquired it,...