Albert C. Gentry, II v. Nora Day, and Sean Boomquist Nora Day v. Sean R. Bloomquist

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”
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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.
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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
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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).
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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
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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.
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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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