Plaintiff-Appellant Jerry Coleman Buchanan (“Jerry”), by his father and guardian, Odell Buchanan brings this interlocutory appeal of the trial court’s dismissal of his amended complaint for damages against Defendant-Appellee Shannon Vowell (“Shannon”). We reverse and remand.
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Here, the crux of Jerry’s amended complaint is that Shannon engaged in a negligent activity with Candice that was the proximate result of Jerry’s injuries. The amended complaint alleges that Shannon gratuitously undertook a duty to control Candice’s driving, an act that necessarily impacted third parties who shared the road with Shannon and Candice. The amended complaint also alleges that Shannon acted in concert with Candice in an activity that resulted in his injuries. The amended complaint further notes that Shannon’s cellular communication with Candice negligently distracted an intoxicated driver.
The parties principally argue about whether Shannon gratuitously undertook a duty to protect Jerry from the drunken Candice. Accordingly, we begin our analysis by looking at the concept of a gratuitous undertaking. . . .
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. . . First, we note that this is not a case where a person tried to prevent an intoxicated driver from driving; indeed, it is a case where a person assisted the intoxicated in driving. Second, we note that others have held that gratuitous undertakings concerning drivers may result in liability to a party other than the one who injured the third party. . . . Accordingly, Jerry should be given the opportunity to engage in discovery and develop his case.
In addition, Jerry may show that Shannon is liable for Candice’s negligent acts if Shannon is found to be acting in concert with Candice. . . .
The allegations made by Jerry in his amended complaint show that Shannon agreed to enter into a concerted activity whereby Shannon would follow the drunken Candice and would direct and/or distract her by calling her on her cell phone. The allegations also show that Candice and Shannon conspired to leave the scene of an accident where serious injury to Jerry had occurred. Thus, like the passenger in Sanke, Shannon encouraged Candice’s tortious activity. It is possible that Shannon, like the passenger in Sanke, could be held jointly liable for Jerry’s injuries.
Furthermore, we note that Shannon owed a duty of reasonable care to those that shared the road with her, both motorists and pedestrians. See Claxton, 615 N.E.2d at 474. Shannon, as an individual, may have breached this duty by calling and distracting a person she knew was operating a vehicle while under the influence of alcohol. Thus, Shannon may be found liable for Jerry’s injuries even if she did not gratuitously assume a duty or act in concert with Candice.
We hold that the trial court abused its discretion in dismissing Jerry’s amended complaint for failure to state a claim. We reverse and remand with instructions that the trial court vacate its order.
Reversed and remanded.
RILEY, J., concurs.
VAIDIK, J., concurring in result with separate opinion.
VAIDIK, J., concurring.
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. . . I wish to express my disagreement with the majority’s comments about Shannon and Candice’s cell phone conversation. The majority concludes that Shannon may have breached her own duty of care “by calling and distracting a person she knew was operating a vehicle while under the influence of alcohol.” Slip op. at 11. Perhaps the content of the cell phone conversation may evidence Shannon’s aid or encouragement of Candice’s tortious conduct. But I do not believe that merely calling someone on the phone knowing that the person is driving and intoxicated constitutes a tortious act on its own. See also Jay M. Zitter, Annotation, Civil Liability Arising from Use of Cell Phone While Driving, 36 A.L.R.6th 443 (2008).
For the foregoing reasons, I concur in result.