« Ind. Law - Crown Point attorney earns specialist designation [Updated] | Main | Ind. Courts - Monroe County looking at "problem-solving courts" »

Sunday, May 13, 2007

Ind. Law - Indiana Dram Shop act penalties for serving intoxicated patrons

The ILB had intended to post today about the Indiana Dram Shop provisions of IC 7.1.5-10 after reading stories earlier this week of a patron of a local bar consuming "at least 14 beers and six shots". But today's Indianapolis Star is already on it.

Here are the applicable provisions (emphasis added):

IC 7.1-5-10-15 - Sale to intoxicated person prohibited
Sec. 15. (a) 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.
(b) In any civil proceeding in which damages are sought from a permittee or a permittee's agent for the refusal to serve a person an alcoholic beverage, it is a complete defense if the permittee or agent reasonably believed that the person was intoxicated or was otherwise not entitled to be served an alcoholic beverage.
(c) After charges have been filed against a person for a violation of subsection (a), the prosecuting attorney shall notify the commission of the charges filed.
(Formerly: Acts 1973, P.L.55, SEC.1.) As amended by Acts 1978, P.L.2, SEC.721; P.L.86-1985, SEC.1; P.L.125-2000, SEC.4.

IC 7.1-5-10-15.5 - Person furnishing alcoholic beverage; civil liability for damages; "furnish" defined
Sec. 15.5. (a) As used in this section, "furnish" includes barter, deliver, sell, exchange, provide, or give away.
(b) A person who furnishes an alcoholic beverage to a person is not liable in a civil action for damages caused by the impairment or intoxication of the person who was furnished the alcoholic beverage unless:
(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.
(c) If a person who is at least twenty-one (21) years of age suffers injury or death proximately caused by the person's voluntary intoxication, the:
(1) person;
(2) person's dependents;
(3) person's personal representative; or
(4) person's heirs;
may not assert a claim for damages for personal injury or death against a person who furnished an alcoholic beverage that contributed to the person's intoxication, unless subsections (b)(1) and (b)(2) apply.
As added by P.L.80-1986, SEC.1. Amended by P.L.76-1996, SEC.1.

Jon Murray and Vic Ryckaert's story today is headlined "Club could be liable in fatal crash: Under law, bars can face penalties for serving intoxicated patrons." Some quotes:
Under Indiana law, the strip club that allegedly served Terry J. Record 14 beers and six shots also could be liable, although damage awards are rare.

Plaintiffs must prove the server had "actual knowledge" that the customer was visibly intoxicated but continued to provide more liquor. They also must prove the intoxication was a large factor in the injury or death.

"That's a high burden," said John Livengood, president of the state's Restaurant and Hospitality Association. "Indiana has a law that places most of the responsibility back on the individual." * * *

Several lawsuits against bars have been filed in Central Indiana in the past decade, but few have resulted in large verdicts.

In one case, Indianapolis Public Schools teacher James Gorski won a $500,000 judgment in 2002 after a jury found the owners of the Hots Show Club responsible for the death of his wife, Jennifer, 23.
The couple were driving in their own cars when Ronald Onkst, 52, drove the wrong way on I-65 in 1997, causing both the Gorskis to crash. Onkst also died. Earlier, when he arrived at the strip club, he was already drunk but went on to spend $50 on booze.

A Marion Superior Court judge later reduced the award by $100,000, subtracting a payment Gorski had received from Onkst's insurance company. * * *

In another case, state Rep. William Roland Stine's widow and children sued a Shelbyville bar in 2004 for serving the equivalent of 18 shots of liquor to the man who crashed into him. That case was settled out of court, said J. Lee McNeely, the family's attorney, but he couldn't disclose the terms.

"It's hard to prove (in court)," said Lafayette attorney Jeff Cooke, former president of the Indiana Trial Lawyers Association. "You have to get a toxicologist to say (servers) knew or should have known they were serving an intoxicated person. By the time a lawyer gets involved, all the employees keep their mouths shut." * * *

The Brass Flamingo and its employees have cooperated with police, said David Wyser, the Marion County prosecutor's chief trial deputy.

The stripper and a waitress gave statements, and the bar provided surveillance video showing Record in the club with the stripper, Wyser said.

Investigators estimated the number of drinks Record consumed based on his orders of three pitchers of beer, minus two glasses shared with the stripper from each pitcher, the probable cause affidavit says. He also ordered half a dozen shots, including cherry vodka.

His blood-alcohol content was 0.15 to 0.17, about twice the level at which Indiana drivers are considered drunk, according to results released by police.

In addition to the cases cited in the Star article, a more recent, March 30, 2007 Indiana Court of Appeals opinion, Rebecca Shaw, Estate of Kayla N. Hughes and Stephen Hughes v. LDS Enterprises, Inc. d/b/a I&I Steakhouse (ILB entry here) contains discussion of the availability of relief under the Illinois and Indiana dram shop acts.

An earlier ILB entry, "Ind. Courts - Two young attorneys in different parts of the state in court for drug/alcohol related charges," from 5/11/07, is available here.

Posted by Marcia Oddi on May 13, 2007 07:52 AM
Posted to Indiana Law