Divided COA reinstates lawsuit of drunk man who fled, was hit by cars

Dave Stafford for www.theindianalawyer.com

A bar will have to face a negligence lawsuit brought by a man who was served at least one drink before he fled from a police stop in handcuffs and was hit by two cars as he tried to cross a state highway.

The divided Court of Appeals opinion in Pamela Marlow v. Better Bars, Inc., 32A01-1504-CT-144, reinstated a negligence suit brought by the guardian of Kenneth Marlow. He spent more than three months recovering in the hospital from a broken leg, broken arm, broken ribs, a fractured skull and brain trauma after he was struck by motorists on State Road 67 in Hendricks County.

A police officer was dispatched to a White Castle restaurant where Marlow allegedly was creating a disturbance in the drive-through lane. The officer cuffed Marlow and moved his car from the line when Marlow attempted to flee across the four-lane divided highway.

Before this, Marlow had been drinking with co-workers at Bubbaz Bar & Grill in Camby. The record indicates Marlow stayed after the co-workers left, and he claims liability under the Dram Shop Act. A trial court granted summary judgment in favor of Better Bars Inc., the corporate parent of Bubbaz.

“Summary judgment was improper,” wrote Judge Patricia Riley in a majority opinion joined by Judge Robert Altice. “(W)e find the fact the Bar ‘served even one (drink) to a person who shortly thereafter was in a serious state of intoxication gives rise to a question of fact whether (Marlow) was visibly intoxicated at the time,’” Riley wrote, applying the language of Ward v. D & A Enterprises of Clark Cnty., Inc., 714 N.E.2d 728, 729 (Ind. Ct. App. 1999).

The majority also found a reasonable trier of fact could reasonably determine that Marlow’s intoxication impaired his judgment to the extent he fled from the police stop.

Dissenting Judge Elaine Brown agreed there may be an issue as to whether the bar had actual knowledge of Marlow’s intoxication, and summary judgment was proper because this was not the proximate cause of Marlow’s actions that resulted in his injuries.

“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,” Brown wrote.