Elsperman v. Plump

• Decision Date: 07 April 1983
• Docket Number: No. 1-782A202,1-782A202
• Citation: 446 N.E.2d 1027
• Parties: Frank D. ELSPERMAN and Connie E. Elsperman, Parents of DeWayne G. Elsperman, deceased, Plaintiffs-Appellants, v. Norman A. PLUMP and the Loyal Order of the Moose--Lodge # 85, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 1027

446 N.E.2d 1027

Frank D. ELSPERMAN and Connie E. Elsperman, Parents of DeWayne G. Elsperman, deceased, Plaintiffs-Appellants, v. Norman A. PLUMP and the Loyal Order of the Moose--Lodge # 85, Defendants-Appellees.

No. 1-782A202.

Court of Appeals of Indiana First District.

April 7, 1983.

Charles C. Griffith, Johnson, Carroll & Griffith, Evansville, for plaintiffs-appellants.

Thomas G. Krochta, Vanstone & Krochta, Evansville, for defendants-appellees.

RATLIFF, Judge.

STATEMENT OF THE CASE

Frank D. and Connie E. Elsperman, parents of DeWayne G. Elsperman, appeal from a judgment of the Vanderburgh Superior Court setting aside a jury verdict in their favor and entering a judgment for Norman A. Plump and The Loyal Order of Moose, Lodge # 85 in a wrongful death action brought by Elspermans. We reverse and remand.

FACTS

On April 20, 1981, DeWayne Elsperman, born December 17, 1979, was killed in a collision involving an automobile driven by his mother and in which he was a passenger and a car driven by one James Ewers. The collision occurred about 9:50 P.M.

Ewers had consumed about one and one-half fishbowls ¹ of beer between 3:15 or 3:30 and 4:45 P.M. at a tavern in Evansville. He then drove to some golf links, stayed 30-40 minutes, then went to the Moose Lodge where he stayed until around 9:45 P.M. While at the Moose, Ewers was served five or six mixed drinks of whiskey and ginger ale. Plump was the bartender who served Ewers. Ewers ate only some potato chips. One John James arrived around 8:15 to 8:30 P.M. Ewers was served two drinks after James's arrival. James observed that Ewers was loud and boisterous, but not vulgar, and Ewers put his arm around James telling him how much he loved him. This was typical of Ewers's behavior when drinking. Between 9:00 and 9:30 P.M., Ewers had a coughing spell and then staggered to the bathroom. Plump declined to serve Ewers alcoholic beverages after that.

James, in the presence and hearing of Plump, offered to drive Ewers home but Ewers refused saying he was going to the Amvets. James, who also served part-time as a bartender at the Moose, thought Ewers was intoxicated, but indicated he would have served Ewers. Plump thought Ewers was a "little intoxicated" when he left. When Ewers left, near 9:50 P.M., both Plump and James followed him outside and observed him drive away. A few seconds after Ewers left the Moose drive and entered onto Upper Mt. Vernon road, he crossed over the centerline striking the Elsperman car which resulted in DeWayne's death.

Police arrived at the accident scene about 10:00 P.M. They noticed a strong odor of alcohol about Ewers. Ewers's eyes were bloodshot, his speech was slurred, he had difficulty with motor functions, and had considerable difficulty in removing his driver's license from his wallet, finally succeeding after many tries. He refused a chemical test for intoxication. In the opinion of one officer, Ewers was very intoxicated.

Immediately following the collision, Plump, the bartender, told James to stay out of it and to keep his mouth shut.

Elspermans sued Ewers, Plump, and the Moose for damages for the wrongful death of their son. Ewers admitted liability. A settlement was reached with Ewers and the case proceeded against Plump and the Moose on the theory that they were negligent in serving alcoholic beverages to Ewers while he was, to their knowledge, intoxicated, in violation of Indiana Code Section 7.1-5-10-15. Trial was held on the issue of liability only. Motions for judgment on the evidence at the close of the plaintiffs' evidence and at the close of all the evidence were overruled. After the jury returned a verdict in favor of Elspermans on the liability issue, the court granted judgment on the evidence in favor of Plump and the Moose, and it is from this action that this appeal is taken.

ISSUE

Did the trial court err in granting judgment on the evidence in favor of Plump and the Moose after a jury verdict for Elspermans?

DISCUSSION AND DECISION

The limitations upon the authority of a trial judge in granting judgment on the evidence following a jury verdict have been clearly delineated. A trial court, in considering a motion for judgment on the evidence after a jury verdict, may consider only the evidence and inferences favorable to the non-moving party and may enter the judgment only if there is no substantial evidence or reasonable inference therefrom to support an essential element of the claim. In other words, there must be a complete failure of proof. To justify granting judgment on the evidence in such a case, the evidence must point unerringly to a conclusion not reached by the jury. Huff v. Travelers Indemnity Co., (1977) 266 Ind. 414, 363 N.E.2d 985; Bennett v. Craig, (1981) Ind.App., 427 N.E.2d 722; Stanley v. Kelley, (1981) Ind.App., 422 N.E.2d 663, trans. denied. The trial court may not weigh the evidence in ruling on a motion for judgment on the evidence following a jury verdict. Huff; Stanley; City of Michigan City v. Washington Park, (1979) Ind.App., 384 N.E.2d 1063, trans. denied. ²

The standard of appellate review in these cases is the same as the standard which guides the trial judge in ruling on motions for judgment on the evidence subsequent to a jury verdict, that is, whether there was evidence of probative value to support each essential element of the claim. If there is relevant evidence to support the claim, but the evidence conflicts, the verdict is not clearly erroneous, and judgment on the evidence notwithstanding the verdict is improper. Huff; Stanley; Johnson.

With the foregoing rules in mind, we proceed to a determination of whether the trial court's grant of judgment notwithstanding the verdict was erroneous.

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. Elder v. Fisher, (1966) 247 Ind. 598, 217 N.E.2d 847; Parrett v. Lebamoff, (1980) Ind.App., 408 N.E.2d 1344. This rule is supported by decisions in other jurisdictions. Ono v. Applegate, (1980) 62 Hawaii 131, 612 P.2d 533; Adamian v. Three Sons, Inc., (1968) 353 Mass. 498, 233 N.E.2d 18; Wiska v. St. Stanislaus Social Club, Inc., (1979) 7 Mass.App. 813, 390 N.E.2d 1133; Lopez v. Maez, (1982) 98 N.M. 625, 651 P.2d 1269; Campbell v. Carpenter, (1977) 279 Or. 237, 566 P.2d 893. We concur with the Supreme Judicial Court of Massachusetts that "the waste of human life 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." Adamian, 233 N.E.2d at 20. Like the Supreme Court of New Mexico we believe that "[i]n light of the use of automobiles and the increasing frequency of accidents involving drunk drivers, ... the consequences of serving liquor to an intoxicated person whom the server knows or could have known is driving a car, is reasonably foreseeable." Lopez, 651 P.2d at 1276. ³

Indiana Code Section 7.1-5-10-15 makes it unlawful to sell, barter, deliver, or give away an alcoholic beverage to an intoxicated person if the provider knows that the person is intoxicated. The predecessor of this statute, which was substantially the same, was involved in Parrett. The rule of the Elder and Parrett cases is not contested. It is conceded that any liability of Plump and the Moose is predicated upon negligence in serving alcohol to Ewers in violation of Indiana Code 7.1-5-10-15. The only contested issue is whether there was evidence from which the jury could have found that Plump served alcoholic beverages to Ewers knowing Ewers to be intoxicated. ⁴ There are many factors which can be considered in determining whether or not Ewers was intoxicated to Plump's knowledge, and thereafter served alcohol in violation of the statute. Among the evidence which the jury could have considered in determining this issue are Ewer's prior drinking and subsequent behavior in the bar, Ono, as well as the amount of alcohol consumed there. Cimino v. Milford Keg, Inc., (1982) 385 Mass. 323, 431 N.E.2d 920; Couts v. Ghion, (1980) Pa.Super., 421 A.2d 1184. Evidence of the intoxicated party's condition shortly after leaving the tavern is also relevant for the jury's consideration. Couts.

We are aware of the decision in Wiska, cited by Plump and the Moose holding the evidence there insufficient to establish knowledge of intoxication and subsequent service of alcohol. The case of Burns v. Bradley, (1980) 120 N.H. 542, 419 A.2d 1069, also...