Weida v. Dowden, 91A05-9504-CV-144

• Decision Date: 15 April 1996
• Docket Number: No. 91A05-9504-CV-144,91A05-9504-CV-144
• Citation: 664 N.E.2d 742
• Parties: Michelle WEIDA, Donald Weida, and Colleen Weida, Appellants-Plaintiffs, v. Tom DOWDEN and Linda Dowden, Resort Park Investments, Inc., Country Club Managements, Inc., and Amy Keyser, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 742

664 N.E.2d 742

Michelle WEIDA, Donald Weida, and Colleen Weida, Appellants-Plaintiffs, v. Tom DOWDEN and Linda Dowden, Resort Park Investments, Inc. Country Club Managements, Inc., and Amy Keyser Appellees-Defendants.

No. 91A05-9504-CV-144.

Court of Appeals of Indiana.

April 15, 1996.

Appeal from the White Circuit Court; The Honorable Robert W. Thacker, Judge, Cause No. 91C01-9204-CT-7.

Edgar W. Bayliff, Bayliff, Harrigan, Cord & Maugans, P.C., Kokomo, John F. Goss, Boomershine & Goss, Monticello, Robert J. Guy, Monticello, for appellant.

Jay T. Hirschauer, Hirschauer & Hirschauer, Logansport, for appellees, Tom Dowden and Linda Dowden.

Joseph Stalmack, Stephen D. Bannwart, Joseph Stalmack & Associates, Hammond, for appellees, Resort Park Investments, Inc., Country Club Managements, Inc., and Amy Keyser.

OPINION

FRIEDLANDER, Judge.

Michelle Weida, Donald Weida and Colleen Weida [collectively referred to as the Weidas], appeal the trial court's grant of summary judgment entered in favor of Tom and Linda Dowden [collectively referred to as the Dowdens] and Resort Park Investments, Inc. (Resort Park), Country Club Management, Inc., White Oaks Country Club, Inc., (White Oaks), and Amy Keyser (Keyser) [collectively referred to as the defendants] which determined that the defendants were not liable for injuries Michelle sustained in an automobile accident when James Firth (Firth), Michelle's boyfriend, became intoxicated at a wedding reception and struck another vehicle while driving home.

We affirm.

The facts most favorable to the Weidas, the nonmoving party, are that the Dowdens were the parents of Phillip Dowden, who married Renada Firth (Renada) on November 16, 1991. The wedding reception was held at White Oaks's clubhouse, located on Lake Freeman in Carroll County, Indiana. While Resort Park was responsible for managing the clubhouse, the liquor permit application was filed in the name of Country Club Management, Inc. Resort Park directed all of White Oaks's operations including those under the liquor permit. Keyser was the vice-president of Resort Park who followed various guidelines for wedding receptions held at White Oaks. Renada, the bride, was employed by White Oaks and Keyser, her supervisor, permitted the family to use the clubhouse facilities at no charge. No contract was signed by either party regarding the use of the clubhouse. While Renada's parents were responsible for organizing the reception, Linda Dowden paid for a deposit on a keg of beer for the reception at Phillip's request. The Dowdens did not invite any of the guests, or provide any of the decorations for the reception. Prior to the wedding, Phillip and a friend picked up the beer from a liquor store and delivered it to White Oaks. Keyser knew that the beer was being delivered to White Oaks for the guests' consumption.

During the reception, Michelle noticed eighteen-year-old Firth drinking beer from the unattended, self-serve keg. Firth was Renada's brother and had been dating Michelle for approximately two years. Michelle and several others, including Thomas Dowden, who was a police officer, testified that Firth did not appear intoxicated. At one point during the reception, Firth proceeded to drink an additional three to four beers in a forty-five minute period. Keyser testified that she did not observe any underage drinking at the reception.

Sometime during the reception, Firth and Michelle began arguing. The argument continued as they left the party together. Firth was driving Michelle home and during the trip, Firth crossed the center line of the road and struck an oncoming vehicle. Michelle was injured, and shortly after the collision, it was determined that Firth had a blood alcohol level of .12 percent. Firth pleaded guilty to operating a motor vehicle while intoxicated resulting in serious bodily injury. ¹

On August 15, 1994, the Weidas filed an amended complaint against the defendants seeking damages for the injuries Michelle sustained as a result of the November 16, 1991 collision. The complaint alleged that the free, self-serve beer had been provided by the Dowdens and consumed on premises operated and controlled by White Oaks. They maintained that this negligent conduct of the defendants proximately caused Michelle's injuries.

The defendants filed summary judgment motions which the trial court initially denied on November 17, 1994 on the grounds that there was an issue of material fact as to "whether the person furnishing the alcoholic beverage had actual knowledge that the person to whom the alcoholic beverage was furnished was visibly intoxicated at the time the alcoholic beverage was furnished." Record at 1142-45. The order provided in relevant part as follows:

ORDER FOR NOVEMBER 17, 1994

On October 19, 1994, after hearing, the Court took under advisement the Motion for Summary Judgment filed January 5, 1994, by Defendants Resort Park Investments, Inc., White Oaks Country Club, Inc., White Oaks on the Lake, Country Club Management, Inc., and James Keyser and Amy Keyser, and the Motion for Summary Judgment filed on February 28, 1994, by Defendants Tom Dowden and Linda Dowden.

The Court, being duly advised, having considered the record of proceedings, and having considered the specifically designated pleadings and portions of the record, including filed and published depositions, now makes the following findings and enters Order herein:

1. The Court has jurisdiction over the parties and subject matter and the pending Summary Judgment Motions.

2. On a Summary Judgment, pursuant to Trial Rule 56, the Court makes its determination from the evidentiary matters designated to the Court. The burden is on the moving party to show there is no issue of material fact and that the moving party is entitled to judgment as a matter of law. (See Harvey, Ind. Practice, Volume 3, TR 56, at page 627 and 1993 Supp. at page 95)[.] According to case law, all evidence must be resolved against the movant. Even if facts are not in dispute, Summary Judgment is inappropriate if conflicting inferences arise. Pepkowski v. Life of Indiana Insurance Co., (1988), Ind.App., 526 N.E.2d 1015.

3. The factual allegations of this case, as set out in the amended complaint, and the legal theory of this case, as alleged in the amended complaint, involve a negligence action arising out of the consumption of alcohol by an eighteen year old person whose automobile [was] involved in an accident with injuries to his passenger. The Defendants are alleged to have provided alcohol to the eighteen year old automobile driver who had an auto accident upon leaving a wedding reception.

4. Pursuant to IC 7.1-5-10-15.5, Indiana Law contains a statutory authority for the liability of a person furnishing alcoholic beverages to an intoxicated person. This statute is interpreted in the leading Indiana case of Thompson v. Ferdinand Sesquicentennial Com., 637 N.E.2d 178 (Ind.App. 1 Dist. 1994). Both the statute and the case apply directly on point to the amended complaint before the Court.

5. Thompson, supra at page 180, holds that a person who furnishes an alcoholic beverage to another is not liable for civil damages caused by the intoxication unless the recipient was visibly intoxicated and the intoxication was the proximate cause of the alleged damage.

6. This Court now determines that there is before the Court an issue of material fact as to whether the recipient of the alcohol, i.e. the driver, was visibly intoxicated and as to whether the intoxication of the recipient was the proximate cause of the alleged damage. Specifically, it is an issue for the trier of fact to determine whether the person furnishing the alcoholic beverage had actual knowledge that the person to whom the alcoholic beverage was furnished was visibly intoxicated at the time the alcoholic beverage was furnished; and further, that the intoxication of the person to whom the alcoholic beverage was furnished was a proximate cause of the damage alleged in the complaint.

7. In Thompson, supra at page 179, the Court of Appeals upheld the Trial Court's Final Instruction Number 16 as a correct statement of the law and properly given based upon the evidence presented at trial. Instruction Number 16 was a restatement of IC 7.1-5-10-15.5.

8. Based upon the specifically designated portions of the record considered by the Trial Court on this Summary Judgment matter, the Court believes that even though it appears that the non-moving party is not likely to prevail at trial based upon the facts presently before the Court, the Court is not authorized to grant Summary Judgment. The Court finds there is a genuine issue as to a material fact and that neither of the respective sets of Defendants is entitled to judgment as a matter of law.

IT IS THEREFORE ORDERED that the Motion for Summary Judgment filed January 5, 1994, by Defendants Resort Park Investments, Inc., White Oaks Country Club, Inc., White Oaks on the Lake[,] Country Club Management, Inc., and James Keyser and Amy Keyser is hereby denied, and the Motion for Summary Judgment filed on February 28, 1994, by Defendants Tom Dowden and Linda Dowden is hereby denied.

Record at 1142-45.

After the trial court entered this order, the parties filed the following stipulation with the trial court: "The parties stipulate that the person furnishing the alcoholic beverage to James K. Firth, Jr., on the occasion in question did not have actual knowledge that James K. Firth, Jr., was visibly intoxicated at the time the alcoholic beverage was furnished." Record at 1146 (emphasis supplied).

Once the above stipulation was submitted, the trial court entered an order on December 22, 1994, granting summary judgment in favor of the Dowdens and White Oaks:

ORDER FOR DECEMBER 22, 1994

On December 19, 1994, Defendants, Tom Dowden and Linda Dowden, by counsel, Jay T. Hirschauer, filed Defendant Dowdens' Motion To Reconsider Court's Ruling of ...