Lucas Oil vendor not entitled to summary judgment in dram shop case

Jennifer Nelson for www.theindianalawyer.com

It should be up to the trial court or a jury to determine whether a vendor in Lucas Oil Stadium in Indianapolis should be held responsible for serving alcohol to a man who later hit two children while driving home after a game.

Trenton Gaff was intoxicated when he hit 12-year-olds Tierra Rae Pierson and January Canada with his vehicle as they walked along the side of a road around 6 p.m. Gaff had consumed alcohol before attending an Indianapolis Colts game, where he also drank alcohol, and then consumed more alcohol after the game before driving home. His blood-alcohol content was 0.200; he later pleaded guilty to Class B felony operating a motor vehicle with a BAC of 0.15 or greater causing death. Pierson died as a result of the impact.

Both girls’ parents filed lawsuits alleging that Centerplate, the vendor at Lucas Oil that sold alcoholic beverages to Gaff, negligently failed to restrict the sale of alcohol to visibly intoxicated patrons, including Gaff. It is unknown who actually sold Gaff the alcohol because volunteers from nonprofits serve alcohol at the game in exchange for a cut of the profits. The trial court granted Centerplate’s motion for summary judgment, concluding there was no evidence that a Centerplate employee or designee served Gaff when he was visibly intoxicated and that the alcohol provided at the game was the proximate cause of the accident.

In a combined appeal, the plaintiffs argued that, although the identity of the server is not known at this time, a reasonable inference may be drawn that Gaff would have exhibited visible signs of intoxication by the time he purchased beer from a Centerplate agent inside the stadium. And, as the sole source of alcohol sales inside the stadium, Centerplate is responsible for the actions of its agents, and the designated evidence allows an inference that Centerplate, through its agents, had knowledge Gaff was intoxicated when served.

“The designated record could be said to support one of several scenarios, that is, Gaff drank before and during the game to the point where he would have exhibited signs of intoxication observable by the stadium volunteer selling him beer; Gaff drank to excess only after leaving the stadium; or Gaff was intoxicated inside the stadium but did not exhibit visible signs of intoxication,” Judge L. Mark Bailey wrote. “Ultimately, it is the role of the fact-finder, and not the court in summary judgment proceedings, to determine issues of credibility or relative weight of the evidence – for example, whether self-reporting of alcohol consumption was inaccurate or an expert opinion based upon a toxicology report was flawed. Too, even though Gaff reportedly drank in different venues, it is the role of the fact-finder to determine whether any one drink was served to Gaff by someone knowing him to be visibly intoxicated.”

The appellate court also rejected Centerplate’s claims that no liability can ensue because no particular server to Gaff has been identified. To do so would circumvent public policy associated with the Dram Shop Act, Bailey wrote in Tierra Rae Pierson, a Minor, Deceased, by her next friend and parent, Betina Pierson, and Betina Pierson, Individually, and Ryan Pierson, Individually v. Service America Corporation, et al., 49A02-1307-CT-561.