                                                                          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.




Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015                      Page 1 of 24
                                     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.”

      Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015                     Page 2 of 24
      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.




      Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 3 of 24
[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).

      Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015                      Page 4 of 24
      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).

      Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015                       Page 5 of 24
[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

       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 6 of 24
       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
       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 7 of 24
       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

       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 8 of 24
       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).

       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015                          Page 9 of 24
               (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,
       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 10 of 24
               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



       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 11 of 24
       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

       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 12 of 24
       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).

       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015                   Page 13 of 24
               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


       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 14 of 24
       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

       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 15 of 24
       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


       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 16 of 24
       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

       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 17 of 24
       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]

       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 18 of 24
       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

       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 19 of 24
       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




       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 20 of 24
                                                  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


       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015           Page 21 of 24
       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”
       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 22 of 24
       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




       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 23 of 24
       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.




       Court of Appeals of Indiana | Opinion 32A01-1504-CT-144 | November 30, 2015   Page 24 of 24
