Marlow v. Better Bars, Inc. - 45 N.E.3d 1266 (Ind. Ct. App. 2015)

Rule:

Actual knowledge of visible intoxication is judged by a subjective standard. 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, 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.

Facts:

Kenneth Marlow, and his co-workers made plans to meet at the Bar after work. Marlow stayed at the Bar even after his co-worker left. On the other, Officer Love acting on a report that a man, who was identified as Marlow, was causing problems in the restaurant’s drive-thru, went and found Marlow in his car blocking the lane. He cuffed Marlow’s hand informing him that he was not yet under arrest and instructed him to stand in front of his squad car while he moved Marlow's vehicle out of the way. However, Marlow took off running towards a four-lane highway and was struck by motorists and thus sustained injuries. Marlow filed his First Amended Complaint for Damages against appellants, Better Bars, Inc., and the two motorists. As against appellant, Marlow alleged that it violated Indiana's Dram Shop Act, specifically contending that employees or agents of the appellee negligently, wrongfully, and unlawfully served intoxicating liquor while Marlow was in a visible state of intoxication. With respect to motorists, Marlow claimed that his injuries were the direct and proximate result of their negligence and carelessness. Appellee filed a motion for summary judgment to which the trial court granted in favor of appellee as it found that Marlow has no evidence to show that appellee had any actual knowledge that Marlow was intoxicated at the time he was furnished an alcoholic beverages. Plaintiff, Pamela Marlow as guardian and next friend of Marlow appealed the trial court's summary judgment in Marlow's negligence action.

Issue:

Did the trial court err by granting the appellee’s motion for summary judgment after finding that there was no evidence to show that appellee had any actual knowledge that Marlow was intoxicated?

Answer:

Yes. The judgment was reversed and remanded.

Conclusion:

The court held that the deposition of the appellant who sensed that the patron was intoxicated because he was out of character did not provide an indicating as to the subjective knowledge of appellee at the time the patron was served alcohol because absent any indicia of impairment, it was unreasonable to expect appellee to recognize the patron's deviation from a normal character train as a sign of visible intoxication. The court also held that the summary judgment was not proper as it was for the jury to determine whether the patron was visibly intoxicated when appellee served the patron even one drink. Further, the court determined that there was a genuine issue of material fact as to whether the appellee knowingly served alcohol to a visibly intoxicated patron, the proximate cause of which resulted in the patron's injuries, which occurred when he fled from encounter and was hit by two cars.