RENDERED: JULY 1, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1106-MR
MICHAEL J. MOORE, AS THE
ADMINISTRATOR OF THE ESTATE
OF TIMOTHY M. MOORE APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NOS. 17-CI-03858 AND 17-CI-03882
HANK INVESTMENTS, INC. d/b/a MALABU
PUB; LSZ, LLC d/b/a PADDOCK BAR & PATIO;
SMALL PLATES, LLC d/b/a SOUNDBAR;
SUZANNE M. WHITLOW; AND
JESSICA SCHWEITZER, INDIVIDUALLY
AND AS NEXT FRIEND TO HER MINOR
CHILDREN, AVERY SCHWEITZER AND
JACKSON SCHWEITZER, AND AS
EXECUTRIX OF THE ESTATE OF JASON
SCHWEITZER APPELLEES
AND
NO. 2020-CA-1110-MR
JESSICA SCHWEITZER, INDIVIDUALLY
AND AS NEXT FRIEND TO HER MINOR
CHILDREN, AVERY SCHWEITZER AND
JACKSON SCHWEITZER, AND AS
EXECUTRIX OF THE ESTATE OF JASON
SCHWEITZER, DECEASED APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 17-CI-03858
HANK INVESTMENTS, INC. d/b/a MALABU
PUB; LSZ, LLC d/b/a PADDOCK BAR & PATIO;
SMALL PLATES, LLC d/b/a SOUNDBAR;
SUZANNE M. WHITLOW; AND
MICHAEL J. MOORE, AS THE
ADMINISTRATOR OF THE ESTATE
OF TIMOTHY M. MOORE APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.
CALDWELL, JUDGE: The above-captioned appellants appeal the Fayette Circuit
Court’s summary dismissal of dram shop claims they asserted against appellee
Hank Investments, Inc. d/b/a Malabu Pub & Grille (“Malabu”). Upon review, we
affirm.
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OVERVIEW
At 10:09 p.m. on Friday, October 28, 2016, Suzanne Whitlow
(“Whitlow”) ended her shift as a server at a Red Lobster in Lexington. She began
drinking at Malabu perhaps an hour later. Near midnight on Saturday, October 29,
2016, she drove to another bar, the Paddock, where she met with friends and
continued drinking. Afterward, she might have consumed drinks at other bars
neighboring the Paddock; she could not recall. And, upon returning to her vehicle
near 2 a.m., she also might have consumed one or more beers from a case of beer
she kept behind the driver’s seat; she could not recall. She then began driving
home.
At or about 2:30 a.m., Whitlow lost control of her vehicle near South
Upper Trace Road at Bolivar Street in Lexington, Kentucky. She veered onto the
sidewalk, striking two pedestrians, Jason Schweitzer (“Schweitzer”) and Timothy
Moore (“Moore”), and crashed into a building. Whitlow exited her vehicle
wearing only one shoe. As further noted by Lexington Police Department (“LPD”)
officers, she had a “strong odor of alcoholic beverages on her breath and person”
and “exhibited very slurred speech and her ability to communicate was extremely
choppy with her continued tangents and inability to string together continued
coherent thoughts and explanations.” See Whitlow v. Commonwealth, 575 S.W.3d
663, 666 (Ky. 2019). Investigators located the open case of beer behind the
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driver’s seat of her vehicle and an unopened can of beer on the floorboard in front
of the driver’s seat. An assessment of blood drawn from Whitlow at 5:48 a.m.
indicated that Whitlow’s blood alcohol content (BAC) was .237. Due to the
accident, both Schweitzer and Moore died. Whitlow was charged with, and
ultimately convicted of, several offenses including misdemeanor driving under the
influence and two counts of second-degree manslaughter. Id. at 665.
Based upon the above, Jessica Schweitzer, on behalf of Schweitzer’s
estate and in her above-captioned capacities, filed suit in Fayette Circuit Court
(No. 17-CI-03858) on October 26, 2017, against Whitlow for negligence and gross
negligence; and against several entities, whose bars had allegedly contributed to
Whitlow’s intoxication prior to the accident, for dram shop liability and punitive
damages. Among those entities were LSZ, LLC, d/b/a Paddock Bar & Patio
(“Paddock”); Small Plates, LLC, d/b/a Soundbar (“Soundbar”); and Hank
Investments, Inc. d/b/a Malabu Pub & Grille (“Malabu”). Schweitzer also sued
each defendant for wrongful death, loss of consortium, and punitive damages.
Michael J. Moore, as the administrator of Moore’s estate, also filed
suit in the same venue (No. 17-CI-03882) on October 28, 2017, against Whitlow
for negligence and gross negligence and against the same above-described entities
for dram shop liability and punitive damages. Moore likewise sued each defendant
for wrongful death, negligent infliction of emotional distress, and punitive
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damages. Afterward, the circuit court consolidated Schweitzer’s and Moore’s
actions for purposes of discovery.
The dram shop entities denied liability in their various answers and
either crossclaimed or reserved the right to file crossclaims against Whitlow for
indemnity. On August 10, 2020, following a period of discovery, the circuit court
then summarily dismissed the appellants’ claims against Malabu after concluding
that no evidence had been adduced indicating that, at the time she was served at
Malabu’s bar, a reasonable person would have known Whitlow was intoxicated.
These appeals were filed soon afterward and focus entirely upon the propriety of
Malabu’s summary judgments. Other facts will be provided as necessary in the
context of the analysis.
STANDARD OF REVIEW
Summary judgment serves to terminate litigation where “the
pleadings, depositions, answers to interrogatories, stipulations, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of
law.” CR1 56.03. It is well established that a party responding to a properly
supported summary judgment motion cannot merely rest on the allegations in his
pleadings. Continental Cas. Co. v. Belknap Hardware & Mfg. Co., 281 S.W.2d
1
Kentucky Rule of Civil Procedure.
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914 (Ky. 1955). “[S]peculation and supposition are insufficient to justify a
submission of a case to the jury, and . . . the question should be taken from the jury
when the evidence is so unsatisfactory as to require a resort to surmise and
speculation.” O’Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citing
Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). “‘Belief’
is not evidence and does not create an issue of material fact.” Humana of
Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990); see also Haugh v. City of
Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007) (“A party’s subjective beliefs
about the nature of the evidence is not the sort of affirmative proof required to
avoid summary judgment.”). Furthermore, the party opposing summary judgment
“cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of
a disputed fact, but must present affirmative evidence in order to defeat a properly
supported motion for summary judgment.” Steelvest, Inc. v. Scansteel Serv. Ctr.,
Inc., 807 S.W.2d 476, 481 (Ky. 1991) (internal quotation marks and citations
omitted).
On appeal, we must consider the evidence of record in the light most
favorable to the non-movant and must further consider whether the circuit court
correctly determined that there were no genuine issues of material fact and that the
moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916
S.W.2d 779 (Ky. App. 1996). “Because summary judgment involves only legal
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questions and the existence of any disputed material issues of fact, an appellate
court need not defer to the trial court’s decision and will review the issue de novo.”
Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (footnote omitted).
ANALYSIS
Before proceeding to the merits, it is necessary to clarify a
misapprehension from the Schweitzer appellants regarding their cause or causes of
action. They represent they asserted “three types” of dram shop claims against
Malabu – a dram shop claim based upon “common law,” one based upon KRS2
244.080, and a third based upon KRS 413.241. They complain the circuit court’s
summary judgment in favor of Malabu only considered the third of those claims,
but ignored the first two.
To be clear, the Schweitzer appellants only asserted one dram shop
claim; but their confusion is somewhat understandable. In Kentucky, dram shop
claims were initially recognized under the common law in Grayson Fraternal
Order of Eagles, Aerie No. 3738, Inc. v. Claywell, 736 S.W.2d 328 (Ky. 1987).
There, borrowing the standard of care set forth in KRS 244.080(2), the Kentucky
Supreme Court explained:
This means that where there is evidence from which it
can be reasonably inferred that the tavern keeper knows
or should know that he is serving “a person actually or
apparently under the influence of alcoholic beverages
2
Kentucky Revised Statute.
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(KRS 244.080(2))” and that there is a reasonable
likelihood that upon leaving the tavern that person will
operate a motor vehicle, the elements necessary to
establish a negligence action are proved.
Id. at 334.
Shortly after Claywell, our General Assembly enacted KRS 413.241 –
not as an additional type of dram shop action, but as a limitation upon any action
against a dram shop. Indeed, the fact that KRS 413.241 is a limitation upon a
cause of action, as opposed to the source of one, is readily apparent from its
location in KRS Chapter 413 – a chapter of our statutes entitled “Limitation of
Actions.”
With that said, the purpose of Kentucky’s dram shop statute, KRS
413.241, “is to simply protect the commercial interest of a business selling
alcoholic drinks responsibly, while at the same time prohibiting it from making
money by irresponsibly plying intoxicated people with drink who may – because
of their intoxication – pose a hazard to others.” Fort Mitchell County Club v.
LaMarre, 394 S.W.3d 897, 900 (Ky. 2012) (citation omitted). Turning to the
relevant portion of the statute, KRS 413.241 provides:
(2) Any other law to the contrary notwithstanding, no
person holding a permit under KRS Chapters 241 to
244, nor any agent, servant, or employee of the
person, who sells or serves intoxicating beverages to a
person over the age for the lawful purchase thereof,
shall be liable to that person or to any other person or
to the estate, successors, or survivors of either for any
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injury suffered off the premises including but not
limited to wrongful death and property damage,
because of the intoxication of the person to whom the
intoxicating beverages were sold or served, unless a
reasonable person under the same or similar
circumstances should know that the person served is
already intoxicated at the time of serving.
(3) The intoxicated person shall be primarily liable with
respect to injuries suffered by third persons.
In sum, if a dram shop (1) sells or serves intoxicating beverages to a
person of lawful age; (2) at the time of sale or service, that person was already
intoxicated; and (3) at the time of sale or service, a reasonable person under the
same or similar circumstances should have known that the person was already
intoxicated; (4) the dram shop will be secondarily liable for any injuries or
property damage later caused off the premises by that person because of the
intoxication. See id. Keeping this in mind, we will now address the propriety of
the circuit court’s summary judgments in favor of Malabu.
Recall, the accident giving rise to this litigation occurred at
approximately 2:30 a.m. on October 29, 2016. The issue presented in these
appeals is not Whitlow’s level of intoxication shortly beforehand, when she may or
may not have been drinking beer in her vehicle. Nor is it Whitlow’s level of
intoxication in downtown Lexington, where Whitlow drank an indeterminate
amount of alcohol at one or more other bars over a two-hour period after leaving
Malabu. Rather, the dispositive issue is Whitlow’s level of intoxication at the time
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she was served at Malabu – the place where she undisputedly began drinking three
or four hours before causing the accident.
Granting summary judgment in favor of Malabu based upon the third
dram shop element set forth above, the circuit court determined the appellants
adduced no evidence supporting Malabu had served Whitlow when a reasonable
person under the same or similar circumstances should have known she was
already intoxicated. The appellants assert the circuit court erred in this regard
because, in their view, reasonable evidentiary inferences could support Whitlow
was already intoxicated when Malabu served her. Before proceeding to the
specifics of the appellants’ arguments, which largely overlap, it is necessary for
context to summarize the extent of the evidence relating to Whitlow’s visit to
Malabu – evidence largely emanating from six different accounts given by five
different witnesses.
Two of those accounts came from Whitlow herself. To summarize
her December 12, 2019, deposition testimony, Whitlow stated that over the year
preceding the accident, she visited Malabu “almost every day” after her shift
ended, usually between 11 p.m. and 2 a.m. She would usually shoot pool and have
three or four drinks. On October 28, 2016, after clocking out from Red Lobster at
10:09 p.m., and then stopping at a nearby Speedway station for gas and cigarettes,
she arrived at Malabu, which was about two blocks away from her workplace. On
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the date of her deposition, Whitlow could not recall exactly when she arrived at
Malabu, explaining she may have stayed later at Red Lobster and that she could
only guess how long she was at the Speedway. But, she testified she stayed at
Malabu for “over an hour” after arriving; paid in cash; shot pool; purchased and
drank one or two “single”3 vodka and cranberry drinks; purchased a Budweiser
beer and a Jägermeister or tequila shot about thirty minutes later; purchased a
Jägermeister or tequila shot for her friend and coworker, Katherine Mitchell
(“Kat”), who was already at Malabu when she arrived; and also had a cigarette
with Kat.
Whitlow further testified that about twenty minutes after she and Kat
drank their shots and she finished her beer, she left Malabu by herself, driving ten
minutes away to the Paddock in downtown Lexington to meet two other friends,
Jeremy Arvin and Sierra Hensley. Whitlow also reviewed text message data from
her phone, and explained her texts indicated she probably left Malabu near 12:11
a.m.4 All told, Whitlow believed she had three or four drinks at Malabu over the
course of at least an hour.
3
“Single” refers to a mixed drink containing one shot of hard liquor, as opposed to a “double”
which contains two.
4
Whitlow’s text message data was detailed in the LPD’s crash report as follows:
• 10:56:56 pm Jeremy tells Whitlow to “Come to sound bar
please hangout here.”
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When asked about her level of intoxication at Malabu, Whitlow
explained she would typically become “wobbly,” “tipsy,” unable to walk straight,
and that she would slur her speech when drunk. But, she recalled feeling sober and
exhibiting none of those symptoms during her visit. Likewise, nothing of record
indicates Whitlow experienced any difficulties during her approximate ten-minute
journey to the Paddock afterward; when asked if she had any problems driving or
walking at that time, she testified: “No sir. I was fine.”
As to her second account, Whitlow acknowledged discrepancies
existed between what she related in her December 12, 2019 deposition, and what
she had related earlier during her October 29, 2016 interview with an investigating
LPD officer. The interview (of which Whitlow testified she had no recollection)
occurred at 4 a.m. while Whitlow was confined to an emergency room hospital
• 11:27:46 pm Whitlow says “Well they have a cover and the
drinks aren’t as strong and it’s more expensive and I didn’t
make that much money”
• 11:29:54 pm Jeremy says “5$ I’ll get ur first drink to make it
up.”
• 11:33:43 pm Whitlow says “When Kat leaves I will”
• 11:56:32 pm Whitlow says “Im down for Paddock”
• 10/29/16 at 12:03:10 Whitlow says “ok I’m down for Paddock”
• 12:04:24 am Whitlow says “I’ll be leaving here in like 10 min
you still buying my first drink?”
• 12:11:23 am Whitlow says “On my way!”
• 12:30:19 am Whitlow says “I’m about to go back to malabu”
and follows it up seconds later stating “The drinks aren’t strong
and it’s not busy at all”
As an aside, Whitlow undisputedly did not return to Malabu after departing to the Paddock.
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bed, suffering from injuries, and heavily intoxicated; again, blood drawn from her
at 5:48 a.m. indicated she had a BAC of .237. According to the transcript, while
most of what she related to the officer during the interview was unintelligible,
Whitlow indicated she had been at Malabu for “probably about twenty-five
minutes”; and that while she had been there, she had consumed “two vodka and
cranberry drinks, one vodka cranberry shot.”
Next, Whitlow’s friend, Kat, was deposed on June 9, 2020. Kat and
Whitlow had been friends for over three years prior to the accident, and she
testified the two of them would regularly meet at Malabu for “a couple of drinks”
after working at Red Lobster. Kat testified that on the evening of October 28,
2016, she arrived at Malabu sometime between 10 p.m. and 11 p.m., and was there
about twenty or thirty minutes before noticing Whitlow had also arrived. Kat
chatted with Whitlow, but she recalled sitting at the “front” of the bar and talking
with other patrons while Whitlow spent the majority of her time at Malabu at the
“back” of the bar shooting pool. Kat testified Whitlow later asked if she wanted to
go with her to another bar downtown, that she declined the invitation, and that the
two of them left the bar together and parted ways around “midnight-ish.”
Kat had no memory of what or how much Whitlow drank at Malabu
and did not recall if Whitlow had bought her a drink that night. When asked about
Whitlow’s level of intoxication at Malabu during that period, however, Kat
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explained she was familiar with how Whitlow typically acted when drunk. She
indicated Whitlow would act “funny” and “goofy,” but that her behavior after
consuming “a lot of alcohol” was not significantly different from what it was while
she was sober. By way of example, Kat explained Whitlow enjoyed hugging
people regardless of whether she was intoxicated. That aside, Kat testified if she
had noticed Whitlow was intoxicated when the two of them were parting ways, she
would not have allowed Whitlow to leave the bar.
Ashley Faulkner (“Faulkner”), Stephanie Conrey (“Conrey”), and
Amanda Pfuelb (“Pfuelb”), the three bartenders who served patrons at Malabu
from the evening of October 28, 2016, until early the next morning, also provided
deposition testimony. Each was deposed over three years after October 28, 2016.
Faulkner was uncertain of when Whitlow arrived or left, but estimated Whitlow
was at Malabu for “maybe an hour or two.” She recalled Whitlow wore a Red
Lobster uniform at the time (i.e., a black shirt bearing the logo of the restaurant,
along with black pants). She had no memory of serving Whitlow, but she recalled
Whitlow had been there with Kat and had ordered a drink from another bartender.
She also remembered seeing notations in Malabu’s “tab book” indicating Whitlow
had purchased four “single” mixed drinks while there. The tab book did not
indicate when Whitlow purchased the drinks, and Faulkner could only assume the
four mixed drinks were either vodka and lemonade or vodka and cranberry juice,
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Whitlow’s usual choices. Faulkner had no specific recollection of seeing Whitlow
consuming any drinks.
As an aside, there is no indication from the record that Whitlow
purchased any drinks with a credit card or anything else that would have generated
a point-of-sale record of a transaction. Faulkner also testified Whitlow usually
paid in cash. When a customer immediately pays for drinks in cash, it is not
recorded in the tab book. So, there was no way of knowing the total number of
drinks Whitlow might have purchased at Malabu if Whitlow had used cash to
purchase additional drinks before starting or after closing the tab.
When asked about Whitlow’s level of intoxication at Malabu during
that period, Faulkner testified her general practice – consistent with her training
and fourteen years of experience as a bartender – was to measure intoxication
through observation. In relevant part, she explained:
Q: Okay. So, as a bartender at Malabu, how do you
monitor customers for signs of intoxication?
A: Just acting out of the ordinary. Like, some – it’s
different for different people, so some people may be
loud or obnoxious, dancing around, they could be like,
you know, bobbing their head or some people get angry,
slurred speech – there’s numerous things that would
indicate if somebody was intoxicated. Or if they can’t
properly count back their money. Like, if they pay for
something and they don’t know how to give me back
money from something they gave me or they can’t sign
their ticket and then they can’t put the tip or the total or
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do that correctly, then that’s a sign of, to me, they’re
intoxicated.
Q: Is drink counting something that you also implement
to monitor a customer for intoxication?
A: Well, I feel like everybody’s got a different tolerance
so it depends on the person.
Q: So then, you don’t drink count or pay atten – that
would be a “no” to my previous question?
A: No. No, I don’t go back and count how many drinks
there are, I just determine by how they’re acting and what
they can tolerate.
...
Q: Would you agree that intoxication occurs gradually?
A: No. I just think they could come in and already have
been drinking somewhere else, or maybe they did some
sort of drugs, or maybe they didn’t eat a whole lot and
then they’re drinking, so it’s kind of being hit all of a
sudden sometimes.
Regarding what she specifically recalled of Whitlow’s demeanor,
Faulkner explained she was familiar with Whitlow, and that Whitlow was a
frequent customer at Malabu who would have “just a couple of drinks here and
there.” She testified Whitlow had mostly remained in the back of the bar by the
pool table over the course of the night, but that she saw Whitlow in passing for a
few minutes at the bar where they had a brief conversation. She saw her again
while collecting empty glasses at the pool table, where she observed Whitlow
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talking with other patrons. She testified that on each occasion, Whitlow “seemed
fine” and spoke in “her usual voice.”
Conrey, one of the other bartenders on duty at Malabu that night, also
regarded Whitlow as a “regular.” She recalled Kat had arrived at Malabu shortly
before Whitlow on Friday evening, and that Whitlow wore a Red Lobster uniform
while there. The only drink she recalled serving Whitlow, and the only drink she
witnessed Whitlow consume, was the same drink Conrey testified Whitlow usually
drank at Malabu – either a “single” vodka and lemonade or vodka and cranberry
juice. Conrey remembered making the drink for Whitlow shortly after Whitlow
arrived; having a brief conversation with her as she made it; and that Whitlow did
not pay immediately, but instead started a tab which Conrey noted in Malabu’s tab
book. Whitlow then went to the back of the bar to shoot pool.
The next (and last) time Conrey saw Whitlow was when Whitlow and
Kat were preparing to leave. Conrey had no memory of when Whitlow ultimately
left, but she recalled “closing out” Whitlow’s tab beforehand, and that “it wasn’t a
very long tab at all.” Conrey also had no memory of the tab’s specifics, but she
recalled it indicated Whitlow had purchased more of “whatever vodka drink”
Whitlow had ordered from her earlier. Conrey insisted Whitlow’s tab bore no
indication that Whitlow purchased any beer or shots at Malabu, but conceded it
was “possible for someone to come up to the bar, and just order a single drink, and
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pay cash for it without including it on their tab.” Conrey remembered that before
Kat and Whitlow left, Whitlow said “goodbye” to her and, as per usual, gave her a
hug.
When asked about Whitlow’s level of intoxication at Malabu that
night, Conrey’s testimony was roughly the same as Faulkner’s. Her general
practice – consistent with her training and ten years of experience as a bartender –
was to primarily measure intoxication through observation. Conrey also testified
she had “cut” Whitlow “off” on one or two prior occasions after witnessing
Whitlow exhibit signs of intoxication (i.e., slurred speech, and body language
Conrey described as “off”). That said, Conrey testified that upon leaving Malabu
that night, Whitlow “was fine.”
The third bartender on duty, Pfuelb, testified her recollection of
Whitlow’s visit to Malabu on October 28, 2016, was best reflected in the statement
she provided LPD investigators a day or so after the accident. As summarized in
the LPD crash report,
Ms. Pfuelb reported she saw Ms. Whitlow in Malabu Pub
the night of the collision with her friend “Cat” [sic]. She
recalls seeing the news coverage and realizing she had
been in the pub. She says she knows her to work at Red
Lobster and knows her as “Suzie”. Pfuelb says “Suzie”
was in Malabu Pub from approximately 11pm until about
12 am. She personally served her one vodka and
lemonade and saw her coworker serve her another vodka
and lemonade. Pfuelb says when “Suzie” closed out her
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tab she had a total of four drinks on there; she does not
know what the other two were. Whitlow paid in cash.
In her deposition, Pfuelb testified Whitlow may have come to Malabu
at “10:45-ish,” and she recalled briefly chatting with Whitlow about how Whitlow
had just gotten off work. She recalled Whitlow wore a Red Lobster uniform that
evening and mostly shot pool while she was there. Pfuelb also reiterated seeing
four drinks on Whitlow’s tab, but she did not know if Whitlow had purchased the
drinks for herself or someone else.
When asked about Whitlow’s level of intoxication at Malabu that
night, Pfuelb’s testimony was roughly the same as Conrey’s and Faulkner’s. She
did not keep a strict drink count of every patron, and she explained that every
person is unique and has differing levels of alcohol tolerance. Instead, Pfuelb’s
general practice – consistent with her training and twelve or so years of experience
as a bartender – was to primarily measure intoxication through observation. In that
vein, she testified:
Slurred speak [sic] is probably one of the most common.
You look for, you know, in the eyes whether they’re
watery, glassy, bloodshot. You look for, you know,
whether their – their steps are faltering, if they’re, you
know, stumbling over themselves. Also, people’s
behavior gets heightened, you know, your sense of
emotion, whether you’re happy, you get even louder and
happier. Your hand gesturing is another thing. Sadness,
people crying, anger is another thing. Just basically
emotions, I think, in general are heightened.
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Pfuelb was also familiar with Whitlow, whom she deemed a
“regular,” and she described her as having a “nice personality,” and being “very
friendly” and “always polite.” When asked how Whitlow appeared as she was
closing out her tab before leaving Malabu that night, Pfuelb testified: “She was
fine. There was no slurred speech. There was [sic] no indicators that she seemed
intoxicated or inebriated. There was nothing that sent any type of red flag up that
she was under the influence.”
Having discussed the evidence of Whitlow’s visit to Malabu, we now
turn to the specifics of the appellants’ arguments regarding the inferences that
could be drawn from it to support Whitlow was “already intoxicated,” per KRS
413.241(2), when Malabu served her. For their first argument, the appellants begin
by noting Whitlow stated during her post-accident interview with LPD that she had
been at Malabu for “twenty-five minutes.” They assert it could be inferred
Whitlow consumed more than seven drinks in that period. The appellants argue
that this inference,5 combined with fact that Whitlow’s BAC (as measured from
blood drawn from her at 5:48 a.m. the next day) was .237, could support an
5
Without citing the record, the appellants insist it could also be inferred Whitlow drank more
than seven drinks “on an empty stomach.” To the extent it is relevant, this is not reasonable
inference, but rather speculation. Whitlow’s deposition provides the only indication of whether
Whitlow had food before arriving at Malabu. There, Whitlow testified she could not recall
whether she ate at Red Lobster during or at the end of her shift on October 28 prior to arriving at
Malabu, but that “most of the time when [she] got off work, [she] would stay there and [she]
would eat because [Red Lobster employees] got like half off if we worked that day.”
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additional inference; namely, that Whitlow was already intoxicated on at least one
of those seven possible occasions when Malabu might have served her.
As to how they reached a figure of “more than seven drinks,” the
appellants note each of the bartenders indicated Whitlow’s drink tab indicated
Whitlow purchased four “single” mixed drinks, but that her tab might not have
reflected all of what Whitlow purchased if she had been using cash. They also
note Whitlow only used cash; that she testified consuming a beer and a shot of
tequila or Jägermeister in addition to possibly two mixed drinks at Malabu; and
that she recalled, during her post-arrest interview, having a “vodka cranberry shot”
at Malabu. Accordingly, the appellants’ math is as follows: four mixed drinks
listed on her tab, plus the beer and shot Whitlow mentioned in her deposition, plus
the “vodka cranberry shot” she mentioned while in the hospital, equals seven.
And, they add, it could have been more than seven, or perhaps less, because the
bartenders at Malabu testified they did not use a measuring device called a “jigger”
when pouring liquor, and instead “free-poured” liquor, which they measured
through a counting method.
There are at least two problems with this chain-of-inferences
argument. First, while recollections of what Whitlow drank at Malabu differed, no
witness or other source of evidence indicated Whitlow was served more than four
drinks there. Second, and more importantly, this argument necessarily relies upon
-21-
an impermissible assumption rather than evidence, i.e., that all people who drink a
certain amount will, more probably than not, become perceptibly intoxicated
within a certain amount of time.
As to why this assumption is impermissible, the General Assembly
has indicated through use of the “reasonable person” standard in KRS 413.241(2)
that determining whether a given dram shop or its agents “should know that the
person served is already intoxicated at the time of serving” within the meaning of
the statute is an inherently objective inquiry, and one of degree. See also Wilson v.
Commonwealth, 628 S.W.3d 132, 143 (Ky. 2021) (generally explaining the
“reasonable person” standard). As Malabu notes in its brief, the statute does not
hold a dram shop and its employees to the standard of a reasonable toxicologist or
a reasonable behavioral psychologist. Rather, it “imposes a duty upon a dram shop
and its employees, before selling or serving alcohol to a person, to use their powers
of observation to perceive readily visible warning signs that a person is intoxicated,
and to refrain from serving or selling alcohol to that patron.” Carruthers v.
Edwards, 395 S.W.3d 488, 492 (Ky. App. 2012).
In this respect, our Supreme Court provided further guidance in
LaMarre, 394 S.W.3d 897. There, Timothy LaMarre sued the Fort Mitchell
Country Club for alleged negligence in over-serving alcohol to Michael Plummer,
who had injured him while operating a golf cart shortly after the two of them
-22-
departed the club together. LaMarre asserted the club was not entitled to the
immunity from suit provided by KRS 413.241(2) because, in his view, the club had
continued to serve Plummer alcohol after it was apparent Plummer was
intoxicated. Id. at 899. Eventually, LaMarre’s action was summarily dismissed
and, following its review of LaMarre’s evidence, our Supreme Court agreed with
the summary disposition.
In its opinion, the Court focused upon the objective evidence of
Plummer’s condition and what the club and its agents witnessed of Plummer’s
condition before, during, and shortly after an approximate 70-minute time span – a
time span in which Plummer and his wife shared dinner with LaMarre and his wife
at the club. The Court noted the evidence of whether Plummer actually was
intoxicated at any point in time was unclear – nothing indicated his BAC was ever
measured, and the quantity of alcohol Plummer imbibed was unknown. At most,
the evidence demonstrated Plummer shared an unspecified amount of two bottles
of wine with LaMarre and his wife during dinner. Id. at 901.
Even assuming Plummer had been intoxicated, however, the Court
emphasized the “ultimate issue” presented did “not deal with the actual inebriation
of Mr. Plummer, but whether a ‘reasonable person’ should know that the person
being served alcohol is intoxicated.” Id. (emphasis added). Accordingly, while
LaMarre argued summary judgment was premature because he should have been
-23-
permitted more time in discovery to adduce expert testimony from a toxicologist,
the Court rejected the notion, explaining “the toxicologist would not have been
able to speculate as to Mr. Plummer’s actual blood alcohol level or as to the
ultimate issue – how Mr. Plummer appeared to the Club’s employees during the
night of the incident.” Id. (emphasis added).
The LaMarre Court also explained the only evidence illustrating
Plummer’s perceptible condition during the relevant time frame presented no
genuine issue of fact. Apart from noting there was no indication that Plummer so
much as slurred his speech that evening, id. at 901, the Court observed:
[F]ive separate employees of the Club spoke to the
LaMarres and the Plummers. The two couples were
familiar and regular members of the Club. All of the
employees had received training in the detection of
intoxicated customers. None of them believed that any
member of the group was intoxicated. The LaMarres
also indicated that they did not think Mr. Plummer was
intoxicated when they left the Club that evening.
Id. at 899.
In sum, LaMarre provides the following about the quantum of
evidence required to prove whether a given dram shop or its agents “should know
that the person served is already intoxicated at the time of serving” within the
meaning of KRS 413.241(2). While circumstantial evidence may suffice to
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establish a person was perceptibly intoxicated at the relevant time,6 it must
nevertheless be actual evidence of the perceptible intoxication of the allegedly
intoxicated person. Thus, as the Court indicated, a person’s BAC cannot be
considered a readily visible warning sign that a person is “already intoxicated”
because it does not show what behavior, if any, the person actually manifested to a
reasonable observer, nor how he or she appeared at any given time. As an aside,
this policy is consistent with the licensing statutes, which do not concern
themselves with the problem of individuals becoming intoxicated outside the
presence of licensed alcohol vendors. See, e.g., KRS 244.080(2).7
6
While there seems to be some confusion on this point among the parties, interpreting KRS
413.241 as requiring only direct evidence of perceptible intoxication would improperly add
language to the statute.
7
KRS 244.080 provides in relevant part:
A retail licensee, or the licensee’s agent, servant, or employee, shall not sell, give
away, or deliver any alcoholic beverages, or procure or permit any alcoholic
beverages to be sold, given away, possessed by, or delivered to:
...
(2) A person who appears to a reasonable person to be actually or
apparently under the influence of alcoholic beverages, controlled
substances, other intoxicating substances, or any of these
substances in combination, to the degree that the person may
endanger any person or property, or unreasonably annoy persons in
the vicinity.
(Emphasis added.)
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Here, any inference – plausible or not – that Whitlow consumed more
than seven drinks at Malabu might reinforce a finding that she was intoxicated at
or near the relevant time frame. But standing alone, it cannot substitute for
showing in the first instance that she was perceptibly intoxicated. By extension,
the same holds true regarding the amount of time Whitlow spent drinking at
Malabu; the condition other hypothetical drinkers might have been in, had they
consumed as much; instances of Whitlow’s intoxication weeks or months earlier;8
or the fact that over five hours after leaving Malabu, Whitlow’s BAC was .237.
None of that is the requisite evidence of Whitlow’s appearance or demeanor at or
near the relevant time, and it is not enough to overcome a motion for summary
judgment.
For their second argument, the appellants assert Whitlow displayed an
outward sign of intoxication by hugging Conrey before leaving Malabu. We
disagree. Whitlow’s hug occurred after Malabu stopped serving her; and, taking it
in context, it would be speculation to say it circumstantially indicated Whitlow was
intoxicated when she was served at Malabu sometime earlier. According to Kat,
Whitlow enjoyed hugging people regardless of whether she was intoxicated.
8
The appellants characterize Whitlow as an “habitual drunkard,” emphasizing she was
considered a “regular” at a bar, and that over a year prior to the October 29, 2016 accident, she
was convicted of driving under the influence of alcohol. They also emphasize Whitlow posted
sixteen one-sentence comments to her Facebook account between November 2015 and July 2016
expressing her enjoyment of alcohol. These details are irrelevant.
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According to Conrey, Whitlow usually hugged her when leaving Malabu. And,
while there is no evidence describing what the hug looked like, no one who
witnessed it regarded Whitlow’s hug or other conduct as abnormal.
Third, the appellants take issue with the testimony of Malabu’s three
bartenders who agreed Whitlow was “fine” and did not appear intoxicated. They
argue a factfinder could disregard this testimony; first on grounds of bias and, they
assert, because the bartenders were improperly trained and improperly failed to
keep a record of every drink served to every patron over the course of Whitlow’s
visit. However, the burden of proof in this matter belonged to the appellants, not
Malabu; and the hope that a factfinder will disbelieve an opponent’s evidence is
not enough to overcome a motion for summary judgment. Steelvest, Inc., 807
S.W.2d at 481.
Fourth, the appellants accuse Malabu of spoliating evidence, and
argue they were accordingly entitled to an evidentiary inference that Whitlow
appeared outwardly intoxicated at Malabu. Specifically, they note that during
discovery, Malabu failed to produce: (1) its “tab book,” which the bartenders
testified indicated Whitlow had purchased four “single” mixed drinks while at
Malabu; and (2) surveillance footage from the time frame of Whitlow’s visit.
At the onset, we note spoliation can warrant a “missing evidence”
instruction, but that no Kentucky authority currently indicates whether an inference
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arising from spoliation can overcome a motion for summary judgment. However,
assuming the law of spoliation also applies in this context, there is no entitlement
to an evidentiary inference stemming from alleged spoliation. Rather, “[i]t is
within the trial court’s discretion to deny a requested instruction, and its decision
will not be reversed absent an abuse of discretion.” Auslander Properties, LLC v.
Nalley, 558 S.W.3d 457, 469 (Ky. 2018) (citation omitted). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999) (citations omitted). Regarding when such an inference is
warranted:
The latest word on missing evidence instructions came
just a few months ago, in Norton Healthcare, Inc. v.
Disselkamp, 600 S.W.3d 696 (Ky. 2020), where the
Supreme Court said:
While we acknowledge that parties in civil
litigation must not destroy evidence the
parties know is relevant to potential
litigation, we do not agree . . . that a party is
always entitled to a missing-evidence
instruction, to uphold “judicial integrity,” in
all cases where evidence is not available
after the party responsible for the evidence
was put on notice of potential litigation.
Id. at 733 (footnote omitted).
Relying, in large part, on University Medical Center, Inc.
v. Beglin, 375 S.W.3d 783 (Ky. 2011), the Supreme
Court further stated:
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[T]he trial court is within its discretion to
give a missing-evidence instruction when:
(1) the evidence is material or relevant to an
issue in the case; (2) the opponent had
“absolute care, custody, and control over the
evidence;” (3) the opponent was on notice
that the evidence was relevant at the time he
failed to produce or destroyed it; and (4) the
opponent, “utterly without explanation,” in
fact failed to produce the disputed evidence
when so requested or ordered. In so finding,
we [noted] . . . that “nonproduction alone ‘is
sufficient by itself to support an adverse
inference even if no other evidence for the
inference exists[.]’”
Disselkamp, 600 S.W.3d at 731 (footnotes omitted).
“In fact,” said the Supreme Court, “the Beglin court
explicitly declined to adopt ‘a special rule for measuring
the quantum or quality of evidence that will authorize a
missing evidence instruction.’ [Beglin, 375 S.W.3d] at
790. Instead, the Beglin court opted for a flexible
standard that grants wide discretion to the trial court.”
Id. at 730 n.112. We keep these flexible standards in
mind as we assess whether the circuit court abused this
wide discretion in denying the missing evidence
instruction.
Curtis v. Price Holdings, Inc., 610 S.W.3d 339, 346 (Ky. App. 2020).
Keeping that in mind, we turn to why the circuit court declined giving
the appellants an evidentiary inference. During the August 4, 2020 summary
judgment hearing, it was observed that the appellants did not send Malabu any
notice to preserve evidence until Moore’s counsel sent Malabu a preservation letter
on or about September 26, 2017. Regarding the tab book, Malabu offered no
-29-
explanation regarding its whereabouts other than that it must have been lost during
the intervening eleven months. It noted, however, that the LPD crash report
indicated Pfuelb’s recollection days after the accident that the tab book reflected
Whitlow had purchased four drinks.
Before ruling upon Malabu’s motion for summary judgment, the
circuit court explained the record did not indicate Malabu intentionally or willfully
destroyed the tab book. Nevertheless, the circuit court also considered Pfuelb’s
recollection of the tab book’s contents and indicated that even if the tab book
represented that Whitlow purchased four drinks, it was insufficient for summary
judgment purposes because it did not indicate how Whitlow appeared or acted at
Malabu. Considering what we have discussed in this Opinion, we cannot say the
circuit court abused its discretion or otherwise erred in this respect.
Regarding Malabu’s surveillance footage, none of the three bartenders
deposed in this matter recalled seeing any surveillance footage from the night in
question,9 and Malabu represented nothing existed. Its corporate representative,
Henry Wilson, testified that upon learning of the accident a few days after it
happened, he tried reviewing Malabu’s system for footage of Whitlow from that
9
Pfuelb testified she could not recall seeing any such footage. Faulkner testified being aware
that a surveillance system existed; but that she had never tried accessing it and had never “seen
anyone be able to rewind the video to go back to a different point in time.” Conrey likewise
testified having no knowledge of footage from that night, and that she had only ever attempted to
access the newer system.
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night, but discovered at that time that the system did not function. He testified that
“sometime later” – between then and possibly after the underlying litigation was
filed – he decided to have a new surveillance system installed. He testified Malabu
no longer had possession of the old system, which he assumed had been disposed
of by the company that had installed the new one. Wilson also provided the
contact information of the individual who had installed Malabu’s new surveillance
system, but nothing of record indicates that individual was later contacted by the
appellants.
Considering this evidence, the circuit court indicated during the
summary judgment hearing that Malabu’s lack of surveillance footage did not
appear to have stemmed from a willful intent to destroy evidence. From all
appearances, the circuit court’s decision was founded upon the proposition that
Malabu’s lack of footage owed more to ordinary negligence and was not “utterly
without explanation[.]” Disselkamp, 600 S.W.3d at 731. Considering the circuit
court’s “wide discretion” relative to missing evidence issues, Curtis, 610 S.W.3d at
346, we find no error in this respect, either.
The appellants’ fifth argument is that it could be circumstantially
inferred from evidence of Whitlow’s conduct and appearance after leaving Malabu
that she was perceptibly intoxicated while she was at Malabu. In that regard, they
note that evidence demonstrates Whitlow was, without dispute, visibly intoxicated
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at or about 2:30 a.m. on October 29, 2016, at the scene of the accident, and at 4
a.m. during her interview with LPD.
We disagree. As a general matter, evidence of an individual’s later
appearance or conduct can provide circumstantial evidence of earlier perceptible
intoxication; however, temporal proximity is a chief consideration in determining
its relevance. For example, it was held in Tate v. Borton, 272 S.W.2d 333 (Ky.
1954), that for purposes of a (now-outdated) contributory negligence defense,
whether the decedent “voluntarily rode in the car knowing that the driver was
under the influence of intoxicants” was a jury question. In Tate, notwithstanding
eyewitness testimony supporting that the driver was “not drunk” before and after
the car accident, the decedent witnessed the driver drinking shortly before entering
the vehicle; the accident occurred shortly thereafter; and neither the driver nor any
other witness could explain how the driver lost control of the vehicle and caused
the fatal crash. Id. at 334. Here, by comparison, no such inference is reasonable.
Whitlow’s accident did not occur shortly after she was observed drinking at
Malabu. The accident occurred two-and-a-half hours later and, during that period,
Whitlow consumed an additional, undefined amount of alcohol.
Sixth, and finally, the appellants argue that approximately thirteen
minutes of surveillance footage – recorded at the Paddock shortly after she arrived
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there, and perhaps10 fifteen or twenty minutes after she left Malabu –
circumstantially indicates she was visibly intoxicated at Malabu. We disagree,
however, that it depicts “readily visible signs” that Whitlow was intoxicated.
Carruthers, 395 S.W.3d at 492.
To summarize, the footage depicts activity at one of the Paddock’s bar
tables. A female bartender can be seen working behind the bar. Approximately
seven patrons, sitting in a long row of chairs across from the bar, are facing the
bartender. Due to the camera angle, usually only the backs of their heads are
visible. Whitlow enters the bar and gives one of the individuals seated at the bar a
brief hug. From all accounts, the individual is her friend, Sierra Hensley. Whitlow
stands at the bar between Sierra and the woman seated to the right of Sierra.
Whitlow appears to greet and converse with the woman to the right and she places
her right hand on the back of the woman’s chair. Whitlow then appears to order
what she would later testify was a vodka and cranberry juice mixed drink. The
bartender makes the drink and hands it to Whitlow. Whitlow looks through her
small purse (with no obvious difficulty, contrary to what the appellants represent)
and hands something unidentifiable to the bartender. Whitlow then sips her drink
through a straw.
10
The Paddock provided approximately five hours and twenty minutes of surveillance footage,
but the footage did not indicate when it was recorded. The Moore appellants estimate Whitlow
arrived at the Paddock “around 12:23 a.m.”
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From all indications, there is loud music playing at the Paddock.
Sometimes, people walking in and out of the footage lightly dance, gyrate, or
shake their heads to the music, while standing in place, holding their drinks. On
occasion, while standing at the bar, Whitlow does this, too. Over the course of the
next few minutes, Whitlow sometimes places her hand on the back of the woman’s
chair. But there is no obvious indication – contrary to the appellants’ assertions in
their respective briefs – that she used the chair to brace herself in an effort to
remain standing. For a brief moment, Whitlow also laughs with the woman and
“high-fives” her. But it is quite an exaggeration to characterize the “high-five” as
“sloppy,” or causing her to “nearly fall over,” as the appellants allege.
As the woman sitting next to Sierra gets out of her seat and leaves the
footage, Whitlow takes her seat. For the next few minutes, for the most part, only
Whitlow’s back and the back of her head are visible. She converses with Sierra,
occasionally gesticulating. Sometimes, she rests her right elbow on the bar. While
doing that, she sometimes rests the side of her head in her open right hand.
Sometimes, she holds the back of Sierra’s chair with her left hand.
Ten minutes after arriving, Whitlow then leaves her seat, holding her
drink and what appears to be her purse in her left hand, and walks, without
difficulty, out of the footage. From all appearances, Whitlow is able to converse,
is aware of her surroundings, and her conduct is unremarkable. Succinctly, there is
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nothing in the video to support Whitlow was intoxicated at that time, or to support
a reasonable person at Malabu being able to discern that Whitlow was intoxicated
during her earlier stint at Malabu.
CONCLUSION
We have addressed the breadth of the appellants’ arguments. We
have found no instance of error. Accordingly, we AFFIRM.
MCNEILL, JUDGE, CONCURS.
MAZE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
MAZE, JUDGE, DISSENTING: I cannot agree with the majority herein that the
Appellants failed to adduce sufficient evidence to survive Appellees’ motion for
summary judgment. When the Court properly considers the summary judgment
standard of CR 56.03, including its obligation to view the record in favor of the
non-moving party, resolving all doubts in that party’s favor, it is clear that
sufficient evidence has been presented to demonstrate the existence of genuine
issues of material fact. The majority has relied upon the case of Fort Mitchell
Country Club v. LaMarre, 394 S.W.3d 897, 900 (Ky. 2012). However, that case is
distinguishable since the Court concluded that there was a “total absence” of proof
that the driver therein was intoxicated.
Such is not the case herein. In fact, a great deal of evidence was
submitted as to the issue of whether a “reasonable person” should know that
-35-
Whitlow was intoxicated while at the Malabu bar. KRS 413.241. The testimony
of Whitlow and the three bartenders varied widely as to the period of time she
spent in the bar, the amount of alcohol which she purchased, and the amount of
alcohol which she actually consumed. Whitlow testified that she was not
intoxicated, and the bartenders all testified that she seemed “fine.” However, the
Appellants produced a video recorded minutes later at the Paddock, arguing that it
shows her leaning on a chair, being somewhat boisterous and being slumped over
the bar. This evidence was clearly probative of the issue of what a reasonable
person knew or should have known as to her level of intoxication. Further, had the
matter progressed beyond the summary judgment stage, Appellants may have had
the benefit of expert testimony, as experts had not yet been disclosed prior to the
entry of judgment. Finally, Appellants could well have been entitled to the benefit
of a spoliation or missing evidence instruction along with the appropriate
inferences arising out of Malabu’s failure to retain the bar’s video from that night
and to safeguard the tab book which reflected drinks purchased.
Iowa’s Dram Shop Act11 is similar to Kentucky’s in that it contains a
requirement that the server must have “known or should have known” that the
patron who inflicted the injury was intoxicated at the time of service. In Smith v.
Shagnasty’s Inc., 688 N.W.2d 67, 75 (Iowa 2004), the trial court granted the bar’s
11
Iowa Code § 123.92.
-36-
motion for summary judgment and the Court of Appeals affirmed. On appeal, the
Supreme Court of Iowa reversed and remanded on the grounds that there were
genuine issues of material fact as to whether the server knew or should have
known that the bar patron was intoxicated. In so doing, the Court held that
circumstantial evidence is not only a sufficient element to show scienter but may
be sufficient without any direct evidence. In so doing, the Court quoted Ward v. D
& A Enters. Of Clark County, Inc., 714 N.E.2d 728, 730 (Ind. App. 1999), which
held that:
when viewed most favorably to the non-moving party,
the fact that [a bar] served even one beer to a person who
shortly thereafter was in a state of serious intoxication
gives rise to a question of fact whether [the intoxicated
person] was visibly intoxicated at the time [of service].
In Torrance v. Murphy’s Grill, 884 N.W.2d 223, 2016 WL 1680470
(Iowa Apr. 27, 2016), where the Court affirmed the trial court’s granting of
summary judgment, that the court had the benefit of expert testimony as to the
blood alcohol level of the patron. However, in the case before this Court, no
experts had been disclosed prior to the entry of summary judgment. While expert
testimony in this regard is not required, its absence should be a consideration in
determining if summary judgment has been awarded prematurely.
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More importantly, the Torrence case also deals with an allegation of
evidence lost or destroyed in the form of video from the bar and receipts from the
day of the accident. The Court stated that:
[T]he intentional destruction of or the failure to
produce documents or physical evidence relevant
to the proof of an issue in a legal proceeding
supports an inference that the evidence would have
been unfavorable to the party responsible for its
destruction or nonproduction. The nonproduction,
alteration, or destruction of evidence is commonly
referred to as spoliation. When established, the
inference is regarded as an admission by conduct
of the weakness of the party’s case.
Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa
2001) (citations omitted). The inference “is not
warranted if the disappearance of the evidence is due to
mere negligence, or if the evidence was destroyed during
a routine procedure.” Id. at 719.
Id. at *3.
Similarly, in University Medical Center v. Beglin, 375 S.W. 3d 783,
792 (Ky. 2011), the Supreme Court of Kentucky held that a missing evidence or
adverse inference instruction may be given “when it may be reasonably believed
that material evidence within the exclusive possession and control of a party, or its
agents or employees, was lost without explanation or is otherwise unaccountably
missing, the trier of fact may find that the evidence was intentionally and in bad
faith destroyed or concealed by the party possessing it and that the evidence, if
available, would be adverse to that party or favorable to his opponent.” I
-38-
acknowledge that this is an evidentiary decision to be made at a later time by the
trial court. However, I reiterate that summary judgment was entered prematurely
in this case.
Finally, courts in other jurisdictions, most notably Indiana, have made
clear statements of law that both indirect and circumstantial evidence and the
inferences to be drawn therefrom are appropriate considerations as to the issue of
intoxication. Admittedly, Indiana’s Dram Shop statute differs from Kentucky’s in
that the former requires the server to have “actual knowledge” of “visible”
intoxication. In fact, while such a standard would seem to impose a need for a
higher quantum of evidence, Indiana courts have not so interpreted it.
In BGC Entertainment, Inc. v. Buchanan, 41 N.E.3d 692, 698 (Ind.
App. 2015), the court held that, in the absence of a server’s admission,
circumstantial evidence is appropriate to determine “actual knowledge.” The court
in Booker, Inc. v. Morrill, 639 N.E. 2d 358, 362 (Ind. App. 1994), noted that the
trier of fact could determine whether or not to believe the denials of the bartenders
as to the driver’s state of intoxication. Indeed, in BGC, supra, the Court likewise
found that it is for the fact finder to determine the weight and credibility of the
evidence and thus not appropriate for the court in summary judgment proceedings.
Surely, this is also the analysis applicable to summary judgment proceedings in
-39-
Kentucky today, see James Graham Brown Foundation, Inc. v. St. Paul Fire &
Marine Ins. Company, 814 S.W.2d 273 (Ky. 1991).
Although it is clearly not a Dram Shop case, I find the case of Ogden
v. Employers Fire Insurance Company, 503 S.W.2d 727, 729 (Ky. 1973), to be
instructive as to the use of circumstantial evidence and its effect upon the entry of
summary judgment. Summary judgment was granted in favor of an uninsured
motorist insurer based upon the trial court’s finding that there was no evidence of
contact between two vehicles in an auto accident. On appeal, the Court reversed,
holding that while the direct and circumstantial evidence may have been “weak,”
contact could reasonably have been inferred from it. The Court noted the
obligation of the trial court to consider the evidence and the inferences to be drawn
from it most favorably to the non-moving party and leave issues of the weight and
credibility for the jury. As stated in Embs v. Pepsi-Cola Bottling Company of
Lexington, Kentucky, Inc., 528 S.W.2d 703, 706 (Ky. 1975), “It matters not that the
evidence be circumstantial for as Thoreau put it ‘Some circumstantial evidence is
very strong, as when you find a trout in the milk.’” I have seen no authority for the
proposition that such “strong” evidence should be excepted from consideration in
Dram Shop cases. Thus, I am of the opinion that the trial court erred by invading
the province of the jury and would have reversed its summary judgment herein.
-40-
BRIEFS FOR APPELLANT BRIEFS FOR APPELLEE HANK
MICHAEL J. MOORE, AS THE INVESTMENTS, INC. d/b/a
ADMINISTRATOR OF THE MALABU PUB:
ESTATE OF TIMOTHY M. MOORE:
Carroll M. Redford, III
Grahmn N. Morgan Elizabeth C. Woodford
Kristeena L. Johnson Lexington, Kentucky
Lexington, Kentucky
BRIEFS FOR APPELLANT
JESSICA SCHWEITZER,
INDIVIDUALLY AND AS NEXT
FRIEND TO HER MINOR
CHILDREN, AVERY SCHWEITZER
AND JACKSON SCHWEITZER,
AND AS EXECUTRIX OF THE
ESTATE OF JASON SCHWEITZER:
Ann B. Oldfather
Michael R. Hasken
Nicole A. Bush
Louisville, Kentucky
ORAL ARGUMENT FOR ORAL ARGUMENT FOR
APPELLANT MICHAEL J. APPELLEES:
MOORE:
Carroll M. Redford, III
Kristeena L. Johnson Lexington, Kentucky
Lexington, Kentucky
ORAL ARGUMENT FOR
APPELLANT JESSICA
SCHWEITZER:
Nicole A. Bush
Louisville, Kentucky
-41-