                                                                         FILED
                                                                    Dec 29 2017, 10:49 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
David W. Westland                                         Joseph G. Bombagetti
Westland & Bennett, P.C.                                  Kelly Law Offices
Hammond, Indiana                                          Crown Point, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Buddy & Pal’s III, Inc.,                                  December 29, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          45A03-1703-CT-465
        v.                                                Appeal from the Lake Superior
                                                          Court
Stephen Shearer,                                          The Honorable Bruce D. Parent,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          45D04-1110-CT-226



Brown, Judge.




Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017                  Page 1 of 17
[1]   Buddy & Pal’s III, Inc., appeals from the trial court’s denial of its motion for

      judgment on the evidence and motion to correct error. Buddy & Pal’s raises

      two issues which we consolidate and restate as whether the trial court erred or

      abused its discretion in denying its motion for judgment on the evidence or its

      motion to correct error. We affirm.


                                       Facts and Procedural History

[2]   Steven Shearer went to a bar operated by Buddy & Pal’s at approximately 10:00

      or 11:00 p.m. on Saturday, January 16, 2010. Richard Coyle also went to the

      bar with Anthony Apato and others at about 10:00 or 10:30 p.m., parked

      behind the building, entered the bar, and danced and had bottles of beer. Coyle

      left the bar a short time before 2:00 a.m., warmed up his truck for five to ten

      minutes, and then pulled his truck around to pick up Apato. Shearer exited

      Buddy & Pal’s. As Coyle’s truck approached the entrance and as the truck was

      moving at approximately three to five miles per hour, Coyle’s truck struck

      Shearer. Coyle kept driving.


[3]   Schererville Police Officer James Janson and other officers were standing on the

      sidewalk in front of the building near the entrance, and Officer Janson heard a

      commotion and people screaming, saw others attempting to attract his

      attention, was told that a pick-up truck had hit a pedestrian, and was pointed to

      the truck. As another officer tended to Shearer, Officer Janson entered his

      police vehicle, caught up with Coyle’s truck which had traveled twenty or

      twenty-five yards to the exit of the parking lot, and activated his lights. Officer


      Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 2 of 17
      Janson exited his police vehicle, approached Coyle and asked him to exit his

      truck, placed Coyle in handcuffs, and had him sit in the back of the police

      vehicle. Officer Janson stood outside the police vehicle while he spoke to

      Coyle. Officer Janson noticed a very strong odor of an alcoholic beverage

      coming from Coyle’s breath, that he was slurring and mumbling a lot, that he

      was spitting quite a bit while he was talking, and that his eyes were red,

      bloodshot, and very droopy. When Officer Janson asked him why he did not

      stop, he replied that he did not know and began to become irritated and use

      expletives. Officer Janson asked Coyle if he would submit to any field sobriety

      tests, a portable breath test, or a certified breath test, and Coyle replied that he

      would not. Officer Janson placed Coyle under arrest for driving while

      intoxicated and for fleeing the scene or hit and run.


[4]   In late October or early November of 2011, Shearer filed an action against

      Buddy & Pal’s and Coyle.1 Coyle settled with Shearer in February of 2015.2 A

      jury trial was held in November 2016 at which the parties presented the

      testimony of Shearer, Shearer’s mother, Officer Janson, Timothy Heidbreder,

      who was the owner of Buddy & Pal’s, and a manager at Buddy & Pal’s. Coyle

      and Apato were not present at the trial, and portions of their depositions were



      1
        The chronological case summary includes an entry on October 27, 2011, stating “Petition for Negligence –
      Other filed in clerks office on 10/25/11,” and an entry on November 1, 2011, stating “Sum & Compl.
      Issued” and listing Coyle and Buddy & Pal’s. Appellant’s Appendix Volume II at 16-17.
      2
        The trial court, in its order of jury trial, states that Shearer had asked that Buddy & Pal’s be prevented from
      introducing evidence of his settlement with Coyle and that the court had denied the request in part, ordering
      that Buddy & Pal’s could introduce the fact that Shearer and Coyle had settled but could not delve into any
      of the parameters of that settlement in the presence of the jury.

      Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017                          Page 3 of 17
      read into evidence, and a video deposition of Dr. Robert Hanlon who had

      examined Shearer was also presented.


[5]   Timothy Heidbreder, the owner of Buddy & Pal’s, testified that Saturdays were

      the bar’s busy nights and that, over the course of the evening, there might be

      175 to 190 people there at one time. He indicated that, other than charging for

      drinks, servers do not keep track of how much a customer is consuming. He

      testified: “Our rule of thumb is, we’ll have ten to twelve to one. In other words,

      if there’s a hundred and twenty people there, we want ten people on the floor,

      whether they’re bartenders, servers, security, people at the door checking ID’s.”

      Transcript Volume II at 54. When asked “[a]nd these shot girls, they sell trays

      of drinks, right,” Heidbreder answered affirmatively. Id. When asked if they

      have quotas to sell for the evening, he answered affirmatively, and when asked

      if the quotas are minimums, he answered “[n]o, not really” and “there’s no

      minimums.” Id. When asked if Buddy & Pal’s had a policy regarding over-

      serving or signs of visible intoxication, Heidbreder replied affirmatively, and

      when asked how that was conveyed to servers and bartenders, he testified that it

      was given to them in written form to read and that the manager reviewed it

      with them line-by-line. He also testified that there were periodic training

      sessions or discussions by managers. The trial court admitted Buddy & Pal’s

      employee policy manual, which stated that certain documents were required to

      be given or returned to the manager prior to the start of employment, including

      Buddy & Pal’s Inc.’s Liquor/Beer Pouring Policy and Responsible Alcohol




      Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 4 of 17
      Service Acknowledgement form, and that certain types of conduct would result

      in immediate termination, including violations of its pouring policy.


[6]   In the portions of his deposition read into evidence, Coyle testified that, prior to

      arriving at Buddy & Pal’s, he and Apato were at a friend’s house and that he

      did not have anything to drink while there. He testified that he drove his truck,

      and Apato rode with him, to Buddy & Pal’s and arrived “closer to ten.” Id. at

      153. Coyle testified he had “about two beers” of Miller Lite, that he did not

      have any shots, that the beer was in bottles, and that he paid using cash. Id. at

      154. When asked “[w]as it out of like the beer tubs or was it from the bar,”

      Coyle answered “[f]rom the bar,” and when asked if he purchased them or if

      someone else bought them for him, he answered “I purchased them.” Id.

      Coyle indicated he felt “fine” when he purchased and paid for his last beverage,

      that he felt “fine” when he left Buddy & Pal’s, and that he was not intoxicated

      after he left. Id. at 147, 155. When asked “[w]hen you got into your . . . truck,

      did you feel the same as you did when you purchased the last beverage,” Coyle

      answered “I felt sober,” and when asked “[w]ould it be the same condition,” he

      replied “[b]etter.” Id. at 147. He indicated that he felt “better” at the time he

      entered and began to drive his truck than when he purchased his last beverage.

      Id. Coyle testified “I heard people screaming like whoa, whoa, whoa, and

      that’s when I pulled up and by the time I got it in park, a cop got me” and “I

      had pulled right up and as I put it in park he was already there” and “[h]e

      pulled right there and he yanked me out of the truck.” Id. at 156-157.




      Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 5 of 17
[7]   Officer Janson testified that he had been a police officer for thirteen and one-

      half years and his duties included driving while intoxicated and alcohol related

      offenses, and he described signs of alcohol impairment. He testified that Buddy

      & Pal’s closed at 2:00 a.m. and officers were present in the parking lot to make

      sure there were no problems. Officer Janson testified that, after he was pointed

      to the truck, he went after and caught up to Coyle, that “[i]t’s not a huge

      parking lot but he probably made it maybe twenty, twenty-five yards and then

      he got to the exit where you edge the parking lot onto Route 30,” that “because

      everybody was leaving the bar the entrance and exit there was all just

      bottlenecked up with cars leaving and that’s as far as he could go,” and that

      “[h]e couldn’t go any further than that” and “[h]e got stuck in that traffic.”

      Transcript Volume II at 94. Officer Janson testified that he detected “a very

      strong odor” of an alcoholic type beverage coming off of Coyle’s breath, Coyle

      was slurring and mumbling a lot, he was spitting quite a bit while he was

      talking,3 and his eyes were red, bloodshot, and very droopy. Officer Janson

      testified that, when he told Coyle that he thought he had hit a pedestrian in the

      parking lot, Coyle said “I know I did and then he began to cry.” Id. at 95. He

      testified that he asked Coyle why he did not stop if he knew that he struck

      somebody and that Coyle responded “I don’t know” and started to become a

      little irritated and use expletives. Id. He testified that, based on his education,

      training, and experience, the signs he observed of Coyle matched those he was



      3
       Officer Janson testified “this must have been significant because I don’t usually document this in my report
      but he was spitting quite a bit while he was talking.” Transcript Volume II at 94.

      Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017                      Page 6 of 17
      taught to observe with regard to alcohol impairment. Officer Janson indicated

      that he arrested Coyle for operating while intoxicated and for fleeing the scene

      or hit and run. The probable cause affidavit indicated that Coyle struck a

      pedestrian with his vehicle in the Buddy & Pal’s parking lot, the accident

      involved a personal injury, and Coyle left the scene of the accident and

      operated a vehicle while intoxicated. On cross-examination, Officer Janson

      agreed that, according to Coyle’s plea agreement, Coyle pled guilty to the

      charge of failure to stop and the charge, as amended from operating while

      intoxicated, to reckless driving.


[8]   In the video deposition of Dr. Hanlon played for the jury, Dr. Hanlon testified

      that he was a clinical neuropsychologist and that he performed an evaluation of

      Shearer on October 9, 2013, which included a review of his medical records, an

      interview of Shearer’s mother, and an interview and series of tests of Shearer.

      Dr. Hanlon testified that, following his evaluation, he diagnosed Shearer as

      having somatic symptom disorder and testified that the stress Shearer

      experienced following the accident was the triggering element that resulted in

      his disorder. Dr. Hanlon testified that he did not doubt that Shearer

      experienced physical pain and symptoms at the time of the accident and

      afterwards but that “over time . . . that then just morphed into as he physically

      recovered from it, it converted from the true physical symptoms into

      psychologically based complaints” and stated that some persons with the

      disorder do not believe they have a psychiatric condition, they strongly believe

      that they have a physical disorder, and “[t]hey generally will resist attempts by


      Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 7 of 17
      doctors, psychologists, psychiatrists, neurologists, etcetera to convince them

      that their condition is actually a psychiatric one and not a physical one.” Id. at

      172. On cross-examination, Dr. Hanlon indicated that Shearer’s cognitive

      functions are all intact, that he performed consistently within normal limits with

      respect to all cognitive intellectual functions, and there was no evidence of brain

      injury.


[9]   Shearer testified on cross-examination that he was not sure what Dr. Hanlon

      diagnosed him with and that he was not familiar with Dr. Hanlon’s diagnosis.

      Shearer indicated that he did not know whether Dr. Hanlon had said that he

      had somatic symptom disorder. Shearer indicated that Dr. Hanlon did not

      communicate to him that the pain he said he was experiencing was generated

      by his mind or psyche, and when asked if anyone had told him that, he

      answered “like some relatives or they might say like they think it’s all in my

      head” and that he “would explain to them that it’s – it’s to my back. I know

      this – You know, it’s my back and my neck and my head.” Id. at 220-221.

      Shearer indicated that he did not believe that his injuries were all in his head.

      Counsel for Buddy & Pal’s asked Shearer “[a]re you asking the jury to award

      you money for an injury - this Somatic Symptom Disorder,” and Shearer

      replied “[n]o sir, I am not.” Id. at 221. When asked “[a]re you asking for the

      physical injuries you’re . . . claiming,” he stated “[u]m, I’m not sure that I’m

      asking for that,” and when asked “[f]or the physical injury,” he said “[y]eah,

      not particularly, just that, you know, itself.” Id. When asked “[b]ut, you’re

      sure you’re not asking for the Somatic Symptom Disorder,” he answered


      Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 8 of 17
       “[y]eah, I’m not - I’m not asking for that.” Id. On redirect examination,

       Shearer’s counsel asked Shearer if he was asking the jury to hold Buddy & Pal’s

       accountable for what it did to him, Shearer responded affirmatively, and when

       asked if he was asking the jury “to take into consideration the impact your

       injuries have had on your life,” Shearer replied “[y]es. Yes, I am.” Id. at 223.


[10]   After Shearer rested, Buddy & Pal’s filed a motion for judgment on the

       evidence arguing that no evidence was offered which raises a jury issue on the

       allegations of negligence contained in Shearer’s complaint, that Shearer testified

       that he is not pursuing a claim for a mental health injury, and that the question

       of whether Buddy & Pal’s conduct was the cause of a mental health injury

       sustained by Shearer should not be submitted to the jury. Counsel for Buddy &

       Pal’s argued that Officer Janson was not inside Buddy & Pal’s and that Shearer

       did not present evidence that Coyle was visibly intoxicated while inside or that

       Buddy & Pal’s had any knowledge that he was visibly intoxicated. Counsel for

       Buddy & Pal’s further argued that Shearer was fully capable of making

       decisions for himself and “deciding for himself what claims he’s going to pursue

       and what claims he’s not going to pursue,” and that Shearer indicated on cross-

       examination that he was not asking the jury to award damages for his somatic

       symptom disorder. Transcript Volume III at 31. In response, Shearer’s counsel

       argued that Shearer testified he is seeking money damages for the pain and the

       limitations which he is experiencing, that Dr. Hanlon testified as to what is

       causing that, and that Shearer met the necessary elements to pursue a claim of

       damages based upon his pain limitations which are caused by his disorder.


       Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 9 of 17
       Shearer’s counsel also argued that the jury heard Officer Janson’s testimony

       and Coyle’s statement that the crash occurred five or ten minutes after he left

       the bar. The trial court denied Buddy & Pal’s motion.


[11]   In the portions of his deposition read into evidence, Apato testified that he did

       not observe Coyle drinking prior to going to Buddy & Pal’s. Apato stated that

       he and Coyle arrived at Buddy & Pal’s at around 10:30 p.m., that they met

       other friends there, and that he and Coyle were not together the entire time.

       Apato testified, when asked how much Coyle had to drink, “I’m not 100

       percent” and “I’ve seen him drink like a beer.” Id. at 60. Apato testified Coyle

       “seemed fine” before he left the bar. Id. at 62. When asked to describe the

       accident, Apato testified that Coyle “like went down to his middle console like

       he dropped something” and “went to pick it up and then this kid was coming

       this way, but he was looking the opposite way and not paying attention to the

       truck.” Id. at 63. Apato also stated that Shearer looked like he had been

       drinking a lot.


[12]   The jury determined that Shearer was seventeen percent at fault, Buddy & Pal’s

       was twenty-one percent at fault, and Coyle was sixty-two percent at fault,

       awarded total damages of $155,000, and awarded damages against Buddy &

       Pal’s in the amount of $32,550. On November 16, 2016, the trial court entered

       judgment consistent with the jury verdict. Buddy & Pal’s filed a motion to

       correct error arguing that the court erred in denying its motion for judgment on

       the evidence and that the jury verdict was excessive. In its order denying the

       motion to correct error, the court noted that the probable cause affidavit in

       Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 10 of 17
       connection with Coyle’s arrest described the arresting officer’s observations;

       observed that Shearer does not have the background, education, or the

       necessary level of mental health to know what condition he had been diagnosed

       with, much less to testify related to the condition, his understanding of it, and

       as to whether or not he agreed with Dr. Hanlon’s diagnosis; stated there was

       testimony that, due to the circumstances of his unique mental health, Shearer

       was unable to advocate for himself on this issue and thus the court did not

       preclude his attorney advocating this position on his behalf; and observed that

       Shearer correctly argued he sought recovery from Buddy & Pal’s for injuries

       beyond somatic stress disorder and that the jury did not break out damages

       based upon each individual injury that it believed was suffered by Shearer.


                                                    Discussion

[13]   The issue is whether the trial court erred or abused its discretion in denying

       Buddy & Pal’s motion for judgment on the evidence or its motion to correct

       error. Ind. Trial Rule 50 provides that a motion for judgment on the evidence

       shall be granted “[w]here all or some of the issues in a case . . . are not

       supported by sufficient evidence or a verdict thereon is clearly erroneous as

       contrary to the evidence because the evidence is insufficient to support it . . . .”

       Ind. Trial Rule 50(A). “A motion for judgment on the evidence should be

       granted only when there is a complete failure of proof because there is no

       substantial evidence or reasonable inference supporting an essential element of

       the claim.” Belork v. Latimer, 54 N.E.3d 388, 394 (Ind. Ct. App. 2016) (citations

       and internal quotation marks omitted). Upon appellate review of a trial court’s

       Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 11 of 17
       ruling on such a motion, the reviewing court must consider only the evidence

       and reasonable inferences most favorable to the nonmoving party. Id. at 394-

       395. Also, we review rulings on motions to correct error for an abuse of

       discretion. Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind.

       2008), reh’g denied.


[14]   Buddy & Pal’s argues that no evidence was presented to show that it had actual

       knowledge of Coyle’s intoxication at the time of serving him. It argues that,

       while the evidence shows Coyle was at Buddy & Pal’s for approximately three

       and one-half to four hours, it did not show when Coyle purchased his alcoholic

       beverages. It contends that Officer Janson’s observations could have been

       hours after Coyle was last served alcohol. Also, Buddy & Pal’s states that it

       does not dispute that Shearer has somatic symptom disorder but asserts that

       Shearer, with full cognitive function and ability, decided not to pursue the

       injury advanced by his counsel.


[15]   Shearer maintains that proof of actual knowledge may be made by

       circumstantial evidence, that Coyle consumed alcohol only at Buddy & Pal’s,

       and that Officer Janson observed Coyle immediately after the accident. He

       argues that the jury was presented with conflicting statements from Coyle and

       Officer Janson, that the jury was not required to take Coyle at his word

       regarding how much he had to drink, and that it was reasonable based on

       Officer Janson’s testimony to conclude that Coyle was exhibiting signs of

       visible intoxication at the time he purchased his last alcoholic beverage. He

       argues that Coyle purchased each of his alcoholic beverages from a bartender

       Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 12 of 17
       and that no one else purchased drinks for him. Shearer also maintains that,

       regardless of his normal cognitive functions, he is not a qualified medical expert

       and is in no way qualified to determine his own injuries; that while he claimed

       he was seeking recovery for his shoulder injury rather than his mental disorder,

       “the two are one in the same”; and that he sought recovery for injuries in

       addition to the mental disorder. Appellee’s Brief at 25.


[16]   Indiana’s Dram Shop Act “represents a legislative judgment that providers of

       alcoholic beverages should be liable for the reasonably foreseeable

       consequences of knowingly serving alcohol to visibly intoxicated persons.”

       BGC Entm’t, Inc. v. Buchanan ex rel. Buchanan, 41 N.E.3d 692, 697 (Ind. Ct. App.

       2015), trans. denied. At the time of the accident, Ind. Code § 7.1-5-10-15(a)

       provided: “It 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.” (Subsequently amended by

       Pub. L. No. 159-2014, § 80 (eff. Jul. 1, 2014)). Further, Ind. Code § 7.1-5-10-

       15.5 provided in part that, in order to be held civilly liable, the person

       furnishing the alcoholic beverage must have “had actual knowledge that the

       person to whom the alcoholic beverage was furnished was visibly intoxicated at

       the time the alcoholic beverage was furnished.”


[17]   The furnisher’s knowledge must be judged by a subjective standard. Delta Tau

       Delta, Beta Alpha Chapter v. Johnson, 712 N.E.2d 968, 974 (Ind. 1999) (citing

       Gariup Constr. Co. v. Foster, 519 N.E.2d 1224, 1229 (Ind. 1988)), abrogated on

       other grounds. Absent an admission that the person furnishing alcohol had

       Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 13 of 17
       actual knowledge of the other’s intoxication, the trier of fact must look to

       reasonable inferences based upon an examination of the surrounding

       circumstances. Id. (citing Foster, 519 N.E.2d at 1230; Booker, Inc. v. Morrill, 639

       N.E.2d 358, 362 (Ind. Ct. App. 1994)). 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.” Id.

       (quoting Booker, 639 N.E.2d at 362).


[18]   The evidence most favorable to the nonmoving party reveals that Coyle had not

       had any alcoholic beverages prior to going to Buddy & Pal’s, arrived at Buddy

       & Pal’s at approximately 10:00 or 10:30 p.m., purchased beer from the

       bartender at the bar, did not have any shots, exited the bar shortly before 2:00

       a.m., warmed up his truck for five to ten minutes, and then pulled around to

       pick up Apato and struck Shearer. Officer Janson stopped Coyle as he drove

       toward the exit of the parking lot. Officer Janson testified that he detected a

       very strong odor of an alcoholic beverage coming from Coyle’s breath and

       observed that Coyle’s eyes were red, bloodshot, and very droopy, that Coyle

       was slurring and mumbling a lot, and that Coyle was spitting quite a bit while

       talking, which Officer Janson testified he believed must have been significant

       because he documented it. As Officer Janson questioned Coyle, he became

       irritated and began to use expletives. Officer Janson testified that, based on his

       education, training, and experience, the signs he observed of Coyle matched

       those he was taught to observe with regard to alcohol impairment and that he


       Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 14 of 17
       arrested Coyle for operating while intoxicated. Further, the probable cause

       affidavit prepared by Officer Janson indicated that the odor of intoxicant was

       strong, Coyle’s eyes were watery and bloodshot, his face was flushed, his

       reaction was dull, his manual dexterity was slow and clumsy, and his balance

       was unsteady. Proof that Buddy & Pal’s knew of Coyle’s intoxication may be

       made by indirect or circumstantial evidence including evidence of Coyle’s

       condition shortly after leaving the bar. The evidence demonstrates that the

       accident occurred five to ten minutes after leaving the bar and establishes the

       extent to which Coyle appeared visibly intoxicated at that point. The trier of

       fact was free to disbelieve the testimony of Coyle regarding his alcohol

       consumption and to reasonably infer, based on the behavior Coyle exhibited a

       short time after leaving the bar, that Coyle must have exhibited visible signs of

       intoxication at the time he purchased his last alcoholic beverage.


[19]   Based on the record, we cannot conclude that there was a complete failure of

       proof or reasonable inference supporting Shearer’s claim. See Marlow v. Better

       Bars, Inc., 45 N.E.3d 1266, 1274 (Ind. Ct. App. 2015) (noting in part the bar’s

       customer had consumed at least one alcoholic beverage at the bar and thereafter

       an officer observed numerous signs of impairment including slurred speech,

       watery and bloodshot eyes, and unsteady balance and holding that the trier of

       fact could reasonably infer that the customer was visibly intoxicated when the

       bar served him alcohol and that the bar did so with actual knowledge of his

       intoxication), trans. denied; Vanderhoek v. Willy, 728 N.E.2d 213, 217 (Ind. Ct.

       App. 2000) (observing the customer was served at least three beers and ordered


       Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 15 of 17
       at least one of the beers from the bar area, the customer testified he had not

       consumed alcohol prior to his arrival at the bar, and a short time after leaving

       he failed several field sobriety tests and holding the trier of fact could reasonably

       infer that the bar had actual knowledge of the customer’s intoxication at the

       time he was served).


[20]   As for Shearer’s claimed injuries, Shearer indicated during cross-examination

       that he was not asking the jury to award him money for his somatic symptom

       disorder. However, Shearer also indicated that he was seeking damages for his

       physical injuries and that he had explained to his relatives that he had injuries

       to his back, neck, and head. Shearer presented the video deposition testimony

       of Dr. Hanlon, Buddy & Pal’s does not point to the record to show it objected

       to Dr. Hanlon’s testimony, and Dr. Hanlon testified that he diagnosed Shearer

       with somatic symptom disorder and that the stress Shearer experienced

       following the accident was the triggering element that resulted in his disorder.

       Dr. Hanlon testified that some persons with the disorder do not believe they

       have a psychiatric condition and strongly believe they have a physical disorder.

       Shearer also indicated that he was not exactly sure what Dr. Hanlon diagnosed

       him with, was not familiar with Dr. Hanlon’s diagnosis, and did not know

       whether Dr. Hanlon had said he had somatic symptom disorder, and he

       indicated that Dr. Hanlon did not at any point communicate to him that the

       pain he was experiencing was generated by his psyche. Further, Shearer

       indicated that he was asking the jury to hold Buddy & Pal’s accountable for

       what it did to him. Shearer testified that he was given pain medicine and anti-


       Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 16 of 17
       inflammatories, he received a sling for his arm to take the pressure off of his

       back which he wore for months, he visited a neurologist, he completed physical

       therapy, heat and biofreeze was applied, he had an allergic reaction to the

       medicine, and he received injections to the damaged area and into the top of his

       spine. In closing, Shearer’s counsel argued that, for two and one-half years,

       Shearer obtained treatment, with various doctors for his pain including x-rays,

       MRIs, physical therapy, pain medications, and epidural injections in his neck,

       that none of the treatment helped, and that Dr. Hanlon determined that Shearer

       suffered a permanent debilitating mental handicap and that the prognosis is

       poor. Shearer’s medical records were admitted into evidence. The jury

       determined that Shearer’s total damages were $155,000 and did not specify the

       portion of the award attributable to his somatic stress disorder. Shearer claimed

       damages for injuries he suffered as a result of the accident and presented

       evidence supporting his claims, and we decline to disturb the trial court’s ruling.


                                                    Conclusion

[21]   For the foregoing reasons, we affirm the trial court’s denial of Buddy & Pal’s

       motion for judgment on the evidence and motion to correct error.


[22]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 45A03-1703-CT-465 | December 29, 2017   Page 17 of 17
