## Facts

- Jerry Coleman Buchanan, a pedestrian, was walking near the edge of an eastbound lane on Kessler Boulevard in Marion County, Indiana, in the early morning of July 29, 2007.
- Candice Vowell drove eastbound on Kessler Boulevard, struck Jerry, and propelled him onto the hood and into the windshield.
- Jerry suffered permanent brain damage and multiple fractures.
- Before the collision, Candice consumed enough alcohol to become intoxicated during or immediately after her work shift, and the alcohol was allegedly provided by her employer.
- Candice and her mother, Shannon Vowell, allegedly decided not to call a cab or leave Candice’s car at the workplace and instead to drive home with Candice driving her own car while Shannon followed in a separate vehicle.
- At the time of the collision, Shannon was following Candice and was allegedly talking with her on a cellular phone.
- Jerry sued Candice, Shannon, and related corporate defendants, alleging Shannon and Candice acted in concert in implementing the tandem-driving plan that led to the collision.

## Issues

1. Whether the trial court erred by dismissing the amended complaint against Shannon for failure to state a claim.
2. Whether the trial court abused its discretion by granting Jerry’s belated motion to certify the dismissal order for interlocutory appeal.

## Decision

- The court held the interlocutory appeal was properly before it and affirmed the trial court’s order permitting belated certification.
- The court reversed the dismissal of the amended complaint against Shannon.
- The court remanded for further proceedings.

## Legal Principles

- On a motion to dismiss for failure to state a claim, well-pleaded facts are taken as true and reasonable inferences are drawn in favor of the nonmoving party.
- Under concert-of-action (acting-in-concert) liability, a defendant who agrees to and jointly participates in tortious conduct may be liable for harm caused by a co-participant’s tort.
- Allegations of agreement, knowing participation, and active assistance may be sufficient to plead concert-of-action liability; mere presence or mere knowledge generally is not.

## Conclusion

The court permitted interlocutory review, then held that allegations Shannon jointly planned and actively participated in a tandem-driving arrangement with an intoxicated driver were sufficient to state a concert-of-action negligence claim, requiring reversal of the dismissal and remand.


Buchanan v. Vowell, 926 N.E.2d 515 (Ind. Ct. App. 2010)