FOR PUBLICATION                               Dec 04 2014, 9:15 am




ATTORNEY FOR APPELLANT:                   ATTORNEY FOR APPELLEE:

JOHN F. TOWNSEND, III                     ROBERT A. DURHAM
Townsend & Townsend, LLP                  ABBEY E. JEZIORSKI
Indianapolis, Indiana                     State Farm Litigation Counsel
                                          Indianapolis, Indiana



                          IN THE
                COURT OF APPEALS OF INDIANA

ALBERT C. GENTRY, II,                     )
                                          )
      Appellant-Plaintiff,                )
                                          )
             vs.                          )     No. 32A01-1406-CT-226
                                          )
NORA DAY,                                 )
                                          )
      Defendant,                          )
                                          )
             and                          )
                                          )
SEAN R. BLOOMQUIST,                       )
                                          )
      Appellee-Defendant.                 )
_________________________________________ )
                                          )
NORA DAY,                                 )
                                          )
      Cross-Claimant,                     )
                                          )
             vs.                          )
                                          )
SEAN R. BLOOMQUIST,                       )
                                          )
      Cross-Claim Defendant.              )
                  APPEAL FROM THE HENDRICKS SUPERIOR COURT
                     The Honorable Stephenie D. LeMay-Luken, Judge
                             Cause No. 32D05-1206-CT-86


                                     December 4, 2014

                             OPINION - FOR PUBLICATION

CRONE, Judge

                                      Case Summary

       Eighteen-year-old Sean R. Bloomquist hosted a party at his father’s home while his

father, stepmother, and older brother were away. Bloomquist, eighteen-year-old Nathan

Gentry (“Nathan”), and seventeen-year-old Andrew Gaddie gave money to nineteen-year-old

Dustin Stamm to purchase alcohol. Stamm went by himself to purchase the alcohol and

returned to Bloomquist’s home with a case of beer, which was kept in the open trunk of

Stamm’s car during the party. Seventeen-year-old Christopher Hubbard arrived at the party

after the beer was purchased, and Bloomquist gave him permission to have some beer.

Hubbard drank beer and played “beer pong” at the party and went to bed in Bloomquist’s

home between midnight and 2:00 a.m. Hubbard awoke around 8:00 the next morning and

left the house with Bloomquist and Nathan to drive another partygoer to softball practice.

Hubbard’s vehicle struck a tree, and Nathan died as a result of the collision.

       Under Indiana law, a person is subject to civil liability for damages if he “furnished”

alcohol to a minor with actual knowledge that the minor was visibly intoxicated when the

alcohol was furnished and the intoxication was a proximate cause of the damage. Ind. Code

§§ 7.1-5-7-8, 7.1-5-10-15, 7.1-5-10-15.5. Our cases have held that a person “furnishes”

                                              2
alcohol in violation of the relevant statutes where that person is “‘the active means’ by and

through which the [alcohol] was placed in the custody and control of the intoxicated person.”

Rauck v. Hawn, 564 N.E.2d 334, 337 (Ind. Ct. App. 1990) (quoting Lather v. Berg, 519

N.E.2d 755, 761 (Ind. Ct. App. 1988)).

        Nathan’s father, Albert C. Gentry, II (“Gentry”), filed a complaint alleging that

Bloomquist was liable for Nathan’s death because he furnished alcohol to Hubbard with

actual knowledge that Hubbard was visibly intoxicated and the intoxication was a proximate

cause of Nathan’s death. Bloomquist filed a motion for summary judgment asserting that he

did not furnish alcohol to Hubbard as a matter of law. The trial court granted Bloomquist’s

summary judgment motion.

        Gentry now appeals, arguing that a genuine issue of material fact exists regarding

whether Bloomquist furnished alcohol to Hubbard. We agree with Gentry and therefore

reverse and remand for further proceedings.

                                   Facts and Procedural History1

        The relevant facts most favorable to Gentry as the party opposing summary judgment

are as follows. In May 2012, Bloomquist hosted a party at his father’s home in Pittsboro.

Bloomquist’s father, stepmother, and twenty-two-year-old brother were not at home and were

unaware of the party. Bloomquist, Nathan, and Gaddie gave money to Stamm to purchase

alcohol. Stamm went by himself to purchase the alcohol and returned to Bloomquist’s home



        1
           We heard oral argument on October 29, 2014, at the University of Notre Dame Law School. We
thank the faculty and staff for their hospitality, the students for a lively postargument question-and-answer
session, and counsel for their participation and excellent advocacy.

                                                     3
with a thirty-can case of beer. According to Bloomquist, the beer was for Stamm, Hubbard,

Nathan, and Gaddie, and it was kept in the open trunk of Stamm’s car “for everyone to get

for themselves.” Appellant’s App. at 39. Persons other than those who contributed to buy

the beer drank some of the beer. Id. at 43.

       According to Hubbard, the beer was already at the party when he arrived around 8:00

p.m., and Bloomquist gave him permission to have some. See id. at 83 (“Q[.] Well, who

gave [the beer] to you then? A[.] Uh, it was in the cooler and I was just told I could have it.

Q[.] Who gave you permission to have [the beer]? A[.] Uh, I believe [Bloomquist] did.”).

Hubbard did not know who purchased the beer and did not bring his own beer. Hubbard

drank beer and played “beer pong” at the party. Bloomquist was with Hubbard all evening

and could tell that Hubbard was “a little tipsy” or “buzzed” and had the “odor of alcohol …

on his breath.” Id. at 96. Hubbard went to bed in Bloomquist’s home between 12:00 and

2:00 a.m. Hubbard awoke around 8:00 a.m. and left the house at 8:30 a.m. with Bloomquist

and Nathan to drive another partygoer to softball practice. Hubbard lost control of his

vehicle and struck a tree. Nathan died as a result of the collision.

       In June 2012, Gentry filed a complaint for damages against Hubbard, Bloomquist, and

Bloomquist’s mother, Nora Day. Gentry alleged that Bloomquist was liable for Nathan’s

death because he furnished alcohol to Hubbard with actual knowledge that Hubbard was

visibly intoxicated and the intoxication was a proximate cause of Nathan’s death. Day filed a

cross-claim against Hubbard and Bloomquist and a third-party claim against Hubbard’s

parents. Bloomquist filed a motion for summary judgment against Gentry and Day


                                              4
contending that he did not furnish alcohol to Hubbard as a matter of law. Gentry filed a

response asserting the existence of a genuine issue of material fact regarding whether

Bloomquist furnished alcohol to Hubbard. The trial court summarily granted Bloomquist’s

motion.2 Gentry now appeals.

                                     Discussion and Decision

        Gentry contends that the trial court erred in granting Bloomquist’s summary judgment

motion. Pursuant to Indiana Trial Rule 56(C), “summary judgment is appropriate when there

are no genuine issues of material fact and when the moving party is entitled to judgment as a

matter of law.” Heritage Dev. of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 887

(Ind. Ct. App. 2002), trans. dismissed (2003). When reviewing a decision to grant summary

judgment, we apply the same standard as the trial court. Id. “We must determine whether

there is a genuine issue of material fact requiring trial, and whether the moving party is

entitled to judgment as a matter of law. Neither the trial court nor the reviewing court may

look beyond the evidence specifically designated to the trial court.” Id. at 888 (citation

omitted). A party seeking summary judgment has the burden of making a prima facie

showing that there are no genuine issues of material fact and that the party is entitled to

judgment as a matter of law. Id. “Once the moving party satisfies this burden through

evidence designated to the trial court pursuant to Trial Rule 56, the non-moving party may




        2
          Bloomquist notes that “Gentry reached a settlement with Hubbard and his parents, and they were
dismissed on May 1, 2014. Thus, the only parties remaining were Albert Gentry, Nora Day, and Sean
Bloomquist.” Appellee’s Br. at 1 (citation to appendix omitted).

                                                   5
not rest on its pleadings, but must designate specific facts demonstrating the existence of a

genuine issue for trial.” Id.

       We construe all facts and reasonable inferences drawn from those facts in a
       light most favorable to the nonmoving party. Upon appeal, the non-moving
       party has the burden of proving that the grant of summary judgment was
       erroneous, but we review the trial court’s decision carefully to ensure that the
       nonmovant was not improperly denied his day in court.

Kelly v. Hamilton, 816 N.E.2d 1188, 1191 (Ind. Ct. App. 2004) (citation omitted).

       “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.” Vanderhoek v. Willy, 728 N.E.2d 213,

215 (Ind. Ct. App. 2000). “Where the evidence is in conflict, or undisputed facts lead to

conflicting inferences, summary judgment should not be granted, even if it appears that the

nonmovant will not succeed at trial.” Dickerson v. Strand, 904 N.E.2d 711, 715 (Ind. Ct.

App. 2009).

       Gentry’s claim against Bloomquist is based on the latter’s alleged violation of several

Indiana statutes. Indiana Code Section 7.1-5-7-8 makes it a class B misdemeanor for a

person to “recklessly, knowingly, or intentionally sell, barter, exchange, provide, or furnish

an alcoholic beverage to a minor.” Indiana Code Section 7.1-5-10-15(a) makes it a class B

misdemeanor for a person “to sell, barter, deliver, or give away an alcoholic beverage to




                                              6
another person who is in a state of intoxication if the person knows that the other person is

intoxicated.”3 And Indiana Code Section 7.1-5-10-15.5 states,

        (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 the complaint.[4]

Civil liability may be imposed for injuries to third parties caused by violations of these

statutes. Estate of Cummings by Heck v. PPG Indus., Inc., 651 N.E.2d 305, 308 (Ind. Ct.

App. 1995) (citing Rauck, 564 N.E.2d at 337), trans. denied (2006).

        “In each case where it has been held that a defendant furnished alcohol to another for

his or her use in violation of the statutes, the supplier was ‘the active means’ by and through

which the [alcohol] was placed in the custody and control of the intoxicated person.” Rauck,

564 N.E.2d at 337 (quoting Lather, 519 N.E.2d at 761). Gentry contends that this case is

similar to Brattain v. Herron, 159 Ind. App. 663, 309 N.E.2d 150 (1974), trans. dismissed,


        3
          Indiana Code Sections 7.1-5-7-8 and 7.1-5-10-15 were amended effective July 1, 2014. We quote
the version of the statutes in effect when Bloomquist allegedly furnished alcohol to Hubbard.

        4
          Proximate causation is not at issue in this appeal, nor is whether Hubbard was visibly intoxicated or
whether Bloomquist had actual knowledge thereof. Gentry cited only Indiana Code Sections 7.1-5-7-8 and
7.1-5-10-15.5 in his complaint, but both parties also mention Section 7.1-5-10-15 in their appellate briefs.

                                                      7
which is cited in Lather. Brattain was the older sister of twenty-year-old Farmer, who drove

to her home with a friend.

                While Mr. Farmer and his young friend were in Mrs. Brattain’s home
        they had access to the refrigerator and consumed therefrom several bottles of
        beer, together with several glasses of whiskey and coke. When they left the
        home to return to New Palestine they each took a cold beer with them in
        Farmer’s automobile. All the alcoholic beverages that were consumed
        belonged to Mrs. Brattain and came from her refrigerator and with her
        knowledge that the boys were consuming the beverages, and she visited with
        them a part of the time they were there drinking. She was in and out of the
        home during the entire four hour period that the boys were drinking her liquor,
        made no objections to their drinking or to their taking the beer with them when
        they left. Donald Farmer was her brother and she knew he was under 21 years
        of age and she further knew, or by the exercise of reasonable care, should have
        known that Farmer would be driving his automobile on the highway as soon as
        he left her home.

Id. at 665-66, 309 N.E.2d at 152. After leaving Brattain’s home, Farmer collided with a

pickup truck, which resulted in the deaths of its three occupants. The administrators of the

decedents’ estates successfully sued Brattain for violating what is now Indiana Code Section

7.1-5-7-8.5

        On appeal, Brattain asserted that the evidence established that she did not violate the

statute. The court replied,

        With this contention we cannot agree. The evidence discloses that while Mrs.
        Brattain did not serve the liquor to Mr. Farmer she was aware that Mr. Farmer
        and his friend were obtaining the beer and whiskey from her refrigerator. The
        evidence discloses that Mrs. Brattain made no objection at any time to Mr.
        Farmer’s consumption of the alcoholic beverages, even though she was present
        on the premises during the entire four hour period when Farmer and his friend



        5
          At that time, the statute read in pertinent part, “No alcoholic beverages shall be sold, bartered,
exchanged, given, provided or furnished, to any person under the ages of twenty-one (21) years[.]” Brattain,
159 Ind. App. at 672, 309 N.E.2d at 155.

                                                     8
        were in her residence. It is our opinion that the evidence shows conclusively
        that Mrs. Brattain violated the statute in question.

Id. at 676, 309 N.E.2d at 157-58.

        Although Brattain is not precisely on all fours with this case, we find it instructive in

considering whether Bloomquist furnished alcohol to Hubbard as contemplated by the

statutes at issue.6 We are mindful that, in drafting those statutes, the legislature clearly

intended to limit minors’ access to alcohol and discourage underage drinking. Bloomquist

did not personally purchase the beer, but he contributed money for the beer. Like Brattain,

Bloomquist allowed Hubbard, his guest, onto the premises and gave him permission to drink

the beer, which was kept in a car trunk on the premises.7 At the very least, conflicting

inferences could be drawn regarding whether Bloomquist was the active means by and

through which the beer was placed in Hubbard’s custody and control. Cf. Bowling v. Popp,

536 N.E.2d 511, 514 (Ind. Ct. App. 1989) (affirming summary judgment for defendant

nineteen-year-old party host and parents in lawsuit based on alleged violation of Ind. Code §

7.1-5-7-8, holding that they did not furnish alcohol to uninvited intoxicated minor who “came

and helped himself to beer,” which could have been brought by “[a]ny one of the 50 people”



        6
            Bloomquist attempts to distinguish Brattain on the basis that the defendant in that case “knew that
the person who consumed the alcohol would be driving as soon as he left her home.” Appellee’s Br. at 9. We
fail to see how such knowledge would be relevant to whether the defendant furnished alcohol to the intoxicated
person.

        7
            As previously mentioned, Bloomquist stated that the beer was left in Stamm’s car trunk “for
everyone to get for themselves” and that persons other than those who contributed to buy the beer drank some
of the beer. Appellant’s App. at 39, 43. The designated evidence is silent, however, regarding whether those
persons sought or obtained Bloomquist’s permission to drink the beer.



                                                      9
at the party). As such, we conclude that the trial court erred in granting Bloomquist’s

summary judgment motion, and therefore we reverse and remand for further proceedings.

      Reversed and remanded.

VAIDIK, C.J., and BARNES, J., concur.




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