FLYNN v. KENNETH MOBLEY INC (2026)

MEMORANDUM DECISION

Statement of the Case

[1] In this dram shop case, Rita Flynn (“Rita”), Mark Flynn (“Mark”), and Linda Browning (“Browning”) (collectively, “the plaintiffs”) appeal the trial court's order granting summary judgment in favor of Kenneth Mobley, Inc. d/b/a Kenny's Tavern (“the tavern”). The plaintiffs argue that the trial court erred when it granted the tavern's summary judgment motion. Concluding that the trial court erred, we reverse the trial court's judgment.

[2] We reverse and remand.

Issue

Whether the trial court erred when it granted the tavern's summary judgment motion.

Facts 1

[3] On May 18, 2023, at approximately 10:00 p.m., Matthew Cunningham (“Cunningham”) met his friend at the tavern. The tavern had a single bartender (“the bartender”) on duty that evening. In order to receive alcoholic beverages, patrons had to order them from the bartender. Over the next two hours, during which Cunningham and his friend discussed potential business plans, Cunningham consumed two beers and three shots of alcohol. Specifically, Cunningham described the shots as “green tea shots” and believed them to be “not straight liquor.” (App. Vol. 2 at 170, 155).

[4] At approximately 11:40 p.m., Cunningham left the tavern. Cunningham, who was unfamiliar with the area and who was looking at his phone for directions home, drove his car the wrong direction on a one-way street. Another car on that same street contained Rita, who was the driver, and Browning, who was the passenger. Cunningham's car struck Rita's car in a head-on collision. Rita and Browning were both severely injured in the accident.

[5] An Ellettsville Police Department Officer (“the officer”) arrived on the scene. The officer administered a portable breathalyzer test to Cunningham, and Cunningham had a blood alcohol content (“BAC”) of 0.066. Also, Cunningham told the officer that he had a prescription for and took antidepressants. Cunningham told the officer that “his head [felt] woozy from the collision” and that he “fe[lt] discombobulated.” (App. Vol. 2 at 106). Additionally, Cunningham submitted to a SoToxa field test and provided a saliva sample through a buccal swab. The field test yielded a positive for “CNS-Stim-Amp.”² (App. Vol. 2 at 106). The officer arrested Cunningham and transported him to a nearby hospital. At the hospital, Cunningham submitted to a blood draw and told the treating physician that he “had been feeling woozy and out of place[.]” (App. Vol. 2 at 107).

[6] In an incident report (“the officer's report”), the officer noted that Cunningham had had “a hematoma right above his right eye along with signs of injury to his right eye and nose[.]” (App. Vol. 2 at 106). Also in the officer's report, the officer further noted that Cunningham's pupils had been dilated, that Cunningham's speech had been “a little slurred[,]” and that he had smelled the odor of alcohol on Cunningham's breath. (App. Vol. 2 at 106).

[7] The State charged Cunningham with Level 5 felony operating a vehicle while intoxicated causing serious bodily injury in Cause No. 53C03-2305-F5-452 (“Cause 452”). In June 2023, the Indiana Department of Toxicology tested Cunningham's blood and generated a toxicology report that revealed that Cunningham's BAC had been 0.061. A separate September 2023 toxicology report provided by MSS Labs showed that Cunningham's blood tested positive for “[a]nalyte [c]affeine[.]” (App. Vol. 2 at 92). Cunningham later pleaded guilty to Level 6 felony criminal recklessness in Cause 452.³

[8] In June 2023, the plaintiffs filed a complaint against Cunningham and State Farm Mutual Automobile Insurance Company (“State Farm”). Specifically, the plaintiffs alleged a negligence and loss of consortium claim against Cunningham and an uninsured/underinsured claim under their insurance policy with State Farm. In October 2023, the plaintiffs amended their complaint and added a Dram Shop Claim (“the Dram Shop Claim”) against the tavern under the Dram Shop Act (“the Dram Shop Act”). In January 2024, the trial court, pursuant to an agreement by the parties, dismissed State Farm from the case. Additionally, the parties agreed to dismiss Cunningham from the case, and the trial court dismissed him in July 2024.

[9] In June 2025, the parties deposed Cunningham. During his deposition, Cunningham testified that he had gone to the tavern to meet a friend and to help that friend with a business plan. Cunningham further testified that he had had one beer before his friend had arrived. Additionally, Cunningham testified that he had had another beer and two to three shots of liquor with his friend. Cunningham testified that he had been at the tavern for approximately two hours.

[10] Further, Cunningham testified that there had been “no questions [from his friend] about [his] speech or impairment” and that his friend had not had any “concern about [him] leaving or driving[.]” (App. Vol. 2 at 159). Additionally, Cunningham testified that he had “no problem[ ]” with any “physical motion.” (App. Vol. 2 at 162). Cunningham also testified that, after he had driven onto the one-way street, he had taken his phone out to input directions to get home because he had been unfamiliar with the area. Cunningham further explained that he had “not tak[en] proper safety precautions ․ which led to the accident.” (App. Vol. 2 at 166).

[11] The tavern filed multiple affidavits in July 2025, including one in which the bartender averred that Cunningham had been “a quiet, pleasant customer who [had] ordered modest amounts of alcohol.” (App. Vol. 2 at 43). The bartender also averred that, at no point during her interactions with Cunningham, had she “observe[d] any signs of visible intoxication” from Cunningham and that Cunningham had never “exhibited slurred speech, unsteady balance, bloodshot eyes, or any other indicators that would suggest he [had been] intoxicated[.]” (App. Vol. 2 at 43). The tavern also filed an affidavit from the tavern owners, in which the tavern owners averred that they had not been present on the evening that Cunningham was at the tavern and that no employee had served Cunningham while he had been visibly intoxicated.

[12] In August 2025, the tavern filed a motion for summary judgment on the Dram Shop Claim. In its motion, the tavern argued that the plaintiffs could not establish that the tavern had actual knowledge that Cunningham was visibly intoxicated at the time that the tavern sold him an alcoholic beverage. Further, the tavern argued that the plaintiffs could not prove that Cunningham's alleged intoxication proximately caused the collision. In support of its motion for summary judgment, the tavern designated as evidence: (1) plaintiffs’ responses to the tavern's requests for admission; (2) the tavern's answer to the plaintiffs’ complaint; (3) the plaintiffs’ complaint; (4) documents from Cause 452, including the charging information, the officer's report, toxicology reports, and the judgment of conviction; (5) the bartender's affidavit; (6) the tavern owners’ affidavit; and (7) Cunningham's deposition.

[13] In its memorandum supporting its motion for summary judgment, the tavern argued that there was no genuine issue of material fact on whether the tavern had actual knowledge that Cunningham was visibly intoxicated as required under the Dram Shop Act. In support of this position, the tavern pointed to the bartender's affidavit, in which she had averred that she had not seen any signs of visible intoxication from Cunningham. Finally, the tavern argued that Cunningham's deposition further supported the fact that he was not visibly intoxicated. Specifically, the tavern noted that Cunningham had testified about the amount of alcoholic beverages he had consumed, had testified that he had not felt intoxicated, and had testified that he had no symptoms of impairment such as slurred speech, unsteady balance, or bloodshot eyes. The tavern also pointed to Cunningham's BAC of 0.061. In its memorandum, the tavern also argued that the plaintiffs could not establish that Cunningham's intoxication was the proximate cause of the plaintiffs’ injuries as required by the second prong of the Dram Shop Act.

[14] In September 2025, the plaintiffs filed their response in opposition to the tavern's summary judgment motion. The plaintiffs designated the same items of evidence as the tavern as set forth above. In its motion, the plaintiffs argued that there was a genuine issue of material fact regarding whether the tavern had actual knowledge of visible intoxication. In support of this position, the plaintiffs cited to BGC Ent., Inc. v. Buchanan ex rel. Buchanan, 41 N.E.3d 692 (Ind. Ct. App. 2015), trans. denied. Specifically, the plaintiffs noted that, based on BGC, actual knowledge of visible intoxication could be inferred from direct or circumstantial evidence such as “what and how much the person had to drink [or] was known to have consumed, the time involved, the person's behavior at the time, and the person's condition shortly after leaving.” (App. Vol. 2 at 198). The plaintiffs argued that the officer had noted that Cunningham had “an odor of alcohol about his person, slurred speech, eyes dilatated” and that Cunningham had “admitted to drinking alcohol and taking prescription medications.” (App. Vol. 2 at 199) (spelling error in original). The plaintiffs also argued that the facts of this case were similar to BGC, “where the Defendant also had a similar BAC and summary judgment was denied[.]” (App. Vol. 2 at 199).⁴

[15] In November 2025, the trial court issued an order in which it granted the tavern's motion for summary judgment.⁵ The trial court found that Cunningham had had a BAC of 0.066 at the scene but also found that the officer had noticed that Cunningham exhibited signs of intoxication. Further, the trial court found that the tavern staff could not have had actual knowledge of Cunningham's visible intoxication because Cunningham was below the legal limit of 0.08. Ultimately, the trial court concluded that because there was no genuine issue of material fact regarding whether the tavern had actual knowledge of Cunningham's visible intoxication, summary judgment in favor of the tavern was proper.

[16] The plaintiffs now appeal.

Decision

[17] The plaintiffs argue that the trial court erred when it granted the tavern's summary judgment motion. Our standard of review for summary judgment cases is well-settled. When we review a trial court's grant of a motion for summary judgment, our standard of review is the same as it is for the trial court. Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). Summary judgment is appropriate only where the moving party has shown that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). “A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Id. (cleaned up). “The initial burden is on the summary-judgment movant to demonstrate the absence of any genuine issue of fact as to a determinative issue, at which point the burden shifts to the non-movant to come forward with contrary evidence showing an issue for the trier of fact.” Id. (cleaned up). We “consciously err[ ] on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims” and preventing the “non-prevailing party from having his day in court[.]” Id. at 1004, 1003.

[18] The Dram Shop Act, Indiana Code § 7.1-5-10-15.5(b), provides that:

A person who furnishes an alcoholic beverage to a 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.

(emphasis added). “Indiana's Dram Shop Act represents a legislative judgment that providers of alcoholic beverages should be liable for the reasonably foreseeable consequences of knowingly serving alcohol to visibly intoxicated persons.” BGC, 41 N.E.3d at 697 (cleaned up). The Dram Shop Act does not provide a statutory definition for the terms “actual knowledge” or “visibly intoxicated.”

[19] The plaintiffs argue that the trial court erred when it granted the tavern's summary judgment motion because there was a genuine issue of material fact.⁶ Specifically, the plaintiffs argue that there was a genuine issue of material fact as to whether the tavern had actual knowledge of Cunningham's visible intoxication. The tavern, on the other hand, argues that there was no genuine issue of material fact on whether the tavern had actual knowledge that Cunningham was visibly intoxicated at the time the tavern furnished him an alcoholic beverage. We agree with the plaintiffs.

[20] The Dram Shop Act imposes “two requirements that limit the scope of liability.” WEOC, Inc. v. Niebauer, 226 N.E.3d 771, 778 (Ind. 2024). “First, the person furnishing alcoholic beverages must have ‘actual knowledge’ that the individual ‘was visibly intoxicated.’ ” Id. (quoting I.C. § 7.1-5-10-15.5(b)(1)).⁷ In determining whether the furnisher of alcohol had actual knowledge that she was furnishing alcohol to an intoxicated individual, “[t]he furnisher's knowledge must be judged by a subjective standard.” BGC, 41 N.E.3d at 697. Absent an admission that the person furnishing alcohol had actual knowledge of the other's intoxication, the trier of fact must look to reasonable inferences based upon an examination of the surrounding circumstances. Buddy & Pal's III, Inc. v. Shearer, 91 N.E.3d 1000, 1006 (Ind. Ct. App. 2017). “Actual knowledge of intoxication can be inferred from indirect or circumstantial evidence such as 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.” Id. at 1006-07 (cleaned up). “Where, however, there is insufficient evidence to support actual knowledge, the issue may be resolved as a matter of law.” Murdock v. Fraternal Ord. of Eagles, 779 N.E.2d 964, 968 (Ind. Ct. App. 2002) (cleaned up), reh'g denied, trans. denied.

[21] Our review of the record reveals that there was a genuine issue of material fact regarding whether the tavern had actual knowledge of Cunningham's visible intoxication. Here, the record is clear that there was no admission from the tavern that it had actual knowledge of visible intoxication. Indeed, the bartender averred that Cunningham was not visibly intoxicated when she served him drinks. But absent an admission from a furnisher, we turn to whether there was an inference supporting actual knowledge of visible intoxication based on the surrounding circumstances.

[22] The surrounding circumstances create a genuine issue of material fact making summary judgment improper. Specifically, both parties do not dispute that Cunningham had five alcoholic drinks, including two beers and three shots of alcohol over a roughly two-hour period of time. Further, both parties agree that Cunningham drove the wrong way down a one-way street, resulting in a head-on collision, minutes after leaving the tavern. 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. Actual knowledge can be inferred based on a person's condition shortly after leaving the tavern, see Buddy, 91 N.E.3d at 1006-07, and the record is clear that the officer encountered Cunningham only minutes after he had left the tavern.

[23] The tavern attempts to explain away these facts by arguing that Cunningham's symptoms could have been a result of the accident, that his BAC was below the legal limit, that Cunningham and the bartender both testified and averred that he had not shown signs of intoxication at the tavern, and that inferring 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.” (Appellee's Br. 17). But, our review of a summary judgment order is only to determine whether there was a genuine issue of material fact, and the fact that the record contains contrary evidence is a clear sign that these decisions should be made by a jury. When viewing the evidence most favorably to the non-moving party, we conclude that there was a genuine issue of material fact as to whether the tavern had actual knowledge of Cunningham's visible intoxication. See BGC, 41 N.E.3d at 701 (concluding that summary judgment was improper where a person's BAC and the odor of alcohol on that person created an inference of whether a bar had actual knowledge of that person's visible intoxication and deciding this issue was one best left for a trier of fact). See also Marlow v. Better Bars, Inc., 45 N.E.3d 1266, 1274 (Ind. Ct. App. 2015) (concluding that summary judgment was improper where, when viewing the evidence most favorably to the non-moving party, there was an inference that a bar had actual knowledge of visible intoxication of a patron who, soon after leaving the establishment, was involved in a car accident and showed numerous signs of impairment), trans. denied; Ward v. D & A Enters. of Clark Cnty., Inc., 714 N.E.2d 728, 730 (Ind. Ct. App. 1999) (“when viewed most favorably to the non-moving party, the fact that The Keg 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 patron] was visibly intoxicated at the time.”). As a result, we reverse the trial court's grant of summary judgment in favor of the tavern and remand for further proceedings.

[24] Reversed and remanded.

FOOTNOTES

2.   The record was unclear as to what a CNS-Stim-Amp is.

3.   Cunningham pleaded guilty in Cause 452 in December 2024.

4.   The plaintiffs also briefly argued that, because Cunningham had pleaded guilty to criminal recklessness, the mens rea for that conviction cuts against any argument that the collision was an accident or mistake.

5.   The trial court issued its order on a paper record because neither party requested a summary judgment hearing.

6.   Both parties make arguments as to whether there was a reasonable inference that Cunningham was intoxicated based on our criminal and motor vehicle statutes. We decline to address those arguments and instead focus our analysis on the elements under the Dram Shop Act.

7.   The Dram Shop Act also requires proof of proximate cause, but the trial court's summary judgment order decided the issue exclusively on the first prong of the Dram Shop Act and made no conclusion on the second prong.

Pyle, Judge.

Bradford, J., and Kenworthy, J., concur.