A person opens a bottle of beer
INDIANAPOLIS – An Indiana bar might be liable for a wreck caused by a customer whose blood-alcohol test still returned an amount under the legal limit.
That’s because the arresting officer noted dilated pupils in Matthew Cunningham’s eyes after Cunningham drove down a one-way road while looking at a map on his phone, the Indiana Court of Appeals ruled Monday. The decision overturns a Monroe County ruling in favor of Kenny’s Tavern in Elletsville.
Now, the bar faces liability for serving Cunningham five drinks in less than two hours, which produced a BAC of 0.066 – below the state’s 0.08 limit. A bartender observed no signs of visible intoxication in Cunningham, but the Court of Appeals found the circumstances of the accident and subsequent arrest produced a “reasonable inference” he was visibly intoxicated.
“Most importantly, the officer responding to the collision, in his officer report, stated that Cunningham had dilated pupils, slurred speech and the odor of alcohol on his person,” Judge Rudolph Pyle III wrote.
“Actual knowledge can be inferred based on a person’s condition shortly after leaving the tavern, and the record is clear that the officer encountered Cunningham only minutes after he had left the tavern.”
In May 2023, Cunningham met a friend at Kenny’s and drank two beers and three green tea shots before leaving around 11:40 p.m. He was unfamiliar with the area and accidentally went the wrong way on a one-way street while looking at his phone for directions.
A car driven by Rita Flynn and containing Linda Browning was struck head-on by Cunningham’s, leading to injuries for the two. In addition to suing Cunningham, they asserted Dram Shop claims against Kenny’s.
Cunningham told the responding officer that his head felt “woozy” from the collision, and he tested positive in what plaintiff lawyers called a “CNS-Stim-Amp” test – “The record was unclear as to what a CNS-Stim-Amp is,” Judge Pyle noted.
Cunningham was arrested and transported to a hospital. He was charged with Level 5 felony operating a vehicle while intoxicated causing serious bodily injury, and he pleaded guilty to a lower felony charge.
In its defense, Kenny’s said Cunningham’s pupils and slurred speech could have been the result of the accident and pointed out that it did not serve him to the point he exceeded the state’s legal limit for driving.
Finding “contrary evidence is a clear sign that these decisions should be made by a jury,” the court wrote in wiping out the trial judge’s granting of summary judgment for Kenny’s.
“(I)nferring actual knowledge to the bartender was an ‘inferential leap Indiana law does not permit where the designated evidence contains direct, contrary proof of no visible intoxication at the time of service,’” Pyle wrote.
