F. John Rogers, as Personal Representative of Paul Michalik, and R. David Boyer, Trustee of the Bankruptcy Estate of Jerry Lee Chambers v. Angela Martin and Brian Paul Brothers

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES

Andrew L. Teel Jane E. Malloy

Lindsey C. Swanson Ashley A. O’Neil

Haller & Colvin, P.C. Malloy Law, LLC

Fort Wayne, Indiana Fort Wayne, Indiana

__________________________________________________________________________________

In the

FILED

Indiana Supreme Court Oct 26 2016, 9:56 am

_________________________________ CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

No. 02S05-1603-CT-114

F. JOHN ROGERS, AS PERSONAL REPRESENTATIVE

OF PAUL MICHALIK, DECEASED, AND R. DAVID BOYER,

TRUSTEE OF THE BANKRUPTCY ESTATE OF JERRY LEE CHAMBERS,

Appellants (Plaintiffs below),

V.

ANGELA MARTIN AND BRIAN PAUL BROTHERS,

Appellees (Defendants below).

_________________________________

Appeal from the Allen Superior Court, No. 02D02-1204-CT-191

The Honorable Craig J. Bobay, Judge

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 02A05-1506-CT-520

_________________________________

October 26, 2016

Rush, Chief Justice.

Angela Martin and Brian Brothers co-hosted a house party. As it wound down, Brothers

and two guests—Jerry Chambers and Paul Michalik—got into a fistfight. Afterwards, Martin

found Jerry Chambers bleeding from his face and Paul Michalik lying motionless on her basement

floor. Michalik died shortly thereafter.

Chambers’s bankruptcy trustee and Michalik’s estate sued Martin, claiming, in part, that

she negligently caused Michalik’s injuries and that she furnished alcohol in violation of Indiana’s

Dram Shop Act. Martin filed a motion for summary judgment, which the trial court granted.

Applying principles of premises liability law, we first hold that summary judgment was

improper on the negligence claim. As a landowner, Martin owed her invitee Michalik a duty to

exercise reasonable care for his protection while he was on her premises. This Court has, on several

occasions, decided how this general landowner–invitee duty applies in various circumstances—

with foreseeability being the determinative question. Bearing that in mind, we conclude that

although Martin had no duty to protect Michalik from the unforeseeable fistfight, she did have a

duty to protect him from the foreseeable exacerbation of an injury occurring in her home. Whether

she breached this duty by going back to bed instead of taking some affirmative action, like dialing

911, is a question of fact. We therefore reverse summary judgment on the negligence claim.

Summary judgment was proper, however, on the Dram Shop Act claim. Under Indiana’s

Dram Shop Act, a person does not “furnish” alcohol by providing it to someone who already

possesses it. And here, because Martin and Brothers jointly paid for and possessed the same beer,

Martin could not furnish it to Brothers. We thus affirm summary judgment on that claim.

Facts and Procedural History

During the early morning hours of May 9, 2010, police found Paul Michalik dead on

Angela Martin’s front lawn.

Around six o’clock the prior evening, people began arriving at Martin’s house for a party.

Martin owned the home, and her then-boyfriend (now-husband) Brian Brothers had lived there on

and off since 2006. Together, Martin and Brothers planned the party and invited friends, family,

and co-workers. About fifty people attended, including Jerry Chambers and his significant other,

Michalik. Although Martin did not know Chambers, he was a co-worker of Brothers and had been

“personally invited” to the party. And while neither Martin nor Brothers had met Michalik, the

understanding was that spouses, boyfriends, and girlfriends were “inadvertently invited.”

In preparation for the gathering, Brothers ordered a keg of beer, picked it up, and set it up

in the garage. Brothers paid for the keg with a debit card he and Martin used for household

expenses. Although the card was associated with a bank account solely in Martin’s name, Brothers

contributed by cashing his paychecks and giving most of his income to Martin to deposit in the

account. The two regularly pooled their income to pay bills and other expenditures even though

Martin made significantly more money than Brothers.

2

For the most part, party guests served themselves from the keg. But, at one point, a group

playing poker in the basement asked Martin to fill an empty pitcher. Martin went upstairs, filled

the pitcher from the keg, and brought it back to the basement, where she set it on the poker table.

It is “possible” that Brothers was playing poker at the time.

Over the course of the night, Brothers had “[m]aybe a couple shots, three, four beers.”

Martin did not monitor Brothers’s drinking, even though she knew he was on probation for a

second Operating While Intoxicated (OWI) conviction.

Around 2:00 a.m., the party was winding down, and about ten guests remained. Martin told

Brothers goodnight and headed to bed. According to Martin, Brothers was just “being normal,”

and it was not obvious to her that he had “a buzz going.”

The last guests began to leave about 3:30 a.m., and Brothers went down to the basement to

tell Chambers and Michalik it was time to go. A fistfight then ensued between the three of them.

Shortly after, Brothers woke up Martin and told her that Chambers and Michalik had attacked him

and that he fought back. Brothers asked Martin to help get Chambers and Michalik to leave.

Martin obliged. She got up, walked down to the basement, and saw Michalik lying

motionless on the basement floor with his eyes closed. Martin did not see any injuries to Michalik’s

face but did notice Chambers had blood on his. She asked if Michalik was okay, and Chambers

and Brothers checked Michalik’s pulse and confirmed he was breathing. Martin was not concerned

and did not call the police or dial 911, assuming that Michalik was “just passed out from drinking

too much or something.” But she did tell Chambers that “if he’s concerned, if he thinks there’s a

chance [Michalik has alcohol poisoning], to take him to the hospital and get him checked out.”

Martin went back to her room, and Chambers and Brothers carried Michalik upstairs. When

Brothers came to bed, Martin asked him whether Chambers and Michalik had left. Brothers said

“no,” and Martin told Brothers to make sure he helped Chambers get Michalik in the car. Soon

after, police arrived, found Michalik dead outside the home, and arrested Brothers. Ultimately,

Brothers’s OWI probation was revoked because authorities found alcohol in his system, and he

was sentenced to a period of incarceration.

The personal representative of Michalik’s estate and Chambers’s bankruptcy trustee filed

a complaint against Martin and Brothers. They claimed Martin was liable based on two theories—

3

that Martin negligently caused Michalik’s injuries and that Martin caused Michalik’s and

Chambers’s injuries by “furnishing” alcohol to a visibly intoxicated Brothers, who assaulted those

victims. Martin filed a motion for summary judgment on both claims, which the trial court granted.

The trial court reasoned that Martin was not negligent because Indiana did not recognize a social

host’s duty to render aid to a social guest and because Martin could not “furnish” beer to Brothers,

as the couple exercised joint control over the keg.1

On appeal, the Court of Appeals reversed, concluding summary judgment was improper

because (1) Martin, as a social host, owed Michalik a duty to render aid and questions of fact

remained as to whether she breached that duty and (2) questions of fact existed as to whether

Martin “furnished” Brothers with beer from the keg. Rogers v. Martin, 48 N.E.3d 318, 323–25

(Ind. Ct. App. 2015). Martin filed a petition to transfer, which we granted, thereby vacating the

Court of Appeals decision. Ind. Appellate Rule 58(A).2

Standard of Review

We review summary judgment using the same standard as the trial court: summary

judgment is appropriate only when the designated evidence shows no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Hughley

v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). And where the challenge to summary judgment raises

questions of law, we review them de novo. Ballard v. Lewis, 8 N.E.3d 190, 193 (Ind. 2014).

Here, both challenges raise questions of law. First, we review de novo whether Martin

owed Michalik a duty. See Estate of Heck ex rel. Heck v. Stoffer, 786 N.E.2d 265, 268 (Ind. 2003)

1

The trial court also granted Martin’s motion to strike parts of a report attached to plaintiffs’ response in

opposition to Martin’s motion for summary judgment. On appeal, plaintiffs argued that the trial court

improperly granted the motion to strike, and the Court of Appeals concluded that it “need not decide this

issue” because it “resolve[d] the propriety of summary judgment without considering the challenged

evidence.” Rogers v. Martin, 48 N.E.3d 318, 319 n.1 (Ind. Ct. App. 2015). For the same reason, we find it

unnecessary to determine whether the trial court properly granted Martin’s motion to strike.

2

After we held oral argument in this case, plaintiffs filed a “Notice of Contingent Settlement,” notifying

this Court that “the parties to this matter reached a settlement of their claims at mediation,” and that the

“settlement is contingent on approval by both the United States Bankruptcy Court and the Allen County

Probate Court.” Subsequently, once the opinion had been nearly finalized, plaintiffs filed a motion to

dismiss because the parties had reached a settlement. Under Indiana Appellate Rule 36(A), “[a]n appeal

may be dismissed on motion of the appellant upon the terms agreed upon by all the parties on appeal or

fixed by the Court.” App. R. 36(A) (emphasis added). Given the importance of the legal issues in this case,

we deny the motion to dismiss and publish this opinion, while respecting the settlement between the parties.

4

(reviewing existence of duty de novo). Second, we review de novo whether Martin “furnished”

Brothers alcohol within the meaning of Indiana’s Dram Shop Act. See Gardiner v. State, 928

N.E.2d 194, 196 (Ind. 2010) (reviewing matter of statutory interpretation de novo).

Discussion and Decision

Plaintiffs seek to hold Martin liable under two distinct theories—premises liability and

Dram Shop Act liability. Michalik’s estate first claims that Indiana should recognize a social host’s

duty to render aid to a social guest and that Martin breached this duty after finding Michalik lying

on her basement floor. But this contention fails to recognize established premises liability

principles.

Under Indiana premises liability law, the duty a landowner owes to an invitee is well

established: a landowner must exercise reasonable care for the invitee’s protection while the

invitee is on the premises. Because this general duty has been articulated, the Court need not

judicially determine the existence of a separate duty today. Rather, we look to foreseeability as the

critical inquiry in deciding whether the landowner–invitee “duty to protect” extends to a particular

scenario. Ultimately, as explained below, we determine that Martin was not liable, as a matter of

law, for any failure on her part to protect Michalik from an unforeseeable fistfight. However, a

question of fact remains on whether Martin’s later action (or inaction) after discovering Michalik

on her basement floor breached her duty to protect him from the foreseeable exacerbation of an

injury occurring in her home.

Plaintiffs then rely on the Indiana Dram Shop Act. They claim that Martin “furnished”

alcohol to Brothers, who, in turn, injured Chambers and Michalik. But a plain-meaning analysis

of the Dram Shop Act reveals that “furnishing” alcohol requires a transfer of possession. And here,

because Brothers and Martin jointly possessed the keg that contained the alcohol in question,

Martin could not have transferred possession of, or “furnished,” the alcohol to Brothers.

I. Foreseeability is the Critical Inquiry in Deciding Whether the Well-Established

Landowner–Invitee Duty Extends to a Particular Scenario. Here, Questions of Fact on the

Reasonableness of Martin’s Conduct Preclude Summary Judgment.

To prevail on a claim of negligence, Michalik’s estate must show that (1) Martin owed a duty

to Michalik; (2) Martin breached that duty by allowing her conduct to fall below the applicable

5

standard of care; and (3) Martin’s breach of duty proximately caused a compensable injury to

Michalik. Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010).

It is well settled that absent a duty, there can be no breach. Peters v. Forster, 804 N.E.2d

736, 738 (Ind. 2004). And whether a duty exists is a question of law for the court to decide. Id. But

a judicial determination of the existence of a duty is unnecessary where the element of duty has

“already been declared or otherwise articulated.” N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462,

465 (Ind. 2003).

Here, Michalik’s estate alleged that Martin was negligent because she failed to “render aid”

to Michalik after finding him injured on her basement floor. The Court of Appeals determined that

a social host’s duty to render aid to a social guest had not been recognized in Indiana and, thus,

employed the three-part balancing test announced in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.

1991), to determine whether such a duty existed. Rogers, 48 N.E.3d at 323–25. After considering

the three Webb factors—the relationship between the parties, the reasonable foreseeability of harm

to the injured person, and public policy concerns—the Court of Appeals determined that Martin

owed a duty to render aid to Michalik. Id. at 324. More specifically, the Court of Appeals

pronounced that a social host has a duty to render assistance in her home to an injured social guest

regardless of the cause of injury. Id. And because questions of fact remained on whether Martin

breached that duty, the Court of Appeals held the trial court’s grant of summary judgment was

inappropriate. Id. at 325.

Although we agree that summary judgment on the negligence claim was improper, we

reach that conclusion for a different reason. The duty governing Martin’s conduct—the duty to

exercise reasonable care for an invitee’s protection while the invitee is on the premises—is already

firmly grounded in premises liability law. Over the years, the application of this broadly stated

landowner–invitee duty to particular situations has depended on one critical element:

foreseeability.

But before we employ a foreseeability analysis in this case, we must step back and examine

how the landowner–invitee duty has progressed over time. Today we acknowledge that

inconsistencies in Indiana case law have generated confusion over this issue, and we provide a

workable framework for the future.

6

A. The landowner–invitee duty applies to dangerous activities on the land as a matter of law

if a court finds that the broad type of plaintiff and harm involved were foreseeable to the

landowner.

1. The contours of a landowner’s duty of reasonable care have been well defined when

conditions of the land are at issue, but less so for claims involving activities on the land.

Twenty-five years ago, this Court decided Indiana’s seminal premises liability case: Burrell

v. Meads, 569 N.E.2d 637 (Ind. 1991). Burrell addressed “the question of what duty an Indiana

landowner or occupier owes to his social guests to protect them from physical harm while they are

on his premises.” Id. at 638. This Court examined “the evolution and the current condition of

premises liability law,” id. at 639, focusing heavily on the relationship between the parties and

public policy concerns, id. at 640–43. Ultimately, this Court determined that social guests qualify

as invitees, so a landowner must exercise reasonable care for their protection. Id. at 643. This Court

stated that the Restatement (Second) of Torts section 343 supplied “the best definition” of this

landowner–invitee duty, articulated as follows:

A possessor of land is subject to liability for physical harm caused

to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover

the condition, and should realize that it involves an

unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the

danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the

danger.

Id. at 639–40. On one hand, the Burrell opinion seemed to declare that the landowner–invitee duty

was confined only to situations where section 343 would apply. But other portions of the opinion

defined the landowner–invitee duty more broadly. At one point, the duty is described as one “of

reasonable care for the protection of . . . guests’ safety.” Id. at 639. And at another, we declared

that “a landowner should exercise reasonable care for the safety of [social] guests.” Id. at 643.

Likewise, Burrell’s three companion cases expressed the landowner–invitee duty broadly, albeit

with varying language. See LeLoup v. LeLoup, 569 N.E.2d 648, 649 (Ind. 1991) (referring to “the

duty an Indiana landowner or occupier owes to his social guests to protect them from physical

harm while they are on his premises”); Risk v. Schilling, 569 N.E.2d 646, 647 (Ind. 1991) (stating

7

that a landowner owes an invitee “a duty of reasonable care for protection of his safety”); Parks v.

Parks, 569 N.E.2d 644, 645 (Ind. 1991) (framing the duty as one “of reasonable care for [the]

protection of [a social guest’s] safety”).

Understandably, post-Burrell cases have expressed the landowner–invitee duty in different

ways. Some cases have stated the duty in its broad formulation. E.g., Winfrey v. NLMP, Inc., 963

N.E.2d 609, 612 (Ind. Ct. App. 2012) (citing Burrell and stating that “a landowner owes an invitee

a duty to exercise reasonable care for the invitee’s protection while the invitee is on the

landowner’s premises”); Rider v. McCamment, 938 N.E.2d 262, 267 (Ind. Ct. App. 2010) (“A

landowner owes the highest duty of care to an invitee, that duty being to exercise reasonable care

for the invitee’s protection while she is on the premises.”). Other cases, citing Burrell, have phrased

the landowner–invitee duty in a more limited fashion, arguably restricting it to the parameters set

forth in Restatement (Second) of Torts section 343. E.g., Christmas v. Kindred Nursing Ctrs. Ltd.

P’ship, 952 N.E.2d 872, 880 (Ind. Ct. App. 2011) (“Our Indiana Supreme Court has adopted

Restatement (Second) of Torts Section 343, which defines the scope of the duty a landowner owes

to an invitee on its property . . . .”); Duffy v. Ben Dee, Inc., 651 N.E.2d 320, 322 (Ind. Ct. App.

1995) (stating that “[i]n order for premises liability theory to apply . . . each of the three following

elements must be present” and then referencing section 343).

These varying expressions of the landowner–invitee duty are not necessarily inconsistent.

When a physical injury occurs as a result of a condition on the land, the three elements described

in Restatement (Second) of Torts section 343 accurately describe the landowner–invitee duty. And

because Burrell involved an injury due to a condition on the land, it accordingly framed the

landowner–invitee duty in terms of section 343. But as mentioned above, other portions of Burrell

spell out the landowner–invitee duty broadly. This broad formulation recognized that while section

343 limits the scope of the landowner–invitee duty in cases involving injuries due to conditions of

the land, injuries could also befall invitees due to activities on a landowner’s premises unrelated

to the premises’ condition—and that landowners owe their invitees the general duty of reasonable

care under those circumstances, too.

2. Where a premises liability claim is based on activities on the land, foreseeability is the

critical inquiry in determining whether the landowner’s duty of reasonable care extends

to the particular circumstances at issue.

8

Cases decided before and after Burrell recognize that both harmful conditions and harmful

activities on land may implicate a landowner’s duty. E.g., Ross v. Lowe, 619 N.E.2d 911, 915

(Ind. 1993) (“The [landowner–invitee] duty extends not only to harm caused by a condition of the

land, but also to activities being conducted on the land . . . .”); Martin v. Shea, 463 N.E.2d 1092,

1095 (Ind. 1984) (“[N]o Indiana cases . . . distinguish dangerous activities on the premises from

dangerous conditions . . . .”); Harris v. Traini, 759 N.E.2d 215, 223 (Ind. Ct. App. 2001) (“The

duty of reasonable care extends not only to harm caused by a condition on the land but also to

activities being conducted on the land.”). But while the landowner–invitee duty applicable to

dangerous conditions on the land has fixed parameters (i.e., the elements of Restatement (Second)

of Torts section 343), the contours of the landowner–invitee duty regarding dangerous activities

on the premises have not been drawn as clearly.

This lack of well-defined limits has led to inconsistencies in how courts extend the

landowner–invitee “duty to protect” to situations that do not involve a condition of the land. For

example, in a case decided shortly after Burrell, the Court of Appeals addressed whether a

landowner had a duty to protect an invitee from a third party’s act on the landowner’s premises.

Kinsey v. Bray, 596 N.E.2d 938, 940–41 (Ind. Ct. App. 1992), trans. denied. Confining the

landowner–invitee duty “to risks arising out of the condition of the actor’s land or chattels,” Kinsey

undertook a full Webb v. Jarvis analysis to determine “whether the law will recognize a duty” in

this particular situation. Id. at 940–43 (citing Webb, 575 N.E.2d at 995, 997). After balancing the

relationship between the parties, the foreseeability of harm, and public policy concerns, the Kinsey

court announced that “[a] possessor of land must exercise reasonable care for the protection of

social guests or invitees from acts of third parties which are reasonably foreseeable.” Id. at 944.

More recent case law, though, has acknowledged that balancing all of the Webb factors in

landowner–invitee cases is not necessary. In Delta Tau Delta v. Johnson, 712 N.E.2d 968, 971

(Ind. 1999), this Court addressed “whether and to what extent landowners owe any duty to protect

their invitees from the criminal acts of third parties.” In explaining the role Webb played in making

this determination, we said,

Having already determined in Burrell v. Meads, 569 N.E.2d 637

(Ind. 1991) that [a landowner’s duty to exercise reasonable care for

an invitee’s protection] exists, we need not formally use the three

factor balancing test as enunciated in Webb v. Jarvis, 575 N.E.2d

9

992 (Ind. 1991) . . . . 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.

Delta Tau Delta, 712 N.E.2d at 971 n.4. In other words, Delta Tau Delta recognized that although

landlords owe invitees a well-established “duty to protect,” courts must look at one critical element

before extending that duty to cases where an invitee’s injury occurs not due to a dangerous

condition of the land but due to some harmful activity on the premises. That element is

foreseeability. Id. at 971.

This Court reaffirmed foreseeability’s preeminent role within the landowner–invitee duty

determination in Kroger Co. v. Plonski, 930 N.E.2d 1 (Ind. 2010). In Plonski, we acknowledged

that when there is a well-settled duty, a court’s “inquiry is focused on whether a discreet element

of the duty has been satisfied.” Id. at 7. That inquiry—reasonably foreseeable harm—is “a question

of law . . . determined by the court.” Id. (internal citation omitted). In other words, our case law

has established that foreseeability becomes the determinative question as to whether a court will

extend the landowner–invitee “duty to protect” to a situation that does not involve a condition of

the land.3

This inquiry simply acknowledges that the landowner–invitee “duty to protect” is not

limitless, because some harms are so unforeseeable that a landowner has no duty to protect an

invitee against them. In fact, this foreseeability component within the landowner–invitee duty is

already explicit within Restatement (Second) of Torts section 343—that section subjects

landowners to a duty only if the risk of harm due to a dangerous condition of the land was

foreseeable. In other words, including foreseeability as an element of duty in other types of

landowner–invitee cases ensures that these particular premises liability cases are analyzed in a

consistent fashion—or at least as consistent as the infinite permutations of human behavior permit.

3

As noted in Goodwin v. Yeakle’s Sports Bar and Grill, Inc., No. 27S02-1510-CT-627, ___ N.E.3d ___,

slip op. at 4–5 (Ind. Oct. 26, 2016), also handed down today, this Court’s decisions in Northern Indiana

Public Service Co. v. Sharp, 790 N.E.2d 462 (Ind. 2003), and Paragon Family Restaurant v. Bartolini, 799

N.E.2d 1048 (Ind. 2003), could be read to suggest that a court need not evaluate foreseeability in the context

of duty because the landowner–invitee duty was well-settled. However, as Goodwin further notes, “such a

reading is much too narrow.” Slip op. at 5.

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And it recognizes that courts must have a gatekeeping function available to them so that

landowners do not become “the insurers of their invitees’ safety.” Delta Tau Delta, 712 N.E.2d at

971.

At this point, we have endeavored to clarify two important legal concepts in the area of

premises liability law—that the landowner–invitee “duty to protect” generally applies to dangerous

activities on the land and that a court must analyze the foreseeability of harm before extending this

duty to a particular situation. But we still must address one additional point before moving on to

the specifics of this case—and that is how the foreseeability analysis is actually performed.

3. Unlike the foreseeability element of proximate cause, foreseeability as part of the duty

analysis is a general threshold determination about the broad type of plaintiff and harm

involved, without regard to the specific facts of the occurrence.

Landowner–invitee cases involving dangerous activities on the premises have been

inconsistent in addressing how foreseeability relates to duty. On one hand, Plonski, Delta Tau

Delta, and other cases employed a “totality of the circumstances” analysis when evaluating a

landowner’s duty to protect invitees against a particular dangerous activity, namely, foreseeable

criminal attacks. E.g., Plonski, 930 N.E.2d at 7; Delta Tau Delta, 712 N.E.2d at 972–73. This

“totality of the circumstances” test considers “all of the circumstances surrounding an event,

including the nature, condition, and location of the land, as well as prior similar incidents.” Plonski,

930 N.E.2d at 7 (quoting Delta Tau Delta, 712 N.E.2d at 972). But a more recent Court of Appeals

case involving the landowner–invitee duty employed an approach that, unlike the “totality of the

circumstances” test, was not fact-specific. In Barnard v. Menard, Inc., 25 N.E.3d 750 (Ind. Ct.

App. 2015), the Court of Appeals was tasked with determining whether a retail store’s duty to

protect extended to the attack of a customer by an independently contracted security guard. The

Barnard court believed that a consideration of the specific facts of the case was unnecessary

because foreseeability with respect to duty required only a “general analysis of the broad type of

plaintiff and harm involved, without regard to the facts of the actual occurrence.” Id. at 755

(quoting Goldsberry v. Grubbs, 672 N.E.2d 475, 479 (Ind. Ct. App. 1996), trans. denied).

This divergence is understandable. Because foreseeability is a component of both duty and

proximate cause, our courts have grappled with whether foreseeability in one context differs from

foreseeability in the other. Compare Goldsberry, 672 N.E.2d at 479 (“By logical deduction, the

11

foreseeability component of the duty analysis must be something different than the foreseeability

component of proximate cause. More precisely, it must be a lesser inquiry . . . .”), with State v.

Cornelius, 637 N.E.2d 195, 198 (Ind. Ct. App. 1994), trans. denied (“Imposition of a duty is limited

to those instances where a reasonably foreseeable victim is injured by a reasonably foreseeable

harm. Thus, part of the inquiry into the existence of a duty is concerned with exactly the same

factors as is the inquiry into proximate cause.” (quoting Webb, 575 N.E.2d at 997)). Because two

wholly different tests have emerged for foreseeability in the context of duty, we must provide

clarity for practitioners and courts alike.

Thus, today, we chart a definitive path: When foreseeability is part of the duty analysis, as

in landowner–invitee cases, it is evaluated in a different manner than foreseeability in the context

of proximate cause. Specifically, in the duty arena, foreseeability is a general threshold

determination that involves an evaluation of (1) the broad type of plaintiff and (2) the broad type

of harm. In other words, this foreseeability analysis should focus on the general class of persons

of which the plaintiff was a member and whether the harm suffered was of a kind normally to be

expected—without addressing the specific facts of the occurrence. Goodwin v. Yeakle’s Sports

Bar and Grill, Inc., No. 27S02-1510-CT-627, ___ N.E.3d ___, slip op. at 8–11 (Ind. Oct. 26, 2016)

(evaluating why this is the appropriate framework in determining foreseeability in the duty

context). We believe this analysis comports with the idea that “the courts will find a duty where,

in general, reasonable persons would recognize it and agree that it exists.” Gariup Constr. Co., Inc.

v. Foster, 519 N.E.2d 1224, 1227 (Ind. 1988) (quoting Prosser & Keeton on Torts § 53, at 357–59

(5th ed. 1984)). Bearing that framework in mind, we turn to the case at hand.

B. In this case, the homeowner had no duty to take precautions to prevent the co-host of the

party from fighting a guest; however, the homeowner did have a duty to protect an injured

social guest from an exacerbation of an injury occurring on the premises.

Because Michalik was Martin’s social guest, the landowner–invitee “duty to protect”

generally applied throughout the party.4 We must decide today whether this duty extended to two

4

Both parties have assumed Michalik was an invitee throughout the whole party. The trial court found,

however, that it was undisputed that “Brothers went down to the basement to tell Chambers and Michalik

that it was time to leave.” The evidence likewise supports this conclusion. A reasonable inference is that

the fight broke out between the three because Michalik and Chambers refused to leave. In that event,

Michalik’s status would have been transformed from an invitee to a trespasser, and the corresponding duty

would have been transformed also. This is because the owner or occupier of a home has the right to

12

particular situations, as a matter of law. First, we determine whether Martin owed a duty to take

reasonable precautions to protect Michalik from harm that occurred during the fistfight with

Brothers. Then, we determine whether Martin owed a duty to protect Michalik from an

exacerbation of his injuries after finding him unconscious on her basement floor.

We have repeatedly stated that a landowner has a duty to take reasonable precautions to

protect invitees from foreseeable criminal attacks. E.g., Plonski, 930 N.E.2d at 7. And in this case,

we assume, without deciding, that Brothers’s conduct in engaging in a fistfight with Chambers and

Michalik constituted a criminal act. As stated above, whether this duty applies to Martin’s conduct,

as a matter of law, requires us to evaluate the broad type of plaintiff and harm involved, without

considering the specific facts of the case. In other words, the inquiry is not whether Martin could

have foreseen that Brothers would get into a brawl with Chambers and Michalik. Rather, we look

at whether a duty should be imposed on Martin, as a homeowner, to take precautions to prevent a

co-host from fighting with and injuring a house-party guest. Although house parties can often set

the stage for raucous behavior, we do not believe that hosts of parties routinely physically fight

guests whom they have invited. Ultimately, it is not reasonably foreseeable for a homeowner to

expect this general harm to befall a house-party guest; rather, to require a homeowner to take

precautions to avoid this unpredictable situation would essentially make the homeowner an insurer

for all social guests’ safety. Accordingly, Martin had no duty to take reasonable precautions to

protect Michalik from Brothers’s conduct.

Martin did, however, have a duty to protect Michalik after she found him lying unconscious

on her basement floor. Homeowners should reasonably expect that a house-party guest who is

injured on the premises could suffer from an exacerbation of those injuries. Thus, we conclude

determine the scope of a particular invitation and the circumstances under which the invitation may be

revoked. See Olsen v. State, 663 N.E.2d 1194, 1196 (Ind. Ct. App. 1996). And “when an invitee exceeds

the scope of invitation, [he] loses [his] status.” Rider, 938 N.E.2d at 268. In other words, although a visitor

may be an invitee when first entering a home, he may be demoted to a licensee or trespasser under certain

circumstances—such as when an invitation is unequivocally revoked. See id. But we hasten to point out

that the evidence does not conclusively establish that Brothers actually asked the couple to leave; rather, it

establishes that it was Brothers’s intention to do so as he descended to the basement. Because we must

resolve any doubts about facts, or the inferences therefrom, in the light most favorable to the non-moving

party, Smith v. Delta Tau Delta, Inc., 9 N.E.3d 154, 160 (Ind. 2014), we conclude that it is unclear what

prompted the fight between Brothers, Chambers, and Michalik. Accordingly, we also regard Michalik as

an invitee throughout the whole course of the night for the purposes of summary judgment review.

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that Martin owed a duty to her social guest to protect him from the exacerbation of an injury

occurring in her home. The undisputed evidence shows that Martin went down to her basement

and saw Michalik listless on her floor. Michalik died shortly after. Of course, this does not

necessarily mean that Martin was negligent—questions of breach and proximate cause remain for

the fact-finder. In other words, we do not decide whether Martin’s failure to call the police, dial

911, or take any other affirmative action breached this duty. Nor do we determine whether

Michalik’s death was a natural and probable cause of Martin’s conduct. We do believe, however,

that reasonable persons would recognize a duty here and agree to its existence. Gariup Constr. Co.,

519 N.E.2d at 1227. And because questions of fact remain on the negligence claim, summary

judgment was improper.

II. Under Indiana’s Dram Shop Act, a Person Does Not “Furnish” Alcohol by Providing It to

Someone Who Already Possesses It.

As a second basis for holding Martin liable, plaintiffs argue Martin “furnished” alcohol to

Brothers in violation of Indiana’s Dram Shop Act, codified at Indiana Code section 7.1-5-10-15.5.

The Act imposes civil liability for “furnishing” alcohol to visibly intoxicated people who, in turn,

cause injury. Outback Steakhouse of Florida, Inc., v. Markley, 856 N.E.2d 65, 74 (Ind. 2006). The

parties’ dispute boils down to statutory interpretation—the plain meaning of “furnish.” Martin argues

two people who possess the same alcohol cannot “furnish” it to each other, while plaintiffs argue

they can.

The Court of Appeals agreed with plaintiffs, finding a genuine issue of material fact existed

as to whether Martin furnished beer to Brothers by placing a pitcher on the poker table. We, however,

agree with Martin, and hold that Martin and Brothers jointly possessed the alcohol and thus could

not furnish it to each other.

When interpreting a statute, “our primary goal is to ascertain the legislature’s intent.” Jackson

v. State, 50 N.E.3d 767, 772 (Ind. 2016). To discern that intent, we give effect to the plain meaning

of the statute’s words. Id. When those words are clear and unambiguous, we simply apply their

plain meaning, without resorting to other canons of statutory construction. Id.

We thus begin—and end—our analysis with Indiana’s modern Dram Shop Act, enacted in

1986, which clearly and unambiguously defines “furnish” in its opening section:

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(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.

....

I.C. § 7.1-5-10-15.5 (2016). Although the statute defines “furnish” using relatively broad words—

such as “sell” and “provide”—those words involve a transfer of possession. To “sell” something,

one must transfer possession. To “exchange” or “provide” something, the same holds true. In other

words, one cannot “sell” or “provide” property if the recipient already possesses it. Likewise, if

two or more people own the same property, they cannot sell or provide it to each other: they already

jointly possess it.

The transfer of possession requirement is not unique to the plain meaning of the 1986

version of the Act. It existed in previous versions as well. For example, Indiana’s original Act,

passed in 1853, imposed liability only on those who “retail[]” liquor. 1853 Laws of Indiana 88.

Likewise, the 1875 version imposed liability only on those who “sell, barter, or give away” liquor,

and the 1917 version only on those who “furnish[]” it. 1875 Laws of Indiana Spec. Sess. 59; 1917

Ind. Acts 30. The modern Act did nothing to alter that longstanding transfer requirement. Instead,

the Act cemented it—and Indiana courts took notice.

Indeed, several decades of case law have affirmed the modern Act’s plain-meaning transfer

requirement. See, e.g., Gentry v. Day, 22 N.E.3d 710, 714–15 (Ind. Ct. App. 2014); Rauck v.

Hawn, 564 N.E.2d 334, 337 (Ind. Ct. App. 1990); Lather v. Berg, 519 N.E.2d 755, 763 (Ind. Ct.

App. 1988). For example, in Lather, two teenage boys, Berg and Murphy, enlisted an adult to buy

them whiskey. 519 N.E.2d at 757. The boys shared the bottle and, at the end of the evening,

Murphy drove drunk and slammed into a patrol car, killing the officer. Id. at 757–58. The court

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held Berg did not “furnish” alcohol to Murphy for two reasons. First, the boys “acquired possession

of the liquor simultaneously.” Id. at 763. And second, even though Berg poured Murphy’s first

glass of whiskey, the boys “exercised joint control over [the bottle] throughout the evening.” Id.

at 757, 763. In short, the two boys jointly possessed the alcohol and thus could not “furnish” it to

each other. No transfer of possession took place.

A transfer of possession did take place, however, in Rauck, and the Court of Appeals

correctly found a genuine issue of material fact as to whether the defendant “furnish[ed]” alcohol.

564 N.E.2d at 339. There, a teenager, Rauck, paid a stranger to buy him a fifth of whiskey. Id. at

337–38. Rauck decided to share that whiskey with a friend who had not contributed any money,

and, tragically, the friend later drove into a tree, injuring his passenger. Id. at 336, 338. The Court

of Appeals allowed the passenger’s claim against Rauck to go to trial, holding Rauck might well

have “furnish[ed]” whiskey because he “paid for it himself, and exercised possession and control

over it before offering it” to his friend. Id. at 338.

Here, like the boys in Lather and unlike the friends in Rauck, Martin and Brothers jointly

possessed the same alcohol, and thus could not “furnish” it to each other. The undisputed facts

show no transfer of possession. Brothers ordered the keg, picked it up, and paid for it using a bank

account containing commingled funds. Brothers and Martin therefore jointly bought the beer and

“acquired possession of the [alcohol] simultaneously.” 519 N.E.2d at 763. We accordingly hold as

a matter of law that Martin did not—and could not—“furnish” to Brothers what he already

possessed.

Conclusion

We find that summary judgment was improper on the negligence claim as there remains a

question of fact as to whether Martin breached the landowner–invitee “duty to protect” owed to

Michalik. However, summary judgment was appropriate on plaintiffs’ Dram Shop Act claim

because the plain meaning of “furnish” within the Act requires that Martin have transferred

possession of the alcohol to Brothers, which she could not do, as they jointly possessed the beer in

question. Accordingly, we affirm summary judgment in part and reverse in part.

Rucker, David, Massa, and Slaughter, JJ., concur.

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