| |
DELTA TAU
DELTA, BETA ALPHA CHAPTER, and DELTA TAU DELTA, NTIONAL FRATERNITY,
Appellants (Defendants Below), v. TRACEY D. JOHNSON Appellee (Plaintiff Below),
JOSEPH P. MOTZ, Non-appealing party (Defendant below).
Indiana Supreme Court Cause No. 49S02-9601-CV-40
SUPREME COURT OF INDIANA
712 N.E.2d 968; 1999 Ind. LEXIS 419
July 12, 1999, Decided
PRIOR HISTORY: [**1] APPEAL FROM THE MARION SUPERIOR COURT. The
Honorable David L. Rimstidt, Judge. Cause No. 49D05-9207-CP-700. Indiana Court
of Appeals Cause No. 49A02-9405-CV-249.
DISPOSITION: Vacated Court of Appeals decision and affirmed trial court
in part and reversed in part.
COUNSEL: FOR APPELLANT DELTA TAU DELTA, NATIONAL FRATERNITY:
Norman T. Funk, HILL, FULWIDER, McDOWELL, FUNK & MATTHEWS, Indianapolis,
Indiana.
FOR APPELLEE: Ronald E. Elberger, C. Joseph Russell, George T. Patton, Jr.,
Scott A. Weathers, BOSE McKINNEY & EVANS, Indianapolis, Indiana.
FOR APPELLANT DELTA TAU DELTA, BETA ALPHA CHAPTER: Douglas B. King,
Michael Rabinowitch, WOODEN & McLAUGHLIN, Indianapolis, Indiana.
JUDGES: SELBY, J. SHEPARD, C.J., and DICKSON and BOEHM, JJ., concur.
SULLIVAN, J., concurs in result without separate opinion.
OPINION BY: SELBY
OPINION
[*969] ON CIVIL PETITION FOR TRANSFER
SELBY, J.
The present case asks us to determine whether the trial court, in a negligence
action, properly denied a motion for summary judgment on the issue of duty.
1
After being [*970] sexually assaulted in a fraternity house where she had
attended a party, Tracey Johnson ("Johnson") brought a civil claim against the
perpetrator, Joseph Motz [**2] ("Motz");
2
Delta Tau Delta, Beta Alpha Chapter ("DTD"), the fraternity at which the
party and sexual assault occurred; and Delta Tau Delta, National
Fraternity ("National"). Johnson claims that both DTD and National breached a
duty of care owed to her and that DTD violated the Dram Shop Act. Both DTD and
National filed motions for summary judgment on the grounds that neither owed
Johnson a duty of care, and DTD also asserted that it did not commit a Dram Shop
violation; both motions were denied. On interlocutory appeal, the Court of
Appeals reversed both denials of summary judgement on all issues. Motz v.
Johnson, 651 N.E.2d 1163 (Ind. Ct. App. 1995). We earlier granted transfer and
now address the following issues: (1) whether DTD owed Johnson a common law duty
of reasonable care; (2) whether Johnson may proceed on a Dram Shop claim against
DTD; and (3) whether National gratuitously assumed a duty of care towards
Johnson. Because we answer the first issue affirmatively and the other two
negatively, we affirm in part, reverse in part, and remand to the trial court.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
1 Along
with this opinion today, we issue opinions in two other cases, Vernon v. Kroger,
712 N.E.2d 976, 1999 Ind. LEXIS 420 (Ind. 1999) and L.W. v. Western Golf Ass'n,
712 N.E.2d 983, 1999 Ind. LEXIS 421 (Ind. 1999), addressing whether landowners
or occupiers of land owe invitees a duty to provide reasonable protection
against the foreseeable criminal acts of third parties. [**3]
2 Joseph
Motz, who pled guilty to sexual battery in a separate proceeding, is not a party
to this appeal.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
FACTS
DTD is a fraternity on the campus of Indiana University at Bloomington; it is
the local chapter of Delta Tau Delta, National Fraternity. On the evening
of October 13, 1990, Johnson, an undergraduate student at Indiana University,
attended a party at DTD's house. Johnson had been invited to the party by a
member of DTD. She arrived at the party around 10:00 p.m. with some friends who
had also been invited. At the party, beer was served in a downstairs courtyard
area of the house. Pledges drew beer from a keg into pitchers, which they then
poured into cups to serve to guests. The courtyard was very crowded and rather
chaotic. Around midnight, Johnson and her friends were about to leave when she
encountered Motz, an alumnus of the fraternity and an acquaintance of hers.
Motz had driven into Bloomington that day. After going to a football game, Motz
bought a case of beer which he brought back to the chapter house. He stored his
beer in room C17. Prior to meeting Johnson, Motz drank [**4] four or five of
his beers.
While Johnson and Motz were talking, Johnson's friends wandered off and she was
unable to find them. Motz offered to drive her home, but only after he had
sobered up. Johnson accepted the offer. They waited together in room C17 where
they both had some drinks of hard liquor, talked, and listened to music with
other guests.
Between 3:30 a.m. and 4:00 a.m., Johnson again searched for a ride home. When
she was unsuccessful, Motz reaffirmed his offer to drive her home, but only
after he sobered up. Soon thereafter, Motz locked himself and Johnson in the
room. He then sexually assaulted Johnson.
DISCUSSION
I. STANDARD OF REVIEW
When reviewing the denial of a summary judgment motion, this court faces the
summary judgment motion in the same posture as did the trial court. Hooks SuperX,
Inc. v. McLaughlin, 642 N.E.2d 514, 516 (Ind. 1994). "We must view the facts
liberally and in the light most favorable to the non-movant." Wior v. Anchor
Indus., Inc., 669 N.E.2d 172, 177 n.4 (Ind. 1996). Summary judgment will be
granted only "if the designated evidentiary matter shows that there is no
genuine issue as to any material fact and [**5] that the moving party is
entitled to a judgment as a matter of law." Ind. Trial Rule 56(C).
II. NEGLIGENCE
The first issue in this appeal is whether the trial court was correct to deny
DTD's motion for summary judgment on Johnson's negligence claim. To establish a
claim of negligence, a plaintiff must show: (1) that the defendant owed the
plaintiff a duty, (2) that the defendant breached that [*971] duty, and (3)
that the breach proximately caused the plaintiff's injury. Webb v. Jarvis, 575
N.E.2d 992, 995 (Ind. 1991). In this case, Johnson argues that DTD owed its
guests a duty of reasonable care, for example, by providing reasonable
protection, security, and supervision at the party, that DTD breached its duty,
and that the breach proximately caused her injuries. DTD moved for summary
judgment on the issue of duty, arguing that it owed no duty to protect Johnson
from the unforeseeable criminal acts of a third party. Determining whether one
party owes a duty to another is a question of law for the court. Hooks SuperX,
642 N.E.2d at 517. As such, we will determine, de novo, whether DTD owed a duty
to Johnson and, thus, whether the trial court correctly [**6] denied DTD's
motion for summary judgment.
3
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
3 The
summary judgment motion filed by DTD addressed only whether it owed a duty of
care toward Johnson. Thus, neither breach nor proximate cause are before us on
this appeal.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
In Burrell v. Meads, this Court held that a social guest who has been invited by
a landowner onto the landowner's land is to be treated as an invitee. 569 N.E.2d
637, 643 (Ind. 1991). Thus, a social host owes his guests the duty to exercise
reasonable care for their protection. Id. The issue in this case is whether a
landowner may have a duty to take reasonable care to protect an invitee from the
criminal acts of a third party.
4
This issue is one that we have not addressed recently and one which has resulted
in some disagreement in the Court of Appeals.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
4 In
this case, Johnson was invited to the party by a member of DTD, and the sexual
assault occurred in DTD's house. Thus, she is an invitee, and DTD, as the
landowner, owed her a duty to exercise reasonable care for her protection.
Having already determined in Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991) that
such a duty exists, we need not formally use the three factor balancing test as
enunciated in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991) (holding that whether a
duty exists is determined by balancing three factors: the relationship between
the parties, the foreseeability of the occurrence, and public policy concerns).
The issue in this case is when, if ever, does that duty extend to criminal acts
by third parties. Looked at under the Webb framework, our holding in Burrell
implicitly determined that two of the three factors, relationship and public
policy, weighed in favor of establishing a duty between a social host and his
invited guest. The only issue remaining in this case is foreseeability.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**7] The question of whether and to what extent landowners owe any duty to
protect their invitees from the criminal acts of third parties has been the
subject of substantial debate among the courts and legal scholars in the past
decade. See, e.g., McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 897
(Tenn. 1996) (noting that the debate caused the court to reconsider its law in
this area). The majority of courts that have addressed this issue agree that,
while landowners are not to be made the insurers of their invitees' safety,
landowners do have a duty to take reasonable precautions to protect their
invitees from foreseeable criminal attacks. See 937 S.W.2d at 898-99. Indiana
courts have not held otherwise. See Kinsey v. Bray, 596 N.E.2d 938 (Ind. Ct.
App. 1992).
A further question arises, however, in that courts employ different approaches
to determine whether a criminal act was foreseeable such that a landowner owed a
duty to take reasonable care to protect an invitee from the criminal act. There
are four basic approaches that courts use to determine foreseeability in this
context: (1) the specific harm test, (2) the prior [**8] similar incidents
test, (3) the totality of the circumstances test, and (4) the balancing test.
See generally Krier v. Safeway Stores 46, Inc., 943 P.2d 405 (Wyo. 1997);
McClung, 937 S.W.2d at 899-901; Boren v. Worthen Nat'l Bank, 921 S.W.2d 934,
940-41 (Ark. 1996); Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal. 4th 666, 863
P.2d 207, 215-16 (Cal. 1993); Michael J. Yelnosky, Comments, Business Inviters'
Duty to Protect Invitees from Criminal Acts, 134 U. PA. L. REV. 883, 891-900
(1986).
Under the specific harm test, a landowner owes no duty unless the owner knew or
should have known that the specific harm was occurring or was about to occur.
See McClung, 937 S.W.2d at 895; Boren, 921 S.W.2d at 940. Most courts are
unwilling to hold that a criminal act is foreseeable only in these situations.
See McClung, 937 S.W.2d at 899 (abrogating Cornpropst v. Sloan, 528 S.W.2d 188,
198 (Tenn. 1975) which had employed this test); Boren, 921 S.W.2d at 940.
[*972] Under the prior similar incidents (PSI) test, a landowner may owe a
duty [**9] of reasonable care if evidence of prior similar incidents of crime
on or near the landowner's property shows that the crime in question was
foreseeable. See McClung, 937 S.W.2d at 899; Boren, 921 S.W.2d at 940-41.
Although courts differ in the application of this rule, all agree that the
important factors to consider are the number of prior incidents, their proximity
in time and location to the present crime, and the similarity of the crimes. See
McClung, 937 S.W.2d at 899; Boren, 921 S.W.2d at 941. Courts differ in terms of
how proximate and similar the prior crimes are required to be as compared to the
current crime. Compare Baptist Mem'l Hosp. v. Gosa, 686 So. 2d 1147 (Ala. 1996)
(employing a strict PSI test; holding that, although there were 57 crimes
reported over a five year period, only six involved a physical touching and,
therefore, the assault of someone with a gun was unforeseeable) with Sturbridge
Partners, Ltd. v. Walker, 267 Ga. 785, 482 S.E.2d 339 (Ga. 1997) (employing a
liberal PSI test; holding that two prior burglaries of apartments was sufficient
to make a rape in [**10] an apartment foreseeable). While this approach
establishes a relatively clear line when landowner liability will attach, many
courts have rejected this test for public policy reasons. See Isaacs v.
Huntington Mem'l Hosp., 38 Cal. 3d 112, 695 P.2d 653, 658-59, 211 Cal. Rptr. 356
(Cal. 1985), modified by Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal. 4th 666,
863 P.2d 207 (Cal. 1993); Maguire v. Hilton Hotels Corp., 79 Haw. 110, 899 P.2d
393, 400 (Haw. 1995); Sharp v. W.H. Moore Inc., 118 Idaho 297, 796 P.2d 506,
510-11 (Idaho 1990); Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 856
P.2d 1332, 1339 (Kan. 1993); Gans v. Parkview Plaza Partnership, 253 Neb. 373,
571 N.W.2d 261, 268 (Neb. 1997); Doud v. Las Vegas Hilton Corp., 109 Nev. 1096,
864 P.2d 796, 800 (Nev. 1993); Clohesy v. Food Circus Supermarkets, Inc., 149
N.J. 496, 694 A.2d 1017, 1023 (N.J. 1997); Small v. McKennan, 403 N.W.2d 410,
413 (S.D. 1987), aff'd, 437 N.W.2d 194, 201 (S.D. 1989). The public policy
considerations are that under the PSI test the [**11] first victim in all
instances is not entitled to recover, landowners have no incentive to implement
even nominal security measures, the test incorrectly focuses on the specific
crime and not the general risk of foreseeable harm, and the lack of prior
similar incidents relieves a defendant of liability when the criminal act was,
in fact, foreseeable. Id.
Under the totality of the circumstances test, a court considers all of the
circumstances surrounding an event, including the nature, condition, and
location of the land, as well as prior similar incidents, to determine whether a
criminal act was foreseeable. See Isaacs, 695 P.2d at 659-61; Maguire, 899 P.2d
at 399; Seibert, 856 P.2d at 1339; Whittaker v. Saraceno, 418 Mass. 196, 635
N.E.2d 1185, 1188 (Mass. 1994); Gans, 571 N.W.2d at 268-69; Doud, 864 P.2d at
800; Clohesy, 694 A.2d at 1023; Small v. McKennan, 437 N.W.2d 194, 200-01 (S.D.
1989). Courts that employ this test usually do so out of dissatisfaction with
the limitations of the prior similar incidents test. See Isaacs, 695 P.2d at
658-59; [**12] Maguire, 899 P.2d at 399; Sharp, 796 P.2d at 510-11; Seibert,
856 P.2d at 1339; Gans, 571 N.W.2d at 268; Doud, 864 P.2d at 800; Clohesy, 694
A.2d at 1023; Small, 403 N.W.2d at 413. The most frequently cited limitation of
this test is that it tends to make the foreseeability question too broad and
unpredictable, effectively requiring that landowners anticipate crime. See
McClung, 937 S.W.2d at 900 (adopting the balancing test); Ann M., 863 P.2d at
214-15 (reconsidering and rejecting the totality of the circumstances test in
favor of the balancing test).
Under the final approach, the balancing test, a court balances "the degree of
foreseeability of harm against the burden of the duty to be imposed." McClung,
937 S.W.2d at 901; see Ann M., 863 P.2d at 215. In other words, as the
foreseeability and degree of potential harm increase, so, too, does the duty to
prevent against it. Id. This test still relies largely on prior similar
incidents in order to ensure that an undue burden is not placed upon [**13]
landowners. Id.
We agree with those courts that decline to employ the specific harm test and
prior similar incidents test. We find that the specific harm test is too limited
in its determination of when a criminal act is foreseeable. While the prior
similar incidents test has certain appeal, we find that this test has the
potential [*973] to unfairly relieve landowners of liability in some
circumstances when the criminal act was reasonably foreseeable.
As between the totality of the circumstances and balancing tests, we find that
the totality of the circumstances test is the more appropriate. The balancing
test seems to require that the court ask whether the precautions which plaintiff
asserts should have been taken were unreasonably withheld given the
foreseeability of the criminal attack. In other words, the question is whether
defendant took reasonable precautions given the circumstances. We believe that
this is basically a breach of duty evaluation and is best left for the jury to
decide.
On the other hand, the totality of the circumstances test permits courts to
consider all of the circumstances to determine duty. In our view and the view of
other state supreme courts, the totality [**14] of the circumstances test does
not impose on landowners the duty to ensure an invitee's safety, but requires
landowners to take reasonable precautions to prevent foreseeable
criminal acts against invitees.
5
See Maguire v. Hilton Hotels Corp., 79 Haw. 110, 899 P.2d 393 (Haw. 1995); Sharp
v. W.H. Moore, Inc., 118 Idaho 297, 796 P.2d 506 (Idaho 1990); Seibert v. Vic
Regnier Builders, Inc., 253 Kan. 540, 856 P.2d 1332 (Kan. 1993); Whittaker v.
Saraceno, 418 Mass. 196, 635 N.E.2d 1185 (Mass. 1994); Gans v. Parkview Plaza
Partnership, 253 Neb. 373, 571 N.W.2d 261 (Neb. 1997); Doud v. Las Vegas Hilton
Corp., 109 Nev. 1096, 864 P.2d 796 (Nev. 1993); Clohesy v. Food Circus
Supermarkets, Inc., 149 N.J. 496, 694 A.2d 1017 (N.J. 1997); Small v. McKennan
Hosp., 403 N.W.2d 410 (S.D. 1987), aff'd, 437 N.W.2d 194 (S.D. 1989). A
substantial factor in the determination of duty is the number, nature, and
location of prior similar incidents, but the lack of prior similar incidents
will not preclude a claim where the landowner knew or should [**15] have known
that the criminal act was foreseeable. The advantage of the totality of the
circumstances approach is that it incorporates the specific harm and prior
similar incidents tests as factors to consider when determining whether the
landowner owed a duty to an injured invitee without artificially and arbitrarily
limiting the inquiry. Therefore, we now explicitly state that Indiana courts
confronted with the issue of whether a landowner owes a duty to take reasonable
care to protect an invitee from the criminal acts of a third party should apply
the totality of the circumstances test to determine whether the crime in
question was foreseeable.
6
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
5 In
Burrell, 569 N.E.2d at 639-640, this Court expressly adopted the definition of
duty as stated in Restatement (Second) of Torts section 343 (1965) and found
that a landowner had a duty to exercise reasonable care to protect an invitee
while the invitee was on the landowner's premises.
6 We
note in passing that this is not the sole means by which a plaintiff may
establish that a landowner owed plaintiff a duty. For example, a landowner may
also voluntarily or contractually assume a duty to protect a plaintiff from
criminal acts. See, e.g., Nalls v. Blank, 571 N.E.2d 1321, 1323 (Ind. Ct. App.
1991) (finding that landlord had assumed the duty to provide security); Vertucci
v. NHP Management Co., 701 N.E.2d 604, 606 (Ind. Ct. App. 1998) (finding that
"the exculpatory clause [in the lease agreement did] not prevent [the defendant]
from having or assuming a duty to protect [the plaintiff] from the criminal acts
of a third party").
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**16] Applying the totality of the circumstances test to the facts of this
case, we hold that DTD owed Johnson a duty of reasonable care. Within two years
of this case, two specific incidents occurred which warrant consideration.
First, in March 1988, a student was assaulted by a fraternity member during an
alcohol party at DTD. Second, in April 1989 at DTD, a blindfolded female was
made, against her will, to drink alcohol until she was sick and was pulled up
out of the chair and spanked when she refused to drink. In addition, the month
before this sexual assault occurred, DTD was provided with information from
National concerning rape and sexual assault on college campuses.
7
Amongst other information, DTD was made aware that "1 in 4 college women have
either been raped or suffered attempted rape," that "75% of male students and
55% of female students involved in date rape had been drinking or using drugs,"
that "the group most likely to commit gang rape on the college [*974] campus
was the fraternity," and that fraternities at seven universities had "recently
experienced legal action taken against them for rape and/or sexual assault."
(S.S.R. at 6-7.) We believe that to hold that a sexual assault [**17] in this
situation was not foreseeable, as a matter of law, would ignore the facts and
allow DTD to flaunt the warning signs at the risk of all of its guests.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
7 This
information was provided as part of a workshop pamphlet. The workshop pamphlet
was prepared for and given out at the fraternity's convention in August 1990.
DTD had members in attendance at the convention.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
As a landowner under these facts, DTD owed Johnson a duty to take reasonable
care to protect her from a foreseeable sexual assault. It is now for the jury to
decide whether DTD breached this duty, and, if so, whether the breach
proximately caused Johnson's injury. While this may be the exceptional case
wherein a landowner in a social host situation is held to have a duty to take
reasonable care to protect an invitee from the criminal acts of another,
8
when the landowner is in a position to take reasonable precautions to protect
his guest from a foreseeable criminal act, courts should not hesitate to hold
that a duty exists.
9
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
8 See
Husband v. Dubose Market, Inc., 26 Mass. App. Ct. 667, 531 N.E.2d 600 (Mass.
App. Ct. 1988) [**18]
9 See
Kinsey v. Bray, 596 N.E.2d 938 (Ind. Ct. App. 1992).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
III. DRAMSHOP CLAIM
As a second basis for holding DTD liable, Johnson argues that DTD served alcohol
in violation of Indiana's Dram Shop Act. Johnson contends that there exist
genuine issues of material fact concerning whether DTD furnished alcohol to Motz
with the knowledge that he was intoxicated and whether Motz' intoxication was a
proximate cause of her injury. For this reason, Johnson concludes that the trial
court was correct to deny summary judgment.
Indiana's 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. Specifically, this Act provides that:
(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 [**19]
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.
IND. CODE § 7.1-5-10-15.5 (1998).
The first step, therefore, is to determine whether the person furnishing the
alcohol had actual knowledge that they were furnishing alcohol to an intoxicated
individual. The furnisher's knowledge must be judged by a subjective standard.
See Gariup Constr. Co. v. Foster, 519 N.E.2d 1224, 1229 (Ind. 1988). 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. See id. at 1230; Booker, Inc. v.
Morrill, 639 N.E.2d 358, 362 (Ind. Ct. App. 1994). 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." Booker, 639 N.E.2d at 362. [**20] Where, however, there is
insufficient evidence to support actual knowledge, the issue may be resolved as
a matter of law. See Baxter v. Galligher, 604 N.E.2d 1245, 1248 (Ind. Ct. App.
1992); Muex v. Hindel Bowling Lanes, Inc., 596 N.E.2d 263, 266 (Ind. Ct. App.
1992).
The evidence, examined in the light most favorable to the non-movant Johnson, is
insufficient to support this claim. Given that DTD had pledges serving alcohol
in cups in the downstairs courtyard and that Johnson saw Motz drinking from a
cup one could infer that Motz was drinking alcohol that had been furnished by
the fraternity. There is no evidence, however, to show that a pledge furnished
Motz with alcohol; nor does the record contain any evidence that the pledge
would have known that Motz was intoxicated when the alcohol was furnished. Motz
states he was intoxicated and the record shows that he may have been more
talkative than usual, [*975] but he was not rowdy or stumbling or having
verbal difficulties. In other words, even if one assumes that a member of DTD
furnished Motz with alcohol, there is no evidence that Motz exhibited visible
signs of intoxication for a pledge to notice. Because [**21] we find that there
was insufficient evidence to support actual knowledge, we need not address
whether Motz's intoxication was the proximate cause of the incident.
IV. GRATUITOUS ASSUMPTION OF DUTY
The final issue which Johnson raises is whether National owed her a duty of
care. Johnson contends that genuine issues of material fact exist concerning
whether National assumed such a duty. Specifically, Johnson argues that National
undertook actions which raise the inference that it assumed a duty to protect
against date rape and alcohol abuse. Thus, she concludes, the trial court was
correct to deny National's motion for summary judgment.
"A duty of care may . . . arise where one party assumes such a duty, either
gratuitously or voluntarily. The assumption of such a duty creates a special
relationship between the parties and a corresponding duty to act in the manner
of a reasonably prudent person." Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212,
1219 (Ind. Ct. App. 1983) (citations omitted). The existence and extent of such
a duty is ordinarily a question of fact for the trier of fact. See Plan-Tec, 443
N.E.2d at 1220; Tincher v. Greencastle Fed. Sav. Bank, 580 N.E.2d 268, 273 (Ind.
Ct. App. 1991). [**22] However, when the record contains insufficient evidence
to establish such a duty, the court will decide the issue as a matter of law.
See Teitge v. Remy Constr. Co., 526 N.E.2d 1008, 1014-15 (Ind. Ct. App. 1988);
Robinson v. Kinnick, 548 N.E.2d 1167, 1169 (Ind. Ct. App. 1989).
Johnson urges that we allow this issue to proceed to the jury. To support her
claim, Johnson cites to the Court of Appeals' ruling in Ember v. B.F.D., Inc.,
490 N.E.2d 764 (Ind. Ct. App. 1986), modified, 521 N.E.2d 981 (Ind. Ct. App.
1988). In Ember, a tavern distributed flyers throughout its neighborhood asking
the residents to call the tavern if anyone was disturbing them, even if the
trouble had nothing to do with the tavern. Also, the tavern informed the
neighborhood that the tavern would provide patrols for the area. Furthermore,
one of the pub's security officers had, in the past, helped out with a
neighborhood problem unrelated to the pub. Thus, when a person was attacked
across the street from the tavern, the jury was permitted to determine whether
the tavern had assumed a duty to protect persons within the vicinity of the
tavern. [**23] 490 N.E.2d at 770.
We do not agree with Johnson that this situation is like that in Ember and other
cases which allow the issue of assumption of duty to proceed to the jury.
Instead, we hold that insufficient evidence exists for this issue to proceed to
the jury. See Foster v. Purdue Univ. Chapter, the Beta Mu of Beta Theta Pi, 567
N.E.2d 865 (Ind. Ct. App. 1991). In the present case, the most compelling
evidence which Johnson presents in support of her claim refers to a series of
posters which National sent DTD to hang for the public to see. These posters
professed that the Delta Tau Delta Fraternity was a leading fighter
against date rape and alcohol abuse,
10
and they were placed, by DTD, in places where they could be seen by the public.
These posters do not create an inference that National gratuitously assumed a
duty. The posters did not profess to have security available as did the pamphlet
in Ember, nor did they state that one could call National for help with problems
such as date rape or alcohol abuse. This Court, therefore, while it expresses no
view with regard to any other theory of liability, reverses the trial court's
denial of summary [**24] judgement on the gratuitous assumption of duty theory.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
10 For
example, one poster stated that, "It may come as a surprise, but one of the most
active organizations in the fight against alcohol abuse, date rape and hazing is
a fraternity." (R. at 435.) Another stated that, "while date rape may be all too
commonplace an occurrence, there's absolutely no place for it at Delta Tau
Delta." (R. at 436.)
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
CONCLUSION
We vacate the Court of Appeals decision and affirm the trial court in part and
reverse the trial court in part.
SHEPARD, C.J., and DICKSON and BOEHM, JJ., concur.
[*976] SULLIVAN, J., concurs in result without separate opinion.
Top
of page
ACT NOW-Before Events Leave You With No Choice
Leave your comments on the
CompelledToAct Blog
|
|
CompelledToAct.com
Concerned about the drinking culture on
campuses?
This site provides information as to
the seriousness of the problem.
In loving Memory of
Kristine Guest |