Anthony Boarman, Appellant-Plaintiff v. LLC LLC (2026)

MEMORANDUM DECISION

Case Summary

[1] On August 1, 2021, Anthony Boarman and a group of friends participated in a pedal bar tour of downtown Indianapolis, which was operated by The Handlebar, LLC (“the Handlebar”). During the tour, Boarman consumed alcohol, including at Coaches Tavern, which is operated by Isentark Entertainment, LLC (“Isentark”). At the conclusion of the tour, Boarman fell and was injured as he attempted to disembark the pedal bar. Boarman sued multiple parties, including the Handlebar and Isentark. Both the Handlebar and Isentark moved for, and were awarded, summary judgment. Boarman's motion to correct error was denied. Boarman contends that the trial court abused its discretion in denying his motion to correct error, claiming that the trial court had erroneously granted summary judgment in favor of both the Handlebar and Isentark. Because we conclude otherwise, we affirm.

Facts and Procedural History

[2] The Handlebar “is a mobile biking platform that allows groups of guests to tour downtown Indianapolis.” Appellee Handlebar's App. Vol. II p. 226. The Handlebar operates “eight (8) identical Pedal Bars[,]” which are designed to have up to twelve guests “sit on their seat and face inward, just as though they are sitting at a bar.” Appellee Handlebar's App. Vol. II p. 226. The pedal bar's “seats are roughly [forty-eight] inches above the ground” and “[g]uests are able to use the pedal as a step up” to the seat. Appellee Handlebar's App. Vol. II p. 226.

[3] On August 1, 2021, Boarman and a group of friends participated in a two-hour tour on a pedal bar owned and operated by the Handlebar. The Handlebar did not provide any alcohol to Boarman or his friends. Boarman “brought a six pack of Bell's Two Hearted ale” with him on the Handlebar tour. Appellee Handlebar's App. Vol. II p. 38.

[4] Before beginning their tour, Boarman and his friends each signed an electronic liability waiver, (“the Waiver”), which provides as follows:

RELEASE OF LIABILITY: I RELEASE AND WAIVE ANY AND ALL CLAIMS OR ACTIONS THAT I MAY EVER HAVE THAT MAY ARISE OR BE BROUGHT AGAINST THE HANDLEBAR LLC, ITS AFFILIATES, SUBSIDIARIES, SUCCESSORS, HOLDING COMPANIES OR ASSIGNS AS WELL AS OWNERS AND EMPLOYEES AND THEIR AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS AS A RESULT OF ANYTHING WHICH OCCURS BEFORE, DURING, OR AFTER THE TOUR, INCLUDING BUT NOT LIMITED TO INJURY, LOSS, THEFT OR DAMAGE TO ANY PERSON OR PROPERTY, NOW OR AT ANY TIME IN THE FUTURE WHETHER OR NOT CAUSED BY THE HANDLEBAR, LLC OR THE OTHER [I]NDEMNITORS. I AGREE TO DEFEND, INDEMNIFY AND HOLD THE HANDLEBAR, LLC AS WELL AS ITS OWNERS, DIRECTORS, AND EMPLOYEES AND THEIR AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS HARMLESS AGAINST ANY AND ALL CLAIMS BROUGHT BY ME OR OTHERS IN MY PARTY ARISING OUT OF OR RELATING TO ANYTHING WHICH OCCURS BEFORE, DURING OR AFTER THE TOUR.

I have read, understood, and I agree to the above provisions, including, but not limited to, MY ASSUMPTION OF RISK, RELEASE, AND INDEMNITY TO THE INDICATED PARTIES FOR PARTICIPATING IN THIS TOUR. FURTHER, I AGREE AND ACKNOWLEDGE THAT I UNDERSTAND ALL THE LANGUAGE IN THIS DOCUMENT AND WHAT I AM DOING BY SIGNING IT. IF I DID NOT FULLY UNDERSTAND WHAT THIS DOCUMENT MEANS, I WOULD NOT DIGITALLY SIGN THIS DOCUMENT OR TAKE A TOUR UNTIL I HAD BEEN ADVISED REGARDING IT BY MY OWN ATTORNEY.

Appellee Handlebar's App. Vol. II p. 230. Boarman acknowledges that he signed the Waiver and that he had not asked the Handlebar representative for a clarification of any term therein.

[5] Boarman's group's tour included stops at Monument Circle, Condado Tacos, and Coaches Tavern. Prior to embarking on the tour, Boarman consumed one of the beers that he had brought with him. Boarman consumed another beer while enroute to Monument Circle. Boarman may have begun to consume a third beer while enroute to Condado Tacos. Upon arriving at Condado Tacos, Boarman consumed one shot of tequila and one shot of Fireball cinnamon whiskey. While enroute from Condado Tacos to Coaches Tavern, Boarman continued to consume his beer. Upon arriving at Coaches Tavern, Boarman consumed two shots, one of which was “a big gulp of [F]ireball” whiskey. Appellant's App. Vol. II p. 104. At no point prior to or during his visit to Coaches Tavern was Boarman stumbling, tripping, falling, or acting belligerently. No one had accused him of slurring his words and he had not been told by anyone that he had appeared intoxicated. Boarman did not stumble, trip, or fall as he left Coaches Tavern or have any issue “with getting on” the pedal bar. Appellant's App. Vol. II p. 109.

[6] After leaving Coaches Tavern, Boarman consumed at least part of another beer. As the group made its way back to their starting location, Boarman felt intoxicated. Upon arriving at the location, Boarman attempted to disembark by getting down like he would get “off ․ a normal [bar] stool.” Appellant's App. Vol. II p. 112. Boarman “went straight down” and “went splat straight away” on the pavement. Appellant's App. Vol. II p. 112. Boarman was injured as a result of his fall.

[7] On June 12, 2023, Boarman filed a lawsuit against the Handlebar; Condado Tacos 6, LLC; Big M, Inc.; and Isentark.¹ In his third amended complaint, Boarman alleged negligence and that the Handlebar and Isentark had violated Indiana Code chapter 7.1-5-10 et seq. (“the Dram Shop Act”). While the Handlebar did not plead waiver in its answer to Boarman's complaint, the Waiver, which, again, was signed by Boarman, was raised during discovery, and Boarman was questioned about it during his deposition, which was conducted on September 6, 2024.

[8] On July 10, 2025, the Handlebar moved for summary judgment. On October 13, 2025, Isentark moved for summary judgment. Boarman objected to both motions. Following a hearing, the trial court granted summary judgment in favor of both the Handlebar and Isentark. On March 9, 2026, Boarman moved to correct error, alleging that the trial court had erroneously granted summary judgment in favor of both the Handlebar and Isentark. Following a hearing, the trial court denied Boarman's motion to correct error on June 2, 2026.

Discussion and Decision

[9] Boarman appeals following the denial of his motion to correct error. “[W]e review a trial court's denial of a motion to correct error for an abuse of discretion.” Expert Pool Builders, LLC v. Vangundy, 224 N.E.3d 309, 312 (Ind. 2024). “A trial court exceeds its discretion when its decision is unlawful, illogical, or otherwise unreasonable.” Id. In arguing that the trial court abused its discretion in denying his motion to correct error, Boarman contends that the trial court erroneously granted summary judgment in favor of the Handlebar and Isentark.

[10] “We review a trial court's summary judgment decision de novo, using the same standard as the trial court.” Force v. New China Hy Buffet LLC, 217 N.E.3d 1275, 1277 (Ind. Ct. App. 2023).

Summary judgment is appropriate if the designated evidentiary matter shows 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.

The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law[.] If the movant satisfies that burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact. 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[.] We must construe all factual inferences in favor of the non-moving party, and all doubts as to the existence of a material issue must be resolved against the moving party.

The Indiana Supreme Court has explained, Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims. As a result, while the non-moving party has the burden on appeal of showing the Court that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure the non-movant was not improperly denied a trial.

Id. at 1277–78 (internal quotations omitted). “[M]ere speculation cannot create questions of fact.” Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct. App. 2008), trans. denied. Moreover, “[o]pinions expressing a mere possibility with regard to a hypothetical situation are insufficient to establish a genuine issue of material fact.” Id. “Put another way, guesses, supposition and conjecture are not sufficient to create a genuine issue of material fact to defeat summary judgment.” Id. (internal quotation omitted).

I. The Trial Court did not Err in Granting the Handlebar's Summary-Judgement Motion

[11] Indiana Trial Rule 8(C) provides that “[a] responsive pleading shall set forth affirmatively” any affirmative defense, including waiver. Boarman claims that because the Handlebar failed to list the Waiver as an affirmative defense in its answer to his third amended complaint, it has waived this defense. We rejected a similar argument in Borne by Borne v. Northwest Allen County School Corporation, 532 N.E.2d 1196, 1199 (Ind. Ct. App. 1989), trans. denied, concluding that it is not enough for a plaintiff to prove that the defendant failed to plead an affirmative defense in their answer, the plaintiff must also prove that they were prejudiced by the defendant's failure to plead the affirmative defense. We explained that

[a] plaintiff must affirmatively show prejudice to his case before a belatedly raised affirmative defense can be rejected. The presumption is that issues can be raised as they, in good faith, are developed. This presumption can be rebutted by the party against whom the new issue is raised by an affirmative showing of prejudice. In this context, delay alone does not constitute sufficient prejudice to overcome the presumption. Instead there must be a showing that the party in opposition will be deprived of, or otherwise seriously hindered in the pursuit of some legal right if injection of the new issue is permitted.

Id. at 1199 (internal brackets, citations, and quotations omitted).

[12] As the trial court noted, Boarman has not alleged, much less established, that he was prejudiced by the Handlebar's failure to raise the Waiver as an affirmative defense in its answer to his third amended complaint. Additionally, Boarman has not argued prejudice on appeal. The Waiver was a focus of discussion during Boarman's September 6, 2024 deposition, during which Boarman acknowledged that he had signed the Waiver and that he had not asked a Handlebar representative for a clarification of any term therein. The Handlebar raised the Waiver in its motion for summary judgment, which again, was filed on July 10, 2025. Thus, at the very least, Boarman had been aware of this affirmative defense for ten months prior to the Handlebar's summary-judgment filing. Because Boarman failed to argue, much less establish, prejudice, we cannot say that the trial court erred in considering the Waiver.

[13] Boarman alternatively claims that the trial court erred in granting the Handlebar's summary-judgment motion because the Waiver was insufficient under Indiana law as it did not “specifically and explicitly refer to its negligence.” Appellant's Br. p. 13 (internal quotation marks omitted).

[I]t is not against public policy in Indiana to enter into a contract that exculpates one from the consequences of his own negligence. However, in order to ensure a party's knowing and willing acceptance of this harsh burden, we have held that such exculpatory clauses must specifically and explicitly refer to the negligence of the party seeking release from liability. An exculpatory clause may be found sufficiently specific and explicit on the issue of negligence even in the absence of the word itself.

Avant v. Cmty. Hosp., 826 N.E.2d 7, 10 (Ind. Ct. App. 2005) (internal citations omitted), trans. denied.; see also Moore Heating & Plumbing, Inc. v. Huber, Hunt & Nichols, 583 N.E.2d 142, 147 (Ind. Ct. App. 1991) (providing that an indemnification clause is not required to contain the word “negligence” if it is clear from the clause that it was the intent of the parties to indemnify against any and all liability from any claim or cause of action of any nature arising while on or near the job site, including claims relating to its employees, whether or not it was alleged that Huber in any way contributed to the alleged wrongdoing or is liable due to a nondelegable duty).²

[14] Again, the Waiver provides, in relevant part, as follows:

RELEASE OF LIABILITY: I RELEASE AND WAIVE ANY AND ALL CLAIMS OR ACTIONS THAT I MAY EVER HAVE THAT MAY ARISE OR BE BROUGHT AGAINST THE HANDLEBAR LLC, ․ AS WELL AS OWNERS AND EMPLOYEES ․ AS A RESULT OF ANYTHING WHICH OCCURS BEFORE, DURING, OR AFTER THE TOUR, INCLUDING BUT NOT LIMITED TO INJURY, LOSS, THEFT OR DAMAGE TO ANY PERSON OR PROPERTY, NOW OR AT ANY TIME IN THE FUTURE WHETHER OR NOT CAUSED BY THE HANDLEBAR, LLC OR THE OTHER [I]NDEMNITORS. I AGREE TO DEFEND, INDEMNIFY AND HOLD THE HANDLEBAR, LLC ․ HARMLESS AGAINST ANY AND ALL CLAIMS BROUGHT BY ME OR OTHERS IN MY PARTY ARISING OUT OF OR RELATING TO ANYTHING WHICH OCCURS BEFORE, DURING OR AFTER THE TOUR.

Appellee Handlebar's App. Vol. II p. 230 (emphases added). Citing Avant and Moore, the trial court found that

the waiver does not need to contain the specific word “negligence” to be sufficiently specific and explicit on what Boarman was agreeing to waive by riding on the Pedal Bar. As illustrated above, the waiver contemplates all of Boarman's claims of liability for injuries, losses, damages, and causation including those caused by The Handlebar. Such words are the language of and sufficiently refer to negligence. In context, the words clearly, unequivocally, and expressly provide that the waiver clause applies to negligence. The clear language of the waiver establishes that liability to Boarman for the alleged injuries he suffered from any negligence caused by The Handlebar is barred.

Appellant's App. Vol. II pp. 22–23 (internal citations, emphasis, and footnote omitted).

[15] Upon reviewing the language of the Waiver together with our prior opinions in Avant and Moore, we reach the same conclusion as the trial court. By signing the Waiver, Boarman expressly released and waived “any and all claims” against the Handlebar that occurred “as a result of anything which occurs before, during, or after the tour ․ whether or not caused by the Handlebar” or its other indemnitors (including its employees). Appellee Handlebar's App. Vol. II p. 230. This language is sufficient to encompass any potential negligence by the Handlebar and its employees. The trial court did not err in reaching this same determination. Applying our holdings in Avant and Moore to the Waiver, we conclude that the Waiver is sufficient to inform Boarman that his waiver included alleged negligent acts by the Handlebar and its employees. Because Boarman expressly waived all claims against the Handlebar, including those arising from negligence by the Handlebar or its employees, we cannot say that the trial court erred in granting the Handlebar's summary-judgment motion.³

II. The Trial Court did not Err in Granting Isentark's Summary-Judgment Motion

[16] Indiana Code section 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.

The first step in determining potential liability is therefore to determine whether the person furnishing the alcohol had actual knowledge that they were furnishing alcohol to an intoxicated individual. Delta Tau Delta, Beta Alpha Chapter v. Johnson, 712 N.E.2d 968, 974 (Ind. 1999), abrogated on other grounds by Rogers v. Martin, 63 N.E.3d 316, 325 (Ind. 2016).

The furnisher's knowledge must be judged by a subjective standard. 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. 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. Where, however, there is insufficient evidence to support actual knowledge, the issue may be resolved as a matter of law.

Id. (internal citations and quotations omitted).

[17] “When determining whether a furnisher of alcoholic beverages knew a person was intoxicated, [courts] look to what and how much a person was known to have consumed, the person's behavior at the time, and the person's condition.” Pierson ex rel. Pierson v. Serv. Am. Corp., 9 N.E.3d 712, 716 (Ind. Ct. App. 2014), trans. denied. In awarding summary judgment to Isentark, the trial court found that “[t]here is no evidence designated to support the allegation that any of Isentark's servers had actual knowledge of any visible [signs of] intoxication of Boarman.” Appellant's App. Vol. II p. 18. The trial court further acknowledged that “[c]ircumstantial evidence can be considered to overcome a motion for summary judgment” but found that “the evidence designated does not provide circumstantial evidence to support a reasonable inference that Boarman was served while visibly intoxicated at Coaches Tavern.” Appellant's App. Vol. II p. 18.

[18] In challenging the trial court's summary-judgment order, Boarman argues that an issue of material fact remains as to whether any Isentark server had actual knowledge of his intoxication at the time he was served alcohol in Coaches Tavern. In support, Boarman cites to our decision in Pierson, in which we reversed an award of summary judgment, concluding that an issue of material fact remained as to whether Centerplate, the vendor of alcoholic beverages at Lucas Oil Stadium, had served Trenton Gaff alcohol while knowing Gaff to be visibly intoxicated. Pierson, 9 N.E.3d at 720. However, our opinion in Pierson is distinguishable because unlike in this case, there was designated evidence that created an issue of material fact as to whether Gaff had shown visible signs of intoxicated at the time he had been served by the Centerplate employee. Id. at 717–18.

[19] Conversely, in this case, there was no designated evidence, either direct or circumstantial, that created a material fact as to whether Isentark's servers had actual knowledge that Boarman was intoxicated. The designated evidence establishes that Boarman was not stumbling, tripping, falling, or acting belligerent during his visit to Coaches Tavern. Boarman claimed to have only consumed two drinks while at Coaches Tavern, that no one had accused him of slurring his words, and that he had not been told by anyone that he had appeared intoxicated. Boarman did not stumble, trip, or fall as he left Coaches Tavern or have any issue “with getting on” the pedal bar. Appellant's App. Vol. II p. 109. Importantly, Boarman has acknowledged that the feeling of intoxication had not “kicked in” and that he had not lost his “wits” until after he had left Coaches Tavern. Appellant's App. Vol. II pp. 109, 112.

[20] Boarman points to his designated deposition testimony outlining how much alcohol he claimed to have consumed prior to arriving at Coaches Tavern and claims that he believed that he had been “crossing the line” to a state of intoxication while at Coaches Tavern. Appellant's App. Vol. II p. 107. Boarman, however, points to no designated evidence that he had been displaying any outward signs of intoxication at this time. Without any visible or obvious signs of intoxication, the servers at Coaches Tavern would have no way of knowing that Boarman had consumed any, let alone a large amount of, alcohol prior to arriving at the establishment.

[21] Indiana Code section 7.1-5-10-15.5(b) requires actual knowledge of intoxication and states that a person who furnishes an alcoholic beverage to a person “is not liable in a civil action for damages” without it. The designated evidence does not establish that Isentark's servers had actual knowledge of Boarman's intoxication when they served him alcohol at Coaches Tavern. In addition, the circumstantial evidence falls short of establishing actual knowledge of Boarman's intoxication by Isentark's servers. As such, pursuant to Indiana Code section 7.1-5-10-15.5(b), Isentark cannot be held civilly liable for Boarman's damages. The trial court, therefore, did not err in granting Isentark's motion for summary judgment.

Conclusion

[22] Having concluded that the trial court did not err in granting either Handlebar's or Isentark's summary-judgment motions, we further conclude that the trial court did not abuse its discretion in denying Boarman's motion to correct error.

[23] The judgment of the trial court is affirmed.

FOOTNOTES

1.   Condado Tacos 6, LLC was dismissed from the lawsuit on March 7, 2025, and is no longer a party to the underlying lawsuit. It is unclear from the record whether Big M, Inc. remains a party to the underlying lawsuit.

2.   We note that Boarman cites Marsh v. Dixon, 707 N.E.2d 998 (Ind. Ct. App. 1999), trans. denied, in which, based on the language of exculpatory clause at issue in that case, we concluded that an award of summary judgment was improper. The exculpatory clause in Marsh did not refer to an injury caused by the negligence of the defendant. Id. at 1000–01. Because we find that the language in the Waiver explicitly refers to the negligence of the Handlebar, we conclude that it is more similar to that discussed in Avant and Moore. Accordingly, we apply those holdings to the case at issue and decline to apply the holding from Marsh.

3.   We note that Boarman has not challenged the trial court's award of summary judgment to the Handlebar on his claim relating to the Dram Shop Act. Additionally, to the extent that Boarman attempts to argue on appeal that the Handlebar had negligently failed to warn him of the allegedly negligent design of the pedal bar, i.e., its “unreasonably high” steps, Appellant's Br. p. 9, we note that Boarman had not raised this claim below. He has therefore waived this argument. See Dedelow v. Pucalik, 801 N.E.2d 178, 183 (Ind. Ct. App. 2003) (“A party generally waives appellate review of an issue or argument unless that party presented that issue or argument before the trial court.”).

Bradford, Judge.

Bailey, J., and Altice, J., concur.