ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEES:
ROBERT F. PARKER ARLINGTON J. FOLEY
Beckman, Kelly & Smith Merrillville, Indiana
NELS A. KOMPIER
Funk & Foster
COURT OF APPEALS OF INDIANA
MICHELLE VANDERHOEK, )
THE FRATERNAL ORDER OF EAGLES, )
vs. ) No. 45A03-9910-CV-382
MRS. GERTRUDE L. WILLY and )
TERRE L. NEIL, )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable James J. Richards, Judge
Cause No. 45D05-9309-CT-1583
May 15, 2000
OPINION FOR PUBLICATION
Appellant-Plaintiff Michelle Vanderhoek (Vanderhoek) was injured in an automobile accident with intoxicated motorist
Terry L. Neil (Neil). Vanderhoek brought an action against Neil, Neils mother,
Appellee-Defendant Gertrude Willy (Willy), and Appellant-Defendant the Fraternal Order of Eagles (FOE) under
Indianas Dram Shop Act. Vanderhoek now appeals the trial courts order that granted
Willys Motion for Summary Judgment. The FOE appeals the trial courts order
that denied its Motion for Summary Judgment.
This interlocutory appeal presents two issues, which we restate as follows:
Whether the trial court properly denied the FOEs Motion for Summary Judgment; and
II. Whether the trial court properly granted Willys Motion for Summary Judgment.
Facts and Procedural History
The evidence most favorable to Vanderhoek reveals that on December 24, 1992, Neil
arrived at the FOE between 7:30 and 8:00 p.m. The bar was
packed that night. Neil had consumed no alcoholic beverages prior to his
arrival. While at the FOE, Neil both sat at the
bar and spent some time shooting pool. While sitting at the bar,
Neil was with Willy, his mother. Neil ordered one beer. Willy
ordered an unspecified number of beers for her and Neil. Neil also
won two drinks while playing pool. The record does not indicate who
furnished these two drinks to Neil. With the exception of patrons, the
view of the pool table area from the bar was unobstructed.
In support of their motions for summary judgment, the parties designated the affidavits
of various patrons, including Willy, which averred that they had each observed Neil
in the FOE that night; that they did not observe him purchase drinks
from the bartender or acquire drinks from Willy; that his speech was not
slurred; that he was not unsteady on his feet; and that in general
he exhibited no obvious signs of intoxication.
The automobile accident in which Vanderhoek was injured took place at approximately 9:00
p.m. The accident occurred approximately 1½ blocks from the FOE.
Neil had not driven elsewhere prior to the accident. Shortly after
the accident, the Crown Point Police arrived on the scene. The Probable
Cause Affidavit executed by Officer David Uran (Officer Uran) stated that at 9:19
p.m. Neil was observed with a strong odor of intoxicants on his breath,
his eyes were watery and bloodshot, his face was flushed and red, his
clothing was disarrayed, his reactions were speeded up, and his finger dexterity was
slow. Field sobriety tests were administered; during which Neil exhibited unsteadiness in balance;
slurred, confused, mumbling and profane speech; and an attitude characterized as angry and
crying. After Neil failed both the walk-and-turn and one-leg-stand balance test, he
then failed the horizontal gaze nystagmus (HGN) test in both his left and
right eye. The police transported Neil to the police station where he
was subjected to a breath test for alcohol. The result of
the test was a blood alcohol concentration of .15 %.
At the parties summary judgment hearing the trial court made the following statement.
I am going to grant your motion, Mr. Foley, on behalf [of Willy.]
I dont think there is any duty on her part or any
liability that I can see as far as she is concerned.
(Supplemental Record at 2.) The Motion for Summary Judgment filed by Willy
was granted by order dated May 24, 1999. The Motion for Summary
Judgment filed by the FOE was denied by order dated May 28, 1999.
On September 13, 1999, the trial court overruled the Vanderhoeks Motion to
Correct Errors, but certified its orders as appropriate for interlocutory appeal under Appellate
Rule 4(B)(6.) Both Vanderhoek and the FOE filed petitions to accept interlocutory
appeal. By Order dated October 29, 1999, this Court accepted and consolidated
the interlocutory appeals.
Discussion and Decision
Standard of Review
This case comes to us on both a grant and denial of summary
judgment. Summary judgment is appropriate only where the evidence shows there is
no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Ind. Trial Rule 56(C). This
court may only consider matters that were designated at the summary judgment stage
of the proceedings. Diversified Financial Systems, Inc. v. Miner, 713 N.E.2d 293,
297 (Ind. Ct. App. 1999). We give careful scrutiny to the pleadings
and designated materials, construing them in a light most favorable to the non-movant.
Id. The moving party bears the burden of proving the absence
of a genuine issue of material fact. Shell Oil Company v. Lovold,
705 N.E.2d 981, 984 (Ind. 1998) rehg denied. If the movant sustains
this burden, the opponent must set forth specific facts showing that there is
a genuine issue of material fact. T.R. 56(E); Shell Oil Company,
705 N.E.2d at 984. A genuine issue of material fact exists where
the facts concerning an issue that would dispose of the litigation are in
dispute or where the undisputed material facts are capable of supporting conflicting inferences
on such an issue. Mendenhall v. City of Indianapolis, 717 N.E.2d 1218,
1224 (Ind. Ct. App. 1999) trans. denied. Even if the facts are
undisputed, summary judgment is inappropriate where the record reveals an incorrect application of
the law to the facts. Id.
The Dram Shop Act
The Dram Shop Act represents a legislative judgment that providers of alcoholic beverages
should be liable for the reasonably foreseeable consequences of knowingly serving alcohol to
visibly intoxicated persons. National R.R. Passenger Corp. v. Everton, 655 N.E.2d 360,
366 (Ind. Ct. App. 1995). A defendant may not be held liable
under the Dram Shop Act for furnishing an alcoholic beverage to another person
unless the defendant had actual knowledge that the person served was visibly intoxicated.
Weida v. Dowden, 664 N.E.2d 742, 748-49 (Ind. Ct. App. 1996) trans.
denied. In order to furnish an alcoholic beverage, a defendant must be
found to have possessed or controlled the alcoholic beverages consumed. Estate of
Cummings by Heck v. PPG Industries, Inc., 651 N.E.2d 305, 308 (Ind. Ct.
App. 1995). When determining whether a furnisher of alcoholic beverages knew a
person was intoxicated, we look to what and how much a person was
known to have consumed, the persons behavior at the time, and the persons
condition. Ashlock v. Norris, 475 N.E.2d 1167, 1170 (Ind. Ct. App. 1985).
Indianas Dram Shop Act statutorily allows for civil liability in certain situations when
one furnishes alcohol to another who then causes an injury due to their
intoxication. Delta Tau Delta, Beta Alpha Chapter v. Johnson, 712 N.E.2d 968,
974 (Ind. 1999). Specifically, Indiana Code sections 7.1-5-10-15 and 7.1-5-10-15.5 provide in
pertinent part the following:
Sec. 15. (a) It is 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 that the other person is
Ind. Code § 7.1-5-10-15.
Sec. 15.5. (a) As used in this section, furnish includes barter, deliver,
sell, exchange, provide or give away.
(b) A person who furnishes an alcoholic beverage to a person is not
liable in a civil action for damages caused by the impairment or intoxication
of the person who was furnished the alcoholic beverage unless:
(1) 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
(2) the intoxication of the person to whom the alcoholic beverage was
furnished was a proximate cause of the death, injury, or damage alleged in
If a person who is at least twenty-one (21) years of age suffers
injury or death proximately caused by the persons involuntary intoxication, the:
persons personal representative; or
may not assert a claim for damages for personal injury or death against
a person who furnished an alcoholic beverage that contributed to the persons intoxication,
unless subsection (b)(1) and (b)(2) apply.
Ind. Code § 7.1-5-10-15.5.
I. Whether the trial court properly denied the FOEs Motion for Summary
Vanderhoek seeks to recover against both the FOE and Willy under Indiana Code
sections 7.1-5-10-15 and 7.1-5-10-15.5.
(Appellant-Vanderhoeks Brief at 9.)
The FOE concedes that Neil was intoxicated when he left the FOE.
However, the FOE contends that the designated materials fail to show that any
FOE personnel were aware that Neil was intoxicated while in the FOE.
Additionally, the FOE argues that even if this Court were to infer that
FOE personnel had actual knowledge of Neils visible intoxication, it cannot be inferred
from the evidence that such knowledge existed at the time Neil was furnished
the draft beer. We disagree. Specifically, the FOE argues as follows:
[T]here is neither evidence nor a reasonable inference that an FOE bartender furnished
alcoholic beverages to Neil while actually aware that he was visibly intoxicated.
Moreover, FOE and Willy must be judged by the same standard. FOE
is entitled to summary judgment. But if it is not, Willys summary
judgment should be reversed and the matter remanded to the trial court for
continued proceedings against both FOE and Willy.
(Appellant-FOEs Brief at 17.)
Delta Tau Delta, Beta Alpha Chapter, 712 N.E.2d 968, our supreme court
summarized Indiana case law regarding furnishing and actual knowledge of intoxication, as those
terms appear under Indiana Code section § 7.1-5-10-15.5, as follows:
The furnishers knowledge must be judged by a subjective standard. Absent an
admission that the person furnishing alcohol had actual knowledge of the others intoxication,
the trier of fact must look to reasonable inferences based upon an examination
of the surrounding circumstances. Actual knowledge of intoxication can be inferred from
indirect or circumstantial evidence such as what and how much the person was
known to have consumed, the time involved, the persons behavior at the time,
and the persons condition shortly after leaving. Where, however, there is insufficient
evidence to support actual knowledge, the issue may be resolved as a matter
Id. at 974 (internal citations and quotation omitted).
Ward v. D & A Enterprises of Clark County, 714 N.E.2d 728
(Ind. Ct. App. 1999), the estate of a motorist who was killed in
a collision with an intoxicated motorist brought a dram shop action against the
tavern that had furnished the beer to the intoxicated motorist shortly before the
accident. The designated materials disclosed that the intoxicated motorist did not appear
intoxicated prior to his arrival at the tavern, yet seventy-five minutes later, at
the scene of the accident, he failed nine field sobriety tests and registered
a .22% blood alcohol content (BAC) on a breathalyzer. Id. at 730.
Our court held that the fact [that the tavern] served even one
beer to a person who shortly thereafter was in a state of serious
intoxication gives rise to a question of fact whether [the intoxicated motorist] was
visibly intoxicated at the time [he was served]. Id.
In the instant case, Neil was served at least three beers at the
FOE on the night of December 24, 1992. Neil ordered at least
one of these beers from the bar area. Neil testified that prior
to his arrival at the FOE he had not consumed alcoholic beverages.
Neil was at the FOE for approximately an hour. The FOE concedes
that Neil was intoxicated when he left the FOE. A short time
after leaving the FOE, at the scene of the accident, Neil failed several
field sobriety tests and registered a blood alcohol concentration of .15%. From
these facts a trier of fact could reasonably infer that the FOE had
actual knowledge of Neils intoxication at the time he was served. Therefore,
we hold that the trial court did not err by denying the FOEs
motion for summary judgment.
II. Whether the trial court properly granted Willys Motion for Summary Judgment
Argument - Vanderhoek
Vanderhoek contends that the trial court erred when it determined that Willy did
not owe a duty to Neil akin to the duty the FOE owed
to Neil. Specifically, Vanderhoeks argument asserts the following:
If Plaintiff Vanderhoek is entitled to an evidentiary inference against the [FOE] that
Neil was visibly intoxicated while seated at the [FOE], then by that same
inference Willy also had knowledge that Neil was visibly intoxicated when she gratuitously
furnished alcoholic beverages for Neil while seated with him at the FOE.
(Appellant-Vanderhoeks Brief at 15.)
Argument - Willy
Willy contends that the trial court correctly granted summary judgment in her favor.
Willy argues that the designated materials fail to create a genuine issue
of fact as to whether she furnished alcoholic beverages to Neil, within the
meaning contemplated by Indiana Code sections 7.1-5-10-15 and 7.1-5-10-15.5, and whether Neil was
visibly intoxicated at the time Willy ordered him a beer.
In the Estate of Cummings by Heck, 651 N.E.2d 305, PPG employees organized
a party for PPGs third-shift employees, to be held at the Hornville Tavern.
PPG management and PPG employees contributed money towards the party. The
Hornville Tavern was responsible for asking for identification from its customers and for
dispensing alcoholic beverages. An underage PPG employee attended the party, drank alcoholic
beverages, became intoxicated, and caused a fatal car accident. Our court determined
that PPG never possessed or controlled the alcoholic beverages that [the minor] drank.
Id. at 308. Therefore, we held that since PPG was not
the active means by and through which [the minor] obtained the alcoholic beverages
PPG could not be found to have furnished the alcoholic beverages to the
minor so as to invoke liability under the [Dram Shop] Act. Id.
Accordingly, we held that the trial courts grant of summary judgment in
favor of PPG was proper. Id. at 309.
Ashlock, 475 N.E.2d 1167, the estate of a pedestrian who was struck
and killed by a motorist brought a wrongful death action against the gratuitous
server, who had allegedly furnished the motorist with alcoholic beverages shortly before the
accident. The gratuitous server moved for summary judgment, contending that there existed
no genuine issue of fact concerning his knowledge of the motorists intoxication at
the time he furnished her a drink. Id. at 1169. Our
court considered both the underlying purposes of the Dram Shop Act and Trial
Rule 56 in addressing this issue.
[A] legitimate question may be posed as to whether the legislature intended to,
and whether sound public policy supports, the extension of civil liability to family,
friend or acquaintance who merely furnishes one more drink to an intoxicated person.
Considering the carnage on our public highways involving intoxicated drivers, the answer
to both questions may be yes.
. . . .
If after considering the factual materials any doubt remains as to the existence
of a genuine issue of material fact, summary judgment is inappropriate. Summary
judgment should not be used as an abbreviated trial wherein conflicting inferences are
resolved and evidence is weighed.
Id. at 1169, 1171 (citations omitted).
We then held as follows:
Here a doubt remains; a doubt that may be fairly resolved when the
testimony of all the witnesses is heard and credibility determinations can be properly
made. Therefore the summary judgment must be reversed.
Id. at 1171.
The evidence most favorable to Vanderhoek reveals that Willy ordered an unspecified number
of beers for her and Neil. Here, a trier of fact could
reasonably infer that as a gratuitous server, Willy possessed or controlled at least
some of the alcoholic beverages consumed by Neil on the night of the
accident. Additionally, as Willy and Neil were seated together at the bar,
it may be reasonably inferred that Willy had actual knowledge of Neils intoxication
at the time she ordered him one or more beer(s). Moreover, Indianas
Dram Shop Act and relevant case law do not distinguish between the act
of furnishing by a gratuitous server and by a tavern. Accordingly, when
applying Indianas Dram Shop Act and relevant case law it matters not whether
one more drink was served by the FOE or Willy. In the
context of this case the independent acts of the FOE and Willy in
furnishing alcohol to Neil create genuine issues of material fact causing the trial
courts grant of summary judgment in favor of Willy to be in error.
Affirmed in part, reversed in part and remanded.
BAKER, J., and NAJAM, J., concur.
Vanderhoek also asserts a claim under a common law negligence theory.
However, by asserting common law liability for negligence in the provision of
alcoholic beverages Vanderhoek is restricted to cases involving the breach of a statutory
See Weida v. Dowden, 664 N.E.2d at 747. Here, the
applicable statutes are Indiana Code sections 7.1-5-10-15 and 7.1-5-10-15.5.
A year subsequent to
Ashlock v. Norris, 475 N.E.2d 1167, our
legislature added section 7.1-5-10-15.5 to the Indiana Code.