Robbins v. McCarthy

• Citation: 581 N.E.2d 929
• Decision Date: 19 November 1991
• Docket Number: No. 30A01-9105-CV-138,30A01-9105-CV-138
• Parties: Randi J. ROBBINS, Appellant-Plaintiff, v. Joe L. McCARTHY, Appellee-Defendant.
• Court: Court of Appeals of Indiana

Page 929

581 N.E.2d 929

Randi J. ROBBINS, Appellant-Plaintiff, v. Joe L. McCARTHY, Appellee-Defendant.

No. 30A01-9105-CV-138.

Court of Appeals of Indiana First District.

Nov. 19, 1991.

Rehearing Denied Jan. 6, 1992.

Brent E. Clary, Roger Wm. Bennett, Bennett, Boehning, Poynter & Clary, Lafayette, for appellant-plaintiff.

Stephen J. Peters, William N. Ivers, Stewart & Irwin, Indianapolis, for appellee-defendant.

ROBERTSON, Judge.

Randi J. Robbins appeals the entry of a summary judgment in favor of Joe L. McCarthy in Robbins' action against McCarthy for injuries Robbins sustained as a passenger in McCarthy's automobile. Among other things, ¹ Robbins alleged in his complaint that McCarthy operated a vehicle while under the influence of alcohol and that, by drinking and driving, McCarthy exhibited negligence consisting of reckless and willful disregard for the rights, safety and welfare of the public and Robbins. Robbins prayed for compensatory and punitive damages.

Succinctly stated, McCarthy placed before the trial court, and now argues before this court, two distinct theoretical bases for a summary judgment in his favor on the issues of liability and punitive damages: first, that Robbins' complicity in McCarthy's drinking and driving precludes Robbins from recovering either compensatory or punitive damages as a matter of law; second, as to liability, that by incurring the risk of injury and negligently contributing to the risk of injury, Robbins' fault exceeded 50% as a matter of law; and lastly, as to punitive damages, that the uncontroverted fact McCarthy received criminal punishment for his actions precludes Robbins from recovering exemplary damages as a matter of law.

In reviewing the propriety of a ruling on summary judgment, we apply the same standard applicable in the trial court. We must consider the pleadings and evidence sanctioned by Ind. Trial Rule 56(C) without deciding its weight and credibility. "Rational assertions of fact and reasonable inferences therefrom are deemed to be true." Burke v. Capello (1988), Ind., 520 N.E.2d 439, 440. Any doubt about the existence of a fact or the inference to be drawn from it is to be resolved in favor of the non-moving party. Gaboury v. Ireland Road Grace Bretheren, Inc. (1983), Ind., 446 N.E.2d 1310, 1313. Only if such evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law should summary judgment be granted. Ind. Trial Rule 56; Ayres v. Indian Heights Volunteer Fire Dept., Inc. (1986), Ind., 493 N.E.2d 1229, 1234.

I. Complicity

The first ground asserted by McCarthy as a basis for summary judgment is what is referred to in other states as the doctrine of complicity. In essence, McCarthy maintains that he owed no duty to Robbins because Robbins contributed to, procured, encouraged or willfully participated in his negligent driving while intoxicated. McCarthy also argues the doctrine of complicity as an affirmative defense, separate and distinct from contributory negligence. He asserts that because the doctrine of complicity is not specifically referred to in the definition of fault contained in Indiana's Comparative Fault Act, Ind.Code 34-4-33-1, the notion of complicity falls within the legislation's exclusion of intentional act; and, because recovery by one who engages in complicity with an inebriated driver would be unjust and incongruent as a matter of policy, the defense is not and should not be governed by comparative fault principles. Also, as a matter of public policy, Robbins should be precluded from recovering punitive damages because of his complicity.

McCarthy relies primarily upon cases from other jurisdictions to define the bounds of complicity, for only one reported Indiana decision, Greener v. Nielhaus (1909), 44 Ind.App. 674, 89 N.E. 377, reflects the existence of such a doctrine in Indiana. The cited decisions ² either apply a judicially-created exception to a commercial supplier's strict liability under dram shop legislation ³ where the plaintiff is guilty of complicity with a person licensed to sell liquor who by selling or giving it away causes an inebriate's intoxication, or, construe the jurisdiction's dram shop legislation as protecting only a limited class of plaintiffs. Although we cannot discern from the Greener decision the exact rationale for such a principle in Indiana, the doctrine evolved in other jurisdictions from the notion that a suitor should be innocent. To allow one guilty of complicity in distributing liquor to recover from the commercial supplier would undermine the very purpose of dram shop legislation which is to control the abuses of the liquor trade. See, e.g., Nelson v. Araiza (1977), 69 Ill.2d 534, 14 Ill.Dec. 441, 372 N.E.2d 637. The principles contained in the instructions in Greener appear to have had the same theoretical genesis.

Of the decisions cited by McCarthy, not one extends the defense beyond its original scope to actions based upon common law negligence between the inebriate and complicitor, see e.g. Nelson, 372 N.E.2d at 639 (Dram Shop Act not predicated upon negligence); Slager v. HWA Corp. (1989), Iowa, 435 N.W.2d 349, 354, 356 (Dram shop statute created cause of action unrelated to and different from any other; defense unique to legislation). Each jurisdiction treats the doctrine as an affirmative defense, not as a matter effecting duty. ⁴ Inasmuch as the decisions cited by McCarthy are not worthy precedent for applying the doctrine in any context other than in an action brought pursuant to dram shop legislation, the practice of other jurisdictions does not lend sufficient reason for utilizing the doctrine as an affirmative defense in the present setting. What's more, Greener 's applicability should be confined to the facts of the case in the absence of any indication that the doctrine existed at common law as anything other than a defense to a statutory cause of action since repealed by the legislature.

McCarthy argues nonetheless that the trial court correctly ruled upon his summary judgment motion because as a matter of public policy, McCarthy owed no duty to Robbins, a plaintiff who aided in his defendant's intoxication. We are not convinced, however, that policy considerations justify removing the issues raised by the parties' conduct from the jury. If the prevention of harm caused by drinking and driving is the central goal of Indiana's dram shop legislation and tort law on this subject, as McCarthy argues, what additional social utility is gained by a judicial decree to the effect that participation in another's drinking operates as a complete bar to recovery from an intoxicated driver? While such a ruling might deter future plaintiffs from contributing to another's intoxication, no progress will have been made toward discouraging the driver's voluntary intoxication and operation of an automobile in that condition. Indeed, a driver who decides to become intoxicated may only be encouraged not to drink alone so as to escape all responsibility for his subsequent, willful and wanton actions. See Kolkman v. Falstaff Brewing Corp. (1987), Ind.App., 511 N.E.2d 478, 479, trans. denied. (Intoxicated driver is guilty of willful and wanton misconduct when he deliberately assumes control of an automobile and places it upon a public highway).

Moreover, the determination of public policy in this state is a task dedicated to our legislative bodies. Admittedly, there may be some injustice in an individual case in permitting an individual who has played an active role in another's intoxication to shift a share of the responsibility for his injuries to his joint tortfeasor. But what justice exists, were complicity to become a complete, judicially-created bar to recovery, for the plaintiffs who purchase a single drink for their companion-drivers? The enactment of a comparative fault statute which subjects a broad range of negligent conduct, even willful and wanton misconduct, to comparative treatment, see I.C. 34-4-33-2, reflects a legislative determination that "fairness" is best achieved by a relative assessment of the parties' respective conduct. Individual irresponsibility is simply not fostered by a jury which, when the circumstances warrant, refuses to protect a plaintiff whose active procurement of another's intoxication results in his own injury. There is thus no virtue in reviving an outmoded and often arbitrary judicial doctrine when the legislature, the arbiter of social policy, has indicated its clear intent to move toward a comprehensive method of comparative fault.

Neither do we find reason, in the fact that Robbins is not an entirely innocent party, to remove the consideration of an award of punitive damages from the jury. Punitive damages are not compensatory in nature but designed to punish the wrongdoer and dissuade him and others similarly situated from such conduct in the future. Orkin Exterminating Co. v. Traina (1986), Ind., 486 N.E.2d 1019, 1022.

When the question of whether punitive damages should be given is considered, it must be done with the realization that the plaintiff has already been awarded all that he is entitled to receive as a matter of law. What, if anything, he may be given in addition is a windfall, and in making that decision all thoughts of benefitting the injured party should be laid aside and the sole issues are whether or not the defendant's conduct was so obdurate that he should be punished for the benefit of the general public.

Traina, 486 N.E.2d at 1022. (Emphasis supplied.) Like the issues created by a comparative analysis of fault, the issues produced by the punitive damages concept are inherently issues of degree; for example, was the defendant's conduct slightly negligent, negligent, very negligent, grossly negligent, wanton or heedless? Travelers Indemnity Co. v. Armstrong (1982), Ind., 442 N.E.2d 349, 360. The jury is best capable of assessing these types of...