Picadilly, Inc. v. Colvin, 32A01-8603-CV-00065
| Decision Date | 27 January 1987 |
| Docket Number | No. 32A01-8603-CV-00065,32A01-8603-CV-00065 |
| Citation | 503 N.E.2d 421 |
| Parties | PICADILLY, INC., Appellant (Defendant below), v. Charles H. COLVIN, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
James R. Fisher, Robert B. Clemens, Michael J. Lewinski, Ice Miller Donadio & Ryan, Indianapolis, for appellant.
W.F. Conour, Conour & Davis, Indianapolis, for appellee.
The defendant-appellant Picadilly, Inc. (Picadilly) appeals from a jury verdict and judgment of $75,000 compensatory damages and $150,000 in punitive damages awarded to the plaintiff-appellee Charles H. Colvin (Colvin).
We reverse.
A review of the facts shows that Deborah Brewer along with Joyce Carrico joined a group of six other women sometime between 7:30 and 9:30 p.m. at Picadilly.
Picadilly is a bar licensed to sell beer, wine, and liquor. It is located in a building which formerly housed a department store and covers in excess of 40,000 square feet. The method used in selling alcoholic beverages to the patrons is similar to checkout counters at a supermarket. There are eight lanes for customer use. Each lane begins with a cashier where the drinks are ordered and paid for. The drink order is conveyed by computer to a bartender who prepares the drinks. The drinks are then given to a passer who places the completed order on a counter for the customer to pick up.
Brewer drove Carrico home at about 1:30 a.m. and started toward her own home in Hope, Indiana. Brewer became lost and entered an interstate highway going in the wrong direction. She collided with Colvin at about 3:30 a.m. Two separate blood tests were taken after 6:00 a.m. which showed Brewer's blood alcohol content to be .114 and .1205.
Colvin filed suit against Brewer and Picadilly with a settlement being reached with Brewer prior to trial.
We are of the opinion that the first issue raised by Picadilly presents reversible error. The issue is stated as being:
Whether the trial court erred in refusing defendant's tendered instructions 8, 9, and 10, by which the jury would have been instructed that there is no common law dramshop liability in Indiana and that liability could only be imposed if a statutory violation was found?
The instructions refused by the court read:
Defendant's tendered Instruction No. 8:
I instruct you that, absent the statute making it illegal to sell or provide alcoholic beverages to a person who was known to be intoxicated which the plaintiff contends that Picadilly, Inc., violated, there would be no cause of action against Picadilly, Inc., by Charles Colvin.
Defendant's tendered Instruction No. 10:
If you should find from the evidence that the defendant Picadilly, Inc., did not have actual knowledge that Deborah Brewer was intoxicated at the time she took possession of her automobile, then Picadilly Inc., will not be subject to liability for physical harm caused or resulting from Brewer's possession and use of the automobile.
Defendant's tendered instruction No. 9 is not germane to our decision and need not be set forth.
The essence of the issue is focused upon defendant's tendered instruction No. 8 which Picadilly argues has the effect of saying that there is no common law cause of action for dramshop liability in Indiana. We are of the opinion that this is a correct statement of the law as it applies to this appeal.
Colvin in urging a common law remedy does exist primarily relies upon the following quote from Elder v. Fisher (1966), 247 Ind. 598, 217 N.E.2d 847 at 853:
In the absence of special statutory provision, the general principles of common law negligence should be applied to cases involving intoxicating liquor.
Elder involved sales of alcoholic beverages to a minor. In a later case, Whisman v. Fawcett (1984), Ind., 470 N.E.2d 73, our supreme court said:
Elder did establish for the first time in Indiana that there is a common law action against those unlawfully selling or furnishing intoxicating liquor in favor of third persons subsequently injured by the acts of the purchasers as a result of their intoxicated condition. However, a careful review of the record shows the trial court ruled as it did not because it determined a common law action to be non-existent; rather, it properly concluded that plaintiff's claim fell under specific statutory provisions which serve as a premise for a civil action for damages. Indiana law clearly endorses the proposition that a violation of the liquor laws will result in a civil action. See, e.g., Elder, 217 N.E.2d at 851; Parrett v. Lebamoff, (1980) Ind.App., 408 N.E.2d 1344; Elsperman v. Plump, (1983) Ind.App., 446 N.E.2d 1027. General principles of common law negligence apply only in the absence of a special statutory provision. Elder, 217 N.E.2d at 853. (Emphasis added).
Taking the analysis one step further we note the very recent decision of Gariup Const. Co., Inc. v. Foster (1986), Ind.App., 497 N.E.2d 924, which stated:
Although our Supreme Court's decision in Elder v. Fisher (1966), 247 Ind. 598, 217 N.E.2d 847 could be construed as endorsing a common-law theory of negligence, a more recent pronouncement by the Court in Whisman v. Fawcett (1984), Ind., 470 N.E.2d 73, 80 noted that "[g]eneral principles of common law negligence apply only in the absence of a...
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Picadilly, Inc. v. Colvin, 32S01-8803-CV-287
...in Indiana, and that the evidence was insufficient to prove Picadilly's knowledge of its customer's intoxication. Picadilly, Inc. v. Colvin (1987), Ind.App., 503 N.E.2d 421. We disagree and grant transfer The Court of Appeals provided the following summary of facts. Deborah Brewer along wit......