July 30, 2010
When daughter drives drunk, is mom liable?
By ANDREW BERGH
Special to the Journal

Talking on a cell phone while driving can get you an expensive ticket.

Talking on a cell phone while driving drunk can get you in even more trouble. And as Shannon Vowell learned, talking with a driver on her cell phone when you know the driver is drunk can definitely get you in hot water.

Shannon and her daughter, Candice Vowell, were both employed by Brad's Gold Club, a popular strip club in Indianapolis, Ind.

One evening in late July 2007, Candice had one too many drinks at work. (It's unclear whether she imbibed during or after her shift, or both.)

Since the Vowells had driven separately to the strip club, this meant they had several options when it came time to leave. Given her unfitness to drive, Candice could've taken a taxi home or been dropped off by her mother. But instead of leaving Candice's car at work, the Vowells decided to drive both cars home, with daughter leading and mother following directly behind.

Sadly, while driving eastbound on Kessler Boulevard, Candice left the roadway and hit a pedestrian, throwing him onto the hood of her car and into the windshield. At the moment of impact, Candice was talking on her cell phone with her mother.

The pedestrian, Jerry Buchanan, who suffered permanent brain damage and various broken bones, later sued the Vowells and the strip club for damages in Marion County Superior Court.

His theory against mom? That Shannon knew Candice was driving her car while drunk, and that she knew or should've known that talking on her cell phone would “further impair or distract” her daughter, thereby making her “even more dangerous” to other people using the streets. Mom's involvement was short-lived, however, because the trial court granted her motion to dismiss, finding that Buchanan had failed to state a viable claim against her under Indiana law.

Technically speaking, Buchanan had no right to appeal this ruling because it wasn't a final judgment involving all the parties. In other words, he normally would've had to await the outcome of the entire lawsuit before filing an appeal. But an Indiana appeals court — perhaps because it felt a gray area of the law should be clarified sooner versus later — agreed to review the lower court's ruling.

For three reasons, the appeals court recently reinstated Buchanan's claim against the mother.

First of all, while emphasizing that courts should be reluctant to impose liability on those who gratuitously try to prevent intoxicated individuals from driving, those weren't the facts here, said the court.

Instead, by joint agreement, Shannon had agreed to assist her daughter while she was driving drunk. So under the “gratuitous undertaking concept,” said the court, Shannon may have voluntarily undertaken a duty to protect Buchanan from her drunk daughter's actions. Though it remained to be seen whether he would eventually prevail, Buchanan should be given the opportunity, said the court, to conduct discovery and “develop his case.”

Under Indiana law, Shannon also faced liability if she had “acted in concert” with her daughter or given her “substantial assistance.”

For example, in an earlier case decided in 1997, all of the participants in a drag race were jointly liable when a third party was hurt by only one of the drivers. Given his allegation that Shannon had agreed to follow Candice and “direct and/or distract” her drunken daughter by calling her on her cell phone, Buchanan should likewise be given a chance to prove this theory, said the court.

Last but not least, even if Shannon didn't gratuitously assume a duty or act in concert with her daughter, she could also be found liable under ordinary negligence principles. This was so, said the court, because she may have breached her duty to exercise reasonable care by calling and distracting a person who she knew was driving while intoxicated.

So will Buchanan ultimately win his suit against the Vowells?

Let's just put it this way. If jurors in Marion County are like jurors most everywhere else, they will have zero tolerance for drunk drivers.

And just like the night in question, I don't think the mother will be too far behind.