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COA: Man’s intoxication doesn’t prevent recovery

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The Indiana Court of Appeals reversed summary judgment in favor of a bar because the trial court was incorrect in ruling that an injured man’s voluntary intoxication precluded any recovery under the Dram Shop Act.

Michael Gray sued Sandstone Bar & Grill for negligence after he drove his motorcycle and injured himself after he spent the day drinking at the bar. It’s unknown exactly how much Gray had to drink because he had bought drinks for friends and others had bought him drinks while he was at the bar.

He believed the bar was liable under the Dram Shop Act; Sandstone filed for summary judgment because it claimed its actions weren’t the proximate cause of Gray’s injuries and that he was voluntary intoxicated. It also claimed to not have actual knowledge of Gray’s intoxication.

The trial court found that genuine issues of material fact existed as to whether Sandstone had actual knowledge and whether its actions were the proximate cause of Gray’s injuries, but held that Gray’s voluntary intoxication prevented any recovery, citing public policy concerns addressed in Bailey v. State Farm Mutual Automobile Insurance Co., 881 N.E.2d 996 (Ind. Ct. App. 2008).

The Court of Appeals first examined the Dram Shop Act and held that Indiana Code Section 7.1-5-10-15.5(c) clearly spells out that under the statute, the person who is injured is the same as the person who is voluntarily intoxicated.

“(A)n adult consumer who is voluntarily intoxicated may assert a claim of damages for personal injury against the provider who furnished an alcoholic beverage that contributed to the consumer’s voluntary intoxication if: (1) the provider had actual knowledge that the consumer was visibly intoxicated at the time the beverage was furnished, and (2) if the consumer’s intoxication was a proximate cause of the injury or damage alleged,” wrote Judge Paul Mathias in Michael Gray v. D & G, Inc., d/b/a The Sandstone, No. 29A04-1002-CT-113.

Bailey only addressed the common-law tort of negligent entrustment, not the interpretation of the Dram Shop Act, noted Judge Mathias. The act clearly allows for recovery by someone who is voluntarily intoxicated, as long as the provider of the alcohol had actual knowledge that the person was visibly intoxicated at the time they provided the drink and the person’s intoxication was the proximate cause of the injury.

The trial court judge had concerns regarding public policy that might allow an intoxicated person to recover for injuries that were caused by his own voluntary intoxication, but the General Assembly has made the decision that even those who are voluntarily drunk may, under certain circumstances, assert a claim for damages against the person who served them. To hold otherwise would effectively render subsection (c) of the Dram Shop Act a nullity, wrote Judge Mathias.

The appellate court remanded for further proceedings.

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  • shill???
    Delayed movement like hitting a three year old post to change the discussion from the House or Senate investigating why adjudicated shyster and felon William Conour, Esq., had a license while small potato non felons Dixon, Wemhoff, Rocchio, Ogden, Derek Farmer and me, among others, were thoroughly investigated by the DC and while the DC could not even find the time to file annual reports on how it was prioritizing its investigations? Who is watching the watchers?
  • Legal
    I think bars should be held responsible for over serving patrons, its a responsibility of the owner to properly train servers to know when a customer is intoxicated, Im sure when you get a license to bartend your taught what signs to look for when a person has become intoxicated slurred speech, loud talking and delayed movement.

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    1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

    2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

    3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

    4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

    5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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