ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DAVID W. CRAIG RICHARD K. SHOULTZ

SCOTT A. FAULTLESS EDWARD D. THOMAS 

Indianapolis, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

TIFFANY THOMPSON, )

JASON THOMPSON, and )

CASSIE THOMPSON )

)

Apellants-Plaintiffs, )

)

 vs. ) No. 32A05-1403-CT-131

)

FIELDS GUTTER & SIDING, INC., )

PAMELA SUE FIELDS, and )

MICHAEL C. FORD, JR. )

)

Appellees-Defendants. )

APPEAL FROM THE HENDRICKS SUPERIOR COURT

The Honorable Stephanie D. LeMay-Luken, Judge

Cause No. 32D05-1203-CT-42

August 4, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge 

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.
2

Tiffany Thompson, Jason Thompson, and Cassie Thompson (“the Thompsons”) 

appeal the Hendricks Superior Court’s grant of summary judgment in favor of Fields 

Gutter & Siding, Inc., Pamela Fields, and Michael Ford.

We affirm. 

Facts and Procedural History

Fields Gutter & Siding (“FGS”) is a business owned by Frank Fields and Pamela 

Fields (“the Fieldses”). FGS, which is operated from the Fieldses’ residence, employs 

ten to fifteen people at a time. Frank Fields is the president of FGS and Pamela Fields is 

the officer manager. Michael Ford (“Ford”) has been employed by FGS since 2000 as an 

installer of gutters, soffit, and siding. 

On December 20, 2011, the Fieldses held a holiday party for FGS employees at a 

Red Lobster restaurant in Avon, Indiana. The party began at 1:00 p.m. and ended around 

3:00 p.m. On that day, Ford’s work shift ended around 11:00 a.m. Ford arrived at the 

restaurant around 1:00 or 1:30 p.m. All of the FGS employees sat together at one table in 

the restaurant, and the Fieldses asked the employees not to enter the bar area. While at 

the party, Ford consumed two margaritas served by Red Lobster bartenders. Ford left the 

party around 2:30 or 3:00 p.m. and drove to his home in Indianapolis, thirty-five to forty 

minutes away from the restaurant. After showering, Ford drove to a nearby liquor store 

and purchased a twelve-pack of beer and a pint bottle of tequila. He spent the following 

two hours drinking one or two of the beers and the entire bottle of tequila while “just 

driving around.” Appellant’s App. p. 97. 
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Around 8:30 p.m. on December 20, 2011, approximately six hours after Ford left 

the FGS holiday party, Tiffany Thompson and her daughter, Cassie, were driving 

westbound on U.S. Highway 40, a four-lane highway with a grass median. Ford, driving 

the wrong way in Thompson’s lane of travel, struck Thompson’s vehicle, seriously

injuring Thompson and her daughter. At the time of the collision, Ford’s license was 

suspended, his vehicle was not registered, and he had no automobile insurance coverage. 

At the accident scene, Ford failed a field sobriety test administered by law enforcement 

and a blood alcohol test revealed that his blood alcohol concentration was .20. Ford later 

pleaded guilty to operating a vehicle while intoxicated causing serious bodily injury. 

On March 20, 2012, the Thompsons filed a complaint in Hendricks Superior Court 

against GMRI, Inc., d/b/a Red Lobster and Ford. Two months later, the Thompsons filed 

an amended complaint adding FGS as a defendant, alleging that FGS was liable for 

Ford’s negligent acts under the theory of respondeat superior, and that FGS breached its 

common law duty to use reasonable care. The same day, the trial court granted the 

Thompsons’ joint stipulation of dismissal as to GMRI, Inc. 

On August 15, 2013, FGS filed a motion for summary judgment, arguing that it 

breached no duty to the Thompsons. The trial court agreed and granted FGS’s motion. 

The Thompsons now appeal.

Discussion and Decision

Our standard for reviewing a trial court’s order granting a motion for summary 

judgment is well settled: a trial court should grant a motion for summary judgment only 

when the evidence shows that there is no genuine issue as to any material fact and that 
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the moving party is entitled to a judgment as a matter of law. Altevogt v. Brand, 963 

N.E.2d 1146, 1150 (Ind. Ct. App. 2012) (citing Ind. Trial Rule 56(C)). The trial court’s 

grant of a motion for summary judgment comes to us cloaked with a presumption of 

validity. Id. “‘An appellate court reviewing a trial court summary judgment ruling 

likewise construes all facts and reasonable inferences in favor of the non-moving party 

and determines whether the moving party has shown from the designated evidentiary 

matter that there is no genuine issue as to any material fact and that it is entitled to 

judgment as a matter of law.’” Id. (quoting Dugan v. Mittal Steel USA Inc., 929 N.E.2d 

184, 186 (Ind. 2010)). However, a de novo standard of review applies where the dispute 

is one of law rather than fact. Id. On appeal, we examine only those materials designated 

to the trial court on the motion for summary judgment, and we must affirm the trial 

court’s entry of summary judgment if it can be sustained on any theory or basis in the 

record. Id.

The Thompsons argue that “FGS owed a duty of reasonable care in organizing and 

supervising its Christmas party in order to prevent an employee who is a known alcoholic 

and habitual drunkard from consuming drinks that triggered a relapse and led to his 

inebriation.” Appellant’s Br. at 26. They maintain that FGS, by providing Ford with two 

margaritas at Red Lobster, “set in motion a chain of events leading to a dangerous 

intoxicated alcoholic without insurance or a driver’s license causing destruction and harm 

to others.” Id. at 26-27. 

A defendant is liable to a plaintiff for the tort of negligence if (1) the defendant has 

a duty to conform its conduct to a standard of care arising from its relationship with the 
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plaintiff, (2) the defendant has failed to conform its conduct to that standard of care, and 

(3) an injury to the plaintiff was proximately caused by the breach. Indianapolis-Marion 

Cnty. Pub. Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722, 726 (Ind. 2010).

The Thompsons’ claim fails each of these elements.

In support of their argument that FGS breached its duty of reasonable care, the 

Thompsons cite Gariup Construction Company, Inc. v. Foster, 519 N.E.2d 1224 (Ind. 

1988). In Gariup, a construction company hosted a holiday party for its employees on 

company premises and furnished the food and refreshments, including alcoholic 

beverages. Paul Orner, the company’s office manager attended the party, drank three or 

four beers and then, during the roughly thirty minutes before he left the party, consumed 

six to eight shots of eighty-proof whisky during a drinking game. Some forty minutes 

after Orner left the party, he drove across a highway median and struck Foster’s vehicle 

head-on, causing serious injury to Foster. The trial court granted a judgment in favor of 

Foster against the construction company. Our supreme court affirmed, holding that the 

construction company had a duty to exercise “ordinary and reasonable care” in 

supervising its party and that the company breached its duty by allowing Orner to

participate in a drinking game, become intoxicated, and then operate his vehicle. Gariup, 

519 N.E.2d at 1229. 

The facts of the present case, however, are easily distinguishable from the facts in 

Gariup. Here, the FGS holiday party was held away from company premises, at a Red 

Lobster restaurant, where employees were instructed to stay away from the bar area.

Ford consumed two margaritas over the course of two hours and the Thompsons failed to 
6

present any evidence that Ford was noticeably intoxicated while at the party or at the time 

he left the party. In stark contrast to the employer in Gariup, FGS and the Fieldses 

clearly exercised ordinary and reasonable care in the organization and conduct of their 

holiday party and with proper regard to third-party motorists, like Thompson, Ford or 

others employees might encounter on the road upon leaving the party. 

Furthermore, even if we were to conclude that FGS breached its duty by allowing 

Ford, a person who has struggled for many years with alcoholism, to consume even one

alcoholic beverage, it is apparent that this breach was not a proximate cause of the 

Thompsons’ injuries. The collision occurred approximately six hours after Ford left the 

party, during which time he returned to his home, showered, drove to a liquor store where 

he bought beer and tequila and then consumed the entire pint bottle of tequila and one or 

two beers while he was operating his motor vehicle. This conduct was not reasonably 

foreseeable to FGS or the Fieldses. Simply said, Ford’s conduct after the holiday party 

was an intervening and superseding proximate cause of his collision with Thompson. See

Merchants Nat. Bank v. Simrell’s Sports Bar & Grill, Inc., 741 N.E.2d 383 (Ind. Ct. App. 

2000) (holding that, irrespective of whether tavern breached its statutory duty under 

Dram Shop Act by providing alcoholic beverages to intoxicated person, any such breach 

was not proximate cause of resulting harm to its patron, since third-party’s act of 

shooting patron was intervening criminal act that broke causal chain between tavern’s 

alleged negligence and patron’s death, and thus, tavern was not liable for patron’s death 

under Dram Shop Act); see also Elder v. Fisher, 247 Ind. 598, 605, 217 N.E.2d 847, 851-

52 (1966) (a seller of liquor may be liable for injury resulting from the sale of alcohol to 
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“minors or drunks who are particularly susceptible to the use of liquor . . . if the 

circumstances should have warned him that his sale would create an unreasonable risk.”).

The Thompsons further argue that FGS is liable for the injuries caused by Ford 

based on the theory of respondeat superior. According to the doctrine of respondeat 

superior, an employer, who is not liable because of his own acts, can be held liable “for 

the wrongful acts of his employee which are committed within the scope of 

employment.” Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147 (Ind. 1999). An 

employee is acting within the scope of his employment when he is acting, at least in part, 

to further the interests of his employer. Konkle v. Henson, 672 N.E.2d 450, 456 (Ind. Ct.

App. 1996). Liability will attach where an employee acts partially in self-interest but is 

still “partially serving his employer’s interests.” City of Fort Wayne v. Moore, 706 

N.E.2d 604, 607 (Ind. Ct. App. 1999), trans. denied.

The proper test is whether the employee’s actions were at least for a time 

authorized by his employer. Stropes v. Heritage House Children’s Ctr., 547 N.E.2d 244, 

250 (Ind. 1989). However, if it is determined that none of the employee’s acts were 

authorized, there is no respondeat superior liability. City of Fort Wayne, 706 N.E.2d at 

607. Acts for which an employer is not responsible are those done on the employee’s 

own initiative with no intention to perform it as part of or incident to the service for 

which he is employed. Stropes, 547 N.E.2d at 247. 

The Thompsons argue that respondeat superior applies here because “[t]he 

presence of the officers of FGS at the Christmas party demonstrates its control over the 

Christmas party” and because FGS exerted control over its employees by “directing them 
8

to sit together, not go into the bar area, and limiting the number of alcoholic beverages 

that could be ordered.” Appellant’s Br. at 27. This is a complete misapplication of the 

doctrine of respondeat superior.

Under respondeat superior, the relevant question is whether Ford was acting 

within the scope of his employment at the time of the accident. See Dillman v. Great

Dane Trailers, Inc., 649 N.E.2d 665, 668 (Ind. Ct. App. 1995). Here, it is undisputed that 

the collision occurred approximately six hours after Ford left the FGS holiday party and 

after Ford consumed many additional alcoholic beverages. The Thompsons have not

alleged that there was an employment-related reason for Ford to drive his personal 

vehicle while drinking beer and a bottle of tequila. The accident did not occur within a 

time or at a place where Ford would reasonably be fulfilling his duties as an FGS 

employee. It is apparent, then, that at the time of the accident, Ford was not acting within 

the scope of his employment. See City of Fort Wayne v. Moore, 706 N.E.2d 604 (Ind. 

Ct. App. 1999) (concluding that police officer was not acting within scope of his 

employment with city when he stopped motorist outside city’s corporate limits and then 

assaulted motorist, and thus city could not be liable for officer’s actions under theory of 

respondeat superior, where officer was off-duty at time of incident, was driving his 

personal vehicle and was not wearing police uniform, and city’s police officers were not 

authorized to make traffic stops outside city’s corporate limits, out-of-uniform or in 

unmarked police car). Because no reasonable trier of fact could determine from the 

evidence that Ford was acting within the scope of employment at the time that he caused 
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the accident, we conclude that the trial court did not err in granting summary judgment in 

favor of FGS under the doctrine of respondeat superior. 

To the extent that the Thompsons argue that FGS should be liable under Indiana’s 

Dram Shop statute,

1 we disagree. The Dram Shop statute provides that “[i]t is unlawful 

for a person to sell, barter, deliver, or give away an alcoholic beverage to another person 

who is in a state of intoxication if the person knows that the other person is intoxicated.” 

Ind. Code § 7.1-5-10-15. To “furnish” means to “barter, deliver, sell, exchange, provide, 

or give away.” Ind. Code § 7.1-5-10-15.5. A person who furnishes alcohol to another 

person is not liable for damages resulting from the second person’s intoxication unless 

the furnisher “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 

“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.” Id.

We have already noted that there was no evidence that the Fieldses had actual 

knowledge that Ford was noticeably intoxicated when he left the party. We have also 

already determined that a reasonable person could not conclude that the two margaritas

served to Ford at the FGS party were a proximate cause of the Thompsons’ injuries. 

Therefore, any claim asserted by the Thompsons under Indiana’s Dram Shop statute 

would fail as a matter of law. 

 1

 In their reply brief, the Thompsons assert that their claim against FGS “is based upon Indiana’s 

common law, not the Dram Shop Act.” However, many of the Thompsons’ arguments contain language 

similar to that found in the Dram Shop statute.
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Conclusion

For all of these reasons, we conclude that the trial court did not err when it granted 

summary judgment in favor of FGS. 

Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.