Indiana Law Review


Dram Shop Liability in Indiana:
Analysis of Ashlock v. Norris

and the New Civil Statute

Teresa L. Todd*
Louis Buddy Yosha**

I. Introduction

As a result of increasing public awareness and concern with the high

incidence of alcohol-related automobile collisions and the horrendous

injuries they often produce, there has been a substantial increase in dram

shop litigation. Dram shop liability has been imposed nationwide on a
variety of defendants. Taverns, restaurants, liquor stores, and commerical

and social hosts, including employers, have been held Hable for selling,

serving, or otherwise providing alcoholic beverages to individuals who
they knew or reasonably should have known were intoxicated.' Numerous

states have adopted some form of dram shop liability. While some state

legislatures have enacted dram shop statutes,^ courts in other states have

extended the common law to include dram shop liability.^

*Associate with the law firm of Townsend, Yosha, Cline & Price, Indianapolis,
Indiana. B.A., Indiana University, 1977; J.D., Indiana University, 1980.

**Partner with the law firm of Townsend, Yosha, Cline & Price, Indianapolis,
Indiana. B.A., Indiana University, 1960; LL.B., Indiana University, 1963.

'See Sutter v. Hutchings, 327 S.E.2d 716 (Ga. 1985) and the twenty-two out-of-

state decisions cited therein. See also Graham, Liability of the Social Host for Injuries

Caused by the Negligent Acts of Intoxicated Guests, 16 Williamette L.J. 561 (1980);

Note, Social Host Liability for Injuries Caused by the Acts of an Intoxicated Guest, 59

N.D.L. Rev. 445 (1983); Comment, Liability of Commercial Vendors, Employers, and

Social Hosts for Torts of the Intoxicated, 19 Wake Forest L. Rev. 1013 (1983); Annot.,
97 A.L.R.3D 528 (1980).

^See, e.g., Ala. Code § 6-5-71 (1975); Alaska Stat. § 04.21.020 (Supp. 1984);
Colo. Rev. Stat. § 13-21-103 (1974); Conn. Gen. Stat. Ann. § 30-102 (West 1975);
Fla. Stat. Ann. § 768.125 (West Supp. 1985); III. Ann. Stat. ch. 43, § 135 (Smith-

Hurd Supp. 1985); Iowa Code Ann. § 123.92 (West Supp. 1985); Me. Rev. Stat. Ann.
tit. 17, § 2002 (1983); Mich. Comp. Laws Ann. § 436.22 (West Supp. 1985); Minn. Stat.
Ann. § 340.95 (West Supp. 1985); N.Y. Gen. Oblig. § 11-101 (McKinney 1978 & Supp.
1984-85); N.D. Cent. Code § 5-01-06 (Supp. 1985); Ohio Rev. Code Ann. § 4399.01
(Page 1982); Pa. Stat. Ann. tit. 47, § 4-497 (Purdon 1969); R.I. Gen. Laws § 3-11-1

(1976); Utah Code Ann. § 32A-14-1 (Supp. 1985); Vt. Stat. Ann. tit. 7, § 501 (1972).
Indiana recently adopted a civil dram shop liability statute. See infra notes 10-12

and accompanying text.

'See, e.g., Marusa v. District of Columbia, 484 F.2d 828 (D.C. Cir. 1973) (applying

District of Columbia law); Dodd v. Slater, 101 Ga. App. 362, 114 S.E.2d 170 (1960);
Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847 (1966); Adamian v. Three Sons, Inc., 353
Mass. 498, 233 N.E.2d 18 (1967); Munford, Inc. v. Peterson, 368 So. 2d 213 (Miss.

1979); Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959); Lopez v. Maez, 98 N.M.

625, 651 P.2d 1269 (1982); Davis v. Billy's Con-Teena, Inc., 284 Or. 351, 587 P.2d 75

(1978); Cullan v. O'Neil, 20 Wash. App. 32, 578 P.2d 890 (1978).

417



418 INDIANA LAW REVIEW [Vol. 19:417

Initially, this Article will discuss the development of dram shop
liability in Indiana and will then focus on Ashlock v. Norris,'^ a recent

case which extended dram shop liability to a patron in a bar who had
gratuitously furnished drinks to another patron. The Article will briefly

discuss the new civil dram shop liability statute and will conclude with an

analysis of dram shop liability under the Indiana Comparative Fault

Act.

II. The Development of Dram Shop Liability in Indiana

In Indiana, there are two criminal statutes which, through judicial

interpretation, have come to provide the basis for civil liability in dram
shop cases. ^ In addition, Indiana courts have held that there is a common
law duty that applies in such cases. ^ Indiana Code section 7.1-5-10-15,

which prohibits furnishing alcohol to a person known to be intoxicated,
provides in relevant part:

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 intox-

icated.^

Indiana Code section 7.1-5-7-8, which prohibits furnishing alcohol to a
minor, provides that:

It is a Class C misdemeanor for a person to sell, barter, exchange,
provide or furnish an alcoholic beverage to a minor.

^

Indiana courts have consistently held that these criminal statutes establish

a civil duty and thereby provide the basis for imposing civil liability for

personal injuries and damages resulting from conduct in violation of

these statutes.^

The 1986 Indiana legislature recently approved Senate Bill No. 85
which specifically deals with civil dram shop liability.'^ This new statutory
section provides in relevant part:

(a) As used in this section, '^furnish" includes barter, de-
liver, sell, exchange, provide, or give away.

(b) A person who furnishes an alcoholic beverage to a

M75 N.E.2d 1167 (Ind. Ct. App. 1985).

^Ind. Code §§ 7.1-5-10-15 and 7.1-5-7-8 (Supp. 1985). See infra text accompanying
notes 7-8 for the relevant text of these statutes.

*Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847 (1966). See also infra text accom-

panying note 17.

^IND. Code § 7.1-5-10-15 (Supp. 1985).
«lND. Code § 7.1-5-7-8 (Supp. 1985).
^See infra notes 13-42 and accompanying text.

'"Senate Bill No. 85 (to be codified at Ind. Code § 7.1-5-10-15.5).



1986] DRAM SHOP 419

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.

This act will apply to actions accruing on and after April 1, 1986.'^

However, it does not appear that this new statutory section will have a
major effect upon civil dram shop cases. In fact, the section may only
codify the common law which had developed to this point.

Nearly twenty years ago, in Elder v. Fisher, ^^ the Supreme Court

of Indiana held that the violation of the Indiana statute then in effect

which prohibited the sale of intoxicating beverages to minors would

constitute negligence per se in a personal injury action."* In so holding,

the court stated that the statute was designed to protect against more

than the immediate and obvious effects of alcohol upon minors who
consumed it.'^ Because the legislature was concerned with the economic

welfare, health, peace, and morals of minors, the court determined that

it was probable that the legislature intended the statute to protect the

citizens of Indiana from possible harm resulting from the use of in-
toxicating liquor by minors.'^ In Elder, the court further held that, even

in the absence of a specific statutory provision, **the general principles

of common law negligence should be applied to cases involving intox-
icating liquor.'"^

In Brattain v. Herron,^^ an Indiana appellate court extended civil

liability to a private individual who made alcoholic beverages available
to a minor in her home.'^ The evidence in this case revealed that the

defendant had allowed a boy whom she knew to be a minor to consume
alcoholic beverages in her home. The minor had obtained the liquor

from the defendant's refrigerator himself. However, the defendant had

''Id.

•^247 Ind. 598, 217 N.E.2d 847 (1966). In Elder, the plaintiff brought suit against

a retail druggist who had sold alcoholic beverages to a seventeen year old boy. The boy
consumed the alcohol and, after becoming intoxicated, was involved in an automobile

coUision in which the plaintiff was injured.

''Id. at 603, 217 N.E.2d at 851.

'Hd.

'"Id.

"Id. at 607, 217 N.E.2d at 853.
"'159 Ind. App. 663, 309 N.E.2d 150 (1974).

"M at 674, 309 N.E.2d at 156.



420 INDIANA LAW REVIEW [Vol. 19:417

made no objections to the minor's consumption of the alcoholic beverages
in her home nor to his taking beer with him when he left. The evidence
further revealed that the defendant had known or, in the exercise of
reasonable care, should have known, that the minor would be operating

his automobile on the highway as soon as he left her home. Shortly

after leaving the defendant's home, the minor was involved in a collision

in which he caused injuries to the occupants of another vehicle. ^^

The Brattain court cited Elder for the proposition that a violation

of Indiana's statute prohibiting the sale of alcohol to minors constitutes

negligence per se.^' The court expanded upon Elder in holding that the

statute's application is not limited to vendors of liquor. ^^ The Brattain

court went on to note that

any person who gives, provides, or furnishes alcoholic bever-
ages to a minor is in violation of the statute. The rationale

behind the Elder case is that our Legislature has sought to

protect the citizens of Indiana from the dangers of minors who
would consume alcoholic beverages. Our Supreme Court found
that one who sells alcoholic beverages to a minor is Hable in a
civil action for negligence for injuries resulting from the violation

of the statute [citation omitted]. We see no distinction between
one who sells alcoholic beverages to a minor and one who gives
alcoholic beverages to a minor. The Legislature has provided

that either of these actions is a violation of the statute.

Thus, it is our opinion that any person who violates the
statute as it pertains to a minor can be liable in a civil action

for negligence, since the violation of the statute as it pertains

to a minor is negligence per se. The Legislature has not seen

fit to distinguish between a seller and a social provider of

alcoholic beverages to a minor and it is our opinion that no

such distinction would be either logical or equitable.^'

In addition, the court in Brattain stated that even though the defend-

ant had not served the liquor to the minor, she was still in violation

of the statute because she allowed him to obtain the alcoholic beverages

from her refrigerator without making any objection. ^"^

The Indiana appellate court further extended dram shop liability in
Parrett v. Lehamoff?^ The court held that the violation of Indiana Code
section 7.1-5-10-15, which provides that it is unlawful to furnish alcohol

to another person known to he intoxicated, also imposed a duty which

"^Id. at 665-66, 309 N.E.2ci at 152.

^'Id. at 674, 309 N.E.Zd at 156.

^^Id.

^^Id. (emphasis in original).

^Id. at 676, 309 N.E.2d at 157-58.

"409 N.E.ld 1344 (Ind. Ct. App. 1980).



1986] DRAMSHOP 421

would serve as a basis for a civil action for damages. ^^ In this case, the

administratrix of the estate of a deceased driver brought a wrongful

death action against the operators of a tavern, claiming that they served

her deceased husband intoxicating beverages in violation of the statute

and that, after leaving the tavern, her husband was killed in an automobile

accident. ^^ The court held that the intoxicated person himself is within

the class of persons intended to be protected by the criminal statute.^*

However, the court also pointed out that contributory negligence may con-
stitute a defense to an action based upon a violation of the statute,
although not in situations involving willful, wanton, or reckless misconduct

on the part of defendant-suppliers.^'
In Elsperman v. Plump, ^^ the parents of a son who was killed in

an automobile colUsion brought a wrongful death action against a bar

and bartender for serving alcoholic beverages to a driver who subsequently
caused the collision. The court in this case noted that "Indiana cases

have clearly established the rule that a seller of alcoholic beverages may
be held liable for injuries inflicted by an intoxicated person as a result

of his intoxication, where such result was reasonably foreseeable and

the sale of the intoxicant was in violation of law."^' In support of this

rule, the court enumerated the following public policy considerations:

We concur with the Supreme Judicial Court of Massachusetts
that "the waste of human Hfe due to drunken driving on the
highways will not be left outside the scope of the foreseeable

risk created by the sale of liquor to an already intoxicated

individual." . . . Like the Supreme Court of New Mexico we
believe that "[i]n light of the use of automobiles and the in-

creasing frequency of accidents involving drunk drivers, . . . the

consequences of serving Uquor to an intoxicated person whom
the server knows or could have known is driving a car, is
reasonably foreseeable

.

" ^^

Because it was undisputed that a negligence action could be predicated

on the violation of the criminal statute forbidding the furnishing of alcohol

to a person known to be intoxicated, and because the Elsperman court
found that the bartender knew the motorist was driving an automobile,"
the only issue on appeal was whether there was sufficient evidence to

^Id. at 1345.

^'Id.

^Id. at 1346.

^V<i. However, with the passage of Indiana's Comparative Fault Act, contributory

negligence will no longer be an absolute bar to a plaintiff's recovery, Ind. Code §§ 34-
4-33-1 to -13 (Supp. 1985), See also infra text accompanying notes 114-16.

^°446 N,E.2d 1027 (Ind, Ct, App. 1983).

^'Id. at 1030 (citation omitted).

^^Id. (citations omitted),

'Ud. at 1029.



422 INDIANA LAW REVIEW [Vol. 19:417

support the conclusion that the bartender served alcohoHc beverages to

the motorist knowing that he was intoxicated.^'*

The Elsperman court stated that the evidence in this case included

several factors which could be considered in determining whether the

motorist was intoxicated and whether the bartender had knowledge of

his intoxication and thereafter served him alcohol in violation of the

statute. This evidence included the motorist's alcohol consumption before

arriving at the bar in question, the motorist's behavior while in the bar

(he was loud and boisterous, but not vulgar, and put his arm around
another man, telling him that he loved him — which was typical of his
behavior while drinking), the fact that the motorist staggered when he
walked to the bathroom, the small amount of food he ate at the bar,

the amount of alcohol consumed at the bar, the motorist's condition

shortly after leaving the bar (which included testimony from the inves-

tigating police officers that there was a strong odor of alcohol on the

driver, his eyes were bloodshot, his speech was slurred, he had difficulty

with motor functions and had a great deal of difficulty removing his

driver's license from his wallet, he refused a chemical intoxication test,

and, in the opinion of one officer, he was very intoxicated), the fact

that someone offered to drive the motorist home, the bartender's ad-

mission that he thought the motorist was '*a little intoxicated" when
he left the bar, the fact that the bartender accompanied the motorist

out of the bar and watched him drive away, and the fact that, when

the police arrived at the scene, the bartender told a part-time bartender

who had observed the motorist in the bar to keep his mouth shut and
stay out of it.^^ Based upon this evidence, the court in Elsperman

concluded that the jury could have inferred that the motorist was in-

toxicated and that the bartender had served him alcoholic beverages

knowing that he was intoxicated.^^

In Whisman v. Fawcett,^^ the plaintiff brought suit against an in-
toxicated driver and the bar where the driver had been drinking im-

mediately prior to the collision. The plaintiff based his allegations of
negligence against the bar on the violation of the criminal statute which

prohibits furnishing alcohol to an habitual drunkard,'* as well as upon

the violation of the criminal statute which prohibits furnishing alcohol

to a person known to be intoxicated.'^

''Id. at 1030-31.

''Id. at 1029-32.

'''Id. at 1032.

"470 N.E.2cl 73 (Ind. 1984).

"Ind. Code § 7.1-5-10-14 (Supp. 1985). This statute provides:
It is unlawful for a permittee to sell, barter, exchange, give, provide, or furnish

an alcoholic beverage to a person whom he knows to be a habitual drunkard.
Id.

'Ind. Code § 7.1-5-10-15 (Supp. 1985). See supra text accompanying note 7.



1986] DRAM SHOP 423

The plaintiff conceded that the bar did not sell alcohol directly to

the defendant-driver. In fact, the evidence revealed that the bartender

refused to serve him directly.'*^ However, the Whisman court stated that

it is sufficient to show that '*the seller knew or had good reason to

believe when he sold the liquor that the purchaser intended to furnish
it to another person whom the seller knew to be intoxicated.'"*' Despite
this general statement of the law, the court in this case held that although

there was strong evidence that the bartender knew the defendant-driver

was intoxicated, the plaintiff failed to produce sufficient evidence to

establish that the bartender knew or had reason to know that certain
individuals to whom they sold alcohol were going to furnish it to the
defendant-driver.^^

III. An Analysis of Ashlock v. Norris

A. The Extension of Dram Shop Liability to Anyone Furnishing
Alcohol to an Adult Known to Be Intoxicated

A recent Indiana case dealing with dram shop liability is Ashlock
V. Norris^^ In Ashlock, the administratrix of the estate of a deceased

pedestrian who was struck and killed by an intoxicated motorist (Morrow)
brought a wrongful death action against the motorist's friend (Norris).

Norris had furnished Morrow with alcoholic beverages shortly before
the fatal collision. The particular facts involved in this case include the

following:

The facts favorable to the plaintiff disclose that after work

on April 13, 1982, Cindy Morrow went to Butterfield's Restaurant
and Lounge in Lafayette. She arrived at the lounge about 3:45

p.m. and ordered a tequila mixed drink. About 5:00 p.m. [defend-
ant] Norris arrived at the lounge. He was previously acquainted
with Morrow and joined her at the bar.

At 7:30 p.m. Morrow had consumed two tequila mixed drinks
as well as three shots of tequila purchased for her by Norris.

At about that time Morrow fell down while attempting to pick
up her purse which she dropped. After resting for several mo-
ments Morrow was able to regain her feet only with Norris'
assistance. He then assisted her in leaving the lounge and helped
her into her car. He then spent several minutes in an unsuccessful
attempt to persuade Morrow not to drive. She, however, insisted
that she had to leave, and she did.

"^Whisman, 470 N.E.2d at 78.

''Id.

''Id. at 79.

^M75 N.E.2d 1167 (Ind. Ct. App. 1985).



424 INDIANA LAW REVIEW [Vol. 19:417

About a mile from the lounge Morrow attempted to pass
a car on the right. As she did she struck and killed Anthony
Ashlock who was jogging along the shoulder of the road about
ten feet from the travelled portion of the highway. Morrow
continued to drive down the road, approximately two miles,
until she drove into a ditch.

^"^

The trial court granted the defendant's motion for summary judgment,
and the administratix of the decedent's estate appealed. The issue on

appeal was whether Norris owed any duty to the decedent."*^ The ad-
ministratix argued that Indiana Code section 7.1-5-10-15 created such a
duty in providing that "[i]t 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.'"*^ The appellate court held that the language of the statute

indicated that the legislature probably intended to extend civil liability

to family, friends, or acquaintances who furnish '*one more drink" to
an intoxicated person."*^ Furthermore, the Ashlock court held that sound

public policy supported this extension."*^ Therefore, the court concluded

that the administratix had stated a claim for which relief could be

granted.^^

Ashlock is the first Indiana case to extend civil liability, based upon

a violation of Indiana Code section 7.1-5-10-15, to an individual who
merely furnished (as opposed to having sold) Hquor to an adult. The

Ashlock court did not appear to have any difficulty expanding the scope

of liability, citing Brattain, which had extended civil liability based upon

furnishing (as opposed to selUng) alcoholic beverages to a minor. ^^ The

court in Ashlock specifically noted that all of the prior Indiana dram
shop cases except Brattain sought to impose liability upon either an

establishment engaged in the business of selhng alcohol or the bartender

involved in such sale. However, it apparently had no difficulty in con-

cluding that the plain language of Indiana Code section 7.1-5-10-15

applies to natural persons who merely give alcoholic beverages to another
person whom they know to be intoxicated.^' In other words, the case law

""Id. at 1168.

^^Id. The administratrix originally filed suit against the corporate owner of the bar,

two bartenders, and Norris. However, all the defendants except Norris were previously

dismissed with prejudice upon plaintiff's motion. Id.

'''Id. (quoting Ind. Code § 7.1-5-10-15 (Supp. 1985)) (emphasis added).

''Id. at 1169.

''Id.

""Id.

'"Id. (citing Brattain v. Herron, 159 Ind. App. 663, 309 N.E.2d 150 (1974)). See

also supra text accompanying notes 18-24.

''Id. at 1169. The court stated:



1986] DRAM SHOP 425

apparently recognizes no distinction between the duty imposed upon a

seller and a gratuitous provider or between a natural person and a business

entity.

The enactment of the new civil dram shop statute confirms the

court's holding in Ashlock that a '*sale" of alcohol is not a necessary

prerequisite for dram shop Hability. The statute specifically provides that

furnishing an alcoholic beverage to an intoxicated person is sufficient

to impose civil liability and defines "furnish" as including bartering,

delivering, selling, exchanging, providing, or giving away.^^

B. The Knowledge Requirement

After determining that a civil duty existed under the facts of this

case, the Ashlock court considered whether there was a genuine issue

of material fact as to Norris' knowledge of Morrow's intoxication at

the time he bought her last drink. By its terms, Indiana Code section
7.1-5-10-15 prohibits the selling, bartering, delivering, or giving away of

an alcoholic beverage by one person to another who is intoxicated if
the former knows of the latter's intoxication." The new civil dram shop

statute is also worded in terms of a person furnishing an alcoholic

beverage to another whom he knows to be visibly intoxicated. ^"^ These
statutory sections would appear to estabhsh a subjective standard based
upon the provider's actual knowledge.

Indiana courts in dram shop cases have repeatedly applied an ob-
jective standard of knowledge; however, none of these applications con-

cerned knowledge of intoxication. In Elder v. Fisher, ^^ the court held

that a complaint alleging that the defendant druggist sold alcoholic

beverages to an individual who he knew or, in the exercise of ordinary
care, should have known was a minor was sufficient to state a cause
of action. ^^ In Brattain v. Herron,^^ the evidence revealed that the

defendant knew that the person to whom she furnished alcoholic bev-
erages was a minor and that she knew, or by the exercise of reasonable

Indeed the legislature has specifically defined "person" to include any "natural"

person (I.C. 7,1-1-3-31) and has made the statutory proscription applicable to

a person, rather than to a "permittee."

Id.

The Ashlock court, however, rejected the argument that Norris was negligent in

helping the intoxicated motorist to her vehicle and then allowing her to drive. The court

held that, absent some special relationship between Norris and the intoxicated motorist,

Norris had no duty to the public to control Morrow's use of her automobile. Id. at 1171.

"Senate Bill No. 85 (to be codified at Ind. Code § 7.1-5-10-15.5).

"Ind. Code § 7.1-5-10-15 (Supp. 1985). See supra text accompanying note 7 for
the relevant text of this statute.

5^Senate Bill No. 85 (to be codified at Ind. Code § 7.1-5-10-15.5).
"247 Ind. 598, 217 N.E.2d 847 (1966).

'"^Id. at 601, 607, 217 N.E.2d at 848, 853 (1966).

"159 Ind. App. 663, 309 N.E.2d 150 (1974).



426 INDIANA LAW REVIEW [Vol. 19:417

care, should have known that he would be operating his automobile on

the highway as soon as he left her home.^^ In Whisman v. Fawcett,^^

the court upheld the decision of the trial court to the effect that evidence

was insufficient to show that the defendant's bartenders knew, or had

reason to know, when they sold the alcohol that the purchasers would

give it to the intoxicated driver.
^°

Although Indiana Code section 7.1-5-10-15 is worded in terms of
providing alcohol to a person known to be intoxicated,^' and the court
in Ashlock stated the issue in terms of whether Norris knew that the
driver was intoxicated at the time he provided her with her last drink,^^

the factual analysis upon which the court based its decision suggests

that perhaps this is not a strictly subjective standard. In considering this

issue, the Ashlock court stated:

It would be proper to prove by circumstantial evidence that

Norris knew Morrow was intoxicated before he last provided
her a drink. As the Court pointed out in Elsperman, . . . there
are many factors which can be considered in determining whether
a person was intoxicated to another person's knowledge, including

what and how much the person was known to have consumed,
the time involved, the person's behavior at the time, and the

person's condition shortly after leaving."

The court also pointed out that, although Norris denied that the

driver appeared intoxicated, he was with her for two and one-half to

three hours, during which time she consumed five drinks, each containing

one ounce of tequila.^'* The court specifically noted that there was no
expert testimony submitted to establish the probable effect of consuming

that amount of alcohol in that time period upon either Morrow spe-
cifically or upon the average individual with her physical makeup. ^^ This
suggests that the court might have found such evidence relevant and of some
probative value. The court also pointed out that within thirty minutes

after receiving her last drink, the driver was so intoxicated that she

could not maintain her balance or walk without assistance.^^ The court
stated that the evidence outlined above, standing alone, would probably

be sufficient to grant judgment on the evidence in favor of the defendant. ^^

''Id. at 666, 309 N.E.2d at 152.
"^470 N.E.2d 73 (Ind. 1984).

""'Id. at 79.

^'See supra text accompanying note 7.

"^Ashlock, 475 N.E.2d at 1170.

''Id. (citing Elsperman v. Plump, 446 N.E.2d 1027, 1031 (Ind. Ct. App. 1983)).
"^Id. at 1170-71.

''Id. at 1171.

''Id.

"Id.



1986] DRAMSHOP ^11

The court further stated that **only speculation based upon the circum-

stances supports the determination that Norris was aware Morrow was

intoxicated when he last provided her a drink. "^^ However, because this

case arose in the context of a motion for summary judgment, the court

concluded that there was a genuine issue of material fact which had to

be resolved in favor of the nonmovant.^^

Additional evidence in the case indicated that Norris saw the driver

drop and spill her purse while in the bar. She lost her balance, fell,

and was unable to rise without assistance.^" Norris stated that the driver

"appeared to be out of control" within one-half hour after receiving

her last drink. ^' While he accompanied her to her car, he attempted to

dissuade her from driving. ^^ It is unclear whether, without Norris' ap-

parent admissions concerning his knowledge of the driver's condition

(his statement that the driver appeared out of control and his attempt

to prevent her from driving), the appellate court would have decided

that the evidence was sufficient to avoid summary judgment.
Although it may not be necessary under Ashlock for the defendant

to admit that he knew the person to whom he supplied the alcohol was
intoxicated in order for the plaintiff to sustain his burden of proof, the

court left unclear whether constructive knowledge would be sufficient. The

Ashlock court did not specifically discuss whether the person provided

with the alcohol must be visibly intoxicated or whether the provider may
draw upon his experiences in life to realize or predict the probable effect
of a certain amount of alcohol. The court also did not discuss the relevance

of the provider's familiarity with the intoxicated person's tolerance to

alcohol or his familiarity with the intoxicated person's driving ability after

drinking. That is, if the provider knew that the recipient was of a certain
height and weight and had had X number of drinks within X period
of time, could the provider avoid liability if the recipient was not man-
ifesting any outward signs of intoxication at the time the last drink was

provided? Or, would the courts impose a common sense standard and
impute to the provider knowledge of the effects of that amount of alcohol
on the recipient? In Hght of the Ashlock court's reference to expert
testimony on this issue, ^^ the decision suggests that it might have been
proper to impute such knowledge to the provider.

'''Id. at 1170.

''Id.

'^Id.

'^Id. at 1171. The court stated, "[N]othing was placed before the court on the

motion for summary judgment to establish the probable effect of that much alcoholic

beverage in that time span on either Morrow or an average person of her physical

makeup." Id. See also supra text accompanying note 65.



428 INDIANA LAW REVIEW [Vol. 19:417

To date, the Indiana dram shop cases have neither addressed the
method of proving actual intoxication nor defined expHcitly the term

"intoxicated." However, based upon the conduct of the recipients in
Elsperman^* and Ashlock,^^ the decisions suggested that no particular blood

alcohol level was required, and that intoxication could have been implied

from the drinker's actions. The question remained under these decisions,

however, whether, absent action that implied intoxication, expert testimony

could be introduced concerning the effect of a certain amount of alcohol

upon a person of a certain physical makeup.

The new civil dram shop statute appears to provide answers to some of

these questions but leaves others unanswered. Although the statute does not

provide that evidence of an individual's intoxication under Indiana Code
section 9-11-1-7^^ (establishing that .10% or more by weight of alcohol

in one's blood is prima facie evidence of intoxication) is conclusive evidence

of intoxication in a civil action, ^^ it would still appear that such evidence

would be admissible for the jury to consider in reaching its verdict.

Additionally, no Indiana dram shop case to date has specifically
held that constructive knowledge of intoxication was sufficient to impose

liability. Generally, however, under Indiana law where knowledge is a

required element in a tort action, constructive knowledge satisfies this

requirement without a showing of actual knowledge. ^^ Consequently,

prior to the enactment of the new civil dram shop statute, it was not
unreasonable to expect that courts might have been willing to impose

liability (if they had not already done so) upon those who provided
alcohol to persons who they knew, or in the exercise of reasonable care
should have known, were intoxicated.

The new statute provides that a person must have had actual

knowledge that the individual to whom he furnished alcohol was visibly
intoxicated. '' The implication of this language would appear to be that

constructive knowledge of intoxication will not support a cause of action

based upon the civil dram shop statute. However, as before, it seems im-

probable that a defendant will have to admit that he knew the individual

was visibly intoxicated when he furnished him a drink. Certainly, the same

type of circumstantial evidence used in Ashlock and other dram shop cases

will continue to constitute probative evidence from which a jury may in-
fer that the defendant had actual knowledge of the individual's state of

intoxication. Even though a court will be unable to give a jury instruc-

'^Elsperman, 446 N.E.2d at 1032. See also supra text accompanying notes 35-36.

''^Ashlock, 475 N.E.2d at 1170-71. See also supra text accompanying notes 64-72.

Mnd. Code § 9-11-1-7 (Supp. 1985).
''Senate Bill No. 85 (to be codified at Ind. Code § 7.1-5-10-15.5). A previous version

of the bill expressly stated that such evidence would not be conclusive.
'^See, e.g.. Great Atlantic & Pacific Tea Co. v. Custin, 214 Ind. 54, 15 N.E.2d 538

(1938).

"'Senate Bill No. 85 (to be codified at Ind. Code § 7.1-5-10-15.5).

I



1986] DRAM SHOP 429

tion worded in terms of "knew or should have known," as a practical
matter, one can reasonably assume that given compelling evidence of the

individual's intoxication, a jury will conclude that the person to whom
the alcoholic beverage was furnished was visibly intoxicated and that the

defendant actually knew it.

C Possible Extensions of Ashlock v. Norris
Neither the Indiana cases to date nor the new civil dram shop statute

provides any basis for limiting the application of dram shop liability to

a particular environment or setting. Other jurisdictions have imposed

dram shop liability in the context of weddings, picnics, office parties,

cocktail parties, and fraternity and sorority parties. ^^ Therefore, it is

reasonable to expect that Indiana will impose dram shop liability in

similar situations.

Although all dram shop cases that have arisen in Indiana have

involved automobile collisions caused by drunk drivers, these cases do

not provide any obvious basis for limiting dram shop liability to that

factual context. Because other jurisdictions have held the provider of

alcoholic beverages to an intoxicated person liable for injuries and

damages that result from fights, gunshot or knife wounds, and thrown

objects,^' it is likely that Indiana will follow in that direction.

IV. Dram Shop Liability Based upon Furnishing
Alcoholic Beverages to a Minor

With the enactment of the new civil dram shop statute, the legislature

has made clear its intent to impose civil liability upon persons who

««Harris v. Trojan Fireworks Co., 120 Cal. App. 3d 157, 174 Cal. Rptr. 452 (1981)

(plaintiff stated cause of action against employer-host of office Christmas party for injuries

caused by employee-guest); Thaut v. Finley, 50 Mich. App. 611, 213 N.W.2d 820 (1973)
(plaintiff stated cause of action against sponsors of wedding reception for injuries caused

by minor-guest); Wiener v. Gamma Phi Chap, of Alpha Tau Omega Frat., 258 Or. 632,
485 P.2d 18 (1981) (plaintiff stated cause of action against fraternity for injuries caused

by minor attending fraternity party); Halligan v. Pupo, 37 Wash. App. 84, 678 P. 2d

1295 (1984) (plaintiff stated cause of action against hosts of company Christmas party

for injuries caused by company-employee who was a guest at the party).
^'Clendening v. Shipton, 149 Cal. App. 3d 191, 196 Cal. Rptr. 654 (1983) (plaintiff

stated cause of action against social host for injuries caused by guest who broke neck
of another guest); Allen v. Babrab, Inc., 438 So. 2d 356 (Fla. 1983) (tavern owner held

liable for injuries caused by patron who threw glass at fellow patron in tavern's parking
lot, blinding her); Kiriluk v. Cohn, 16 111. App. 2d 385, 148 N.E.2d 607 (1958) (tavern

owner held liable for death of patron when patron's wife shot him after he returned

from tavern so intoxicated that he chased her around kitchen and threatened her); Carey

v. New Yorker of Worcester, Inc., 355 Mass. 450, 245 N.E.2d 420 (1969) (tavern owner
held liable for injuries caused by patron who shot another); Ollison v. Weinberg Racing
Ass'n, Inc., 69 Or. App. 653, 688 P. 2d 847 (1984) (plaintiff stated cause of action against

race track for injuries caused by intoxicated race patron who fired gun causing stampede).



430 INDIANA LAW REVIEW [Vol. 19:417

supply alcoholic beverages to an individual who is visibly intoxicated.^^
Therefore, it will no longer be necessary to look to the criminal statute

to establish a duty upon which dram shop liability may be imposed in
such cases.

The legislature, however, failed to mention furnishing alcoholic bev-
erages to minors in the new civil statute. Arguments can be made in
support of two opposite conclusions which may be drawn from this
omission. First, one can argue that Indiana Code section 7.1-5-7-8, which
makes it a misdemeanor to sell, barter, exchange, provide, or furnish

an alcoholic beverage to a minor whether or not he is visibly intoxicated,

can still be used as the basis for a civil dram shop case because the civil
statute does not specifically provide otherwise. On the other hand, an
argument can be made that because the legislature did not include minors
within the scope of the statute, furnishing alcoholic beverages to them
if they are not visibly intoxicated should no longer be the basis for dram
shop Hability.

The legislative history of the new civil statute would appear to lend

some support to both arguments. One proposed amendment to Senate
Bill No. 85 would have required that a person be

*

'proven by clear and

convincing evidence to have furnished an alcoholic beverage to a person

under age twenty-one (21/' or to a person known to be intoxicated.^^
Another proposed amendment provided that in order to impose civil
dram shop liability, a person or establishment must be shown to have
"knowingly, willfully, and intentionally furnished the alcoholic beverage

to one who was obviously intoxicated or known to be a minor. ''^"^ A
third proposed amendment read in pertinent part:

A person who furnishes an alcoholic beverage is not liable for
civil damages caused by the intoxication of the person to whom
the alcoholic beverage was furnished, unless the person furnishing

the alcoholic beverage has been convicted of an offense under

IC 7.1-5-7-7 [which prohibits furnishing alcohol to minors] or IC

7.1-5-10-15 ....''

All of these proposed amendments included specific references to
minors. However, they were all rejected, and the civil statute as enacted

makes no mention of minors. As a result, an argument may be made
that unless a minor is also visibly intoxicated at the time the alcohoHc

beverage is provided, no civil Hability exists. However, eliminating liability

'^Senate Bill No. 85 (to be codified at Ind. Code § 7.1-5-10-15.5).
"Proposed amendment to Senate Bill No. 85 by Senator Vobach (emphasis added)

(available in the Indiana Law Review Office).
""Proposed amendment to Senate Bill No. 85 by Senator V.R. Miller (emphasis

added) (available in the Indiana Law Review Office).
"Proposed amendment to Senate Bill No. 85 by Senator Mills (available in the

Indiana Law Review Office).



1986] DRAMSHOP 431

for those providing alcohol to minors would be a dramatic change from

prior case law*^ and contrary to the strong public interest in discouraging

the use of alcohol by minors. Therefore, absent a clear legislative man-

date, it seems unlikely that courts will interpret the new civil statute as

eliminating a cause of action based upon furnishing alcohol to a minor

even though he is not visibly intoxicated.

V. Dram Shop Liability Under Indiana's
Comparative Fault Act

The impact of the Ashlock decision and the new civil liability statute
cannot be properly analyzed without considering how Indiana's com-
parative fault statute^^ will affect dram shop liability. A brief analysis
of the pertinent parts of the Act and their anticipated effect upon dram

shop cases follows.

Simply stated, the Indiana Comparative Fault Act provides that, in

an action based upon "fault," a claimant's contributory negligence is

no longer an absolute bar to his recovery. ^^ Rather, his compensatory

damage award will be reduced in proportion to his fault unless his
contributory fault is greater than the combined fault of the other tort-

feasors who proximately contributed to the claimant's damages. *^^ For
example, in a two-party situation, if the plaintiff is fifty percent at fault,

the plaintiff will still recover fifty percent of his damages, but if the

plaintiff is fifty-one percent at fault, he will not recover because his

negligence is greater than that of the defendant.

A. The "Nonparty" Or "Empty Chair" Defense

One of the more controversial sections of the Indiana Comparative
Fault Act is the nonparty or "empty chair" defense provision. ^° This

^''Elder, 241 Ind. 598, 217 N.E.2d 847 (1966); Brattain, 159 Ind. App. 663, 309

N.E.2d 150 (1974). This conclusion would also follow from the well known principle that
statutes in derogation of the common law are to be strictly construed. See, e.g., Stayner
V. Nye, 227 Ind. 231, 85 N.E.2d 496 (1949); Manners v. State, 210 Ind. 648, 5 N.E.2d

300 (1937).

«^lND. Code §§ 34-3-33-1 to -13 (Supp. 1985).
""Ind. Code § 34-4-33-3 (Supp. 1985). This section provides:
In an action based on fault, any contributory fault chargeable to the claimant

diminishes proportionately the amount awarded as compensatory damages for

an injury attributable to the claimant's contributory fault, but does not bar

recovery except as provided in section 4 of this chapter.

Id.

^'IND. Code §§ 34-4-33-4 and -5 (Supp. 1985).
'^Ind. Code § 34-4-33-10 (Supp. 1985). Subsection (a) provides:

In an action based on fault, a defendant may assert as a defense that the
damages of the claimant were caused in full or in part by a nonparty. Such a

defense is referred to in this section as a nonparty defense.

Id.



432 INDIANA LAW REVIEW [Vol. 19:417

provision allows a defendant to raise as an affirmative defense the

negligent conduct of a nonsued tortfeasor.*^' The jury then, in assessing

fault, must determine the percentage of fault attributable to the non-

party. '^- Consequently, the plaintiff's recovery against a single named
party-defendant can be diminished not only by the percentage of his

own fault, but also by the percentage of fault allocated to any nonparties.
At this time there is some confusion as to who can be a nonparty

under the Indiana Comparative Fault Act. In the section pertaining to

forms of verdicts and disclosure requirements, the Act provides in relevant

part:

If the evidence in the action is sufficient to support the

charging of fault to a nonparty, the form of verdict . . . shall

require a disclosure of the name of the nonparty and the per-
centage of fault charged to the nonparty. ^^

This section has been interpreted to mean that a defendant must
specifically designate the name of a nonparty before the jury can allocate
any fault to that nonparty.^'* A counterargument, however, can be made
that if the legislature had intended that interpretation, it would have

included a requirement that the defendant specifically name any non-
parties when raising a nonparty defense. However, nowhere in the section
providing for nonparty defenses is a defendant required to provide the

name of the nonparty. '^^

The courts' future interpretation of the statutory language relating

to named tortfeasors could have significant implications in dram shop
litigation. For example, suppose a drunk driver collides with and severely

injures an individual who is totally free from fault. Suppose further
that the drunk driver was so intoxicated that he was unable to remember

the name of the tavern where he had become intoxicated prior to the
collision. However, he was able to remember that he had been drinking

at a tavern. If the defendant-drunk driver is not required to provide

the name of the tavern before the jury could allocate any fault to the
tavern, then the defendant would be allowed to point his finger at the

nonparty-tavern in an attempt to reduce his percentage of fault. If, on

the other hand, the defendant-drunk driver is required to provide the

exact identity of the tavern and is unable to do so, then the defendant-

drunk driver would be prevented from arguing that he is anything less

than one hundred per cent at fault. The latter alternative would be more

"^IND. Code § 34-4-33-6 (Supp. 1985).
"^^Id. (emphasis added).

^'Eilbacher, Comparative Fault and the Nonparty Tortfeasor, 17 Ind. L. Rev. 903,
920 (1984).

'^IND. Code § 34-4-33-10 (Supp. 1985).



1986] DRAM SHOP 433

favorable to the plaintiff because named defendants could not escape
complete liability without providing the exact identity of a nonparty. If

future courts decide that a defendant must specifically identify a nonparty

before any fault could be assessed to him, a defendant-drunk driver

would not be allowed to describe a nonparty tavern as "the tavern where

I was drinking prior to the collision." The defendant-drunk driver,

instead, would have to present evidence of the proper name of the
tavern.

B. Joint and Several Liability in Dram Shop
Cases Under the Comparative Fault Act

An equally controversial feature of the Indiana Comparative Fault
Act is its apparent abolition of joint and several liability. ^^ Although

nowhere does the Act expressly state that joint and several liability has

been abrogated either partially or completely, the jury instructions relating

to multiple defendants'^^ could be interpreted as abolishing this common
law doctrine. '^^ The instructions require the jury to enter a verdict against

each defendant by multiplying each defendant's percentage of fault by

the total amount of damages. ^'^ Contrary to the common law principles
of joint and several liability, this could mean that a defendant may no
longer be responsible for all the plaintiff's damages, but only those

caused by his fault. '^

However, arguments have been made that the Indiana Comparative
Fault Act retains the concept of joint and several liability.'"' These

arguments are in part based on the fact that the Act contains no

substantive provision abolishing joint and several liability.'"^ The only

indication that joint and several Hability has been abolished is found in

the jury instructions which require allocation of fault to the claimant,

each defendant, and any nonparties. '°^ If one assumes that the purpose

of the jury instructions is to assist juries in performing their computations,

as opposed to affecting the Act substantively, one might argue successfully

'^Joint and several liability has been defined as follows in Indiana:

Where an injury is caused by the concurrent negligence of two parties, the

injured person may recover from either or both, and neither can successfully
interpose as a defense the fact that the concurrent negligence of the other

contributed to the injury.

Indian Refining Co. v. Summerland, 92 Ind. App. 429, 432, 173 N.E. 269, 270 (1930).

^^ND. Code § 34-3-33-5(b) (Supp. 1985).
^^Wilkins, The Indiana Comparative Fault Act at First (Lingering) Glance, 17 Ind.

L. Rev. 687, 703-05 (1984).

'^IND. Code § 34-3-33-5(b)(4) (Supp. 1985).
"»Wilkins, supra note 98, at 703-05.

•°'M at 705-17.

'"^/cf. at 705-08.

'"^Ind. Code § 34-4-33-5(b) (Supp. 1985). See also Wilkins, supra note 98, at 707.



434 INDIANA LAW REVIEW [Vol. 19:417

that a strict construction of the Act does not aboHsh joint and several

liabiHtyJ^^-*

If the Act has indeed aboHshed joint and several hability, plaintiffs

who are totally free from fault will unfortunately be penalized the most.
Before the enactment of the comparative fault statute, a plaintiff free

from contributory negligence was allowed to recover the full amount of

his damages against any one defendant regardless of that defendant's

proportional fault.'"' For example, in a typical dram shop situation, the
plaintiff generally brings suit against the defendant-drunk driver and the

defendant-tavern. Often the defendant-drunk driver has little or no in-

surance. The tavern is more likely to have insurance sufficient to cover

the plaintiff's damages. Therefore, under the common law doctrine of
joint and several liability, the innocent plaintiff could recover his entire

judgment against the tavern and would be fully compensated despite the

fact that the defendant-drunk driver had little or no insurance. If joint

and several liability has, however, been abolished under the Act, the

plaintiff in this situation would be fully compensated only if the defend-

ant-tavern was found to be one-hundred percent at fault. In other words,

if the jury finds the defendant-drunk driver eighty percent at fault and

the defendant-tavern twenty percent at fault, the plaintiff will only receive

twenty percent of his total damages.

A consideration of public policy, including an analysis of who is
better able to bear losses, whether it be innocent plaintiffs or businesses

and insurance companies, leads to the conclusion that the retention of

joint and several liability is the better policy. Future courts will be

confronted with competing arguments for the abolition or retention' of

joint and several liability. In weighing policy considerations, courts should

be mindful that forcing totally innocent plaintiffs to bear losses caused

by someone else's fault does not benefit society as a whole and has

never been the purpose of tort law.'"^

C. Settlement of Dram Shop Cases
Under the Comparative Fault Act

In dram shop cases involving multiple defendants, the Indiana Com-
parative Fault Act will affect the decision regarding whether a settlement

should be made with one or more defendants prior to trial. The tortfeasor
with whom the plaintiff reaches a settlement before trial will most often
be a nonparty to whom the jury must assess fault. '"^ The goal of

'"^Wilkins, supra note 98, at 707-08.

'"'See supra note 96 and accompanying text.

'"'W. Prosser & W. Keeton, Prosser and Keeton on Torts ch. 1, § 4 (5th ed.
1984). See also Pardieck, The Impact of Comparative Fault in Indiana, 17 Ind. L. Rev.

925, 936-38 (1984).

""Eilbacher, supra note 94, at 908-09.



1986] DRAMSHOP 435

nonsettling defendants at trial will be to maximize the percentage of

negligence attributed to settling tortfeasors.'"^ On the other hand, the
goal of the plaintiff at trial will be to persuade the jury that the settling

tortfeasor's degree of fault was minimal.'"^

There may be instances in which the drunk driver carries little or
no automobile liability insurance. Therefore, it may be advisable in such
cases to settle with the drunk driver and proceed to trial against the

tavern, tavern owner, bartender, or friend who supplied the drunk driver
with alcohol. Because a drunk driver is often the most culpable defendant

in dram shop cases and would not generally make a sympathetic nonparty,
plaintiff's counsel will be placed in the difficult position of "defending"

the drunk driver in an attempt to reduce the percentage of fault which

the jury attributes to him.

D. Causation in Dram Shop Cases
Under the Comparative Fault Act

Indiana's Comparative Fault Act has retained the requirements of

both cause in fact and proximate cause in negligence actions."" As the

court in Elder v. Fisher '" pointed out, proximate cause is often a crucial

issue in dram shop cases. "^ The Elder court stated:

The crucial issue in all of the cases involving liability of a seller

of alcoholic beverages seems to be the matter of proximate cause.

Many of the cases constantly cited have arbitrarily held that the
selling of the intoxicating liquor is too remote in time to be a

proximate cause of resulting injuries.

However, it is well settled that for a negligent act or omission

to be a proximate cause of injury, the injury need be only a

natural and probable result thereof; and the consequence be one

which in the light of circumstances should reasonably have been

foreseen or anticipated."^

In future dram shop cases under comparative fault, defendant-sup-
pliers of alcohol will attempt, as in the past, to avoid liability by arguing

that providing the alcoholic beverage is too remote to be a proximate

cause of the resulting injury. Thus, a defendant-supplier will allege that

'"''M at 909.

""Ind. Code § 34-4-33- 1(b) (Supp. 1985). This subsection provides:
In an action brought under this chapter, legal requirements of causal relation

apply to: (1) fault as the basis for liability; and (2) contributory fault.
Id. See also Pardieck, supra note 106, at 931-32.

'"247 Ind. 598, 217 N.E.2d 847 (1966).

"Vc^. at 605, 217 N.E.2d at 852. Indeed, the new civil statute expressly provides that
the intoxication must have been a proximate cause of the injury. Senate Bill No. 85 (to
be codified at Ind. Code § 7.1-5-10-15.5).

"7^.



436 INDIANA LAW REVIEW [Vol. 19:417

the defendant-drunk driver's culpable conduct is an intervening or

superseding cause, thereby relieving him from liability. However, in view

of increasing public awareness of the dangers associated with drinking

and driving, plaintiffs should be able to convince a jury that suppliers

of alcohol could reasonably foresee that providing alcohoHc beverages

to an already intoxicated person or to a minor could result in injurious

consequences. Furthermore, it seems that juries would be more reluctant

to classify a defendant-supplier's conduct as a '^remote" cause or a

defendant-drunk driver's conduct as an "intervening" or "superseding"

cause under a system in which more equitable results can be obtained

by the apportionment of fault and damages.

E. Incurred Risk and Unreasonable Assumption of Risk

in Dram Shop Cases Under the Comparative Fault Act

The Indiana Comparative Fault Act specifically includes "unrea-

sonable assumption of risk not constituting an enforceable express con-

sent" and "incurred risk" in its definition of fault.'"* Because assumption

of risk and incurred risk are to be treated as comparative "fault," such

conduct on the part of a plaintiff will no longer totally bar his recovery.

Rather, the fact that the plaintiff knows, understands, and appreciates

any risks, and the fact that he voluntarily encounters them will be

considered by the jury in apportioning fault.

In cases such as Parrett v. Lebamoff,^^^ where the intoxicated in-

dividual makes a claim for personal injuries against the individual or

entity that provided him with alcohol, contributory negligence and in-

curred risk will no longer totally bar his claim. Such a claimant would

thus be able to recover for his own injuries arising from an alcohol-
related automobile accident. Because an intoxicated individual may be
able to recover a portion of his damages despite some neghgence or
incurred risk on his own part, cases such as Parrett may now have more
appeal to plaintiffs' lawyers than they did prior to the enactment of

the comparative fault statute. The Indiana statute provides that a plaintiff

who is fifty percent at fault can still recover fifty percent of his damages."^
It would appear that a plaintiff's lawyer could successfully argue that

in a case where someone provided an already visibly intoxicated plaintiff

with more alcohol or provided a minor-plaintiff with alcohol, that this plain-

tiff was not more than fifty percent at fault. Conversely, in these types

of cases, defense counsel will emphasize that plaintiff's own contributory
negligence or incurred risk was the sole proximate cause of the collision

or at least exceeded fifty percent, thereby relieving the defendant from

liability.

"Mnd. Code § 34-4-33-2(a) (Supp. 1985). _
'"408 N.E.2d 1344 (Ind. Ct. App. 1980). See also supra text accompanying notes fl

25-29. 9
"^Ind. Code § 34-4-3-4 (1985). See also supra text accompanying notes 88-89. r



1986] DRAM SHOP 437

VI. Conclusion

Ashlock V. Norris^^^ and the newly enacted civil dram shop statute
illustrate the current trend extending dram shop liability beyond the
tavern, tavern owner, or bartender. Ashlock extends dram shop liability

to a patron in a bar who provides an already intoxicated fellow patron
with alcohol. The new civil statute, enacted after the Ashlock decision, does
not limit the class of persons to whom dram shop liability may be applied.
In fact, it specifically states that it applies to anyone who barters,
delivers, sells, exchanges, provides, or gives away an alcoholic beverage

to one who is known to be visibly intoxicated. Therefore, it appears that
civil liability will be imposed upon anyone who supplies alcoholic bever-
ages, whether in exchange for payment or gratuitously, to an already visibly

intoxicated individual if that individual later causes harm to others.
The court in Ashlock did not resolve the issue whether the provider

must have actual knowledge of an individual's intoxication or whether

constructive knowledge will be sufficient to impose dram shop liabiHty.

In response to increasing public outcry to the carnage caused by drunk

drivers, it was not unreasonable to expect that Indiana courts would

have concluded that constructive knowledge would support a cause of

action. However, the enactment of the new civil dram shop statute has
ehminated the likelihood that a court will instruct the jury on construc-
tive knowledge. Nevertheless, juries will still be able to draw inferences

from circumstantial evidence to conclude the defendant actually knew the
individual was intoxicated.

Indiana's Comparative Fault Act will certainly have an impact on

dram shop liability. However, many questions remain unanswered about
the Act. At this time, it is unknown who may be a nonparty and whether
joint and several liability has been abolished. Consequently, the extent

of the impact of the comparative fault statute on dram shop liability

will be left in the hands of future courts. It is hoped, however, that

these courts will interpret the Act to protect plaintiffs fully who have
been injured by negligent suppliers of alcohol.

M75 N.E.2d 1167 (Ind. Ct. App. 1985).