Sports, Inc. v. Gilbert

• Decision Date: 23 February 1982
• Docket Number: No. 1-1080A284,1-1080A284
• Citation: 431 N.E.2d 534
• Parties: SPORTS, INC., Defendant-Appellant, v. George M. GILBERT, et al., Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 534

431 N.E.2d 534

SPORTS, INC., Defendant-Appellant, v. George M. GILBERT, et al., Plaintiffs-Appellees.

No. 1-1080A284.

Court of Appeals of Indiana, First District.

Feb. 23, 1982.

James R. Fisher, Joseph A. Schenk, Ice, Miller, Donadio & Ryan, Indianapolis, for appellant.

Donald R. Forrest, New Albany, for appellees.

NEAL, Judge.

STATEMENT OF THE CASE

The defendant-appellant, Sports, Inc. (Sports) appeals from an unfavorable judgment in a personal injury suit in the Clark Circuit Court. Jean and George Gilbert sued for the wrongful death of two of their children, and George, Karen, Lori and Brian Gilbert (the Gilberts) sued for their personal injuries. Judgment was entered on a jury verdict awarding $482,500 plus interest and costs to the Gilberts. Sports contends it did not owe a duty to the Gilberts.

We reverse.

STATEMENT OF THE FACTS

Sports owns and operates an automobile racetrack known as the "Sportsdome Speedway" (speedway). It employs a security force consisting of off-duty police officers and special deputies who control traffic and crowds on the premises. There is a parking lot outside the speedway, and the racetrack area itself is surrounded by a fence. Beer is sold within the fenced area, and only paying customers are allowed inside.

On August 9, 1975, shortly before 10:00 p. m., Thomas Riggs (Riggs) drove his pickup into the parking lot and had a minor collision with a car. Security guards were summoned to the scene where they found the driver of the car sitting inside his vehicle and Riggs hiding in a nearby weeded lot. The security guards determined that Riggs was intoxicated. However, he was peaceful and cooperative, and they did not arrest him. Neither party contends that Riggs became intoxicated at the speedway or was even admitted inside the gate. The guards questioned Riggs about the accident and with his permission searched the pickup. They found an unloaded shotgun behind the seat, but they found no alcoholic beverages in the truck or in Riggs' possession. The driver of the car did not press charges.

The security guards learned that Riggs had come to the speedway to see his brother race. The security guards testified that two of his relatives, one male and one female, were located, and these relatives drove Riggs away from the speedway in his own pickup. Shortly after the pickup left the parking lot, it collided with the family automobile of the Gilberts. Riggs was driving and only the female relative was in the pickup with him. Riggs ran a red light at a Clarksville intersection approximately two miles from the speedway and was intoxicated at the time of the collision. The record does not disclose how Riggs resumed the wheel of his truck. Riggs was not a party to this action, and he and his relatives were not called to testify for either side.

ISSUES

The primary issue presented by Sports is whether a private citizen owes a duty to the motoring public to detain an intoxicated motorist who enters his premises, when the citizen has not served any alcohol to the motorist and knows the motorist will drive away from the premises while intoxicated. Sports raises additional issues regarding the extent of the duty, proximate cause, and a jury instruction. However, our disposition of this case does not require any discussion of these issues. ¹

DISCUSSION AND DECISION

The existence of a duty is a question of law. Neal v. Home Builders, Inc., (1953) 232 Ind. 160, 111 N.E.2d 280; Walters v. Kellam & Foley, (1977) 172 Ind.App. 207, 360 N.E.2d 199. The Gilberts' argument for the existence of a duty can be summarized as follows: Sports' employees knew that Riggs was intoxicated and that he already had caused one collision in their parking lot. As deputies they had the power to arrest him and take him into custody. The possibility that Riggs could cause a serious collision was reasonably foreseeable. Since they had already arrested or at least taken charge of him, they had a duty to protect those using the highways by preventing Riggs from driving. Sports had a policy against arresting persons on the premises who were not causing a serious disturbance. Its employees followed this policy and violated their duty to the plaintiff by either (1) letting Riggs drive his pickup or (2) leaving him in the care of a person or persons who it reasonably should have known would not prevent him from driving. Because only the female relative was in the pickup with Riggs at the time of the collision, the Gilberts doubt the existence of the male relative. They imply that a woman could not have been expected to prevent Riggs from driving. Alternatively, they assert that since the male relative was to be involved in a race later that evening, he must have abandoned Riggs once they were out of sight of the security guards and returned unnoticed to the speedway. The Gilberts argue that this result was reasonably foreseeable and that Sports had a duty to prevent it.

In support of their "duty" argument, the Gilberts cite Vandalia Railway Company v. Duling, (1915) 60 Ind.App. 332, 109 N.E. 70; Snyder v. Mouser, (1971) 149 Ind.App. 334, 272 N.E.2d 627; the Restatement (Second) of Torts §§ 319, 324, and 390 (1965); Annot., 19 A.L.R.3d 1175 (1968). Vandalia concerns a railroad's liability for injuries to animals who wander onto its tracks. Snyder deals with a Welfare caseworker's failure to warn a child's foster parents that the child had homicidal tendencies. Both cases state that, "(d) uties, the violation of which may constitute negligence, arise by operation of the common law and in the absence of any statute, out of knowledge of situations." Snyder, supra 149 Ind.App. at 346, 272 N.E.2d 627; see Vandalia, supra 60 Ind.App. at 344, 109 N.E. 70. The situations described in those cases obviously differ from the situation in this case in that neither involved liability for the negligence of a third party.

The Restatement (Second) of Torts § 319 (1965) states:

"Duty of Those in Charge of Person Having Dangerous Propensities

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm."

The Comment and illustrations following this section address only situations in which a dangerous person is in the custody of someone else, as when a person is hospitalized due to a contagious disease or a mental illness manifested by violence. Cases that cite this section all deal with similar custodial situations. See e.g.: Estate of Mathes v. Ireland, (1981) Ind.App., 419 N.E.2d 782 (wrongful death action arising from the killing of the claimant's wife by a 20-year-old mentally-ill man who was living with his mother and grandmother and had been treated by two psychiatric facilities-the parents, grandparents and two psychiatric facilities were named as defendants); ² Maroon v. State Department of Mental Health, (1980) Ind.App., 411 N.E.2d 404 (wrongful death action arising from the killing of an Illinois woman by a criminal sexual deviant who had escaped from an Indiana State Hospital-Illinois law applied); Semler v. Psychiatric Institute of Washington, D.C., (4th Cir. 1976) 538 F.2d 121, 125 (suit against psychiatric institute-a mental patient transferred to outpatient status without court approval killed the plaintiff's daughter); Christensen v. Epley, (1978) 36 Or.App. 535, 585 P.2d 416 (estate of decedent sues youth center for negligence in failing to prevent the escape of youths with violent propensities); Sego v. Mains, (1978) 41 Colo.App. 1, 578 P.2d 1069, (plaintiff sues court-appointed custodian of mentally-ill person for injuries inflicted by mentally-ill person). It appears that this section was not intended to apply under the circumstances in the case at bar.

The Gilberts also refer us to the Restatement (Second) of Torts § 324A (1965):

"Liability to Third Person for Negligent Performance of Undertaking

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking."

However, the record does not show that Sports' actions increased the risk of harm, and there is no evidence that the Gilberts relied on Sports' undertaking or that Sports undertook a duty owed by Riggs.

The Restatement (Second) of Torts § 390 (1965), on which the Gilberts also rely, states:

"Chattel for Use by Person Known to be Incompetent

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them."

This principle is frequently applied when an automobile is entrusted to an intoxicated person. See Annot., 19 A.L.R.3d 1175 (1968). Indiana follows a strict version of this rule, requiring that the actor have actual knowledge that the driver is intoxicated at the time he entrusts the car to him. Fisher v. Fletcher, (1922) 191 Ind. 529, 133 N.E. 834; Ellsworth v. Ludwig, (1967) 140 Ind.App. 437, 223 N.E.2d 764. However, this rule only applies to those who own or have the right to control the automobile or chattel in question. See Fisher, supra, Ellsworth, supra ; Restatement (Second) of Torts § 390 (1965) ...