41 N.E.3d 692
Ind. Ct. App.2015Background
- On July 28, 2007, bartender/cocktail waitress Candice Vowell worked at Brad’s Gold Club (BGC); BGC policy prohibited employees from drinking on shift except one end-of-shift drink.
- After her shift, Vowell consumed at least one end-of-shift shot at BGC, drove home, and struck pedestrian Jerry Buchanan, causing severe injuries; she later pled guilty to operating while intoxicated causing serious bodily injury.
- Vowell’s blood alcohol concentration (BAC) was measured at 0.06% about three hours after the crash; experts extrapolated her BAC at time of the crash to roughly 0.10–0.128% and concluded she must have consumed more alcohol than she admitted.
- Buchanan sued BGC under Indiana’s Dram Shop Act and common-law negligence (including negligent supervision); he also moved for partial summary judgment arguing Vowell’s knowledge of her intoxication should be imputed to BGC.
- BGC moved for summary judgment arguing it lacked actual knowledge that Vowell was visibly intoxicated when she was served; the trial court denied cross-motions for summary judgment, and both sides appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BGC is liable under the Dram Shop Act (actual knowledge of visible intoxication) | Buchanan: Circumstantial evidence (BAC, odor of alcohol, timing, Vowell’s consumption) supports inference BGC knew she was visibly intoxicated when served. | BGC: No evidence that servers observed visible intoxication; toxicologist opined visible signs typically appear at higher BAC; no admission of visible intoxication. | Denied summary judgment for BGC — factual dispute exists whether BGC had actual knowledge of visible intoxication; issue for jury. |
| Whether Vowell’s personal knowledge of intoxication is imputed to BGC (cross-appeal) | Buchanan: As Vowell was the alcohol-furnisher agent, her subjective knowledge of intoxication should be imputed to employer as a matter of law. | BGC: Imputed knowledge does not automatically apply here; plaintiff did not plead vicarious liability and evidence does not show Vowell knew she was intoxicated when served. | Denied Buchanan’s partial summary judgment — material fact remains whether Vowell knew of her intoxication, so imputation as matter of law improper. |
| Whether BGC is liable under common-law negligence (negligent supervision) | Buchanan: Employer had duty to supervise employees, enforce anti-drinking policy, and prevent intoxicated employees from driving; BGC breached that duty. | BGC: Argues Dram Shop standards control; contends no evidence of actual knowledge and/or that statutory scheme preempts common-law claims. | Denied summary judgment for BGC — duty to supervise exists and factual disputes about breach and enforcement make summary judgment inappropriate; negligent supervision claim may proceed. |
Key Cases Cited
- Delta Tau Delta, Beta Alpha Ch. v. Johnson, 712 N.E.2d 968 (Ind. 1999) (actual knowledge of intoxication is judged subjectively; circumstantial evidence can support inference)
- Vanderhoek v. Willy, 728 N.E.2d 213 (Ind. Ct. App. 2000) (Dram Shop Act purposes and summary judgment standards in dram shop contexts)
- Pierson ex rel. Pierson v. Serv. Am. Corp., 9 N.E.3d 712 (Ind. Ct. App. 2014) (credibility and competing intoxication-scenario evidence create factual disputes precluding summary judgment)
- Ward v. D & A Enterprises of Clark Cnty., Inc., 714 N.E.2d 728 (Ind. Ct. App. 1999) (serving even a single drink that precedes serious intoxication can create an issue of fact for dram shop liability)
- Thompson v. Ferdinand Sesquicentennial Comm., Inc., 637 N.E.2d 178 (Ind. Ct. App. 1994) (discusses interplay between statutory dram shop provisions and common-law claims)