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Gentry v. Day, 22 N.E.3d 710 (2014)

material fact and that the party is entitled to

22 N.E.3d 710 judgment as a matter of law through evidence
Court of Appeals of Indiana. designated to the trial court, the non-moving
party may not rest on its pleadings, but must
Albert C. GENTRY, II, Appellant–Plaintiff, designate specific facts demonstrating the
v. existence of a genuine issue for trial. Trial
Nora DAY, Defendant, Procedure Rule 56(C).
and
Sean R. Bloomquist, Appellee–Defendant.
Nora Day, Cross–Claimant, 1 Cases that cite this headnote
v.
Sean R. Bloomquist, Cross–Claim Defendant.

No. 32A01–1406–CT–226.
| [2] Appeal and Error Summary Judgment
Dec. 4, 2014.
In an appeal from a grant of summary judgment,
the Court of Appeals construes all facts and
reasonable inferences drawn from those facts in
Synopsis
a light most favorable to the nonmoving party.
Background: Parent of teenager killed in motor vehicle
accident brought wrongful death action against host of
house party at which teenager consumed alcohol prior to
accident. The Hendricks Superior Court, Stephenie D.
LeMay–Luken, J., granted host’s motion for summary
judgment, and parent appealed.
  [3] Appeal and Error Summary Judgment
Appeal and Error Review for correctness or
error
[Holding:] The Court of Appeals, Crone, J., held that
Appeal and Error Summary Judgment
genuine material issue of fact existed as to whether host
furnished teenager with alcohol prior to teenager’s death
Upon appeal from a grant of summary
in motor vehicle accident.
judgment, the non-moving party has the burden
 
of proving that the grant of summary judgment
Reversed and remanded. was erroneous, but the Court of Appeals reviews
  the trial court’s decision carefully to ensure that
Procedural Posture(s): On Appeal; Motion for Summary the nonmovant was not improperly denied his
Judgment. day in court.

1 Cases that cite this headnote

West Headnotes (8)

[1] Judgment Presumptions and burden of proof [4] Judgment Absence of issue of fact
Once a party moving for summary judgment On a motion for summary judgment, a genuine
satisfies the burden of making a prima facie issue of material fact exists where the facts
showing that there are no genuine issues of
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 For Educational Use Only

Gentry v. Day, 22 N.E.3d 710 (2014)

concerning an issue that would dispose of the 7.1–5–7–8.

litigation are in dispute or where the undisputed
material facts are capable of supporting
conflicting inferences on such an issue. Trial
Procedure Rule 56(C).

[8] Judgment Tort cases in general

Genuine issue of material fact existed as to

whether host of house party was active means
[5] Judgment Existence or non-existence of fact by and through which alcohol was placed in
issue teenager’s custody and control, prior to
teenager’s death in motor vehicle accident,
Where the evidence is in conflict, or undisputed precluding summary judgment in action by
facts lead to conflicting inferences, summary teenager’s parent under statutes prohibiting sale,
judgment should not be granted, even if it barter, exchange, provision, or furnishing of
appears that the nonmovant will not succeed at alcoholic beverages to minors or intoxicated
trial. persons. West’s A.I.C. 7.1–5–7–8, 7.1–5–10–
15(a), 7.1–5–10–15.5.

[6] Alcoholic Beverages Grounds and Elements

Alcoholic Beverages Unlawful provision of
alcohol to intoxicated or alcoholic persons Attorneys and Law Firms
Alcoholic Beverages Unlawful provision of
alcohol to underage persons *711 John F. Townsend, III, Townsend & Townsend,
LLP, Indianapolis, IN, Attorney for Appellant.
Civil liability may be imposed for injuries to
third parties caused by violations of statutes Robert A. Durham, Abbey E. Jeziorski, State Farm
prohibiting the sale, barter, exchange, provision, Litigation Counsel, Indianapolis, IN, Attorney for
or furnishing of alcohol to minors or to Appellee.
intoxicated persons. West’s A.I.C. 7.1–5–7–
8, 7.1–5–10–15(a), 7.1–5–10–15.5.

OPINION
[7] Alcoholic Beverages Underage Persons

In drafting the statutes prohibiting the sale, CRONE, Judge.

barter, exchange, provision, or furnishing of
alcohol to minors, the legislature clearly
intended to limit minors’ access to alcohol and
discourage underage drinking. West’s A.I.C.
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Gentry v. Day, 22 N.E.3d 710 (2014)

Case Summary

Eighteen-year-old Sean R. Bloomquist hosted a party at

his father’s home while *712 his father, stepmother, and
older brother were away. Bloomquist, eighteen-year-old Facts and Procedural History1
Nathan Gentry (“Nathan”), and seventeen-year-old
Andrew Gaddie gave money to nineteen-year-old Dustin The relevant facts most favorable to Gentry as the party
Stamm to purchase alcohol. Stamm went by himself to opposing summary judgment are as follows. In May 2012,
purchase the alcohol and returned to Bloomquist’s home Bloomquist hosted a party at his father’s home in
with a case of beer, which was kept in the open trunk of Pittsboro. Bloomquist’s father, stepmother, and twenty-
Stamm’s car during the party. Seventeen-year-old two-year-old brother were not at home and were unaware
Christopher Hubbard arrived at the party after the beer of the party. Bloomquist, Nathan, and Gaddie gave money
was purchased, and Bloomquist gave him permission to to Stamm to purchase alcohol. Stamm went by himself to
have some beer. Hubbard drank beer and played “beer purchase the alcohol and returned to Bloomquist’s home
pong” at the party and went to bed in Bloomquist’s home with a thirty-can case of beer. According to Bloomquist,
between midnight and 2:00 a.m. Hubbard awoke around the beer was for Stamm, Hubbard, Nathan, and Gaddie,
8:00 the next morning and left the house with Bloomquist and it was kept in the open trunk of Stamm’s car “for
and Nathan to drive another partygoer to softball practice. everyone to get for themselves.” Appellant’s App. at 39.
Hubbard’s vehicle struck a tree, and Nathan died as a Persons other than those who contributed to buy the beer
result of the collision. drank some of the beer. Id. at 43.
   
Under Indiana law, a person is subject to civil liability for According to Hubbard, the beer was already at the party
damages if he “furnished” alcohol to a minor with actual when he arrived around 8:00 p.m., and Bloomquist gave
knowledge that the minor was visibly intoxicated when him permission to have some. See id. at 83 (“Q[.] Well,
the alcohol was furnished and the intoxication was a who gave [the beer] to you *713 then? A[.] Uh, it was in
the cooler and I was just told I could have it. Q[.] Who
proximate cause of the damage. Ind.Code §§ 7.1–5–7– gave you permission to have [the beer]? A[.] Uh, I believe
8, 7.1–5–10–15, 7.1–5–10–15.5. Our cases have held that [Bloomquist] did.”). Hubbard did not know who
a person “furnishes” alcohol in violation of the relevant purchased the beer and did not bring his own beer.
statutes where that person is “ ‘the active means’ by and Hubbard drank beer and played “beer pong” at the party.
through which the [alcohol] was placed in the custody and Bloomquist was with Hubbard all evening and could tell
control of the intoxicated person.” Rauck v. Hawn, 564 that Hubbard was “a little tipsy” or “buzzed” and had the
N.E.2d 334, 337 (Ind.Ct.App.1990) (quoting Lather v. “odor of alcohol ... on his breath.” Id. at 96. Hubbard
Berg, 519 N.E.2d 755, 761 (Ind.Ct.App.1988)). 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
Nathan’s father, Albert C. Gentry, II (“Gentry”), filed a house at 8:30 a.m. with Bloomquist and Nathan to drive
complaint alleging that Bloomquist was liable for another partygoer to softball practice. Hubbard lost
Nathan’s death because he furnished alcohol to Hubbard control of his vehicle and struck a tree. Nathan died as a
with actual knowledge that Hubbard was visibly result of the collision.
intoxicated and the intoxication was a proximate cause of  
Nathan’s death. Bloomquist filed a motion for summary In June 2012, Gentry filed a complaint for damages
judgment asserting that he did not furnish alcohol to against Hubbard, Bloomquist, and Bloomquist’s mother,
Hubbard as a matter of law. The trial court granted Nora Day. Gentry alleged that Bloomquist was liable for
Bloomquist’s summary judgment motion. Nathan’s death because he furnished alcohol to Hubbard
  with actual knowledge that Hubbard was visibly
Gentry now appeals, arguing that a genuine issue of intoxicated and the intoxication was a proximate cause of
material fact exists regarding whether Bloomquist Nathan’s death. Day filed a cross-claim against Hubbard
furnished alcohol to Hubbard. We agree with Gentry and and Bloomquist and a third-party claim against Hubbard’s
therefore reverse and remand for further proceedings. parents. Bloomquist filed a motion for summary judgment
  against Gentry and Day contending that he did not furnish
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Gentry v. Day, 22 N.E.3d 710 (2014)

alcohol to Hubbard as a matter of law. Gentry filed a improperly denied his day in court.
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. Kelly v. Hamilton, 816 N.E.2d 1188, 1191
  (Ind.Ct.App.2004) (citation omitted).
 
*714 [4] [5] “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
Discussion and Decision
such an issue.” Vanderhoek v. Willy, 728 N.E.2d 213,
[1]
Gentry contends that the trial court erred in
[2] [3] 215 (Ind.Ct.App.2000). “Where the evidence is in
granting Bloomquist’s summary judgment motion. conflict, or undisputed facts lead to conflicting inferences,
Pursuant to Indiana Trial Rule 56(C), “summary judgment summary judgment should not be granted, even if it
is appropriate when there are no genuine issues of appears that the nonmovant will not succeed at trial.”
material fact and when the moving party is entitled to Dickerson v. Strand, 904 N.E.2d 711, 715
judgment as a matter of law.” Heritage Dev. of Ind., (Ind.Ct.App.2009).
Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 887  
(Ind.Ct.App.2002), trans. dismissed (2003). When
[6]
Gentry’s claim against Bloomquist is based on the
reviewing a decision to grant summary judgment, we latter’s alleged violation of several Indiana statutes.
apply the same standard as the trial court. Id. “We must Indiana Code Section 7.1–5–7–8 makes it a class B
determine whether there is a genuine issue of material fact misdemeanor for a person to “recklessly, knowingly, or
requiring trial, and whether the moving party is entitled to intentionally sell, barter, exchange, provide, or furnish an
judgment as a matter of law. Neither the trial court nor the alcoholic beverage to a minor.” Indiana Code Section
reviewing court may look beyond the evidence 7.1–5–10–15(a) makes it a class B misdemeanor for a
specifically designated to the trial court.” Id. at 888 person “to sell, barter, deliver, or give away an alcoholic
(citation omitted). A party seeking summary judgment has beverage to another person who is in a state of
the burden of making a prima facie showing that there are intoxication if the person knows that the other person is
no genuine issues of material fact and that the party is intoxicated.”3 And Indiana Code Section 7.1–5–10–15.5
entitled to judgment as a matter of law. Id. “Once the states,
moving party satisfies this burden through evidence  
designated to the trial court pursuant to Trial Rule 56, the
non-moving party may not rest on its pleadings, but must (a) As used in this section, “furnish” includes barter,
designate specific facts demonstrating the existence of a deliver, sell, exchange, provide, or give away.
genuine issue for trial.” Id.
(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
We construe all facts and person who was furnished the alcoholic beverage
reasonable inferences drawn from unless:
those facts in a light most favorable
to the nonmoving party. Upon (1) the person furnishing the alcoholic beverage
appeal, the non-moving party has had actual knowledge that the person to whom the
the burden of proving that the grant alcoholic beverage was furnished was visibly
of summary judgment was intoxicated at the time the alcoholic beverage was
erroneous, but we review the trial furnished; and
court’s decision carefully to ensure
that the nonmovant was not (2) the intoxication of the person to whom the

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Gentry v. Day, 22 N.E.3d 710 (2014)

alcoholic beverage was furnished was a proximate knew he was under 21 years of age
cause of the death, injury, or damage alleged in and she further knew, or by the
the complaint.[4] exercise of reasonable care, should
have known that Farmer would be
Civil liability may be imposed for injuries to third parties driving his automobile on the
caused by violations of these statutes. Estate of highway as soon as he left her
Cummings by Heck v. PPG Indus., Inc., 651 N.E.2d 305, home.
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 Id. at 665–66, 309 N.E.2d at 152. After leaving
furnished alcohol to another for his or her use in violation Brattain’s home, Farmer collided with a pickup truck,
of the statutes, the supplier was ‘the active means’ by and which resulted in the deaths of its three occupants. The
through which the [alcohol] was placed in the custody and administrators of the decedents’ estates successfully sued
control of the intoxicated person.” Rauck, 564 N.E.2d Brattain for violating what is now Indiana Code
Section 7.1–5–7–8.5
at 337 (quoting Lather, 519 N.E.2d at 761). Gentry  
contends that this case is similar to Brattain v. Herron, On appeal, Brattain asserted that the evidence established
159 Ind.App. 663, 309 N.E.2d 150 (1974), trans. that she did not violate the statute. The court replied,
dismissed, which is cited in Lather. Brattain was the older
sister of twenty-year-old Farmer, who drove to her home
with a friend.
With this contention we cannot
agree. The evidence discloses that
while Mrs. Brattain did not serve
While Mr. Farmer and his young the liquor to Mr. Farmer she was
friend were in Mrs. Brattain’s home aware that Mr. Farmer and his
they had access to the refrigerator friend were obtaining the beer and
and consumed therefrom several whiskey from her refrigerator. The
bottles of beer, together with evidence discloses that Mrs.
several glasses of whiskey and Brattain made no objection at any
coke. When they left the home to time to Mr. Farmer’s consumption
return to New Palestine they *715 of the alcoholic beverages, even
each took a cold beer with them in though she was present on the
Farmer’s automobile. All the premises during the entire four
alcoholic beverages that were hour period when Farmer and his
consumed belonged to Mrs. friend were in her residence. It is
Brattain and came from her our opinion that the evidence
refrigerator and with her shows conclusively that Mrs.
knowledge that the boys were Brattain violated the statute in
consuming the beverages, and she question.
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 Id. at 676, 309 N.E.2d at 157–58.
boys were drinking her liquor,  
made no objections to their Although Brattain is not precisely on all fours with
[7] [8]

drinking or to their taking the beer this case, we find it instructive in considering whether
with them when they left. Donald Bloomquist furnished alcohol to Hubbard as contemplated
Farmer was her brother and she by the statutes at issue.6 We are mindful that, in drafting
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Gentry v. Day, 22 N.E.3d 710 (2014)

those statutes, the legislature clearly intended to limit helped himself to beer,” which could have been brought
minors’ access to alcohol and discourage underage by “[a]ny one of the 50 people” at the party). As such, we
drinking. Bloomquist did not personally purchase the conclude that the trial court erred in granting
beer, but he contributed money for the beer. Like Brattain, Bloomquist’s summary judgment motion, and therefore
Bloomquist allowed Hubbard, his guest, onto the we reverse and remand for further proceedings.
premises and gave him permission to drink the beer,  
which was kept in a car trunk on the premises. 7 At the Reversed and remanded.
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 VAIDIK, C.J., and BARNES, J., concur.
judgment for defendant nineteen-year-old party host and
All Citations
parents *716 in lawsuit based on alleged violation of
Ind.Code § 7.1–5–7–8, holding that they did not furnish 22 N.E.3d 710
alcohol to uninvited intoxicated minor who “came and
Footnotes

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.
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).
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.
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.
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

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Gentry v. Day, 22 N.E.3d 710 (2014)

sought or obtained Bloomquist’s permission to drink the beer.

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