                                                                       Aug 05 2015, 9:30 am




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Christopher A. Pearcy                                      James H. Young
Theodore J. Blanford                                       Young & Young
Hume Smith Geddes Green & Simmons,                         Indianapolis, Indiana
LLP
                                                           Edward R. Hannon
Indianapolis, Indiana
                                                           Steuerwald Hannon & Witham, LLP
                                                           Danville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

BGC Entertainment, Inc. d/b/a                              August, 5, 2015
Brad’s Gold Club and 3551                                  Court of Appeals Case No.
Lafayette Road Corp. d/b/a                                 49A05-1408-CT-373
Brad’s Gold Club,                                          Appeal from the Marion Superior
                                                           Court.
Appellants-Defendants,
                                                           The Honorable Patrick L. McCarty,
        v.                                                 Judge.
                                                           Cause No. 49D03-0801-CT-1607
Jerry Coleman Buchanan, by His
Father and Guardian, Odell
Buchanan,
Appellee-Plaintiff




Riley, Judge.




Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015                    Page 1 of 22
                                    STATEMENT OF THE CASE

[1]   Appellants-Defendants, BGC Entertainment, Inc. d/b/a Brad’s Gold Club and

      3551 Lafayette Road Corp. d/b/a Brad’s Gold Club (collectively, BGC), appeal

      the trial court’s denial of summary judgment in a negligence action brought by

      Appellee-Plaintiff, Jerry Coleman Buchanan (Buchanan), by his father and

      guardian, Odell Buchanan.


[2]   We affirm.


                                                     ISSUES

[3]   BGC raises two issues on appeal, which we restate as the following:

      (1) Whether the trial court erred in denying its motion for summary judgment

      regarding its liability under Indiana’s Dram Shop Act; and

      (2) Whether the trial court erred in denying its motion for summary judgment

      regarding its liability under the common law.


[4]   Buchanan raises one issue on cross-appeal, which we restate as follows:

      Whether the trial court erred in denying his motion for partial summary

      judgment regarding the issue of BGC’s imputed knowledge.




      Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015   Page 2 of 22
                           FACTS AND PROCEDURAL HISTORY 1

[5]   Shortly before 9:00 p.m. on July 28, 2007, Candice Vowell (Vowell) arrived at

      BGC—a bar and adult entertainment club—in Indianapolis, Indiana, to begin

      her shift as a cocktail waitress. Vowell’s mother, Shannon Vowell (Shannon),

      was also a cocktail waitress at BGC, and they were both scheduled to work that

      night until the bar closed at 3:00 a.m. BGC has a policy that prohibits its

      bartenders and waitresses from consuming any alcohol while working, although

      they are permitted to have one free drink at the end of their shifts. Yet, Vowell

      explained that shortly after she clocked in, the whole staff joined together to

      have a shot of vodka in commemoration of the Brickyard 400 NASCAR race,

      which would occur the following day at the Indianapolis Motor Speedway.


[6]   In light of the Brickyard 400 weekend festivities, BGC had a large crowd of

      patrons throughout the night. During her six-hour shift, Vowell stated that she

      did not consume any additional alcoholic beverages. After the bar closed and

      while the staff was completing their usual end-of-shift reporting and clean-up,

      one of the bartenders poured a shot of vodka for Vowell as her complimentary

      end-of-shift drink. According to Vowell, her drink was 2.5 ounces rather than

      the standard 1.25-ounce shot. At approximately 3:30 a.m., both Vowell and

      Shannon clocked out, and neither of them doubted that Vowell was fit to drive

      herself home. Because Vowell and Shannon lived in the same apartment




      1
        An oral argument for this case was held on July 7, 2015, at the Indiana Court of Appeals courtroom in
      Indianapolis, Indiana. We would like to thank the attorneys for their excellent advocacy.

      Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015                     Page 3 of 22
      complex, Shannon drove behind Vowell. For the duration of their drive home,

      Vowell and Shannon spoke to each other via cell phone.


[7]   As Vowell and Shannon drove east on Kessler Boulevard, a black male wearing

      no shirt and dark pants—later identified as Buchanan—was walking west “in

      the middle of the [eastbound] lane.” (Appellants’ App. p. 136). Near the

      intersection of Kessler Boulevard and Ditch Road, Vowell collided with

      Buchanan, whom she had not seen walking in the roadway. The impact

      shattered Vowell’s windshield, and she informed Shannon that she had “just hit

      something,” and Shannon indicated that she saw a white plastic bag fly up into

      the air. (Appellants’ App. p. 161). Although they were unsure of what Vowell

      had crashed into, neither Vowell nor Shannon stopped to investigate. Instead,

      because Vowell could no longer see through her windshield, Shannon drove

      around her in order to guide Vowell the rest of the way home. An oncoming

      motorist, Ryan McCullough (McCullough), had witnessed the entire event. He

      described that upon impact with the front of Vowell’s vehicle, Buchanan

      bounced up and smashed into the windshield before flipping two times in the

      air and falling to the ground. McCullough noted that neither Vowell’s vehicle

      nor Buchanan made any attempt to avoid the collision. McCullough reported

      the hit-and-run to 9-1-1 and waited with Buchanan, who was lying

      unresponsive in the street, until emergency personnel arrived.


[8]   When Vowell arrived home, she awoke her husband in a panic and told him

      that she had hit something with her vehicle. Vowell’s husband went outside to

      inspect her vehicle, and after observing the shattered windshield and the

      Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015   Page 4 of 22
       substantial front-end damage, he left in his own vehicle to see if he could

       determine what she had struck. When he returned a little while later, Vowell’s

       husband informed her that an ambulance and police vehicles were at the scene

       because she had hit a pedestrian—i.e., Buchanan. At approximately 6:00 a.m.,

       Vowell called the police to report her involvement in the accident.


[9]    Detective Bruce Wright (Detective Wright) of the Marion County Fatal

       Alcohol Crash Team arrived at Vowell’s apartment to investigate. After

       administering Vowell’s Miranda warnings, Detective Wright “detected an odor

       of an alcoholic beverage about [her] person,” and Vowell admitted that she had

       consumed “a shot of ‘3 Olives Vodka’ at her place of employment immediately

       prior to driving her vehicle.” (Appellants’ App. p. 89). Detective Wright also

       examined Vowell’s vehicle parked in front of her apartment and “noticed blood,

       pieces of flesh and hair in the shattered windshield.” (Appellants’ App. p. 252).

       After Vowell agreed to submit to a chemical test, Detective Wright transported

       her to Wishard Hospital for a blood draw. Three hours after the accident, at

       7:08 a.m., Vowell’s blood alcohol content (BAC) was 0.06%. Two expert

       toxicologists concluded that Vowell’s BAC at the time of the accident would

       have been approximately 0.10% to 0.128%. Based on her BAC, both experts

       also agreed that Vowell’s alcohol intake must have exceeded the two shots of

       vodka that she claimed to have consumed at BGC.


[10]   As a result of the collision, Buchanan sustained severe brain trauma, a broken

       nose, and fractures to both lower bones in his right leg. On July 14, 2008,

       pursuant to a plea agreement, Vowell pled guilty to one Count of operating a

       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015   Page 5 of 22
       motor vehicle while intoxicated causing serious bodily injury, a Class D felony,

       Ind. Code § 9-30-5-4(a)(1)(A) (2013). She was subsequently sentenced to 365

       days, entirely suspended to probation.


[11]   On February 18, 2009, Buchanan filed an Amended Complaint. In part,

       Buchanan alleged that BGC violated its statutory and common law duty “to

       make sure that its employees did not become intoxicated during and after their

       employment by consumption of alcoholic beverages provided by [BGC], before

       they took to the streets on their way home from work.” (Appellants’ App. p.

       13). On January 31, 2014, Buchanan filed a motion for partial summary

       judgment, contending that Vowell’s actual knowledge of her own intoxication

       should be imputed to BGC as her employer. On February 28, 2014, BGC filed

       a cross-motion for summary judgment, arguing that BGC was not liable for the

       damages caused by Vowell’s intoxication under either the Dram Shop Act or

       the common law because there is no evidence that BGC had actual knowledge

       that Vowell was visibly intoxicated at the time she was served an alcoholic

       beverage. On April 21, 2014, the trial court conducted a summary judgment

       hearing. On June 20, 2014, the trial court issued its Order, denying the parties’

       cross-motions based upon existing questions of material fact.


[12]   BGC and Buchanan now appeal. Additional facts will be provided as

       necessary.




       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015   Page 6 of 22
                                    DISCUSSION AND DECISION

                                               I. Standard of Review

[13]   On review of the grant or denial of summary judgment, our court applies the

       same standard as used by the trial court. Merchants Nat’l Bank v. Simrell’s Sports

       Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind. Ct. App. 2000). “Summary

       judgment ‘should not be used as an abbreviated trial, even where the proof is

       difficult or where the court may believe that the non-moving party will not

       succeed at trial.’” Pierson ex rel. Pierson v. Serv. Am. Corp., 9 N.E.3d 712, 715

       (Ind. Ct. App. 2014), trans. denied. Thus, summary judgment is appropriate

       only “if the designated evidentiary matter shows that there is no genuine issue

       as to any material fact and that the moving party is entitled to a judgment as a

       matter of law.” Ind. Trial Rule 56(C). We must construe all facts and any

       inferences reasonably derived from those facts in favor of the non-moving party.

       Id. In doing so, we may only consider matters that were designated to the trial

       court during the summary judgment proceedings, and we make no

       determinations as to evidentiary weight or credibility. Estate of Cummings v. PPG

       Indus., Inc., 651 N.E.2d 305, 307 (Ind. Ct. App. 1995), reh’g denied, trans. denied.


[14]   The party moving for summary judgment bears the burden of proving the

       absence of a genuine issue of material fact. Vanderhoek v. Willy, 728 N.E.2d

       213, 215 (Ind. Ct. App. 2000). Thereafter, the non-moving party must set forth

       specific facts showing the existence of a genuine issue of material fact. Id. We

       will find a genuine issue of material fact “where the facts concerning an issue

       that would dispose of the litigation are in dispute or where the undisputed

       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015   Page 7 of 22
       material facts are capable of supporting conflicting inferences on such an issue.”

       Id. In addition, even if the material facts are undisputed, we will nevertheless

       find summary judgment to be inappropriate if the record reveals an incorrect

       application of the law to the facts. Id.


                                           II. Dram Shop Liability Claim

[15]   Indiana’s 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.” Id.

       At the time of the accident, Indiana Code section 7.1-5-10-15(a) (2004) (Dram

       Shop Criminal Provision) provided that “[i]t 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 intoxicated.” 2

       In order to be held civilly liable for violating the Dram Shop Criminal

       Provision, Indiana Code section 7.1-5-10-15.5(b)(1) (Dram Shop Civil

       Provision) requires that a person who furnishes an alcoholic beverage to an

       intoxicated person must have “had actual knowledge that the person to whom

       the alcoholic beverage was furnished was visibly intoxicated at the time the

       alcoholic beverage was furnished.” 3 To “‘furnish’ an alcoholic beverage, a




       2
         Effective July 1, 2014, the Dram Shop Criminal Provision was amended to provide that “[a] person who,
       knowing that another person is intoxicated, sells, barters, delivers, or gives away an alcoholic beverage to the
       intoxicated person commits a Class B misdemeanor.” I.C. § 7.1-5-10-15(a) (2014).
       3
         Buchanan devotes a significant portion of his argument repudiating BGC’s reference to the Dram Shop
       Civil Provision as an immunity statute. However, this court has previously referred to Indiana Code section
       7.1-5-10-15.5 as an immunity provision. See Thompson v. Ferdinand Sesquicentennial Comm., Inc., 637 N.E.2d
       178, 180 (Ind. Ct. App. 1994). Furthermore, Indiana Code chapter 34-30-2 identifies various “[s]tatutes

       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015                          Page 8 of 22
       defendant must be found to have possessed or controlled the alcoholic

       beverages consumed.” Vanderhoek, 728 N.E.2d at 215. Also, the person’s

       intoxication must have been a proximate cause of the death, injury, or damage

       alleged in the civil complaint. I.C. § 7.1-5-10-15.5(b)(2).


                                 A. Appeal: Evidence of Visible Intoxication

[16]   BGC contends that it is entitled to summary judgment under the Dram Shop

       Act because there is no evidence to establish that it had actual knowledge of

       Vowell’s visible intoxication “when [BGC] furnished her alcohol, or at any

       point that night.” (Appellants’ Br. p. 14). In determining whether the furnisher

       of alcohol had actual knowledge that he was furnishing alcohol to an

       intoxicated individual, “[t]he furnisher’s knowledge must be judged by a

       subjective standard.” Delta Tau Delta, Beta Alpha Ch. v. Johnson, 712 N.E.2d

       968, 974 (Ind. 1999), declined to follow on other grounds by Paragon Family Rest. v.

       Bartolini, 799 N.E.2d 1048 (Ind. 2003). “Absent an admission that the person

       furnishing alcohol had actual knowledge of the other’s intoxication, the trier of

       fact must look to reasonable inferences based upon an examination of the

       surrounding circumstances.” Id.

               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 person’s behavior at
               the time, and the person’s condition shortly after leaving.” Where,




       outside [Indiana Code title] 34 [t]hat [c]onfer [i]mmunity.” (Emphasis added). The Dram Shop Civil Provision
       is included in this list. See I.C. § 34-30-2-23.

       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015                      Page 9 of 22
               however, there is insufficient evidence to support actual knowledge,
               the issue may be resolved as a matter of law.
       Id. (internal citation omitted).


[17]   There is no dispute that Vowell consumed at least two shots of vodka at BGC

       on the night of the accident, but a review of the designated evidence reveals no

       admission or testimony by witnesses that she was visibly intoxicated at any

       point during her shift. According to their depositions, the two BGC bartenders

       on duty that evening have no recollection of serving any alcohol to Vowell.

       Vowell averred in her deposition that after she consumed her end-of-shift drink,

       she felt fine to drive and nobody told her she should not drive. Shannon also

       believed Vowell was fit to drive herself. In Delta Tau Delta, the Indiana

       Supreme Court found that even assuming that a member of the fraternity had

       furnished the intoxicated person with alcohol, “there [was] no evidence that

       [he] exhibited visible signs of intoxication for a [fraternity member] to notice”—

       i.e., the intoxicated person “may have been more talkative than usual, but he

       was not rowdy or stumbling or having verbal difficulties.” Id. at 974-75.

       Similarly, in the present case, there is no designated evidence that Vowell

       exhibited any indicia of intoxication at the time she was furnished alcoholic

       beverages. She was not rowdy or boisterous, and she did not exhibit any typical

       signs of physical intoxication such as watery/bloodshot eyes, slurred speech, or

       unsteadiness in balance. See Murdock v. Fraternal Order of Eagles, 779 N.E.2d

       964, 969 (Ind. Ct. App. 2002), reh’g denied, trans. denied.




       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015     Page 10 of 22
[18]   BGC also relies heavily on its expert toxicologist, Dr. Michael McCabe (Dr.

       McCabe), who used reverse extrapolation to determine that Vowell’s BAC at

       the time she was last furnished a drink would not have exceeded 0.063%.

       According to Dr. McCabe, the BAC threshold for visible intoxication is 0.15%.

       In particular, Dr. McCabe explained in his affidavit:

               The progressive impairing effects of alcohol (i.e., loss of inhibitions,
               followed by impaired judgment, followed by delayed reaction time,
               followed by loss of motor coordination) are a function of the sensitivity
               of the specific brain regions controlling these processes to alcohol.

               Although alcohol affects people differently, progressive impairment of
               these [central nervous system]-controlled activities has been associated
               with relatively well-defined BAC levels as indicated above. Visible
               signs of intoxication generally fall into the categories of delayed
               reaction time (e.g., slurred speech) and loss of motor coordination
               (e.g., staggering). Impairment in these activities has been associated
               with relatively well-defined BAC levels. Scientific studies have also
               established that visible signs of intoxication are present in the majority
               (i.e., more than 50%) of social drinkers at BACs of about 0.15%.

               There is no testimony or evidence that indicates that Vowell was
               visibly intoxicated while she allegedly was served a shot of Three
               Olives Cherry Vodka at [BGC], nor does Vowell’s measured or
               calculated blood alcohol concentration predict that [s]he was visibly
               intoxicated at the time of service at [BGC]. Furthermore there is a
               discrepancy between Vowell’s subjective recall of what she had had to
               drink and toxicological analysis of her alcohol dose. Accordingly,
               given the prolonged duration of time that elapsed between when
               Vowell fled the scene of the accident (i.e., 2 hours), there is no
               scientific reason that supports incorporating consumption of the
               additional drinks during the timeframe that she was served at [BGC]
               versus the time period she was at home.
       (Appellants’ App. pp. 246-47) (footnote omitted).



       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015      Page 11 of 22
[19]   The threshold for visible intoxication as being 0.15% is not specifically disputed

       by Buchanan’s toxicology expert, Dr. Daniel McCoy, or any of his other

       designated materials. Nonetheless, whether or not the expert opinion of a

       toxicologist who has extrapolated BAC levels creates an inference as to the

       subjective knowledge of the BGC bartender who purportedly furnished alcohol to

       Vowell is a matter for the trier of fact. See Booker, Inc. v. Morrill, 639 N.E.2d

       358, 362-63 (Ind. Ct. App. 1994) (finding the toxicologist’s opinion that

       someone with a BAC of 0.21% would manifest physical signs of intoxication

       such as impaired balance and mental confusion constituted circumstantial

       evidence from which the trier of fact could conclude that the intoxicated person

       exhibited these signs of visible intoxication in the presence of the furnisher of

       alcohol).


[20]   Moreover, despite Vowell’s claim to have only consumed a 1.25-ounce shot at

       the beginning of her shift and a 2.5-ounce shot at the end of her shift, the

       undisputed toxicology evidence proves that she must have consumed more

       alcohol than she recalled to register a BAC of 0.10% to 0.128% within half an

       hour of leaving BGC. See Pierson ex rel. Pierson, 9 N.E.3d at 719 (“Ultimately, it

       is the role of the fact-finder, and not the court in summary judgment

       proceedings, to determine issues of credibility or relative weight of the

       evidence—for example, whether self-reporting of alcohol consumption was

       inaccurate or an expert opinion based upon a toxicology report was flawed.”).

       In Ward v. D & A Enterprises of Clark Cnty., Inc., 714 N.E.2d 728, 730 (Ind. Ct.

       App. 1999), the tavern argued that the intoxicated person consumed only one


       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015   Page 12 of 22
       beer on its premises and stated that it was unknown where he consumed

       sufficient alcohol to register a BAC of 0.22%. Our court found that it was the

       tavern’s responsibility

               as the moving party to establish the non-existence of every material
               question of fact. . . . [A]s long as “it is unknown where [the
               intoxicated person] consumed alcohol sufficient to register a .22,” [the
               tavern] failed to meet this responsibility. In the absence of designated
               evidence that [the intoxicated person] consumed the alcohol
               elsewhere, there is a material question of fact as to whether [the
               intoxicated] person consumed at [the tavern] which, on the basis of the
               designated material, is the only place [the intoxicated person] drank
               alcohol. Moreover, when viewed most favorably to the non-moving
               party, 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 person] was visibly
               intoxicated at the time.
       Id.


[21]   Dr. McCabe also posited several possible scenarios to explain how Vowell

       could have registered a BAC of 0.06% more than three hours after the accident:

       first, Vowell could have consumed only the two drinks at BGC as she claimed,

       and subsequently consumed additional alcoholic beverages between the time of

       the accident and the administration of her breathalyzer test; second, contrary to

       her sworn deposition, Vowell could have consumed more than two shots of

       vodka during her shift at BGC. Vowell stated in her deposition that she did not

       consume any alcohol prior to her arrival at BGC or after leaving BGC. Similar

       to the present case, in Pierson ex rel. Pierson, an individual struck a pedestrian

       with his vehicle following his consumption of alcohol at Lucas Oil Stadium. 9

       N.E.3d at 714. Because the designated evidence was capable of supporting

       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015     Page 13 of 22
       several scenarios—that is, either the intoxicated person “drank before and

       during the game to the point where he would have exhibited signs of

       intoxication observable by the stadium volunteer selling him beer; [he] drank to

       excess only after leaving the stadium; or [he] was intoxicated inside the stadium

       but did not exhibit visible signs of intoxication”—we found that there was a

       genuine issue of material fact “as to whether a [stadium vendor] agent served

       [the intoxicated person] even a single drink with actual knowledge of his visible

       intoxication.” Id. at 718-19.


[22]   It is further undisputed that Vowell was involved in an accident shortly after

       leaving BGC, and her BAC exceeded the legal limit at the time of the accident.

       Also, Vowell’s husband and Detective Wright each detected the odor of alcohol

       on Vowell’s breath, respectively twenty minutes and two hours after the

       accident. In Vanderhoek, Terry Neil (Neil) was served at least three beers at the

       Fraternal Order of Eagles (FOE) and had not consumed any alcohol prior to his

       arrival at the FOE. 728 N.E.2d at 217. Although Neil did not exhibit any signs

       of intoxication while at the FOE, he was involved in an accident shortly after

       his departure. Id. At the time of the accident, the police officer observed a

       strong odor of alcohol on Neil’s breath and noted that Neil’s eyes were watery

       and bloodshot, his dexterity was slow, and he “exhibited unsteadiness in

       balance; slurred, confused, mumbling and profane speech; and an attitude

       characterized as angry and crying.” Id. at 214. Neil also failed several field

       sobriety tests and registered a BAC of 0.15%. Id. Our court concluded that,

       based on these facts, “a trier of fact could reasonably infer that the FOE had


       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015   Page 14 of 22
       actual knowledge of Neil’s intoxication at the time he was served.” Id. at 217.

       Although Vowell did not fail any sobriety tests or exhibit any other indicia of

       visible intoxication, we find that whether it may be inferred from the BAC and

       the odor of alcohol that BGC had actual knowledge that Vowell was visibly

       intoxicated at the time she was furnished alcoholic beverages is a matter best

       left for the trier of fact. Therefore, we affirm the trial court’s denial of summary

       judgment.


                                     B. Cross-Appeal: Imputed Knowledge

[23]   On cross-appeal, Buchanan claims that the trial court erroneously denied his

       motion for partial summary judgment. Specifically, he insists that the “‘actual

       knowledge of visible intoxication’ . . . threshold exists for instances where a

       server/furnisher must judge the intoxication of another person.” (Appellee’s Br.

       p. 7) (emphasis added). Here, because the intoxicated person is an agent of

       BGC—i.e., the alcohol furnisher—Buchanan argues that “the actual/subjective

       knowledge [Vowell] has as to her own level of intoxication is a given. It is what

       it is. It is tied to how much she knows she drank and when she drank it—

       whether or not she admits these facts.” (Appellee’s Br. pp. 6-7). According to

       Buchanan, BGC had actual knowledge of Vowell’s visible intoxication because

       Vowell’s “own knowledge of her personal level of intoxication while acting as a

       server for [BGC] must be imputed to [BGC] with each drink she consumed

       while on the clock.” (Appellee’s Br. p. 11).


[24]   “Imputed knowledge is a tenet of agency law, and is based upon an underlying

       legal fiction of agency—the identity of principal and agent when the agent is

       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015   Page 15 of 22
       engaged in the principal’s business.” Stump v. Ind. Equip. Co., 601 N.E.2d 398,

       403 (Ind. Ct. App. 1992), reh’g denied, trans. denied. Imputed knowledge is

       premised upon another facet of agency law—the doctrine of respondeat

       superior. Id. In certain circumstances, respondeat superior confers liability

       upon an employer “‘for the wrongful acts of his employee which are committed

       within the scope of employment.’” Southport Little League v. Vaughan, 734

       N.E.2d 261, 268 (Ind. Ct. App. 2000) (quoting Sword v. NKC Hosps., Inc., 714

       N.E.2d 142, 147 (Ind. 1999)), trans. denied. Buchanan did not raise a claim of

       respondeat superior or vicarious liability in his Amended Complaint or motion

       for partial summary judgment, but he did seek a determination that Vowell’s

       knowledge must be deemed imputed to BGC as her employer. On appeal, he

       argues that this court should declare, as a matter of law, that the “[k]nowledge

       of [Vowell] as to her own alcohol consumption while serving as an employee of

       [BGC], during the course of her employment and within the scope of her

       authority, is knowledge of [BGC], itself, regardless of whether [Vowell] shared

       her knowledge with anyone else.” (Appellee’s Br. p. 28).


[25]   Under the rule of imputed knowledge, “the law imputes the agent’s knowledge

       to the principal, even if the principal does not actually know what the agent

       knows.” Southport Little League, 734 N.E.2d at 274. More specifically,

               knowledge of material facts acquired by an agent in the course of his
               employment, and within the scope of his authority, is the knowledge
               of the principal, and where no actual knowledge of the principal is
               shown, the rule will be given the effect on the theory of constructive
               knowledge, resting on the legal principle that it is the duty of the agent


       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015      Page 16 of 22
               to disclose to his principal all material facts coming to his knowledge,
               and upon the presumption that he has discharged that duty.
       Id. at 275. However, when an agent, acting within the scope of employment,

       “commits an independent tort for his own benefit,” the principal must have

       “some knowledge or reason to know of the agent’s conduct” before liability will

       attach pursuant to the imputed knowledge doctrine. Id.


[26]   In the present case, the designated evidence reveals that the scope of Vowell’s

       duties entailed ferrying alcoholic beverages to the customers as they ordered

       them and properly accounting for the beverages that were purchased. Paul

       Jersild (Jersild), the owner of BGC at the time of the accident, averred in his

       deposition that BGC’s waitresses and bartenders were trained to recognize the

       physical signs of intoxication and were instructed to “not serve already

       intoxicated people.” (Appellants’ App. p. 82). Jersild also indicated that, with

       the exception of an end-of-shift drink, BGC’s policy prohibited Vowell from

       consuming any alcohol during her shift. Based on the toxicologists’ opinions,

       Vowell must have consumed more than two shots of vodka to register a BAC of

       0.06% at 7:00 a.m. 4 Furthermore, there is evidence in the record indicating that

       Vowell had previously violated BGC’s policy by becoming intoxicated during

       her shift and for which she was never reprimanded. Such a history of drinking

       on the job could create an inference that BGC had reason to know that Vowell




       4
         Buchanan infers that Vowell was sneaking beverages for herself throughout her shift, whereas BGC
       contends that the evidence reveals only that BGC furnished Vowell with two drinks.

       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015                   Page 17 of 22
       would consume alcohol during her shift so as to give rise to liability under the

       imputed knowledge doctrine.


[27]   However, notwithstanding whether Vowell’s knowledge should be imputed to

       BGC based on her past conduct, the designated evidence merely establishes that

       she did not have any knowledge of her own intoxication at the time she was last

       served a drink. Buchanan submits that Vowell knew she was intoxicated and

       fled from the scene of the accident out of fear that the police would recognize it

       as well. Yet, Vowell clarified that she believed she was “fine” to drive herself

       home, and she did not become concerned about her level of intoxication until

       after the accident when she learned from her husband that she “[reeked] of

       alcohol.” (Appellant’s App. pp. 45, 300). Vowell also explained that she did

       not realize what she had hit, and she was too afraid to stop because she had

       “heard of too many stories in general with . . . people putting stuff out [in the

       road] to make you stop because somebody is going to come and grab you out of

       your car.” (Appellants’ App. p. 161). Thus, at the time she was last furnished a

       drink, a question of fact remains regarding the knowledge of intoxication to be

       imputed to BGC. Therefore, Buchanan’s partial motion for summary judgment

       was properly denied.


                                      II. Common-Law Negligence Claim

[28]   In his Complaint, Buchanan also alleged that BGC was liable under the theory

       of common-law negligence. At the outset, we note that the parties disagree as

       to the applicability of the common law versus the Dram Shop Act. BGC argues

       that the “actual knowledge of visible intoxication” standard of the Dram Shop

       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015   Page 18 of 22
       Civil Provision also applies in a common-law claim for negligence because the

       statute plainly states that it “applies to all civil actions against persons who

       furnish alcoholic beverages to ‘a person.’” Thompson v. Ferdinand

       Sesquicentennial Comm., Inc., 637 N.E.2d 178, 180 (Ind. Ct. App. 1994)

       (emphasis added). As such, arguing that there is no evidence of actual

       knowledge of visible intoxication, BGC claims that it is entitled to summary

       judgment as to Buchanan’s common-law claim. Alternatively, BGC contends

       that the Dram Shop Civil Provision preempts Buchanan’s common-law

       negligence claim regarding the furnishing of alcohol. In turn, Buchanan posits

       that he has “a common law cause of action arising out of [BGC] providing

       alcohol to [Vowell] that is separate and distinct from any statutorily based cause

       of action.” (Appellant’s Br. p. 25) (relying on Picadilly, Inc. v. Colvin, 519

       N.E.2d 1217 (Ind. 1988), and Gariup Const. Co. v. Foster, 519 N.E.2d 1224 (Ind.

       1988)). We need not address whether the actual knowledge of visible

       intoxication standard applies in claims of common-law negligence or whether

       the common law is preempted by the Dram Shop Act because, independent of a

       claim arising from the furnishing of alcohol, we find that Buchanan can proceed

       under the common-law theory of negligent supervision.


[29]   In order to establish a claim of negligence, Buchanan must demonstrate (1) that

       BGC owed him a duty; (2) that BGC breached that duty; and (3) that the

       breach proximately caused his injury. See Delta Tau Delta, 712 N.E.2d at 970-

       71. In the case at hand, Buchanan seeks to hold BGC liable based on an




       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015   Page 19 of 22
       alleged breach of its duty to supervise Vowell’s conduct. In particular, he

       asserts:

               Public policy must promote and encourage supervision of employees
               particularly when the dangers of driving when intoxicated are
               considered. Conversely, public policy must discourage (1) allowing
               employees to drink on the job; (2) failing to enforce “rules” against
               drinking on the job; (3) providing end of work drinks to employees
               who have been in control of and drinking the employer’s alcohol
               product while on the job; and/or (4) giving to an employee at the end
               of a shift a single drink large enough to assure that once consumed the
               employee will be drunk.
       (Appellee’s Br. p. 25).


[30]   To prevail on summary judgment, BGC “must show that the undisputed facts

       negate at least one element of [Buchanan’s] cause of action.” Pierson ex rel.

       Pierson, 9 N.E.3d at 714-15. Summary judgment “is ‘rarely appropriate’” in

       negligence cases. Id. at 715 (quoting Rhodes v. Wright, 805 N.E.2d 382, 387

       (Ind. 2004)). “This is because negligence cases are particularly fact sensitive

       and are governed by a standard of the objective reasonable person—one best

       applied by a jury after hearing all of the evidence.” Rhodes, 805 N.E.2d at 387.

       However, whether a legal duty is owed by one party to another is generally a

       question of law for the court to determine. Pierson ex rel. Pierson, 9 N.E.3d at

       715.


[31]   In general, “[t]here is no duty to control the conduct of a third person to prevent

       his causing harm to another unless a special relation exists between the actor

       and the third person imposing a duty upon the actor to control the third

       person’s conduct or a special relation exists between the actor and the other

       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015   Page 20 of 22
       which gives the other a right of protection.” Foster v. Purdue Univ. Ch., Beta Mu

       of Beta Theta Pi, 567 N.E.2d 865, 871 (Ind. Ct. App. 1991) (citing Restatement

       (Second) of Torts, § 315), trans. denied. Indiana courts have previously

       recognized the relationship of master-servant “as imposing on the actor a duty

       to control the conduct of a third person.” Lather v. Berg, 519 N.E.2d 755, 767

       (Ind. Ct. App. 1988), reh’g denied. Accordingly, under negligent supervision, an

       employer may be liable if “an employee steps beyond the recognized scope of

       his [or her] employment to commit a tortious injury upon a third party.” Scott

       v. Retz, 916 N.E.2d 252, 257 (Ind. Ct. App. 2009) (internal quotation marks

       omitted). The parties do not dispute that Vowell consumed alcohol while on

       BGC’s premises and while on duty as an employee, and BGC’s bartenders were

       responsible for dispensing the alcoholic beverages. See Estate of Cummings, 651

       N.E.2d at 311. Because Vowell was subject to BGC’s direction and control

       when she consumed alcohol during her shift, the employer-employee

       relationship gave rise to a duty for BGC to supervise or otherwise control

       Vowell’s behavior.


[32]   “Although the existence of duty is a matter of law for the courts to decide, a

       breach of duty is usually a matter left to the trier of fact.” King v. Ne. Sec., Inc.,

       790 N.E.2d 474, 484 (Ind. 2003), reh’g denied. “Only where the facts are

       undisputed and lead to but a single inference or conclusion may the court as a

       matter of law determine whether a breach of duty has occurred.” Id. In this

       case, the parties heavily dispute the amount of alcohol Vowell consumed at

       BGC and the extent to which BGC failed to implement/enforce procedures to

       Court of Appeals of Indiana | Opinion | 49A05-1408-CT-373 | August 5, 2015   Page 21 of 22
       prevent its employees from becoming intoxicated on the job and subsequently

       causing injury to third parties. Because there is a genuine issue of material fact

       as to whether BGC breached its duty, we find that summary judgment was

       inappropriate on the issue of common-law negligence.


                                                CONCLUSION

[33]   Based on the foregoing, we conclude that the trial court properly denied BGC’s

       motion for summary judgment under the Dram Shop Act because there is a

       genuine issue of fact concerning whether BGC furnished alcohol to Vowell with

       actual knowledge that she was visibly intoxicated. The trial court also properly

       denied BGC’s summary judgment motion as it pertains to the common law

       because there is a genuine issue of material fact as to whether BGC breached its

       duty to supervise Vowell’s conduct during her shift. We further conclude that

       the trial court appropriately denied Buchanan’s cross-motion for summary

       judgment because, even assuming the imputed knowledge doctrine applies, the

       designated evidence establishes that Vowell had no knowledge of her own level

       of intoxication to be imputed to BGC.


[34]   Affirmed.


[35]   Bailey, J. and Barnes, J. concur




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