Dierig v. Shaya10/10/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Shortly after 11:00 P.M. on March 22, 2000, twenty-year-old Rachel Taylor attempted to make a left turn in her pickup truck across the west-bound lane of U.S. highway 42 into a Shell station in Boone County. Intoxicated at the time, Taylor failed to see Richard Dierig on his west-bound motorcycle and turned directly in front of him. In the ensuing collision Dierig suffered catastrophic injuries, including brain damage, which have left him permanently disabled. In August 2000, Dierig's legal guardian, his daughter Jessica, brought suit on his behalf against several individuals and businesses who, she alleged, during the afternoon and evening of March 22, 2000, negligently provided the underaged Taylor with alcohol.
By order entered August 27, 2001, the Boone Circuit Court entered summary judgment in favor of three of the defendants. Angie Mahoney (formerly Angie Francis), a friend Taylor visited that afternoon, had not been negligent, the court ruled, in failing to prevent Taylor from drinking beer during her visit and that failure was not a cause of the accident; Timothy Mahoney, Sr., the owner of the premises where Francis and Taylor visited, had not been negligent in failing to prevent Taylor's drinking during the visit; and Shaya, Inc., the owner of the Shell station near which the accident occurred, had not been shown to have contributed to Taylor's intoxication by allegedly having sold beer to her earlier that evening. It is from these rulings that Dierig has appealed. She contends that her claims against these defendants raise questions of fact and should be submitted to a jury. We disagree.
As the parties have noted, summary judgment is inappropriate unless the movant demonstrates that with respect to a dispositive aspect of the case there is no genuine issue of material fact. Both the trial court and this Court assess such motions, not by weighing the evidence, but by reviewing the record in the light most favorable to the opposing party.
Viewing the record in favor of Dierig, therefore, it appears that Taylor and a co-worker, Sharon Sandusky, left work at the Waffle House on U.S. highway 42 at about 2:30 in the afternoon on March 22, 2000, and decided to visit Taylor's friend Angie Francis, who was staying with her boyfriend, Timothy Mahoney, Jr., at the home of Timothy's father, Timothy, Sr. On the way to Francis's, Sandusky, who was twenty-two, purchased a six-pack of beer. The women visited for about two and-a-half to three-and-a-half hours, during which time Taylor drank five of the beers from the six-pack and may have drunk a can or two of beer from the Mahoney's refrigerator. Francis disapproved of Taylor's drinking and told her so, but did not try forcibly to prevent it nor did she evict Taylor from the premises. Neither Timothy Jr. nor Timothy Sr. was present or had any knowledge of Taylor's uninvited visit.
Following their visit with Francis, Taylor and Sandusky went to a restaurant where, without being carded, Taylor consumed two more beers. The women then stopped at the Shell station for gas. According to Sandusky, Taylor asked her to buy more beer at the Shell station, and, when Sandusky refused, entered the store and soon emerged with a bag the size and shape of a forty-ounce bottle of beer. Sandusky never saw the contents of the bag, however, nor did she see Taylor remove anything from it, and she and Taylor parted for the evening soon thereafter, at about 7:30 or 8:30 P.M. Taylor apparently visited with co-workers at the Waffle House and then went home and took a brief nap. Between 10:30 and 11:00 P.M. she persuaded the doorman of a bar to admit her notwithstanding her lack of
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