Pamela Marlow v. Better Bars, Inc.

Nov 30 2015, 6:47 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Richard C. Bucheri Thomas E. Rosta
Poynter & Bucheri, LLC Metzger Rosta, LLP
Indianapolis, Indiana Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Pamela Marlow, November 30, 2015
Appellant-Plaintiff, Court of Appeals Case No.
32A01-1504-CT-144
v. Appeal from the Hendricks
Superior Court
Better Bars, Inc., The Honorable Stephenie LeMay-
Appellee-Defendant. Luken, Judge
Trial Court Cause No.
32D05-1007-CT-24
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Plaintiff, Pamela Marlow as guardian and next friend of Kenneth
Marlow (Marlow), appeals the trial court’s summary judgment in favor of
Appellee-Defendant, Better Bars, Inc., d/b/a Bubbaz Bar & Grill (the Bar), in
Marlow’s negligence action.
[2] We reverse and remand.
ISSUE
[3] Marlow raises one issue on appeal, which we restate as follows: Whether the
trial court erred by granting the Bar’s motion for summary judgment.
FACTS AND PROCEDURAL HISTORY 1
[4] On July 12, 2008, sometime between 10:00 p.m. and 11:30 p.m., Marlow
finished his shift as a cook at Squealers Barbeque Grill in Mooresville, Indiana.
Marlow and several of his co-workers—including the general manager,
Matthew Hein (Matthew), and assistant general manager, Kevin Hein
(Kevin)—made plans to meet at the Bar after work. Although alcohol is served
at Squealers, there is no indication that Marlow consumed any alcoholic
beverages before leaving work. The Bar, located in Camby, Hendricks County,
Indiana, is about five minutes away from Squealers. When Matthew and Kevin
1
We remind the parties that, pursuant to Indiana Administrative Rule 9(G)(2)(f), the “[c]omplete Social
Security Numbers of living persons” are confidential and “must be excluded from Public Access.”
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arrived at the Bar between approximately 11:30 p.m. and midnight, Marlow
was already there.
[5] At the Bar, both Matthew and Kevin had only brief interactions with Marlow;
however, both sensed that Marlow was intoxicated. Kevin specifically
remembered seeing Marlow consume alcohol at the Bar and observed that
Marlow was “[j]ust not being hisself [sic]. He’s usually more of a quiet person.
But at the [B]ar he was walking around, socializing with people, and he’s more
of a stick-to-himself kind of guy.” (Appellant’s App. p. 49). During his
deposition, Kevin explained that he has a license to serve liquor and has been
trained to observe the signs of intoxication. Other than Marlow being more
upbeat than usual, Kevin stated that he did not observe any behaviors indicative
of visible intoxication that would have precluded a bartender from serving
Marlow alcohol. A co-owner of the Bar, David Henderson (Henderson),
recalled talking with Marlow that evening and observed that Marlow “was in a
good mood” and “thought he was having a good time.” (Appellant’s App. pp.
56-57). Based on their conversation, Henderson believed that Marlow had been
drinking at another local tavern prior to his arrival at the Bar. Although
Henderson could not remember whether he personally served any alcohol to
Marlow, his recollection is that Marlow consumed “a mixed drink. I don’t
know if it was a [Jägerbomb] or something like that. That’s what I think that he
had.” (Appellant’s App. p. 57). When Matthew and Kevin left the Bar at
approximately 1:00 a.m., Marlow was still there.
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[6] At approximately 2:30 a.m. on July 13, 2008, Officer Christopher Evan Love
(Officer Love) of the Hendricks County Sheriff’s Department, was dispatched
to the White Castle restaurant in Camby after a restaurant employee reported
that “there was an intoxicated male in the drive-thr[u] causing problems, being
belligerent.” (Appellant’s App. p. 59). When Officer Love arrived at White
Castle, he located the reportedly intoxicated driver—later identified as
Marlow—parked in front of the drive-thru window. 2 Officer Love walked up to
Marlow’s vehicle and tapped on the passenger-side window, observing that
Marlow “appeared to be kind of dazed or intoxicated.” (Appellant’s App. p.
60). Officer Love detected the odor of alcohol on Marlow’s breath, and
Marlow, whose speech was slurred, admitted that he had been drinking. At
Officer Love’s request that he submit to field sobriety tests, Marlow “staggered
from his vehicle.” (Appellant’s App. p. 60).
[7] Before initiating the field sobriety testing, Officer Love recognized that
Marlow’s vehicle was blocking the drive-thru lane, and a long line had formed.
Thus, Officer Love secured Marlow in handcuffs—informing him that he was
not yet under arrest—and instructed Marlow to stand in front of his squad car
while he moved Marlow’s vehicle out of the way. After moving Marlow’s
vehicle, Officer Love intended to resume his investigation of Marlow for
operating while intoxicated (OWI). However, Marlow, with his hands cuffed
2
Marlow admitted in his deposition that he has never held a valid driver’s license. Officer Love also noted
in his Probable Cause Affidavit that the registration on Marlow’s vehicle was “[f]alse/[f]ictitious.”
(Appellant’s App. p. 159).
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behind his back, took off running across the White Castle parking lot towards
State Road 67—a four-lane highway divided by a grassy median. Officer Love
pursued Marlow on foot, but after making it safely across the northbound lanes
of traffic, Marlow was struck twice in the southbound lanes by two motorists,
Beth St. John (St. John) and Harvey Higginbotham (Higginbotham). After
Marlow was transported to Wishard Memorial Hospital in Indianapolis, a
blood draw was performed, which revealed that his blood alcohol content
(BAC) was 0.206%. Another blood sample was taken at 5:17 a.m., which
indicated that Marlow’s average BAC was 0.158%. 3
[8] As a result of the collisions, Marlow sustained a broken leg, a broken arm,
broken ribs, a fractured skull, and brain trauma. He spent more than three
months recovering in the hospital. According to Marlow, he can no longer
write, he has no sense of smell or taste, and he suffers from both short-term and
long-term memory loss. Marlow claims to have no recollection of the events
that occurred on July 12-13, 2008.
3
“A person who operates a vehicle with an alcohol concentration equivalent to at least eight-hundreds (0.08)
gram of alcohol but less than fifteen-hundredths (0.15) gram of alcohol per . . . one hundred (100) milliliters
of the person’s blood . . . commits a Class C misdemeanor.” Ind. Code § 9-30-5-1(a)(1) (2008). However,
“[a] person who operates a vehicle with an alcohol concentration equivalent to at least fifteen-hundredths
(0.15) gram of alcohol per . . . one hundred (100) milliliters of the person’s blood . . . commits a Class A
misdemeanor.” I.C. § 9-30-5-1(b)(1) (2008).
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[9] On July 12, 2010, Marlow filed his First Amended Complaint for Damages
against the Bar, St. John, and Higginbotham. As against the Bar, Marlow
alleged that it violated Indiana’s Dram Shop Act, specifically contending that
employees or agents of [the Bar] negligently, wrongfully and
unlawfully served intoxicating liquor to [Marlow] while
[Marlow] was in a visible state of intoxication, and continued to
sell such liquors to [Marlow] even though they knew or should
have known that doing so increased the danger that [Marlow]
would act in an unpredictable and/or unreasonable manner.
(Appellant’s App. p. 31). With respect to St. John and Higginbotham, Marlow
claimed that his injuries were the direct and proximate result of their
“negligence and carelessness” in the operation of their vehicles. (Appellant’s
App. p. 37).
[10] On October 30, 2014, the Bar filed a Motion for Summary Judgment. In a
memorandum accompanying its motion, the Bar asserted that it could not be
held liable under the Dram Shop Act as a matter of law because there is no
evidence that the Bar had actual knowledge that Marlow was visibly
intoxicated at the time he was served an alcoholic beverage. In addition, the
Bar claimed that it was entitled to summary judgment because Marlow’s own
conduct constituted an intervening act such that the Bar’s actions were not the
proximate cause of Marlow’s injuries. On March 2, 2015, the trial court
conducted a hearing, and on March 9, 2015, the trial court granted summary
judgment in favor of the Bar. The trial court found “that [Marlow] has no
evidence to show that [the Bar] had any actual knowledge that [Marlow] was
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intoxicated at the time he was furnished an alcoholic beverage(s) by [the Bar’s]
[e]mployees.” (Appellant’s App. p. 11).
[11] On March 30, 2015, Marlow filed a motion to certify the trial court’s Order for
interlocutory appeal, which the trial court granted on March 31, 2015. On May
22, 2015, we accepted jurisdiction of Marlow’s appeal. Additional facts will be
provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[12] In reviewing the trial court’s award of summary judgment, we rely on the same
standard as utilized by the trial court: summary judgment is appropriate “if the
designated evidentiary matter shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Ind. Trial Rule 56(C); Murdock v. Fraternal Order of Eagles, 779 N.E.2d
964, 967 (Ind. Ct. App. 2002), reh’g denied, trans. denied. In making this
determination, we may only consider the evidentiary matter that the parties
have specifically designated to the trial court. Vanderhoek v. Willy, 728 N.E.2d
213, 215 (Ind. Ct. App. 2000). We will construe all of the designated materials
and factual inferences in favor of the non-moving party. Id. “Witness
credibility and the relative apparent weight of evidence are not relative
considerations at summary judgment.” Pierson ex rel. Pierson v. Serv. Am. Corp., 9
N.E.3d 712, 715 (Ind. Ct. App. 2014), trans. denied. In addition, we note that
the trial court did not enter special findings of fact and conclusions thereon but
did make one partial finding in support of its judgment. Therefore, “we treat
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the judgment as a general one merely supported by [a] partial finding[] and will
affirm on any theory.” Booker, Inc. v. Morrill, 639 N.E.2d 358, 361 (Ind. Ct.
App. 1994).
[13] Where, as here, the defendant is the party moving for summary judgment, “the
defendant must show that the undisputed facts negate at least one element of
the plaintiff’s cause of action or that the defendant has a factually unchallenged
affirmative defense that bars the plaintiff’s claim.” Pierson ex rel. Pierson, 9
N.E.3d at 714-15. Once the movant “has met this burden with a prima facie
showing, the burden shifts to the nonmoving party to establish that a genuine
issue does in fact exist.” Merchants Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc.,
741 N.E.2d 383, 386 (Ind. Ct. App. 2000). “A genuine issue of material fact
exists where the facts concerning an issue that would dispose of the litigation
are in dispute or where the undisputed material facts are capable of supporting
conflicting inferences on such an issue.” Vanderhoek, 728 N.E.2d at 215.
Where the facts are undisputed, summary judgment is nevertheless
inappropriate if “the record reveals an incorrect application of the law to the
facts.” Id.
[14] Furthermore, the trial court granted the Bar’s motion for summary judgment,
and this determination is “‘clothed with a presumption of validity.’” Murdock,
779 N.E.2d at 967. Thus, Marlow “has the burden of persuading [our] court
that the entry of summary judgment was erroneous.” Ward v. D & A Enterprises
of Clark Cnty., Inc., 714 N.E.2d 728, 729 (Ind. Ct. App. 1999). While summary
judgment is rarely appropriate in negligence cases, it is proper “when the
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undisputed material evidence negates one element of a negligence claim.”
Meyer v. Beta Tau House Corp., 31 N.E.3d 501, 508 (Ind. Ct. App. 2015). In
order to prevail on a negligence claim, a plaintiff must establish “that (1) the
defendant owed plaintiff a duty, (2) the defendant breached that duty, and (3)
plaintiff’s injury was proximately caused by the breach.” Id. For purposes of
this case, “[t]he duty to conduct oneself to avoid harm from another person’s
intoxication is embodied in Indiana’s Dram Shop Act.” Pierson ex rel. Pierson, 9
N.E.3d at 715.
II. Indiana’s Dram Shop Act
[15] Indiana’s Dram Shop Act “represents a legislative judgment and the declared
public policy of this state that providers of alcoholic beverages should be liable
for the reasonably foreseeable consequences of knowingly serving visibly
intoxicated persons.” Id. at 716. At the time of the incident, the Dram Shop
Act provided 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.” I.C. § 7.1-5-10-15(a)
(2004). 4 Upon a violation of this provision, a person or entity is subject to civil
liability “for damages caused by the impairment or intoxication of the person
who was furnished the alcoholic beverage” if:
4
Effective July 1, 2014, the Dram Shop Act was amended to provide that “[a] person who, knowing that
another person is intoxicated, sells, barters, delivers, or gives away an alcoholic beverage to the intoxicated
person commits a Class B misdemeanor.” I.C. § 7.1-5-10-15(a) (2014).
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(1) the person furnishing the alcoholic beverage 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
(2) 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.
I.C. § 7.1-5-10-15.5(b) (2004). The furnisher of alcohol may be held liable for
the damages sustained by third parties as well as those incurred by the
intoxicated person himself. See I.C. § 7.1-5-10-15.5(c) (2004) (applying in
situations where the intoxicated person is at least twenty-one years old and
“suffers injury or death proximately caused by the person’s voluntary
intoxication”).
A. Actual Knowledge of Visible Intoxication
[16] Marlow claims that the trial court erroneously granted summary judgment in
favor of the Bar because there is a genuine issue of material fact as to whether
the Bar had actual knowledge that Marlow was visibly intoxicated at the time
he was furnished alcohol by the Bar’s employees. It is well established that
actual knowledge of visible intoxication “is judged by a subjective standard.”
Ward, 714 N.E.2d at 729-30.
Absent an admission that the person furnishing alcohol had
actual knowledge of the other’s intoxication, the trier of fact must
look to reasonable inferences based upon an examination of the
surrounding circumstances. Actual knowledge of intoxication
can be inferred from indirect or circumstantial evidence such as
“what and how much the person was known to have consumed,
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the time involved, the person’s behavior at the time, and the
person’s condition shortly after leaving.” Where, however, there
is insufficient evidence to support actual knowledge, the issue
may be resolved as a matter of law.
Delta Tau Delta, Beta Alpha Ch. v. Johnson, 712 N.E.2d 968, 974 (Ind. 1999)
(internal citations omitted), declined to follow on other grounds by Paragon Family
Rest. v. Bartolini, 799 N.E.2d 1048 (Ind. 2003).
[17] In the present case, looking to the Bar’s designated materials, we find no
evidence to conclusively establish how much alcohol Marlow consumed that
night or whether he consumed alcohol anywhere other than the Bar. In his
deposition, Kevin indicated that he witnessed either a “[b]artender or server”
furnishing alcohol to Marlow at the Bar. (Appellant’s App. p. 100). However,
other than Henderson’s recollection that Marlow “was in a good mood” and
was possibly served one Jägerbomb, there is no evidence from any other
employees of the Bar about furnishing alcohol to Marlow or Marlow’s
condition at the time he was served. (Appellant’s App. p. 56). Although he
recalled speaking with Marlow on the night of the accident, Henderson could
not remember whether he had personally served alcohol to Marlow and further
stated that Marlow was only at the Bar long enough to consume one beverage
and had discussed drinking at other establishments that evening. Accordingly,
the Bar maintains that summary judgment was properly granted because
“[t]here was absolutely no evidence presented to the [t]rial [c]ourt of any actual
knowledge on the part of the employees of [the Bar] that Marlow was ‘visibly
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intoxicated’ when he was served with any alcoholic beverages on the night in
question.” (Appellee’s Br. p. 11).
[18] In response, Marlow points to the deposition of Kevin, who “sensed that
Marlow was intoxicated because he was acting a little bit out of character”—
i.e., Marlow seemed intoxicated because he was “socializing with people,”
whereas he is generally a quiet, “stick-to-himself kind of guy.” (Appellant’s
App. pp. 49, 79). Marlow also cites to a statement by Matthew that “Marlow
appeared to be more intoxicated than he had ever seen him in the past” and
believed that Marlow “was most likely drinking liquor and beer in large
quantities.” (Appellant’s App. p. 106). However, this evidence provides no
indication as to the subjective knowledge of the Bar at the time Marlow was
served an alcoholic beverage. Absent any indicia of impairment, it is
unreasonable to expect the Bar to recognize a patron’s deviation from a normal
character trait as a sign of visible intoxication. See Delta Tau Delta, 712 N.E.2d
at 974-75 (finding insufficient evidence of visible intoxication where the record
demonstrated that the allegedly intoxicated individual “may have been more
talkative than usual, but he was not rowdy or stumbling or having verbal
difficulties”).
[19] Nonetheless, the toxicology evidence reveals that within two hours after the
accident, Marlow’s BAC was 0.206%. A subsequent blood draw revealed an
average BAC of 0.158%. The evidence establishes that Marlow was still at the
Bar when Matthew and Kevin departed at approximately 1:00 a.m. The record
is silent as to how long Marlow remained at the Bar thereafter, but it is
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undisputed that he was causing a disturbance at a nearby White Castle at 2:30
a.m. At that time, Officer Love observed numerous signs of intoxication on
Marlow: the odor of alcohol, slurred speech, glassy eyes, and unsteady balance.
[20] In addition, Marlow designated as evidence the opinions of his two expert
witnesses: Major Mark Willingham (Major Willingham) and Dr. Eldon H.
Nyhart, Jr. (Dr. Nyhart). 5 According to Major Willingham:
Assuming that Mr. Marlow began drinking at [the Bar] at
11:00PM, he would reasonably have been served and consumed
approximately [nineteen] standard drink units (SDU) (one SDU
is the equivalent of one [twelve-]ounce standard beer) in order to
achieve a 0.153g% BAC at the time of the blood draw at 5:17AM
at Wishard Memorial Hospital, some 6 ¼ hours after he
reasonable [sic] began drinking the previous evening. Not only is
the service of [nineteen] SDUs in this short period of time
unreasonable and negligent, that level of alcohol service would
have yielded a BAC of as much as 0.20g% during the time he
was at [the Bar] and as much as 0.206[%] at the time Mr. Marlow
was at the White Castle [r]estaurant.
(Appellant’s App. p. 120). Major Willingham further expressed:
Between 0.13-0.15[%] BAC, more likely than not Mr. Marlow
would have evident impairment of his gross motor control while
in [the Bar]. Mr. Marlow may suffer from blurred vision and
would evidence loss of balance. Mr. Marlow’s euphoria would
5
Major Willingham, a graduate of the FBI National Academy, is a Ph.D. candidate focusing on
“responsible alcohol sales procedures” and provides expertise “in Dram Shop cases, underage sales and
alcoholic beverage premises liability matters.” (Appellant’s App. p. 141). Dr. Nyhart has a Ph.D. in
Biopharmaceutics and Pharmacokinetics and is an expert in matters of “absorption, distribution, metabolism,
elimination and effects associated with chemical entities in biological systems.” (Appellant’s App. p. 165).
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be dropping and his anxiety and restlessness may be beginning to
appear. Mr. Marlow’s judgment and perception would be
severely impaired.
Between 0.16[%] and 0.19[%] BAC, more likely than not Mr.
Marlow would transition to a feeling of being unhappy and his
anxiety, depression and restlessness would increase. Mr. Marlow
would exhibit the appearance of a “sloppy drunk.”
(Appellant’s App. p. 120) (footnotes omitted). Similarly, based on the
toxicology evidence and using reverse extrapolation, Dr. Nyhart submitted an
affidavit, opining that “[a]t the end of his first hour at [the Bar], [Marlow]
would have exhibited a BAC of 0.13[%]” and “[a]s he drank more alcohol, the
alcohol would have continued accumulating in his body until it reached
0.25[%].” (Appellant’s App. p. 166). In order to achieve a BAC of 0.25% by
1:15 a.m., Dr. Nyhart calculated that Marlow would have needed to consume
“approximately 176g of alcohol . . . over a [two] hour period” which
“corresponds to approximately [twelve] shots of 80 proof alcohol or its
equivalent.” (Appellant’s App. p. 170). Thus, Dr. Nyhart stated that, in his
“professional opinion, to a reasonable degree of scientific probability,”
“Marlow was visibly intoxicated during his stay at [the Bar] and that the
person(s) serving him alcohol would have had actual knowledge of this
intoxication . . . . These behaviors would have been present while Marlow was
at White Castle after leaving [the Bar].” (Appellant’s App. p. 166).
[21] We find the present case to be similar to Booker, Inc., 639 N.E.2d at 358. In
Booker, Inc., after an individual left a tavern, where he had consumed “at least
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eight to ten beers and three shots of peppermint schnapps[,]” he was killed in a
car accident. Id. at 360. When the decedent’s wife sued the tavern for the
negligent provision of alcohol, the bartenders testified that the decedent had not
exhibited any signs of intoxication. Id. However, the BAC of the decedent at
the time of the accident was 0.21%, and the decedent’s wife presented the
opinion of a toxicologist that any person with such a BAC “will exhibit physical
signs of intoxication. Among those signs are a loss of hand-eye coordination,
impaired balance, stumbling, staggering gait, drowsiness, mental confusion,
disorientation, exaggerated emotional state, blurred vision, and loss of
consciousness.” Id. Our court found that the toxicologist’s testimony was
circumstantial evidence that [the decedent] was exhibiting signs
of intoxication at the time the bartenders provided him with
alcohol. The fact that the bartenders along with other witnesses
denied such manifestations is not controlling. The court was free
to disbelieve that testimony and to conclude instead that based
on the amount of alcohol [the decedent] consumed and the
behavior he must have been exhibiting at the time in question,
the bartenders knew [he] was visibly intoxicated yet continued to
serve him with alcohol.
Id. at 362.
[22] Here, as in Booker, Inc., it is undisputed that Marlow consumed at least one
alcoholic beverage at the Bar. Thereafter, Officer Love observed numerous
signs of impairment, including slurred speech, watery/bloodshot eyes, and
unsteady balance, and Marlow was involved in two serious collisions after
running onto a highway. Also, Marlow subsequently registered a BAC of
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0.206% and 0.158%, which two experts opined would have caused him to
exhibit visible indicia of intoxication at the Bar. Based on the “independent
evidence of [Marlow’s] level of intoxication”—notwithstanding whether
Henderson or any other Bar employee acknowledges that Marlow exhibited
visible signs of intoxication at the time he was served—a trier of fact could
reasonably infer that Marlow was visibly intoxicated when the Bar served him
alcohol and that the Bar did so with actual knowledge of his intoxication.
Murdock, 779 N.E.2d at 969; see Vanderhoek, 728 N.E.2d at 217 (finding that “a
trier of fact could reasonably infer” actual knowledge of visible intoxication
where, shortly after consuming at least three beers at the bar, the intoxicated
individual was involved in an accident, failed several sobriety tests, and
registered a BAC of 0.15%).
[23] Moreover, regardless of any evidence indicating that Marlow might have
consumed alcohol elsewhere prior to the accident, “it is the role of the fact-
finder to determine whether any one drink was served to [Marlow] by someone
[at the Bar] knowing him to be visibly intoxicated.” Pierson ex rel. Pierson, 9
N.E.3d at 719; see Ward, 714 N.E.2d at 730 (finding that it was the bar’s
“responsibility as the moving party to establish the non-existence of every
material question of fact” and “as long as ‘it is unknown where [the intoxicated
individual] consumed alcohol sufficient to register a [BAC of 0.22%],’ [the bar]
has failed to meet this responsibility”). Accordingly, viewing the evidence most
favorably to Marlow, we find the fact that the Bar “served even one [drink] to a
person who shortly thereafter was in a serious state of intoxication gives rise to
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a question of fact whether [Marlow] was visibly intoxicated at the time.” Ward,
714 N.E.2d at 730. Summary judgment on this issue was improper.
B. Proximate Cause
[24] “[E]ven though a proprietor may have a statutory duty to refrain from
providing alcoholic beverages to intoxicated persons, the proprietor will not be
held liable unless the alleged violation is the proximate cause of the person’s
death or injury.” Merchants Nat’l Bank, 741 N.E.2d at 389; see I.C. § 7.1-5-10-
15.5(b)(2) (2004). Thus, “[p]roximate cause places an effective limit on dram
shop liability[.]” Pierson ex rel. Pierson, 9 N.E.3d at 716 (alteration in original).
Accordingly, notwithstanding whether the Bar breached its statutory duty under
the Dram Shop Act by serving alcohol to a visibly intoxicated Marlow, the Bar
maintains that it is entitled to judgment as a matter of law because its breach
was not the proximate cause of Marlow’s injuries.
[25] “A party’s act is the proximate cause of an injury if it is the natural and
probable consequence of the act and should have been reasonably foreseen and
anticipated in light of the circumstances.” Fast Eddie’s v. Hall, 688 N.E.2d 1270,
1274 (Ind. Ct. App. 1997), reh’g denied, trans. denied. “To be considered a
proximate cause, the negligent act must have set in motion a chain of
circumstances which, in natural and continuous sequence, led to the resulting
injury.” Merchants Nat’l Bank, 741 N.E.2d at 389. However, the “willful,
malicious criminal act of a third party” constitutes “an intervening act which
breaks the causal chain between the alleged negligence and the resulting harm.”
Fast Eddie’s, 688 N.E.2d at 1274. As our court has previously stated, “[t]he
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foreseeability of an intervening cause and, thus, whether a defendant’s conduct
is a proximate cause of the plaintiff’s injury, presents a question of fact for the
jury.” Pierson ex rel. Pierson, 9 N.E.3d at 716. Yet, proximate cause is a
question of law suitable for summary judgment “where only a single conclusion
can be drawn from the facts.” Fast Eddie’s, 688 N.E.2d at 1274.
[26] The Bar asserts that “[i]t is extremely tenuous to try and argue that any
intoxication on the part of Marlow and th[e] subsequent actions which occurred
in this case were foreseeable to the employees of [the Bar].” (Appellee’s Br. p.
14). Specifically, “Marlow’s own criminal actions in attempting to flee the
police and thus getting struck by two vehicles while running across a major
highway in Hendricks County caused his injuries and thus broke any chain of
causation between any alleged negligence on the part of [the Bar] (which is
refuted anyway) and the injuries of Marlow.” (Appellee’s Br. p. 14). Marlow,
in turn, claims that the trial court erred in granting summary judgment because
“[i]t was foreseeable that a person in a high level of intoxication will attempt to
flee from the police as Marlow did.” (Appellant’s Br. p. 26).
[27] The Bar claims that the present situation is analogous to Fast Eddie’s, 688
N.E.2d at 1274-75, in which our court concluded that the trial court should
have entered summary judgment in favor of a tavern. In Fast Eddie’s, after
consuming alcoholic beverages at the tavern, the defendant sexually assaulted
and murdered the woman he had been drinking with at the tavern. Id. We
found that the defendant’s “intentional criminal acts were the intervening cause
of [the woman’s] death which broke the causal chain between [the tavern’s]
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negligence and [the] sexual assault and death.” Id. at 1275. We further stated
that “[u]nlike automobile accidents which occur as the result of alcoholic
beverage consumption, assault and murder are intentional acts of volition
which are the result of an assailant’s deliberate design[,]” and the defendant’s
“criminal intent would have been present whether or not [he] was intoxicated.”
Id.
[28] In the case at hand, there is no question that Marlow disregarded Officer Love’s
instructions and committed a criminal act by fleeing. Nevertheless, according
to Major Willingham:
More likely than not, Marlow’s BAC at the time of his injury
may have been as high as 0.206g%. At such a high level of blood
alcohol, more likely than not Mr. Marlow’s ability to make
rational and appropriate decisions was affected causing him to
act impulsively in running from [Officer] Love and from entering
a paved roadway in the face of oncoming vehicles.
(Appellant’s App. pp. 123-24). Despite the Bar’s contention, we cannot say that
Marlow’s criminal intent would have been present even if he was not
intoxicated. Unlike intentional acts of volition such as murder and assault, an
OWI is the natural and probable consequence of consuming alcoholic
beverages; thus, a tavern should reasonably foresee that an over-served patron
will be subject to an OWI investigation. Based on the evidence presented in
this case, a trier of fact could reasonably infer that Marlow’s intoxication
impaired his judgment to the extent that he fled from his OWI encounter with
Officer Love and disregarded the dangers of running onto a four-lane highway
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in the middle of the night. Because there is a genuine issue of material fact as to
whether the Bar knowingly served alcohol to a visibly intoxicated Marlow, the
proximate cause of which resulted in Marlow’s injuries, we conclude that the
trial court erred in granting the Bar’s motion for summary judgment.
CONCLUSION
[29] Based on the foregoing, we conclude that the trial court erred in granting
summary judgment because there are genuine issues of material fact regarding
whether the Bar had actual knowledge that Marlow was visibly intoxicated
when it served him even one alcoholic beverage and whether the Bar’s conduct
was the proximate cause of Marlow’s injuries. We therefore reverse the trial
court’s entry of summary judgment and remand the case for further
proceedings.
[30] Reversed and remanded.
[31] Altice, J. concurs
[32] Brown, J. dissents with separate opinion
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IN THE
COURT OF APPEALS OF INDIANA
Pamela Marlow, Court of Appeals Case No.
32A01-1504-CT-144
Appellant-Plaintiff,
v.
Better Bars, Inc.,
Appellee-Defendant.
Brown, Judge, dissenting.
[33] While I agree with the majority that the designated evidence shows a genuine
issue of material fact as to whether the Bar had actual knowledge of Marlow’s
visible intoxication, I respectfully dissent from its conclusion that an issue of
fact exists regarding whether the Bar proximately caused Marlow’s injuries.
“Proximate cause is the limitation which courts have placed on the actor’s
responsibility for the consequences of his act or failure to act.” Fast Eddie’s v.
Hall, 688 N.E.2d 1270, 1274 (Ind. Ct. App. 1997), reh’g denied, trans. denied. As
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acknowledged by the majority, “a willful, malicious criminal act of a third party
is an intervening act which breaks the causal chain between the alleged
negligence and the resulting harm,” proximate cause may not be found where
an intervening act is present, and under such circumstances the issue becomes a
question of law appropriate for a court to determine. See id.
[34] In Fast Eddie’s, the manager at the tavern in question asked Michael Lamb to
remove Teresa Hall from the premises because the manager “noticed that Hall
had become heavily intoxicated and was having difficulty sitting up on her bar
stool.” Id. at 1271. Lamb did so and put Hall in the car of his friend, John
Schooley. Id. At one point, Schooley left the tavern and drove to his trailer,
and Hall remained passed out in the passenger seat of his car. Id.
Subsequently, Lamb drove to Schooley’s trailer, noticed Hall in the car, and put
her in his car. Id. Afterward, he drove to the Riley Conservation Club and shot
Hall in the abdomen and head, resulting in her death. Id. There was also
evidence that Hall had been sexually assaulted. Id. Hall’s blood alcohol was
later tested at .23%. Id. Her estate sued the tavern under the Dram Shop Act,
alleging that it violated the act “by serving Lamb and Hall alcoholic beverages
when they were visibly intoxicated.” Id. The tavern filed a motion for
summary judgment which was denied by the trial court. Id. at 1272.
[35] On appeal, this Court held that, “even assuming Fast Eddie’s breached its
statutory duty under the Dram Shop Act, its breach was not the proximate
cause of Hall’s sexual assault and death.” Id. at 1274-1275. The Court first
noted that “the chain of causation in the instant case is extremely tenuous”
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because “[a]lthough Lamb initially escorted Hall out of the tavern, he returned
to the bar after Schooley drove Hall to his trailer” and that it was later in the
evening when he “decided to proceed to Schooley’s home, found Hall passed
out in Schooley’s car and killed her.” Id. at 1275. The court also found that
“even if the chain of causation [was] stronger, Lamb’s intentional criminal acts
were the intervening cause of Hall’s death which broke the causal chain
between Fast Eddie’s negligence and Hall’s sexual assault and death” and that
“[t]herefore, Fast Eddie’s alleged violation of the statute was not the proximate
cause of Hall’s sexual assault and death.” Id.
[36] Although the chain of causation between the acts of serving alcohol to Marlow
and his injuries is less tenuous than in Fast Eddie’s, I believe that the intentional
criminal act of resisting law enforcement by running into the middle of a busy
highway broke the causal chain. The court in Fast Eddie’s recognized the
difference between “automobile accidents which occur as the result of alcoholic
beverage consumption,” and assault and murder, which “are intentional acts of
volition which are the result of an assailant’s deliberate design.” Id. Similarly,
Marlow’s act of running from the police and into the highway was an
intentional act of volition, rather than something which occurred by accident as
a result of his state of intoxication. This criminal intent is not negated by the
fact that Marlow was voluntarily intoxicated. See Sanchez v. State, 749 N.E.2d
509, 520 (Ind. 2001) (noting that, generally, voluntary intoxication does not
negate a criminal actor’s mens rea and in fact satisfies the intent element of the
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crime). The fact that Marlow manifested this criminal intent in the course of an
OWI investigation is immaterial.
[37] The intervening act of Marlow resisting law enforcement by running from the
police and into the middle of a four-lane highway at night leads to the single
conclusion that the Bar was not the proximate cause of Marlow’s injuries. The
Bar was accordingly entitled to summary judgment in its favor. For this reason,
I respectfully dissent from the majority’s conclusion to reverse the trial court’s
grant of summary judgment in the Bar’s favor, and would affirm the trial court.
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