Robert E. Spierer v. Cory E. Rossman

After a night of heavy drinking,

Lauren Spierer, a twenty-year-old Indiana University

student, left the apartment of a classmate and disappeared.

Four years later, she remains missing. Lauren’s parents

brought suit against three students who were with Lauren in

the hours before her disappearance, alleging negligence and

violations of Indiana’s Dram Shop Act. After some claims

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were dismissed but before discovery was conducted, the

defendants moved for summary judgment on the grounds

that the plaintiffs could only speculate about whether the

defendants were the proximate cause of any injury

sustained. The district court agreed and granted summary

judgment for the defendants. The plaintiffs have appealed,

contesting both the dismissal of claims and the award of

summary judgment for the defendants. We affirm.

I. Background

Because the district court granted summary judgment

before general discovery was conducted, the facts are limited

largely to those stated in the complaint. As alleged, the

pleadings attempt to impose a measure of cohesion onto

events spanning several hours and locations and involving

various individuals—each of whom had been drinking

alcohol, in some cases heavily. The result, by no fault of the

plaintiffs, is that much of what we would like to know is

missing, while much of what we do know defies apparent

logic.

What we know with certainty is that this case is a

tragedy. On June 2, 2011, Jason Rosenbaum, a student at

Indiana University, threw a party at his apartment. Among

his guests were fellow students Lauren Spierer, Corey

Rossman, and Michael Beth, who, by all appearances, were

well-acquainted with each other. Rosenbaum served

alcoholic drinks at his party, and Lauren—scarcely five feet

tall and one hundred pounds—was among those served.

She was not alone. For his part, Rossman drank heavily,

and eventually he and Lauren left the party and went to his

apartment which was located in the same complex.

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Rossman’s roommate, Michael Beth, had been at

Rosenbaum’s party and returned to the apartment where he

encountered the two. Despite the fact that Lauren was

visibly intoxicated, Rossman encouraged her to join him at a

bar named Kilroy’s that was located a few blocks from the

apartment. He informed Beth that he wanted to have “three

more drinks at the bar and then [he would] be feeling good.”

Approximately one hour after leaving Rosenbaum’s

party, Lauren and Rossman went to Kilroy’s where Lauren

was observed stumbling and requiring Rossman’s assistance

to walk. Disregarding her precarious condition, Rossman

bought Lauren several drinks; eventually she lost her shoes

and mobile phone. They remained at Kilroy’s until

approximately 2:30 in the morning.

After leaving Kilroy’s, the pair initially headed to

Lauren’s apartment complex where they encountered other

students outside the elevator on Lauren’s floor. Rossman got

into a physical altercation with one of those students who

took issue with him for failing to assist the visibly

intoxicated Lauren into her apartment. Instead of escorting

Lauren from the elevator to her apartment—a distance less

than a hundred yards—the pair set off for his apartment

where Rossman was observed en route carrying Lauren

slung across his back.

At around 3:30 in the morning, Michael Beth (Rossman’s

roommate) returned to the apartment and was startled to

find Rossman and Lauren there. At first, he suspected that

they were burglars because the apartment had been the site

of previous crimes. Instead, he encountered Lauren, who

appeared even more intoxicated than she had been earlier in

the evening. The pleadings suggest that Rossman went to

4 No. 14-3171

sleep at this point and that Beth was left alone with Lauren.

In light of her condition—she was slurring her speech, for

example—Beth tried to convince Lauren to sleep on the

couch in the apartment. Lauren, however, wanted to go back

to her apartment. For reasons that are not clear, instead of

escorting Lauren back to her apartment, Beth brought her to

Rosenbaum’s apartment, which had been the site of the

party earlier that evening.

Rosenbaum also grew concerned when he saw Lauren’s

condition. He attempted to contact several of her friends for

the purpose of arranging a ride back to her apartment but

was unable to arrange transport. At this point, Beth left his

apartment. Shortly afterwards, at approximately 4:30 a.m.,

Rosenbaum allowed Lauren to leave his residence on her

own and briefly observed her walking in the direction of her

apartment. He was the last known person to see Lauren

alive. A security camera located along Lauren’s return route

did not capture any images of her walking home.

Despite four years of extensive searching, there is no

credible information about what happened to Lauren after

she left Rosenbaum’s apartment. Taking matters into their

own hands, Lauren’s parents filed this suit, alleging that

Rossman, Rosenbaum, and Beth were negligent, both at

common law and by Indiana statute, for failing to fulfill their

duty to care for Lauren in her incapacitated condition.

Additionally, the plaintiffs brought a Dram Shop claim

against Rossman and Rosenbaum for furnishing Lauren

with alcohol despite knowing that she was intoxicated at the

time.

The defendants each filed motions to dismiss and

discovery was stayed pending their resolution. The district

No. 14-3171 5

court granted Beth’s motion and dismissed all claims against

him. Also, it dismissed the claims for common law

negligence against Rossman and Rosenbaum but denied

their respective motions to dismiss the other claims.

After the resolution of the motions to dismiss, the

plaintiffs cast a wide net on discovery. To that end, they

sought to conduct upwards of fourteen depositions, twelve

of them of non-parties, in multiple locations, including New

York, Boston, Detroit, and Chicago; they also issued

subpoenas for an array of academic, disciplinary, telephone,

and other records from various individuals.

After the stay of discovery was lifted but before the

parties exchanged initial disclosures, Rosenbaum moved for

summary judgment (and was later joined by Rossman) on

the grounds that the plaintiffs were unable to offer proof that

the defendants were the proximate cause of any verifiable

injury to Lauren—disappearance, by itself, is not legally

deemed an injury, so proof of some injury was required to

support their claims. The defendants also moved to quash

the non-party subpoenas and to limit discovery to the issue

of proximate cause, that is, to address only evidence related

to whether the defendants’ actions caused severe injury or

death to Lauren.

A series of back-and-forth filings ensued that culminated

with the district court upholding the magistrate judge’s

decision to limit discovery to the issue of proximate

causation. Additionally, because the plaintiffs had

responded to defendants’ summary judgment motions,

those motions were deemed ripe for adjudication and the

district court granted summary judgment in favor of the

defendants.

6 No. 14-3171

On appeal, the plaintiffs challenge three rulings: the

decision to limit discovery, the grant of summary judgment,

and the dismissal of the common law negligence claims.

They argue that the summary judgment motions were

premature and that the defendants failed to meet their

burden to demonstrate the absence of material fact

regarding causation. Additionally, the plaintiffs appeal the

district court’s dismissal of the common law negligence

claims, contesting its reading of Indiana law that no duty of

care existed and that Lauren did not constitute a child to

support a common law claim for loss of services of a child.

We review these arguments.

II. Analysis

At the outset, we analyze two related issues that overlap

due to some unique features of this litigation. The first is the

decision by the magistrate judge (and adopted by the district

judge) to suspend discovery pending the resolution of the

summary judgment motions. This is a procedural issue that

implicates the scope of a litigant’s right to conduct

discovery. The second issue involves the actual resolution of

the summary judgment motions and the respective burdens

carried by the litigants. In short, whether a party can move

for summary judgment prior to discovery and whether a

party can support its burden absent such discovery are

separate inquiries that run together due to particularities of

this case.

We review first whether the district court abused its

discretion by failing to provide plaintiffs additional time for

discovery. Davis v. G.N. Mortg. Corp., 396 F.3d 869, 885 (7th

Cir. 2005). In the absence of a local rule or court order stating

otherwise, Rule 56(b) allows a party to move for summary

No. 14-3171 7

judgment at any time until 30 days after the close of

discovery. No such rule or order exists here, so the

defendants acted within their rights to move for summary

judgment even though substantial discovery had not

occurred. Fed. R. Civ. P. 56(b). But moving for pre-discovery

summary judgment does not automatically mean that a

court has to entertain the motion. Rule 56(d) allows the nonmoving

party to submit an affidavit or declaration

requesting the court to defer or deny judgment in order to

allow for appropriate discovery to address matters raised by

the motion. Fed. R. Civ. P. 56(d). Here, the plaintiffs took an

unusual course of action: they responded to the motion and

filed a declaration under Rule 56(d) that included a

boilerplate request for discovery without identifying specific

evidence needed to respond to defendants’ motion. The

magistrate judge found the declaration deficient because it

was too general to notify the court of any actual evidence

needed to respond to the motion. Still more problematic, the

declaration, as composed, did not serve as a motion under

Rule 56(d) for additional time to respond to the summary

judgment motion.

The magistrate judge held a hearing on whether to

extend discovery and asked plaintiffs what type of discovery

they needed. Plaintiffs’ counsel responded: “We’re not asking

for anything to respond to summary judgment. We think that we

are going to win … on the basis … that [the defendants] haven’t

met their burden.” (Tr. at 24.) Further driving this point home,

the plaintiffs argued that they needed extended discovery

not to respond to defendants’ motions, but in order to file

their own motion for summary judgment. (Court: “But you

already told me that you don’t need any discovery to respond to

8 No. 14-3171

their summary judgment motions?” Plaintiffs’ Counsel: “But I

need discovery, Judge, to file my own summary judgment

motion.”) (Tr. at 70.)

District courts have broad discretion in directing pretrial

discovery and the rulings here were well within this

discretion. Spiegla v. Hull, 371 F.3d 928, 944 (7th Cir. 2004).

The only relevant discovery at issue here is that which might

have been available to plaintiffs to respond to the summary

judgment motions. The plaintiffs claimed not to need any

and we take them at their word. Whatever other types of

discovery the plaintiffs might have wanted is not at issue

here.

The more pressing issue on appeal is whether the award

of summary judgment to defendants was proper—a ruling

that we review de novo. Ball v. Kotter, 723 F.3d 813, 821 (7th

Cir. 2013). The standard for summary judgment is well

established: with the court drawing all inferences in the light

most favorable to the non-moving party, the moving party

must discharge its burden of showing that there are no

genuine questions of material fact and that he is entitled to

judgment as a matter of law. Chaib v. Indiana, 744 F.3d 974,

981 (7th Cir. 2014). If the moving party has properly

supported his motion, the burden shifts to the non-moving

party to come forward with specific facts showing that there

is a genuine issue for trial. Cincinnati Life Ins. Co. v. Beyrer,

722 F.3d 939, 951 (7th Cir. 2013).

Relying solely on citations to facts alleged in the

complaint, the defendants brought their motions with no

additional evidence. The plaintiffs are of the belief that

summary judgment is impossible unless the moving party

first submits evidence to meet their burden of production.

No. 14-3171 9

No such evidence having been produced, they claim that the

award of summary judgment was wrong as a matter of law.

Plaintiffs’ argument is almost identical to the one that the

Supreme Court rejected in Celotex Corp. v. Catrett, 477 U.S.

317 (1986), the seminal case outlining the respective

obligations of the parties in summary judgment motions.

Like here, the parties to that dispute contested whether,

under Rule 56, the party seeking summary judgment was

required to bring evidence in the form of affidavits or other

materials to demonstrate the absence of a question about an

issue of material fact. Id. The Court held that the moving

party had no such burden because there existed “no express

or implied requirement in Rule 56 that the moving party

support its motion with affidavits or other similar materials

negating the opponent’s claim.” Id. at 323 (emphasis in

original).

In their briefs, the plaintiffs refer repeatedly to the

“burden of production” borne by the moving party and we

suspect this phrase lies at the heart of their confusion. This

phrase is used to signify the respective allocations of

evidence that parties must present at a given stage of

litigation. See, e.g., St. Mary’s Honor Center v. Hicks, 509 U.S.

502, 506 (1993) (citing McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973)); Director, Officer of Workers’ Compensation

Programs, Dept. of Labor v. Greenwich Collieries, 512 U.S. 267,

272 (1994) (defining the burden of production under the

Administrative Procedures Act as “a party’s obligation to

come forward with evidence to support its claim.”).

In Celotex, the Court surveyed Rule 56 and found nothing

in that rule requiring the moving party to produce evidence.

Of course, there can be no “burden of production” absent a

10 No. 14-3171

mandate to produce evidence. The actual requirement in

Rule 56 is less specific: the moving party need only inform

the court of the basis for the motion and identify supporting

materials. Celotex, 477 U.S. at 323 (“[A] party seeking

summary judgment always bears the initial responsibility of

informing the district court of the basis of its motion, and

identifying those portions of the ‘pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.”) (citing Fed. R.

Civ. P. 56). That the moving party need not produce

evidence does not give them an easy path to summary

judgment, it only means that their burden is one of

demonstration rather than production.

The text of Rule 56 has been subject to various

amendments (in 1987, 2009, and 2010) since the Celotex

decision was handed down but none of these conflicts with

the substance of the ruling in that case. Contrary to

plaintiffs’ arguments, the only burden of production

recognized in Rule 56 falls upon the nonmoving party once a

basis for summary judgment has been established (and this

can be initiated sua sponte by a court under Rule 56(f) with

proper notice). The Advisory Committee Notes to the 2010

Amendments state that: “[s]ubdivision (c)(1)(B) [of Rule 56]

recognizes that a party need not always point to specific

record materials … And a party who does not have the trial

burden of production may rely on a showing that a party

who does have the trial burden cannot produce admissible

evidence to carry its burden as to the fact.” See also, Ricci v.

DeStefano, 557 U.S. 557, 586 (2009) (“[W]here the nonmoving

party will bear the burden of proof at trial on a dispositive

No. 14-3171 11

issue, the nonmoving party bears the burden of production

under Rule 56 to designate specific facts showing that there

is a genuine issue for trial.”) (internal quotation marks

omitted).

To be sure, it is a rare case in which a moving party can

establish a basis for summary judgment without putting

forth some evidence. But such cases exist, as evidenced by

the one here. The defendants cited to the pleadings to

contend that the plaintiffs would not be able to meet their

burden of production at trial to demonstrate a verifiable

injury to Lauren that was caused by the defendants’ actions

and not other intervening factors. Given this set of facts, that

was sufficient to meet their burden for summary judgment.

Dram Shop Act and Negligence Per Se

To be liable under the Indiana Dram Shop Act, a person

must: (1) furnish alcohol to another person; (2) have actual

knowledge that the person to whom the alcoholic beverage

was furnished was visibly intoxicated at the time; and, (3)

the intoxication of the person to whom the alcoholic

beverage was furnished must be the proximate cause of the

death, injury, or damage alleged in the complaint. I.C. § 7.1-

5-10-15.5.

Negligence per se (sometimes called “legal negligence”)

occurs when a violation of a statute or ordinance constitutes

negligence as a matter of law. Erwin v. Roe, 928 N.E.2d 609,

616 (Ind. Ct. App. 2010) (an “unexcused violation of a

statutory duty constitutes negligence per se ‘if the statute or

ordinance is intended to protect the class of persons in which

the plaintiff is included and to protect against the risk of the

type of harm which has occurred as a result of its violation.’”

12 No. 14-3171

(quoting Kho v. Pennington, 875 N.E.2d 208, 212 (Ind. 2007)).

Per se negligence can be distinguished from common law

negligence because the former requires proof of violation of

a statute or ordinance while the latter does not.

The district court first reviewed these claims on the

motions to dismiss which argued that the claims failed

because the plaintiffs could not prove that Lauren was

injured or deceased. Persons are presumed alive under

Indiana law for seven years after their disappearance

whereupon a presumption of death might arise from an

unexplained absence. See Roberts v. Wabash Life Ins. Co., 410

N.E.2d 1377, 1382 (Ind. Ct. App. 1980); Prudential Ins. Co. of

Am. v. Moore, 149 N.E. 718, 721 (Ind. 1925). The district court

recognized this presumption but noted that a second avenue

of proof was available to the plaintiffs: they could use direct

or circumstantial evidence to show that the missing person

was, in fact, deceased. Significantly, the district court ruled

for the plaintiffs for one simple reason—during the

pleadings stage of litigation, the court was bound to accept

the factual assertion that Lauren had died. The judge noted:

“it would be inappropriate for the Court to … make a

finding as a matter of law that Lauren is presumed to be

alive. The Spierers should be afforded the opportunity to

present circumstantial evidence in order to prove that

Lauren is deceased … .” App. Ex. at 30–31. This language

should have signaled to plaintiffs that they were not likely to

survive later stages of litigation merely on the strength of

their allegations; sooner or later they would have to put

forth evidence, whether direct or circumstantial,

demonstrating a discrete injury to Lauren resulting from the

actions of the defendants.

No. 14-3171 13

Unsurprisingly, the defendants moved immediately for

summary judgment in order to revisit the same issue—this

time under the more stringent summary judgment standard.

They cited to the pleadings to argue that there was no

genuine issue of fact that Lauren was missing and therefore

there was no evidence to allow a jury to determine what

happened to her. Because of this, they claimed that the

plaintiffs could not demonstrate proximate cause and their

claims must fail.

Instead of requesting discovery to address proximate

cause, the plaintiffs argued that they had no burden to

produce countervailing evidence because the earlier ruling

that Lauren would not be presumed alive had a preclusive

effect. (Tr. at 13–14.) They did submit an affidavit from a

pharmacologist demonstrating that Lauren suffered that

night from diminished mental and physical capacity as a

result of her alcohol consumption, but these materials did

not address the more relevant question of whether Lauren

had suffered a verifiable injury sufficient to support the

claims.

Plaintiffs’ preclusion argument fails because the district

court did not issue a ruling about whether Lauren was alive

or not; it merely stated that it treated all of the facts in the

complaint as true because it was required to do so on a

motion to dismiss. Once the pleadings phase ended, the

plaintiffs’ facts are no longer taken as true but must be

substantiated by evidence if challenged. The pleadings in

this case are clear enough—Lauren has been missing since

leaving Rosenbaum’s apartment that night. The defendants

had to do little more than cite to the pleadings to establish

this fact. At that point, the burden shifted to the plaintiffs to

14 No. 14-3171

provide some evidence that Lauren sustained a distinct

injury and that the defendants’ actions were the cause of this

injury.

The plaintiffs declined to produce evidence to offer any

plausible account of what happened to Lauren after she was

last seen. For this reason, the district court correctly granted

summary judgment because the plaintiffs carried the burden

of proving that the defendants (and not other causes) were

the proximate cause of any injury to Lauren, and speculation

cannot support a finding of proximate cause. Here, the

specter of criminal actions by third parties hovers over this

tragic case, and this is precisely the type of circumstance

which breaks the causal chain under Indiana law. See Johnson

v. Jacobs, 970 N.E.2d 666, 671 (Ind. Ct. App. 2011) (“A willful,

malicious criminal act is an intervening act that breaks the

causal chain between the alleged negligence and the

resulting harm.”).

On a motion for summary judgment, “facts must be

viewed in the light most favorable to the nonmoving party

only if there is a ‘genuine’ dispute as to those facts.” Scott v.

Harris, 550 U.S. 372, 380 (2007). As it stands, there are no

facts to present to a jury to determine the nature of the injury

suffered by Lauren. Still more problematic, it remains pure

speculation whether any injury was caused by the

defendants’ actions or the criminal intervention of a third

party. For this reason, the district court correctly granted

summary judgment. “Where the record taken as a whole

could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.”

Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986).

No. 14-3171 15

Common Law Negligence

The district court also dismissed the common law

negligence claims against all defendants for failing to state a

claim capable of relief. We review these rulings de novo.

AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To

survive a motion to dismiss under Rule 12(b)(6), a plaintiff

must state enough facts that, when accepted as true, “state a

claim for relief that is plausible on its face.” Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007) (discussing Fed. R. Civ.

P. 12(b)(6)).

To survive a motion to dismiss, the plaintiffs must allege

facts that show that the defendants: (1) owed a duty to

Lauren; (2) that they breached that duty; and, (3) that

Lauren’s death was proximately caused by the breach.

Witmat Dev. Corp. v. Dickerson, 907 N.E.2d 170, 173 (Ind. Ct.

App. 2009). Indiana courts use a three-part balancing test to

determine whether a duty exists when it has not been

declared or otherwise articulated. Northern Indiana Public

Service Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003).

Specifically, courts consider: the relationship between the

parties, the foreseeability of the occurrence, and public

policy concerns. See Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.

1991).

Opposing the motion to dismiss, the plaintiffs asserted

four bases for a duty of care, none of which the district court

accepted. On appeal, they narrow their focus to argue that

the defendants owed a duty of care to Lauren once they

voluntarily undertook to assist her at various points in the

evening.

16 No. 14-3171

Indiana law recognizes a common law duty of care

where “one party assumes such a duty either gratuitously or

voluntarily. The assumption of such a duty creates a special

relationship between the parties and a corresponding duty

to act in the manner of a reasonably prudent person.” Yost v.

Wabash College, 3 N.E.3d 509, 517 (Ind. 2014) (quotation

omitted). Although the existence and extent of an assumed

duty is generally a question of fact for the jury, it may be

resolved as a matter of law if the designated evidence is

insufficient to establish an injury. See Teitge v. Remy Const.

Co. Inc., 526 N.E.2d 1008, 1014 (Ind. Ct. App. 1988).

Here, the allegations establish that each defendant tried

to assist Lauren in some way and that his assistance was

found wanting. The critical question then is whether, as

alleged, the assistance provided by the defendants created a

legal duty to care for Lauren. Indiana courts have had few

occasions to consider this question as the vast majority of

assumption-of-duty cases relate to official or business

obligations rather than the purely voluntary actions of social

peers. The district court found the closest analogues in the

cases of Lather v. Berg, 519 N.E.2d 755 (Ind. Ct. App. 1988),

and Hawn v. Padgett, 598 N.E.2d 630 (Ind. Ct. App. 1992),

which address whether persons can be held liable for failed

attempts to prevent others from driving while drunk.

In Lather, a group of teenage friends got drunk together

before one announced his intention to drive home. The

friends attempted to intervene to the point of taking his keys

but relented when the prospective driver became

increasingly belligerent; eventually they kicked him out of

the house and threw the keys at him. While driving home,

the driver engaged police in a high-speed chase before

No. 14-3171 17

crashing into a patrol car and killing a police officer. The

Indiana Court of Appeals upheld a grant of summary

judgment for the defendant on the grounds that a person

does not undertake to perform a legal duty owed to another

unless he does so on behalf of and in lieu of that person. Lather,

519 N.E.2d at 766. “Liability does not arise in the situation

when one undertakes to perform functions coordinate to—or

even duplicative of—activities imposed by another by a legal

duty, but rather the situation in which one actually undertakes

to perform for the other the legal duty itself.” Id. (emphasis in

original but internal quotation omitted). A simpler

formulation of this is to say that Indiana courts do not

recognize liability unless the actor, by assuming this duty,

effectively displaces the other from performing the same

action. Because the prospective driver never ceased

attempting to regain possession of his keys, the defendant

could not be deemed to act on behalf of or in lieu of the driver.

Hawn involved similar facts. A group of friends drank

alcohol together at a campsite until late in the evening when

one of them sought to leave in his truck to buy cigarettes.

The defendants, two female acquaintances, took his keys to

prevent him from driving. After they were threatened and

physically accosted by the prospective driver, the defendants

threw his keys out of their tent. Shortly thereafter, the driver

crashed into a tree, killing a passenger who had fallen asleep

in the bed of the truck. Recognizing that “Indiana courts

have shown great reluctance to require an individual to take

any action to control a third party when there is no special

relationship between them,” the Indiana Court of Appeals

held that the defendants were not negligent as there was no

18 No. 14-3171

special relationship between the parties. Hawn 598 N.E.2d at

634.

The plaintiffs counter with the case of Buchanan v. Vowell,

926 N.E.2d 515, 520–21 (Ind. Ct. App. 2010), which also

involved drunk driving but with a distinct twist: rather than

trying to prevent a drunk person from driving, the

defendant in that case sought to aid the drunken person in

her driving, with predictably tragic consequences. In this

case, a mother and daughter drank alcohol together at a

work event to such extent that the daughter was legally

intoxicated. Instead of calling a cab, the two hatched a plan

whereby each drove her own car home, but with the

daughter in a lead car and the mother trailing behind as the

two spoke to each other on their cell phones. On the way

home, the daughter struck a pedestrian, causing severe

injuries.

The Indiana Court of Appeals reversed and held that the

mother had assumed a duty of care to prevent the daughter

from injuring others when she entered into an agreement

with her to make sure she drove home successfully. In so

holding, the Court distinguished both Lather and Berg

because the defendants in those cases sought to intervene to

prevent tortious behavior while the mother actively sought

to encourage it.

While recognizing the dissimilarities between the fact

patterns and the one presented here, the analysis in those

cases leaves little doubt that Indiana courts would not

recognize an assumption of duty in this case. The court in

Hawn offered the most specific formulation of when a duty

of care arises based on one’s voluntary actions. Citing to

Sports Inc. v. Gilbert, 431 N.E.2d 534, 538 (Ind. Ct. App. 1982),

No. 14-3171 19

it recognized three factors that frequently accompany an

assumption of duty over a third person. They are: (1) where

one person is in need of supervision or protection (such as a

child, intoxicated person, or business invitee); (2) from

someone who is in a superior position to provide it (parent,

supplier of alcohol, business owner, hospital) and (3) that

person has a right to intervene or control the actions of the

other person. See Hawn, 598 N.E.2d at 634.

Lauren was in a vulnerable state and therefore in need of

protection and the plaintiffs easily satisfy the first factor. But

the second factor fails because defendants were classmates

of Lauren and not in positions of superiority. While one

could argue that, by providing Lauren with alcohol,

Rossman and Rosenbaum assumed such responsibility, the

courts in Lather and Hawn declined to impose liability in

those cases where a group of social peers provided each

other with alcohol. (This contrasts with the holding of

Buchanan, which recognized the position of superiority of a

mother to her daughter.) Additionally, each of the three

defendants was apart from Lauren during important parts of

the evening; Rossman was not present when Lauren

returned to Rosenbaum’s apartment, while Rosenbaum and

Beth had both parted ways with Lauren hours earlier with

no indication that they would see her again that evening.

That they express surprise (Beth) and concern (Rosenbaum)

when they see her shows that they were not expecting to

encounter her at that late hour, still less in that condition.

There is simply no case where Indiana courts have

recognized responsibility on the part of a person to ensure

the safety of intoxicated persons with whom they have

unexpectedly come into contact. To recognize a special

20 No. 14-3171

relationship based only on these factors would be to greatly

expand the class of relationships subject to special duties

under Indiana law.

The third factor also favors the defendants. Despite

Lauren’s visible intoxication, the facts do not establish that

defendants had the right or ability to control her movement

to such degree as to force her to remain in a certain place.

Rossman escorted Lauren to her floor before bringing her to

his apartment for reasons that are not clear. From there, Beth

attempted to get Lauren to sleep on the couch but was

unable to do so for reasons that are also not known.

Rosenbaum attempted to arrange transport for Lauren, and

it was only after he was unable to do so that Lauren

departed. There is no indication that Rosenbaum compelled

or even encouraged her to leave his apartment. Despite her

diminished capacity, the pleadings demonstrate that Lauren

left Rosenbaum’s apartment under her own volition and was

not encouraged to leave.

Because he was with Lauren the majority of the evening

and bought drinks for her, Rossman was nearest to

assuming a duty to care for her. But he also appears to have

been intoxicated—so much so that it is questionable whether

he could effectively take care of himself, still less another

person. “Indiana courts have shown great reluctance to

require an individual to take any action to control a third

party when there is no special relationship between them.”

Hawn, 598 N.E.2d at 633. We have found no decisions under

Indiana law where persons were held liable for the actions of

their social peers, absent additional factors not present here.

To hold otherwise would be to extend the reach of

negligence far beyond special relationships and into

No. 14-3171 21

virtually all social relationships and situations where a risk

of danger might be present.

For these reasons, we agree with the district court that

the plaintiffs have failed to state a plausible claim under

Indiana law for common law negligence. Because we affirm

the dismissal, we need not consider the plaintiffs’ claim

under Indiana’s Child Wrongful Death Statute as that type

of claim is functionally identical to one for common law

negligence and would fail for the same reasons. See Ed.

Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind. Ct.

App. 1994). Likewise, we need not review the district court’s

ruling that Lauren’s age precluded relief for the loss of

services of a child under Indiana law.

For the reasons stated above, the judgment of the district

court is AFFIRMED.