Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
Indiana Supreme Court justices heard arguments Wednesday at Trine University about whether a state law that allows people who have been injured by an intoxicated person to sue the establishment that served them alcohol excludes a common law cause of action.
The case — WEOC, Inc. d/b/a Wings, Etc., et al. v. Christopher Adair, et al., 23S-CT-184 — involves a man, Eric Adair, who went to Wings Etc. and was served alcoholic beverages in March 2021.
Adair then went to El Cantarito’s, where he was served more alcoholic beverages. Adair was visibly intoxicated at both locations.
He later killed another driver in a vehicle crash, and the estate of the deceased filed a wrongful death lawsuit against Adair, Wings Etc. and El Cantarito.
Count I of the complaint involves Adair and isn’t relevant on appeal. Count II alleges the restaurants “knew or should have known” Adair was visibly intoxicated in violation of Indiana Code § 7.1-5-10-15(a), or the Dram Shop Criminal Provision.
The two restaurants filed a motion to dismiss Count III of the complaint, which realleges the defendants “knew or should have known” that Adair was visibly intoxicated and that they violated their common law duties in serving him alcoholic beverages.
The restaurants argued that in Indiana, a common law negligence action for furnishing alcoholic beverages to a person who later causes injury does not exist independent of I.C. 7.1-5-10-15.5, the Dram Shop Civil Provision.
The LaPorte Superior Court denied the motion. The Court of Appeals of Indiana affirmed that ruling, finding it would be inappropriate at that stage of the case to dismiss the count.
In front of an audience that included students from Trine and surrounding high schools, counsel representing the restaurants argued Section 15.5 of the Dram Shop Act precludes common law liability.
In passing the Dram Shop Act, the Indiana Legislature “essentially gutted” the common law action, New Albany attorney Crystal Rowe argued.
Row represents El Cantarito in the case, and South Bend attorney Brian Gates represents Wings Etc.
Indiana Chief Justice Loretta Rush asked if the legislation actually gutted the common law or if it just “gave it a prerequisite” that whoever is serving the alcohol has to have “actual knowledge” that the person was visibly intoxicated.
Justice Mark Massa made similar remarks, asking if the statute assumes the cause of action exists and then limits it to circumstances where someone can show “actual knowledge.”
“Isn’t this a case that’s more appropriate for a resolution, say, at the summary judgment stage?” he asked.
Valparaiso attorney Sara Langer, representing the plaintiff, argued that the Dram Shop Act “absolutely did not abrogate the common law.”
“In our opinion, this statute is an avenue for recovery,” she said.
Justice Christopher Goff asked why it’s important for the common law claim to survive dismissal.
Langer said that’s where the “importance of public policy comes in.”
“We very firmly believe that it cannot be the policy of this state to in any way limit common law,” she said.
James Barth, appearing on behalf of the Indiana Trial Lawyers Association in support of the plaintiff, argued to the justices that dismissal is not appropriate.
“The logical extent of viewing this as immunity would be that the Legislature wanted to promote the sale and profitability,” Barth said, “and decrease the responsibility that should go along with that privilege, which would create unsafe roads for people driving on our street.”
Wednesday marked the 50th time the Supreme Court has heard oral arguments on the road since 1994.
The full oral argument can be viewed online.
For more on the court’s visit to Trine, check back with theindianalawyer.com on Thursday.
Please enable JavaScript to view this content.