Pamela Marlow v. Better Bars, Inc.
2015 Ind. App. LEXIS 729
| Ind. Ct. App. | 2015Background
- On July 12–13, 2008, Kenneth Marlow was at Bubbaz Bar & Grill (the Bar); coworkers observed he seemed more outgoing and at least one witness saw him consume alcohol there. Marlow later was found creating a disturbance at a White Castle at 2:30 a.m. and exhibited signs of intoxication.
- Officer Love handcuffed Marlow (not under arrest) to move his vehicle; Marlow escaped, ran across a four-lane highway, and was struck by two vehicles, sustaining severe injuries. Post-accident BACs were 0.206% and 0.158%.
- Marlow sued the Bar under Indiana’s Dram Shop Act, alleging the Bar served alcohol to a visibly intoxicated person and that service proximately caused his injuries. Co-defendants included the motorists who struck him.
- The Bar moved for summary judgment arguing (1) no evidence it had actual knowledge Marlow was visibly intoxicated when served, and (2) Marlow’s criminal act of fleeing broke the causal chain (no proximate cause).
- Trial court granted summary judgment for the Bar; the court of appeals reversed and remanded, finding triable issues on actual knowledge and proximate cause. Judge Brown dissented on proximate cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bar had "actual knowledge" that Marlow was visibly intoxicated when served | Marlow: expert toxicology and observations (coworker, later officer observations, high BAC) support an inference the Bar knew he was visibly intoxicated | Bar: no direct employee testimony that Marlow showed visible intoxication when served; evidence insufficient as matter of law | Reversed: factual dispute exists — circumstantial evidence (BAC, expert reverse-extrapolation, later observed impairment) permits a jury to infer actual knowledge |
| Whether Bar's alleged violation was proximate cause of Marlow’s injuries | Marlow: intoxication foreseeably impaired judgment, causing flight from an OWI encounter and resulting in the highway collisions | Bar: Marlow’s intentional criminal act of fleeing and running into highway was an intervening superseding act breaking causation | Reversed: proximate-cause question for jury — intoxication leading to OWI encounter and flight was a foreseeable consequence of over-service (dissent would grant judgment to Bar) |
Key Cases Cited
- Delta Tau Delta, Beta Alpha Ch. v. Johnson, 712 N.E.2d 968 (Ind. 1999) (actual knowledge of visible intoxication can be inferred from circumstantial evidence)
- Booker, Inc. v. Morrill, 639 N.E.2d 358 (Ind. Ct. App. 1994) (toxicology evidence can provide circumstantial proof that bartenders knew patron was visibly intoxicated)
- Pierson ex rel. Pierson v. Serv. Am. Corp., 9 N.E.3d 712 (Ind. Ct. App. 2014) (dram shop duty framed by statute; foreseeability and proximate cause limit liability)
- Fast Eddie’s v. Hall, 688 N.E.2d 1270 (Ind. Ct. App. 1997) (intentional criminal acts by third parties can be an intervening cause breaking the causal chain)
- Murdock v. Fraternal Order of Eagles, 779 N.E.2d 964 (Ind. Ct. App. 2002) (summary judgment standards and burden when defendant moves for judgment)