from the Allen Superior Court The Honorable David J. Avery,
Judge Trial Court Cause No. 02D09-1409-CT-446
Attorneys for Appellant Karl J. Veracco Larry L. Barnard
Carson Boxberger LLP
Attorneys for Appellee Scott L. Bunnell Andrew S. Williams
Michelle K. Floyd
Rachel Neal appeals a summary judgment in favor of IAB
Financial Bank ("the Bank"). She argues the trial
court erred in finding the Bank owed no duty toward
and Procedural History
September 27, 2012, Gabriel Biddle drove into the Bank's
parking lot because he had a flat tire. Bank employees
suggested Biddle move his car into the farthest teller lane
because it would be easier to change the tire there. To do
so, he entered the teller lane through the exit. He moved his
car without difficulty or complications.
The Bank employees who spoke with Biddle said he appeared
"somewhat unaware and unsettled, " (Appellee's
App. at 6), but they assumed he was frustrated with needing
to change the tire. They did not see any alcohol containers
in the car, observe that his eyes were bloodshot, or smell
alcohol. They did not suspect he was intoxicated. They did
not take possession of Biddle's keys or exert any control
over his car. The Bank employees testified they were not
trained, as part of their jobs, to identify whether an
individual is intoxicated.
The Bank employees helped Biddle change his tire, and
afterward they noticed he "kind of staggered."
(Id.) Biddle got into his car and left the Bank
property. After he left, the Bank employees questioned
whether there was something wrong with Biddle and began to
speculate he might have been drinking. The Bank's
assistant manager, Tyler Shawgo, called 911 to report the
Bank employees' suspicion that Biddle "might be
driving drunk." (Appellant's App. at 54.) During the
911 call, Shawgo told the dispatcher Biddle "just
didn't kinda [sic] seem to know what was going on . . .
he just did not seem all O.K. - he was kind of staggering and
wasn't really aware of what was . . . ."
(Id. at 55.) The dispatcher asked Shawgo "so he
appeared like he had been drinking?" and Shawgo replied
"Mmmm-hmmmm." (Id.) Biddle was later
involved in a traffic accident that injured Neal.
Neal sued the Bank,  alleging she would not have been injured
in the accident but for the Bank employees' negligent act
of helping Biddle change his tire so he could get back on the
road. She claimed the Bank assumed a duty of care toward her
and other motorists when its employees helped change the
tire. The trial court granted the Bank's motion for
summary judgment. It determined that under Indiana law, a
party cannot be held liable for a drunk driver causing
injuries to a third party unless it furnished the drunk
driver alcohol, maintained a legal right to control the
vehicle, or had a special relationship with the other
We review summary judgment using the same standard as the
trial court: summary judgment is appropriate only where the
designated evidence shows there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Rogers v. Martin, 63 N.E.3d 316,
320 (Ind. 2016). All facts and reasonable inferences are
construed in favor of the non-moving party. City of Beech
Grove v. Beloat, 50 N.E.3d 135, 137 (Ind. 2016). Where
the challenge to summary judgment raises questions of law, we
review them de novo. Rogers, 63 N.E.3d at
To prevail on a claim of negligence, Neal must demonstrate
(1) the Bank owed a duty to Neal; (2) the Bank breached that
duty by allowing its conduct to fall below the applicable
standard of care; and (3) the Bank's breach of duty
proximately caused a compensable injury to Neal. Id.
at 321. Absent a duty, there can be no breach. Id.
The trial court found the Bank had no duty to Neal.
Neal contends the trial court erred in entering summary
judgment in favor of the Bank on the premise it had no duty.
Specifically, she argues "the Bank gratuitously assumed
a duty when its employees acted to assist a visibly
intoxicated Biddle to change his tire." (Appellant's
Br. at 6.) The Bank argues it assumed no duty to Neal because
it "did not specifically and deliberately undertake any
service or obligation to ensure Biddle, Neal, or other
drivers on the public roadway were safe from drunk
drivers." (Appellee's Br. at 16.)
Whether a duty exists is a question of law for the court to
decide. Rogers, 63 N.E.3d at 321. We therefore
review de novo whether the Bank owed Neal a duty.
See id. at 320 (reviewing existence of duty de
novo). Where the element of duty has "already been
declared or otherwise articulated, " judicial
determination of the existence of a duty is unnecessary.
Id. In determining whether a duty exists when it has
not been established by law, we use a three-part balancing
test under which we consider: (1) the relationship between
the parties, (2) the reasonable foreseeability of harm, and
(3) public policy concerns. Webb v. Jarvis, 575
N.E.2d 992, 995 (Ind.Ct.App. 1991), disapproved in other
circumstances by Goodwin v. Yeakle's Sports Bar and
Grill, Inc., 62 N.E.3d 384, 391 (Ind. 2016) (holding the
Webb v. Jarvis three-part test for determining the
existence of a duty is inappropriate in landowner-invitee
cases). We examine each factor in turn.
Relationship between the Parties
When addressing the duty to control the conduct of others,
Indiana courts generally follow the principles set forth in
the Restatement (Second) of Torts, which states:
There is no duty so to control the conduct of a third person
as to prevent him from causing physical harm ...