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Vanderhoek v. Willy - 728 N.E.2d 213 (Ind. Ct. App. 2000)


The party moving for summary judgment bears the burden of proving the absence of a genuine issue of material fact. If the movant sustains this burden, the opponent must set forth specific facts showing that there is a genuine issue of material fact. Ind. Trial R. 56(E). 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. Even if the facts are undisputed, summary judgment is inappropriate where the record reveals an incorrect application of the law to the facts.


Plaintiff Michelle Vanderhoek (Vanderhoek) was injured in an automobile accident with intoxicated driver Terry L. Neil. Vanderhoek brought an action against defendant driver, the driver's mother, Gertrude Willy, and Defendant the Fraternal Order of Eagles (FOE) under Indiana's Dram Shop Act. The trial court order granted Willy's Motion for Summary Judgment and denied the FOP's Motion for Summary Judgment. These two appeals followed: Vanderhoek appealed the summary judgment dismissing Willy and the FOP appealed from the denial of its request for summary judgment.


Were the defendants liable under the Indiana Dram Shop Act?




The court affirmed the denial of defendant FOP’s motion for summary judgment under Ind. Code §§ 7.1-5-10-15, -15.5. A trier of fact could reasonably infer that defendant had actual knowledge of defendant driver's intoxication because it was revealed that while at the tavern, he ordered an unspecified number of beers for the defendant driver and the defendant mother. Summary judgment for defendant mother was also reversed because the Act did not distinguish between the act of furnishing alcohol by a gratuitous server and by a tavern.

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