The Court of Appeals issued an interesting 2-1 decision in the case of Marlow v. Better Bars, Inc. (pdf). The trial court had granted summary judgment to a bar in Mooresville (“the Bar”) that had served the plaintiff (“Marlow”). Marlow had been at the Bar until at least 1 a.m. when his co-workers left him there. At about 2:30 a.m., police officers were called to a White Castle where Marlow was causing some trouble in the drive through. The police made him stand outside of his car, handcuffed in front of a squad car while an officer moved Marlow’s car out of the drive through. As this was happening, Marlow fled the police, running out into State Road 67, where he was hit by two cars causing serious injury. At the hospital (shortly thereafter apparently), his BAC was .206% — and, at 5:17 a.m., his BAC was 0.158% (by way of comparison, it’s illegal to drive with more than .08% in your blood).
The Dram Shop Act makes it illegal for a bar to sell alcohol to a patron where the bartender knows the person is intoxicated. (It’s broader than that, but that’s sufficient for this case). All three judges agreed that summary judgment based on lack of evidence that the Bar knew Marlow was intoxicated was improper. Because Marlow was at the bar from at least 11:30 – 1:00 a.m., there was evidence that he had been served at the Bar, and, after 2:30 a.m., had a BAC of .206%, the Court found that a jury could legally conclude that the Bar served Marlow when the bartenders knew he was intoxicated.
The more interesting question, leading to the 2-1 split, was whether Marlow’s intentional criminal act of fleeing from the police was an intervening event that broke the chain of causation such that serving the alcohol was no longer a “proximate cause.” Even after 19 years of practicing law and 3 years of law school, I still have trouble with the precise meaning of “proximate cause.” The general notion is that causation never ends: one thing leads to another, on and on, from the beginning of time to the end. Ripples in a pond and all of that. At some point, you have to cut off legal liability for those rippling consequences. So, the common law created this notion that it’s not enough to merely be the cause of some bad thing — rather, you have to be the proximate cause of that bad thing. Where and how cause stops being proximate has always been a fuzzy line to me, and I think you see the judges wrestling with that notion here.
To be considered a proximate cause, the negligent act must have set in motion a chain of circumstances which, in natural and continuous sequence, led to the resulting injury. However, the willful, malicious criminal act of a third party constitutes an intervening act which breaks the causal chain between the alleged negligence and the resulting harm.
(Internal quotations and citations omitted). Both the majority and the dissent find support in the case of Fast Eddie’s v. Hall. In that case, summary judgment was appropriate where the bar served a patron who subsequently sexually assaulted and murdered a woman. The patron’s intentional criminal acts were the intervening cause of the woman’s death which broke the causal chain between the tavern’s negligence and the woman’s assault and death. The Court distinguished this from automobile accidents where taverns have been held liable for the damage caused by the drunk driver. “Unlike automobile accidents which occur as the result of alcoholic beverage consumption, assault and murder are intentional acts of volition which are the result of an assailant’s deliberate design . . . [whereas the drunk patron’s] criminal intent would have been present whether or not [he] was intoxicated.” The majority decision stated that they could not determine whether Marlow’s criminal intent to flee the police would have been present had he not been drunk. The dissent, on the other hand, thought that the Fast Eddie’s court had established that the chain of proximate cause was broken by the act of intentional volition advancing the drunk patron’s criminal design. In a drunk driving case, the drunk patron doesn’t mean to weave into oncoming traffic, it’s an accident — an accident made a lot more likely because of the intoxication. In the sexual assault/rape case, the rape isn’t an accident — it’s intentional.
And, of course, we have a lot of criminal cases (where some kind of culpable mental state is a required element) that tell us being drunk isn’t a defense.
I think what we have here is a legal system that is a lot more precise than the human condition, and the judges are struggling (not just in this case but with respect to alcohol use generally) to make the legal system yield the correct result. Some thoughts about competing interests in no particular order:
1. We want our crimes to be based on mental culpability and not just bad outcomes.
2. Alcohol has the potential to permit action without conscious thought but we don’t want to allow alcohol-induced lack of mental capacity to be used as a defense to criminal prosecution.
3. Taverns are profiting off of drunkenness and we don’t want them to externalize the costs of their business on innocent third parties.
4. We want the drunk to be personally responsible when it’s a question about whether they’ll go to jail or not. We don’t want the drunk to be personally responsible (or at least not solely financially responsible) when it’s a question of whether an injured person will be compensated for their injuries.
5. Holding taverns responsible for rapes and sexual assault feels like it’s going too far.
6. Saying that the rape and assault in the Fast Eddie’s case would have happened even without the alcohol may be true, but it also seems like an unsupported assertion for the purpose of creating a bright line where one doesn’t really exist.
7. Running into traffic to get away from the police feels a little more like a drunk driving accident and a little less like the rape and sexual assault, but the Court has to reconcile the intentional volition language from prior decisions.
I wouldn’t be surprised if the Bar attempts to take this one up to the Indiana Supreme Court.
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