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03/02/88 GARIUP CONSTRUCTION COMPANY v. ANDREW W.

Filed: March 2, 1988.

GARIUP CONSTRUCTION COMPANY, INC., APPELLANT (DEFENDANT BELOW),
v.
ANDREW W. FOSTER, APPELLEE (PLAINTIFF BELOW).



Appeal from the Starke Circuit Court, The Honorable Marvin McLaughlin, Judge, No. 83-482, On Civil Petition to Transfer

Dickson, J., Shepard, C.j., Givan, J., concur. Pivarnik, J., Dissenting with opinion in which DeBRULER, J., concurs.

Author: Dickson

DICKSON, J.

Following a jury trial, plaintiff-appellee Andrew W. Foster (Foster) was granted a judgment of $150,000.00 against the defendant-appellant Gariup Construction Company, Inc. (Gariup). The case arose out of a Christmas party on December 17, 1982, a traditional event hosted by Gariup for employees and others on company premises. Gariup furnished food and refreshments, including alcoholic beverages. The Gariup office manager, Paul Orner, an employee for over fifteen months, attended the party and drank three or four beers between approximately 4:30 and 10:00 p.m. During the next 30-40 minutes, Orner consumed between six and eight shots of 80-proof whiskey while participating in a game of "Quarters" in which players would attempt to bounce a quarter off the table into a cup and, if successful, would designate another player to drink a shot of whiskey. He left the party at approximately 11:00 p.m. or later, intending to drive to pick up his wife from work approximately four miles away. The Orner residence was over ten miles from the Gariup premises. At about 11:40 p.m., Orner was observed driving eastbound on a 6-lane interstate highway, weaving through the eastbound lanes and median strip. He drove across the median into the oncoming lanes, continued driving eastbound in the westbound lanes, and struck Foster's vehicle head-on, resulting in serious spinal injury to Foster. During the state police officer's accident investigation, Orner fell asleep in the state police car. He subsequently entered a plea of guilty to operating a vehicle while intoxicated. Foster's original action named Orner and Gariup as defendants. The claim against Orner was thereafter dismissed after Foster received Orner's $25,000.00 liability insurance policy limit and executed a covenant-not-to-sue Orner.

The Court of Appeals reversed and remanded for a new trial, concluding that the statutory provision, Ind. Code § 7.1-5-10-15 (1982),[Footnote 1] necessarily precludes a common law negligence claim. Gariup Const. Co., Inc. v. Foster (1986), Ind.App., 497 N.E.2d 924. In conjunction with our decision in Picadilly, Inc. v. Colvin (1988), Ind., 519N.E.2d 1217, we grant transfer herein.

From the numerous issues which Gariup presents for review, we consolidate and restate the dispositive issues as follows: 1) common law negligence action, 2) statutory violation, 3) breathalyser test, 4) other instructions, 5) requests for admissions, and 6) summary judgment.

1. Common Law Negligence Action

Gariup contends that the trial court erred in instructing the jury upon a common law negligence theory. Gariup argues that any such theory is superseded by Ind. Code § 7.1-5-10-15, which proscribed the furnishing of alcoholic beverages to intoxicated persons. In Picadilly, we expressly recognized that the statute does not preempt the common law, but rather designates certain minimal duties which do not thereby relieve persons from otherwise exercising reasonable care.

While the existence of the statute does not preclude the possibility of independent common law liability, the issue remains as to whether the instructions improperly authorized such common law liability in a purely social context. Gariup argues that absent an "actionable relationship" between Foster and Gariup, Indiana common law does not recognize any duty on the part of a social host to protect the general public from drivers intoxicated by the alcohol provided by the host.

Indiana courts have traditionally recognized that the existence of a common law negligence action requires judicial determination of "a duty on the part of the defendant in relation to the plaintiff." Miller v. Griesel (1974), 261 Ind. 604, 611, 308 N.E.2d 701, 706. "The duty to exercise care for the safety of another arises as a matter of law out of some relation existing between the parties, and it is the province of the court to determine whether such a relation gives rise to such duty." Neal v. Homebuilder's, Inc. (1952), 232 Ind. 160, 169, 111 N.E.2d 280, 285 (citing Union Traction Co. v. Berry (1919), 188 Ind. 514, 520, 121 N.E. 655, 657).

Such determination is not without difficulty. We note the following observations from Prosser & Keeton on Torts § 53, at 357-59 (5th ed. 1984):

Various factors undoubtedly have been given conscious or unconscious weight, including convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, the moral blame attached to the wrongdoer, and many others. Changing social conditions lead constantly to the recognition of new duties. No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.

While some states are presently expanding liquor liability to include gratuitous providers,[Footnote 2] most courts continue to refuse to hold social hosts accountable for serving liquor to adults. Prosser & Keeton on Torts, supra, § 53, at 58-59 (Supp. 1988).

Indiana law clearly recognizes the duty to refrain from providing alcoholic beverages to minors or intoxicated persons, and applies the duty to include non-commercial providers. Ind. Code §§ 7.1-5-7-8, 7.1-5-10-15. In Brattain v. Herron (1974), 159 Ind. App. 663, 674, 309 N.E.2d 150, 156, Judge Lowdermilk observed:

The Legislature has not seen fit to distinguish between a seller and a social provider of alcoholic beverages to a minor and it is our opinion that no such distinction would be either logical or equitable.

This reasoning was likewise applied to expressly recognize the statutory duty of a social provider to refrain from giving alcoholic beverages to an intoxicated person. Ashlock v. Norris (1985), Ind.App., 475 N.E.2d 1167.

Cognizant of our legislature's active and ongoing interest and participation in the development of public policy in this area,[Footnote 3] this Court is unwilling to depart from the general rule followed in most jurisdictions, and we hold that common law liquor liability shall not be extended to the purely social host, except in cases involving a breach of a statutory duty.

In addition to the customary instructions regarding negligence, reasonable care, proximate cause, etc., the jury in the present case was instructed that Gariup had a duty to sufficiently supervise the guests at the party, and to not allow the consumption of alcoholic beverages by an intoxicated guest. Unfortunately, in advising these duties, the instructions ascribed them generally to persons hosting a party and providing intoxicating beverages for guests on a self-serve basis.

It is the exclusive province of the court to determine whether the relation existing between the parties gives rise to a duty to exercise care. Miller v. Griesel, supra; Neal v. Homebuilders, Inc., supra. Whether the duty arose out of the relationship between social host and relationship between social host and guest, or out of some other relationship, is not a factor relevant to the jury's factual determination as to whether the duty was breached. Thus, while we refuse to expand common law liquor liability as related to the purely social host, we find such reference in the instructions to be harmless error. The crucial issue is whether, as a matter of law, Gariup had a duty of reasonable care under the individual facts before us.

In this analysis, general principles from the Restatement (Second) of Torts are helpful:

§ 302 Risk of Direct or Indirect Harm

A negligent act or omission may be one which involves an unreasonable risk of harm to another through either

(a) the continuous operation of a force started or continued by the act or omission, or

(b) the foreseeable action of another, a third person, an animal, or a force of nature.

§ 302A Risk of Negligence or Recklessness of Others

An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or ...


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