Michael J. Moore, as the Administrator of the Estate of Timothy M. Moore v. Hank Investments, Inc. D/B/A Malabu Pub

• Court: Court of Appeals of Kentucky
• Decided: June 30, 2022
• Docket: 2020 CA 001106
• Status: Unknown

Opinion

RENDERED: JULY 1, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-1106-MR

MICHAEL J. MOORE, AS THE ADMINISTRATOR OF THE ESTATE OF TIMOTHY M. MOORE APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NOS. 17-CI-03858 AND 17-CI-03882

HANK INVESTMENTS, INC. d/b/a MALABU PUB; LSZ, LLC d/b/a PADDOCK BAR & PATIO; SMALL PLATES, LLC d/b/a SOUNDBAR; SUZANNE M. WHITLOW; AND JESSICA SCHWEITZER, INDIVIDUALLY AND AS NEXT FRIEND TO HER MINOR CHILDREN, AVERY SCHWEITZER AND JACKSON SCHWEITZER, AND AS EXECUTRIX OF THE ESTATE OF JASON SCHWEITZER APPELLEES

AND

NO. 2020-CA-1110-MR

JESSICA SCHWEITZER, INDIVIDUALLY AND AS NEXT FRIEND TO HER MINOR CHILDREN, AVERY SCHWEITZER AND JACKSON SCHWEITZER, AND AS EXECUTRIX OF THE ESTATE OF JASON SCHWEITZER, DECEASED APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 17-CI-03858

HANK INVESTMENTS, INC. d/b/a MALABU PUB; LSZ, LLC d/b/a PADDOCK BAR & PATIO; SMALL PLATES, LLC d/b/a SOUNDBAR; SUZANNE M. WHITLOW; AND MICHAEL J. MOORE, AS THE ADMINISTRATOR OF THE ESTATE OF TIMOTHY M. MOORE APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.

CALDWELL, JUDGE: The above-captioned appellants appeal the Fayette Circuit

Court’s summary dismissal of dram shop claims they asserted against appellee

Hank Investments, Inc. d/b/a Malabu Pub & Grille (“Malabu”). Upon review, we

affirm.

-2- OVERVIEW

At 10:09 p.m. on Friday, October 28, 2016, Suzanne Whitlow

(“Whitlow”) ended her shift as a server at a Red Lobster in Lexington. She began

drinking at Malabu perhaps an hour later. Near midnight on Saturday, October 29,

2016, she drove to another bar, the Paddock, where she met with friends and

continued drinking. Afterward, she might have consumed drinks at other bars

neighboring the Paddock; she could not recall. And, upon returning to her vehicle

near 2 a.m., she also might have consumed one or more beers from a case of beer

she kept behind the driver’s seat; she could not recall. She then began driving

home.

At or about 2:30 a.m., Whitlow lost control of her vehicle near South

Upper Trace Road at Bolivar Street in Lexington, Kentucky. She veered onto the

sidewalk, striking two pedestrians, Jason Schweitzer (“Schweitzer”) and Timothy

Moore (“Moore”), and crashed into a building. Whitlow exited her vehicle

wearing only one shoe. As further noted by Lexington Police Department (“LPD”)

officers, she had a “strong odor of alcoholic beverages on her breath and person”

and “exhibited very slurred speech and her ability to communicate was extremely

choppy with her continued tangents and inability to string together continued

coherent thoughts and explanations.” See Whitlow v. Commonwealth, 575 S.W.3d

663, 666 (Ky. 2019). Investigators located the open case of beer behind the

-3- driver’s seat of her vehicle and an unopened can of beer on the floorboard in front

of the driver’s seat. An assessment of blood drawn from Whitlow at 5:48 a.m.

indicated that Whitlow’s blood alcohol content (BAC) was .237. Due to the

accident, both Schweitzer and Moore died. Whitlow was charged with, and

ultimately convicted of, several offenses including misdemeanor driving under the

influence and two counts of second-degree manslaughter. Id. at 665.

Based upon the above, Jessica Schweitzer, on behalf of Schweitzer’s

estate and in her above-captioned capacities, filed suit in Fayette Circuit Court

(No. 17-CI-03858) on October 26, 2017, against Whitlow for negligence and gross

negligence; and against several entities, whose bars had allegedly contributed to

Whitlow’s intoxication prior to the accident, for dram shop liability and punitive

damages. Among those entities were LSZ, LLC, d/b/a Paddock Bar & Patio

(“Paddock”); Small Plates, LLC, d/b/a Soundbar (“Soundbar”); and Hank

Investments, Inc. d/b/a Malabu Pub & Grille (“Malabu”). Schweitzer also sued

each defendant for wrongful death, loss of consortium, and punitive damages.

Michael J. Moore, as the administrator of Moore’s estate, also filed

suit in the same venue (No. 17-CI-03882) on October 28, 2017, against Whitlow

for negligence and gross negligence and against the same above-described entities

for dram shop liability and punitive damages. Moore likewise sued each defendant

for wrongful death, negligent infliction of emotional distress, and punitive

-4- damages. Afterward, the circuit court consolidated Schweitzer’s and Moore’s

actions for purposes of discovery.

The dram shop entities denied liability in their various answers and

either crossclaimed or reserved the right to file crossclaims against Whitlow for

indemnity. On August 10, 2020, following a period of discovery, the circuit court

then summarily dismissed the appellants’ claims against Malabu after concluding

that no evidence had been adduced indicating that, at the time she was served at

Malabu’s bar, a reasonable person would have known Whitlow was intoxicated.

These appeals were filed soon afterward and focus entirely upon the propriety of

Malabu’s summary judgments. Other facts will be provided as necessary in the

context of the analysis.

STANDARD OF REVIEW

Summary judgment serves to terminate litigation where “the

pleadings, depositions, answers to interrogatories, stipulations, and admissions on

file, together with the affidavits, if any, show 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.” CR1 56.03. It is well established that a party responding to a properly

supported summary judgment motion cannot merely rest on the allegations in his

pleadings. Continental Cas. Co. v. Belknap Hardware & Mfg. Co., 281 S.W.2d

1 Kentucky Rule of Civil Procedure.

-5- 914 (Ky. 1955). “[S]peculation and supposition are insufficient to justify a

submission of a case to the jury, and . . . the question should be taken from the jury

when the evidence is so unsatisfactory as to require a resort to surmise and

speculation.” O’Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citing

Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). “‘Belief’

is not evidence and does not create an issue of material fact.” Humana of

Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990); see also Haugh v. City of

Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007) (“A party’s subjective beliefs

about the nature of the evidence is not the sort of affirmative proof required to

avoid summary judgment.”). Furthermore, the party opposing summary judgment

“cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of

a disputed fact, but must present affirmative evidence in order to defeat a properly

supported motion for summary judgment.” Steelvest, Inc. v. Scansteel Serv. Ctr.,

Inc., 807 S.W.2d 476, 481 (Ky. 1991) (internal quotation marks and citations

omitted).

On appeal, we must consider the evidence of record in the light most

favorable to the non-movant and must further consider whether the circuit court

correctly determined that there were no genuine issues of material fact and that the

moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916

S.W.2d 779 (Ky. App. 1996). “Because summary judgment involves only legal

-6- questions and the existence of any disputed material issues of fact, an appellate

court need not defer to the trial court’s decision and will review the issue de novo.”

Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (footnote omitted).

ANALYSIS

Before proceeding to the merits, it is necessary to clarify a

misapprehension from the Schweitzer appellants regarding their cause or causes of

action. They represent they asserted “three types” of dram shop claims against

Malabu – a dram shop claim based upon “common law,” one based upon KRS2

244.080, and a third based upon KRS 413.241. They complain the circuit court’s

summary judgment in favor of Malabu only considered the third of those claims,

but ignored the first two.

To be clear, the Schweitzer appellants only asserted one dram shop

claim; but their confusion is somewhat understandable. In Kentucky, dram shop

claims were initially recognized under the common law in Grayson Fraternal

Order of Eagles, Aerie No. 3738, Inc. v. Claywell, 736 S.W.2d 328 (Ky. 1987).

There, borrowing the standard of care set forth in KRS 244.080(2), the Kentucky

Supreme Court explained:

This means that where there is evidence from which it can be reasonably inferred that the tavern keeper knows or should know that he is serving “a person actually or apparently under the influence of alcoholic beverages

2 Kentucky Revised Statute.

-7- (KRS 244.080(2))” and that there is a reasonable likelihood that upon leaving the tavern that person will operate a motor vehicle, the elements necessary to establish a negligence action are proved.

Id. at 334.

Shortly after Claywell, our General Assembly enacted KRS 413.241 –

not as an additional type of dram shop action, but as a limitation upon any action

against a dram shop. Indeed, the fact that KRS 413.241 is a limitation upon a

cause of action, as opposed to the source of one, is readily apparent from its

location in KRS Chapter 413 – a chapter of our statutes entitled “Limitation of

Actions.”

With that said, the purpose of Kentucky’s dram shop statute, KRS

413.241, “is to simply protect the commercial interest of a business selling

alcoholic drinks responsibly, while at the same time prohibiting it from making

money by irresponsibly plying intoxicated people with drink who may – because

of their intoxication – pose a hazard to others.” Fort Mitchell County Club v.

LaMarre, 394 S.W.3d 897, 900 (Ky. 2012) (citation omitted). Turning to the

relevant portion of the statute, KRS 413.241 provides:

(2) Any other law to the contrary notwithstanding, no person holding a permit under KRS Chapters 241 to 244, nor any agent, servant, or employee of the person, who sells or serves intoxicating beverages to a person over the age for the lawful purchase thereof, shall be liable to that person or to any other person or to the estate, successors, or survivors of either for any

-8- injury suffered off the premises including but not limited to wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served, unless a reasonable person under the same or similar circumstances should know that the person served is already intoxicated at the time of serving.

(3) The intoxicated person shall be primarily liable with respect to injuries suffered by third persons.

In sum, if a dram shop (1) sells or serves intoxicating beverages to a

person of lawful age; (2) at the time of sale or service, that person was already

intoxicated; and (3) at the time of sale or service, a reasonable person under the

same or similar circumstances should have known that the person was already

intoxicated; (4) the dram shop will be secondarily liable for any injuries or

property damage later caused off the premises by that person because of the

intoxication. See id. Keeping this in mind, we will now address the propriety of

the circuit court’s summary judgments in favor of Malabu.

Recall, the accident giving rise to this litigation occurred at

approximately 2:30 a.m. on October 29, 2016. The issue presented in these

appeals is not Whitlow’s level of intoxication shortly beforehand, when she may or

may not have been drinking beer in her vehicle. Nor is it Whitlow’s level of

intoxication in downtown Lexington, where Whitlow drank an indeterminate

amount of alcohol at one or more other bars over a two-hour period after leaving

Malabu. Rather, the dispositive issue is Whitlow’s level of intoxication at the time

-9- she was served at Malabu – the place where she undisputedly began drinking three

or four hours before causing the accident.

Granting summary judgment in favor of Malabu based upon the third

dram shop element set forth above, the circuit court determined the appellants

adduced no evidence supporting Malabu had served Whitlow when a reasonable

person under the same or similar circumstances should have known she was

already intoxicated. The appellants assert the circuit court erred in this regard

because, in their view, reasonable evidentiary inferences could support Whitlow

was already intoxicated when Malabu served her. Before proceeding to the

specifics of the appellants’ arguments, which largely overlap, it is necessary for

context to summarize the extent of the evidence relating to Whitlow’s visit to

Malabu – evidence largely emanating from six different accounts given by five

different witnesses.

Two of those accounts came from Whitlow herself. To summarize

her December 12, 2019, deposition testimony, Whitlow stated that over the year

preceding the accident, she visited Malabu “almost every day” after her shift

ended, usually between 11 p.m. and 2 a.m. She would usually shoot pool and have

three or four drinks. On October 28, 2016, after clocking out from Red Lobster at

10:09 p.m., and then stopping at a nearby Speedway station for gas and cigarettes,

she arrived at Malabu, which was about two blocks away from her workplace. On

-10- the date of her deposition, Whitlow could not recall exactly when she arrived at

Malabu, explaining she may have stayed later at Red Lobster and that she could

only guess how long she was at the Speedway. But, she testified she stayed at

Malabu for “over an hour” after arriving; paid in cash; shot pool; purchased and

drank one or two “single”3 vodka and cranberry drinks; purchased a Budweiser

beer and a Jägermeister or tequila shot about thirty minutes later; purchased a

Jägermeister or tequila shot for her friend and coworker, Katherine Mitchell

(“Kat”), who was already at Malabu when she arrived; and also had a cigarette

with Kat.

Whitlow further testified that about twenty minutes after she and Kat

drank their shots and she finished her beer, she left Malabu by herself, driving ten

minutes away to the Paddock in downtown Lexington to meet two other friends,

Jeremy Arvin and Sierra Hensley. Whitlow also reviewed text message data from

her phone, and explained her texts indicated she probably left Malabu near 12:11

a.m.4 All told, Whitlow believed she had three or four drinks at Malabu over the

course of at least an hour.

3 “Single” refers to a mixed drink containing one shot of hard liquor, as opposed to a “double” which contains two. 4 Whitlow’s text message data was detailed in the LPD’s crash report as follows:

• 10:56:56 pm Jeremy tells Whitlow to “Come to sound bar please hangout here.”

-11- When asked about her level of intoxication at Malabu, Whitlow

explained she would typically become “wobbly,” “tipsy,” unable to walk straight,

and that she would slur her speech when drunk. But, she recalled feeling sober and

exhibiting none of those symptoms during her visit. Likewise, nothing of record

indicates Whitlow experienced any difficulties during her approximate ten-minute

journey to the Paddock afterward; when asked if she had any problems driving or

walking at that time, she testified: “No sir. I was fine.”

As to her second account, Whitlow acknowledged discrepancies

existed between what she related in her December 12, 2019 deposition, and what

she had related earlier during her October 29, 2016 interview with an investigating

LPD officer. The interview (of which Whitlow testified she had no recollection)

occurred at 4 a.m. while Whitlow was confined to an emergency room hospital

• 11:27:46 pm Whitlow says “Well they have a cover and the drinks aren’t as strong and it’s more expensive and I didn’t make that much money” • 11:29:54 pm Jeremy says “5$ I’ll get ur first drink to make it up.” • 11:33:43 pm Whitlow says “When Kat leaves I will” • 11:56:32 pm Whitlow says “Im down for Paddock” • 10/29/16 at 12:03:10 Whitlow says “ok I’m down for Paddock” • 12:04:24 am Whitlow says “I’ll be leaving here in like 10 min you still buying my first drink?” • 12:11:23 am Whitlow says “On my way!” • 12:30:19 am Whitlow says “I’m about to go back to malabu” and follows it up seconds later stating “The drinks aren’t strong and it’s not busy at all”

As an aside, Whitlow undisputedly did not return to Malabu after departing to the Paddock.

-12- bed, suffering from injuries, and heavily intoxicated; again, blood drawn from her

at 5:48 a.m. indicated she had a BAC of .237. According to the transcript, while

most of what she related to the officer during the interview was unintelligible,

Whitlow indicated she had been at Malabu for “probably about twenty-five

minutes”; and that while she had been there, she had consumed “two vodka and

cranberry drinks, one vodka cranberry shot.”

Next, Whitlow’s friend, Kat, was deposed on June 9, 2020. Kat and

Whitlow had been friends for over three years prior to the accident, and she

testified the two of them would regularly meet at Malabu for “a couple of drinks”

after working at Red Lobster. Kat testified that on the evening of October 28,

2016, she arrived at Malabu sometime between 10 p.m. and 11 p.m., and was there

about twenty or thirty minutes before noticing Whitlow had also arrived. Kat

chatted with Whitlow, but she recalled sitting at the “front” of the bar and talking

with other patrons while Whitlow spent the majority of her time at Malabu at the

“back” of the bar shooting pool. Kat testified Whitlow later asked if she wanted to

go with her to another bar downtown, that she declined the invitation, and that the

two of them left the bar together and parted ways around “midnight-ish.”

Kat had no memory of what or how much Whitlow drank at Malabu

and did not recall if Whitlow had bought her a drink that night. When asked about

Whitlow’s level of intoxication at Malabu during that period, however, Kat

-13- explained she was familiar with how Whitlow typically acted when drunk. She

indicated Whitlow would act “funny” and “goofy,” but that her behavior after

consuming “a lot of alcohol” was not significantly different from what it was while

she was sober. By way of example, Kat explained Whitlow enjoyed hugging

people regardless of whether she was intoxicated. That aside, Kat testified if she

had noticed Whitlow was intoxicated when the two of them were parting ways, she

would not have allowed Whitlow to leave the bar.

Ashley Faulkner (“Faulkner”), Stephanie Conrey (“Conrey”), and

Amanda Pfuelb (“Pfuelb”), the three bartenders who served patrons at Malabu

from the evening of October 28, 2016, until early the next morning, also provided

deposition testimony. Each was deposed over three years after October 28, 2016.

Faulkner was uncertain of when Whitlow arrived or left, but estimated Whitlow

was at Malabu for “maybe an hour or two.” She recalled Whitlow wore a Red

Lobster uniform at the time (i.e., a black shirt bearing the logo of the restaurant,

along with black pants). She had no memory of serving Whitlow, but she recalled

Whitlow had been there with Kat and had ordered a drink from another bartender.

She also remembered seeing notations in Malabu’s “tab book” indicating Whitlow

had purchased four “single” mixed drinks while there. The tab book did not

indicate when Whitlow purchased the drinks, and Faulkner could only assume the

four mixed drinks were either vodka and lemonade or vodka and cranberry juice,

-14- Whitlow’s usual choices. Faulkner had no specific recollection of seeing Whitlow

consuming any drinks.

As an aside, there is no indication from the record that Whitlow

purchased any drinks with a credit card or anything else that would have generated

a point-of-sale record of a transaction. Faulkner also testified Whitlow usually

paid in cash. When a customer immediately pays for drinks in cash, it is not

recorded in the tab book. So, there was no way of knowing the total number of

drinks Whitlow might have purchased at Malabu if Whitlow had used cash to

purchase additional drinks before starting or after closing the tab.

When asked about Whitlow’s level of intoxication at Malabu during

that period, Faulkner testified her general practice – consistent with her training

and fourteen years of experience as a bartender – was to measure intoxication

through observation. In relevant part, she explained:

Q: Okay. So, as a bartender at Malabu, how do you monitor customers for signs of intoxication?

A: Just acting out of the ordinary. Like, some – it’s different for different people, so some people may be loud or obnoxious, dancing around, they could be like, you know, bobbing their head or some people get angry, slurred speech – there’s numerous things that would indicate if somebody was intoxicated. Or if they can’t properly count back their money. Like, if they pay for something and they don’t know how to give me back money from something they gave me or they can’t sign their ticket and then they can’t put the tip or the total or

-15- do that correctly, then that’s a sign of, to me, they’re intoxicated.

Q: Is drink counting something that you also implement to monitor a customer for intoxication?

A: Well, I feel like everybody’s got a different tolerance so it depends on the person.

Q: So then, you don’t drink count or pay atten – that would be a “no” to my previous question?

A: No. No, I don’t go back and count how many drinks there are, I just determine by how they’re acting and what they can tolerate.

...

Q: Would you agree that intoxication occurs gradually?

A: No. I just think they could come in and already have been drinking somewhere else, or maybe they did some sort of drugs, or maybe they didn’t eat a whole lot and then they’re drinking, so it’s kind of being hit all of a sudden sometimes.

Regarding what she specifically recalled of Whitlow’s demeanor,

Faulkner explained she was familiar with Whitlow, and that Whitlow was a

frequent customer at Malabu who would have “just a couple of drinks here and

there.” She testified Whitlow had mostly remained in the back of the bar by the

pool table over the course of the night, but that she saw Whitlow in passing for a

few minutes at the bar where they had a brief conversation. She saw her again

while collecting empty glasses at the pool table, where she observed Whitlow

-16- talking with other patrons. She testified that on each occasion, Whitlow “seemed

fine” and spoke in “her usual voice.”

Conrey, one of the other bartenders on duty at Malabu that night, also

regarded Whitlow as a “regular.” She recalled Kat had arrived at Malabu shortly

before Whitlow on Friday evening, and that Whitlow wore a Red Lobster uniform

while there. The only drink she recalled serving Whitlow, and the only drink she

witnessed Whitlow consume, was the same drink Conrey testified Whitlow usually

drank at Malabu – either a “single” vodka and lemonade or vodka and cranberry

juice. Conrey remembered making the drink for Whitlow shortly after Whitlow

arrived; having a brief conversation with her as she made it; and that Whitlow did

not pay immediately, but instead started a tab which Conrey noted in Malabu’s tab

book. Whitlow then went to the back of the bar to shoot pool.

The next (and last) time Conrey saw Whitlow was when Whitlow and

Kat were preparing to leave. Conrey had no memory of when Whitlow ultimately

left, but she recalled “closing out” Whitlow’s tab beforehand, and that “it wasn’t a

very long tab at all.” Conrey also had no memory of the tab’s specifics, but she

recalled it indicated Whitlow had purchased more of “whatever vodka drink”

Whitlow had ordered from her earlier. Conrey insisted Whitlow’s tab bore no

indication that Whitlow purchased any beer or shots at Malabu, but conceded it

was “possible for someone to come up to the bar, and just order a single drink, and

-17- pay cash for it without including it on their tab.” Conrey remembered that before

Kat and Whitlow left, Whitlow said “goodbye” to her and, as per usual, gave her a

hug.

When asked about Whitlow’s level of intoxication at Malabu that

night, Conrey’s testimony was roughly the same as Faulkner’s. Her general

practice – consistent with her training and ten years of experience as a bartender –

was to primarily measure intoxication through observation. Conrey also testified

she had “cut” Whitlow “off” on one or two prior occasions after witnessing

Whitlow exhibit signs of intoxication (i.e., slurred speech, and body language

Conrey described as “off”). That said, Conrey testified that upon leaving Malabu

that night, Whitlow “was fine.”

The third bartender on duty, Pfuelb, testified her recollection of

Whitlow’s visit to Malabu on October 28, 2016, was best reflected in the statement

she provided LPD investigators a day or so after the accident. As summarized in

the LPD crash report,

Ms. Pfuelb reported she saw Ms. Whitlow in Malabu Pub the night of the collision with her friend “Cat” [sic]. She recalls seeing the news coverage and realizing she had been in the pub. She says she knows her to work at Red Lobster and knows her as “Suzie”. Pfuelb says “Suzie” was in Malabu Pub from approximately 11pm until about 12 am. She personally served her one vodka and lemonade and saw her coworker serve her another vodka and lemonade. Pfuelb says when “Suzie” closed out her

-18- tab she had a total of four drinks on there; she does not know what the other two were. Whitlow paid in cash.

In her deposition, Pfuelb testified Whitlow may have come to Malabu

at “10:45-ish,” and she recalled briefly chatting with Whitlow about how Whitlow

had just gotten off work. She recalled Whitlow wore a Red Lobster uniform that

evening and mostly shot pool while she was there. Pfuelb also reiterated seeing

four drinks on Whitlow’s tab, but she did not know if Whitlow had purchased the

drinks for herself or someone else.

When asked about Whitlow’s level of intoxication at Malabu that

night, Pfuelb’s testimony was roughly the same as Conrey’s and Faulkner’s. She

did not keep a strict drink count of every patron, and she explained that every

person is unique and has differing levels of alcohol tolerance. Instead, Pfuelb’s

general practice – consistent with her training and twelve or so years of experience

as a bartender – was to primarily measure intoxication through observation. In that

vein, she testified:

Slurred speak [sic] is probably one of the most common. You look for, you know, in the eyes whether they’re watery, glassy, bloodshot. You look for, you know, whether their – their steps are faltering, if they’re, you know, stumbling over themselves. Also, people’s behavior gets heightened, you know, your sense of emotion, whether you’re happy, you get even louder and happier. Your hand gesturing is another thing. Sadness, people crying, anger is another thing. Just basically emotions, I think, in general are heightened.

-19- Pfuelb was also familiar with Whitlow, whom she deemed a

“regular,” and she described her as having a “nice personality,” and being “very

friendly” and “always polite.” When asked how Whitlow appeared as she was

closing out her tab before leaving Malabu that night, Pfuelb testified: “She was

fine. There was no slurred speech. There was [sic] no indicators that she seemed

intoxicated or inebriated. There was nothing that sent any type of red flag up that

she was under the influence.”

Having discussed the evidence of Whitlow’s visit to Malabu, we now

turn to the specifics of the appellants’ arguments regarding the inferences that

could be drawn from it to support Whitlow was “already intoxicated,” per KRS

413.241(2), when Malabu served her. For their first argument, the appellants begin

by noting Whitlow stated during her post-accident interview with LPD that she had

been at Malabu for “twenty-five minutes.” They assert it could be inferred

Whitlow consumed more than seven drinks in that period. The appellants argue

that this inference,5 combined with fact that Whitlow’s BAC (as measured from

blood drawn from her at 5:48 a.m. the next day) was .237, could support an

5 Without citing the record, the appellants insist it could also be inferred Whitlow drank more than seven drinks “on an empty stomach.” To the extent it is relevant, this is not reasonable inference, but rather speculation. Whitlow’s deposition provides the only indication of whether Whitlow had food before arriving at Malabu. There, Whitlow testified she could not recall whether she ate at Red Lobster during or at the end of her shift on October 28 prior to arriving at Malabu, but that “most of the time when [she] got off work, [she] would stay there and [she] would eat because [Red Lobster employees] got like half off if we worked that day.”

-20- additional inference; namely, that Whitlow was already intoxicated on at least one

of those seven possible occasions when Malabu might have served her.

As to how they reached a figure of “more than seven drinks,” the

appellants note each of the bartenders indicated Whitlow’s drink tab indicated

Whitlow purchased four “single” mixed drinks, but that her tab might not have

reflected all of what Whitlow purchased if she had been using cash. They also

note Whitlow only used cash; that she testified consuming a beer and a shot of

tequila or Jägermeister in addition to possibly two mixed drinks at Malabu; and

that she recalled, during her post-arrest interview, having a “vodka cranberry shot”

at Malabu. Accordingly, the appellants’ math is as follows: four mixed drinks

listed on her tab, plus the beer and shot Whitlow mentioned in her deposition, plus

the “vodka cranberry shot” she mentioned while in the hospital, equals seven.

And, they add, it could have been more than seven, or perhaps less, because the

bartenders at Malabu testified they did not use a measuring device called a “jigger”

when pouring liquor, and instead “free-poured” liquor, which they measured

through a counting method.

There are at least two problems with this chain-of-inferences

argument. First, while recollections of what Whitlow drank at Malabu differed, no

witness or other source of evidence indicated Whitlow was served more than four

drinks there. Second, and more importantly, this argument necessarily relies upon

-21- an impermissible assumption rather than evidence, i.e., that all people who drink a

certain amount will, more probably than not, become perceptibly intoxicated

within a certain amount of time.

As to why this assumption is impermissible, the General Assembly

has indicated through use of the “reasonable person” standard in KRS 413.241(2)

that determining whether a given dram shop or its agents “should know that the

person served is already intoxicated at the time of serving” within the meaning of

the statute is an inherently objective inquiry, and one of degree. See also Wilson v.

Commonwealth, 628 S.W.3d 132, 143 (Ky. 2021) (generally explaining the

“reasonable person” standard). As Malabu notes in its brief, the statute does not

hold a dram shop and its employees to the standard of a reasonable toxicologist or

a reasonable behavioral psychologist. Rather, it “imposes a duty upon a dram shop

and its employees, before selling or serving alcohol to a person, to use their powers

of observation to perceive readily visible warning signs that a person is intoxicated,

and to refrain from serving or selling alcohol to that patron.” Carruthers v.

Edwards, 395 S.W.3d 488, 492 (Ky. App. 2012).

In this respect, our Supreme Court provided further guidance in

LaMarre, 394 S.W.3d 897. There, Timothy LaMarre sued the Fort Mitchell

Country Club for alleged negligence in over-serving alcohol to Michael Plummer,

who had injured him while operating a golf cart shortly after the two of them

-22- departed the club together. LaMarre asserted the club was not entitled to the

immunity from suit provided by KRS 413.241(2) because, in his view, the club had

continued to serve Plummer alcohol after it was apparent Plummer was

intoxicated. Id. at 899. Eventually, LaMarre’s action was summarily dismissed

and, following its review of LaMarre’s evidence, our Supreme Court agreed with

the summary disposition.

In its opinion, the Court focused upon the objective evidence of

Plummer’s condition and what the club and its agents witnessed of Plummer’s

condition before, during, and shortly after an approximate 70-minute time span – a

time span in which Plummer and his wife shared dinner with LaMarre and his wife

at the club. The Court noted the evidence of whether Plummer actually was

intoxicated at any point in time was unclear – nothing indicated his BAC was ever

measured, and the quantity of alcohol Plummer imbibed was unknown. At most,

the evidence demonstrated Plummer shared an unspecified amount of two bottles

of wine with LaMarre and his wife during dinner. Id. at 901.

Even assuming Plummer had been intoxicated, however, the Court

emphasized the “ultimate issue” presented did “not deal with the actual inebriation

of Mr. Plummer, but whether a ‘reasonable person’ should know that the person

being served alcohol is intoxicated.” Id. (emphasis added). Accordingly, while

LaMarre argued summary judgment was premature because he should have been

-23- permitted more time in discovery to adduce expert testimony from a toxicologist,

the Court rejected the notion, explaining “the toxicologist would not have been

able to speculate as to Mr. Plummer’s actual blood alcohol level or as to the

ultimate issue – how Mr. Plummer appeared to the Club’s employees during the

night of the incident.” Id. (emphasis added).

The LaMarre Court also explained the only evidence illustrating

Plummer’s perceptible condition during the relevant time frame presented no

genuine issue of fact. Apart from noting there was no indication that Plummer so

much as slurred his speech that evening, id. at 901, the Court observed:

[F]ive separate employees of the Club spoke to the LaMarres and the Plummers. The two couples were familiar and regular members of the Club. All of the employees had received training in the detection of intoxicated customers. None of them believed that any member of the group was intoxicated. The LaMarres also indicated that they did not think Mr. Plummer was intoxicated when they left the Club that evening.

Id. at 899.

In sum, LaMarre provides the following about the quantum of

evidence required to prove whether a given dram shop or its agents “should know

that the person served is already intoxicated at the time of serving” within the

meaning of KRS 413.241(2). While circumstantial evidence may suffice to

-24- establish a person was perceptibly intoxicated at the relevant time,6 it must

nevertheless be actual evidence of the perceptible intoxication of the allegedly

intoxicated person. Thus, as the Court indicated, a person’s BAC cannot be

considered a readily visible warning sign that a person is “already intoxicated”

because it does not show what behavior, if any, the person actually manifested to a

reasonable observer, nor how he or she appeared at any given time. As an aside,

this policy is consistent with the licensing statutes, which do not concern

themselves with the problem of individuals becoming intoxicated outside the

presence of licensed alcohol vendors. See, e.g., KRS 244.080(2).7

6 While there seems to be some confusion on this point among the parties, interpreting KRS 413.241 as requiring only direct evidence of perceptible intoxication would improperly add language to the statute. 7 KRS 244.080 provides in relevant part:

A retail licensee, or the licensee’s agent, servant, or employee, shall not sell, give away, or deliver any alcoholic beverages, or procure or permit any alcoholic beverages to be sold, given away, possessed by, or delivered to:

(2) A person who appears to a reasonable person to be actually or apparently under the influence of alcoholic beverages, controlled substances, other intoxicating substances, or any of these substances in combination, to the degree that the person may endanger any person or property, or unreasonably annoy persons in the vicinity.

(Emphasis added.)

-25- Here, any inference – plausible or not – that Whitlow consumed more

than seven drinks at Malabu might reinforce a finding that she was intoxicated at

or near the relevant time frame. But standing alone, it cannot substitute for

showing in the first instance that she was perceptibly intoxicated. By extension,

the same holds true regarding the amount of time Whitlow spent drinking at

Malabu; the condition other hypothetical drinkers might have been in, had they

consumed as much; instances of Whitlow’s intoxication weeks or months earlier;8

or the fact that over five hours after leaving Malabu, Whitlow’s BAC was .237.

None of that is the requisite evidence of Whitlow’s appearance or demeanor at or

near the relevant time, and it is not enough to overcome a motion for summary

judgment.

For their second argument, the appellants assert Whitlow displayed an

outward sign of intoxication by hugging Conrey before leaving Malabu. We

disagree. Whitlow’s hug occurred after Malabu stopped serving her; and, taking it

in context, it would be speculation to say it circumstantially indicated Whitlow was

intoxicated when she was served at Malabu sometime earlier. According to Kat,

Whitlow enjoyed hugging people regardless of whether she was intoxicated.

8 The appellants characterize Whitlow as an “habitual drunkard,” emphasizing she was considered a “regular” at a bar, and that over a year prior to the October 29, 2016 accident, she was convicted of driving under the influence of alcohol. They also emphasize Whitlow posted sixteen one-sentence comments to her Facebook account between November 2015 and July 2016 expressing her enjoyment of alcohol. These details are irrelevant.

-26- According to Conrey, Whitlow usually hugged her when leaving Malabu. And,

while there is no evidence describing what the hug looked like, no one who

witnessed it regarded Whitlow’s hug or other conduct as abnormal.

Third, the appellants take issue with the testimony of Malabu’s three

bartenders who agreed Whitlow was “fine” and did not appear intoxicated. They

argue a factfinder could disregard this testimony; first on grounds of bias and, they

assert, because the bartenders were improperly trained and improperly failed to

keep a record of every drink served to every patron over the course of Whitlow’s

visit. However, the burden of proof in this matter belonged to the appellants, not

Malabu; and the hope that a factfinder will disbelieve an opponent’s evidence is

not enough to overcome a motion for summary judgment. Steelvest, Inc., 807

S.W.2d at 481.

Fourth, the appellants accuse Malabu of spoliating evidence, and

argue they were accordingly entitled to an evidentiary inference that Whitlow

appeared outwardly intoxicated at Malabu. Specifically, they note that during

discovery, Malabu failed to produce: (1) its “tab book,” which the bartenders

testified indicated Whitlow had purchased four “single” mixed drinks while at

Malabu; and (2) surveillance footage from the time frame of Whitlow’s visit.

At the onset, we note spoliation can warrant a “missing evidence”

instruction, but that no Kentucky authority currently indicates whether an inference

-27- arising from spoliation can overcome a motion for summary judgment. However,

assuming the law of spoliation also applies in this context, there is no entitlement

to an evidentiary inference stemming from alleged spoliation. Rather, “[i]t is

within the trial court’s discretion to deny a requested instruction, and its decision

will not be reversed absent an abuse of discretion.” Auslander Properties, LLC v.

Nalley, 558 S.W.3d 457, 469 (Ky. 2018) (citation omitted). “The test for abuse of

discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,

or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d

941, 945 (Ky. 1999) (citations omitted). Regarding when such an inference is

warranted:

The latest word on missing evidence instructions came just a few months ago, in Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696 (Ky. 2020), where the Supreme Court said:

While we acknowledge that parties in civil litigation must not destroy evidence the parties know is relevant to potential litigation, we do not agree . . . that a party is always entitled to a missing-evidence instruction, to uphold “judicial integrity,” in all cases where evidence is not available after the party responsible for the evidence was put on notice of potential litigation.

Id. at 733 (footnote omitted).

Relying, in large part, on University Medical Center, Inc. v. Beglin, 375 S.W.3d 783 (Ky. 2011), the Supreme Court further stated:

-28- [T]he trial court is within its discretion to give a missing-evidence instruction when: (1) the evidence is material or relevant to an issue in the case; (2) the opponent had “absolute care, custody, and control over the evidence;” (3) the opponent was on notice that the evidence was relevant at the time he failed to produce or destroyed it; and (4) the opponent, “utterly without explanation,” in fact failed to produce the disputed evidence when so requested or ordered. In so finding, we [noted] . . . that “nonproduction alone ‘is sufficient by itself to support an adverse inference even if no other evidence for the inference exists[.]’”

Disselkamp, 600 S.W.3d at 731 (footnotes omitted). “In fact,” said the Supreme Court, “the Beglin court explicitly declined to adopt ‘a special rule for measuring the quantum or quality of evidence that will authorize a missing evidence instruction.’ [Beglin, 375 S.W.3d] at 790. Instead, the Beglin court opted for a flexible standard that grants wide discretion to the trial court.” Id. at 730 n.112. We keep these flexible standards in mind as we assess whether the circuit court abused this wide discretion in denying the missing evidence instruction.

Curtis v. Price Holdings, Inc., 610 S.W.3d 339, 346 (Ky. App. 2020).

Keeping that in mind, we turn to why the circuit court declined giving

the appellants an evidentiary inference. During the August 4, 2020 summary

judgment hearing, it was observed that the appellants did not send Malabu any

notice to preserve evidence until Moore’s counsel sent Malabu a preservation letter

on or about September 26, 2017. Regarding the tab book, Malabu offered no

-29- explanation regarding its whereabouts other than that it must have been lost during

the intervening eleven months. It noted, however, that the LPD crash report

indicated Pfuelb’s recollection days after the accident that the tab book reflected

Whitlow had purchased four drinks.

Before ruling upon Malabu’s motion for summary judgment, the

circuit court explained the record did not indicate Malabu intentionally or willfully

destroyed the tab book. Nevertheless, the circuit court also considered Pfuelb’s

recollection of the tab book’s contents and indicated that even if the tab book

represented that Whitlow purchased four drinks, it was insufficient for summary

judgment purposes because it did not indicate how Whitlow appeared or acted at

Malabu. Considering what we have discussed in this Opinion, we cannot say the

circuit court abused its discretion or otherwise erred in this respect.

Regarding Malabu’s surveillance footage, none of the three bartenders

deposed in this matter recalled seeing any surveillance footage from the night in

question,9 and Malabu represented nothing existed. Its corporate representative,

Henry Wilson, testified that upon learning of the accident a few days after it

happened, he tried reviewing Malabu’s system for footage of Whitlow from that

9 Pfuelb testified she could not recall seeing any such footage. Faulkner testified being aware that a surveillance system existed; but that she had never tried accessing it and had never “seen anyone be able to rewind the video to go back to a different point in time.” Conrey likewise testified having no knowledge of footage from that night, and that she had only ever attempted to access the newer system.

-30- night, but discovered at that time that the system did not function. He testified that

“sometime later” – between then and possibly after the underlying litigation was

filed – he decided to have a new surveillance system installed. He testified Malabu

no longer had possession of the old system, which he assumed had been disposed

of by the company that had installed the new one. Wilson also provided the

contact information of the individual who had installed Malabu’s new surveillance

system, but nothing of record indicates that individual was later contacted by the

appellants.

Considering this evidence, the circuit court indicated during the

summary judgment hearing that Malabu’s lack of surveillance footage did not

appear to have stemmed from a willful intent to destroy evidence. From all

appearances, the circuit court’s decision was founded upon the proposition that

Malabu’s lack of footage owed more to ordinary negligence and was not “utterly

without explanation[.]” Disselkamp, 600 S.W.3d at 731. Considering the circuit

court’s “wide discretion” relative to missing evidence issues, Curtis, 610 S.W.3d at

346, we find no error in this respect, either.

The appellants’ fifth argument is that it could be circumstantially

inferred from evidence of Whitlow’s conduct and appearance after leaving Malabu

that she was perceptibly intoxicated while she was at Malabu. In that regard, they

note that evidence demonstrates Whitlow was, without dispute, visibly intoxicated

-31- at or about 2:30 a.m. on October 29, 2016, at the scene of the accident, and at 4

a.m. during her interview with LPD.

We disagree. As a general matter, evidence of an individual’s later

appearance or conduct can provide circumstantial evidence of earlier perceptible

intoxication; however, temporal proximity is a chief consideration in determining

its relevance. For example, it was held in Tate v. Borton, 272 S.W.2d 333 (Ky.

1954), that for purposes of a (now-outdated) contributory negligence defense,

whether the decedent “voluntarily rode in the car knowing that the driver was

under the influence of intoxicants” was a jury question. In Tate, notwithstanding

eyewitness testimony supporting that the driver was “not drunk” before and after

the car accident, the decedent witnessed the driver drinking shortly before entering

the vehicle; the accident occurred shortly thereafter; and neither the driver nor any

other witness could explain how the driver lost control of the vehicle and caused

the fatal crash. Id. at 334. Here, by comparison, no such inference is reasonable.

Whitlow’s accident did not occur shortly after she was observed drinking at

Malabu. The accident occurred two-and-a-half hours later and, during that period,

Whitlow consumed an additional, undefined amount of alcohol.

Sixth, and finally, the appellants argue that approximately thirteen

minutes of surveillance footage – recorded at the Paddock shortly after she arrived

-32- there, and perhaps10 fifteen or twenty minutes after she left Malabu –

circumstantially indicates she was visibly intoxicated at Malabu. We disagree,

however, that it depicts “readily visible signs” that Whitlow was intoxicated.

Carruthers, 395 S.W.3d at 492.

To summarize, the footage depicts activity at one of the Paddock’s bar

tables. A female bartender can be seen working behind the bar. Approximately

seven patrons, sitting in a long row of chairs across from the bar, are facing the

bartender. Due to the camera angle, usually only the backs of their heads are

visible. Whitlow enters the bar and gives one of the individuals seated at the bar a

brief hug. From all accounts, the individual is her friend, Sierra Hensley. Whitlow

stands at the bar between Sierra and the woman seated to the right of Sierra.

Whitlow appears to greet and converse with the woman to the right and she places

her right hand on the back of the woman’s chair. Whitlow then appears to order

what she would later testify was a vodka and cranberry juice mixed drink. The

bartender makes the drink and hands it to Whitlow. Whitlow looks through her

small purse (with no obvious difficulty, contrary to what the appellants represent)

and hands something unidentifiable to the bartender. Whitlow then sips her drink

through a straw.

10 The Paddock provided approximately five hours and twenty minutes of surveillance footage, but the footage did not indicate when it was recorded. The Moore appellants estimate Whitlow arrived at the Paddock “around 12:23 a.m.”

-33- From all indications, there is loud music playing at the Paddock.

Sometimes, people walking in and out of the footage lightly dance, gyrate, or

shake their heads to the music, while standing in place, holding their drinks. On

occasion, while standing at the bar, Whitlow does this, too. Over the course of the

next few minutes, Whitlow sometimes places her hand on the back of the woman’s

chair. But there is no obvious indication – contrary to the appellants’ assertions in

their respective briefs – that she used the chair to brace herself in an effort to

remain standing. For a brief moment, Whitlow also laughs with the woman and

“high-fives” her. But it is quite an exaggeration to characterize the “high-five” as

“sloppy,” or causing her to “nearly fall over,” as the appellants allege.

As the woman sitting next to Sierra gets out of her seat and leaves the

footage, Whitlow takes her seat. For the next few minutes, for the most part, only

Whitlow’s back and the back of her head are visible. She converses with Sierra,

occasionally gesticulating. Sometimes, she rests her right elbow on the bar. While

doing that, she sometimes rests the side of her head in her open right hand.

Sometimes, she holds the back of Sierra’s chair with her left hand.

Ten minutes after arriving, Whitlow then leaves her seat, holding her

drink and what appears to be her purse in her left hand, and walks, without

difficulty, out of the footage. From all appearances, Whitlow is able to converse,

is aware of her surroundings, and her conduct is unremarkable. Succinctly, there is

-34- nothing in the video to support Whitlow was intoxicated at that time, or to support

a reasonable person at Malabu being able to discern that Whitlow was intoxicated

during her earlier stint at Malabu.

CONCLUSION

We have addressed the breadth of the appellants’ arguments. We

have found no instance of error. Accordingly, we AFFIRM.

MCNEILL, JUDGE, CONCURS.

MAZE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.

MAZE, JUDGE, DISSENTING: I cannot agree with the majority herein that the

Appellants failed to adduce sufficient evidence to survive Appellees’ motion for

summary judgment. When the Court properly considers the summary judgment

standard of CR 56.03, including its obligation to view the record in favor of the

non-moving party, resolving all doubts in that party’s favor, it is clear that

sufficient evidence has been presented to demonstrate the existence of genuine

issues of material fact. The majority has relied upon the case of Fort Mitchell

Country Club v. LaMarre, 394 S.W.3d 897, 900 (Ky. 2012). However, that case is

distinguishable since the Court concluded that there was a “total absence” of proof

that the driver therein was intoxicated.

Such is not the case herein. In fact, a great deal of evidence was

submitted as to the issue of whether a “reasonable person” should know that

-35- Whitlow was intoxicated while at the Malabu bar. KRS 413.241. The testimony

of Whitlow and the three bartenders varied widely as to the period of time she

spent in the bar, the amount of alcohol which she purchased, and the amount of

alcohol which she actually consumed. Whitlow testified that she was not

intoxicated, and the bartenders all testified that she seemed “fine.” However, the

Appellants produced a video recorded minutes later at the Paddock, arguing that it

shows her leaning on a chair, being somewhat boisterous and being slumped over

the bar. This evidence was clearly probative of the issue of what a reasonable

person knew or should have known as to her level of intoxication. Further, had the

matter progressed beyond the summary judgment stage, Appellants may have had

the benefit of expert testimony, as experts had not yet been disclosed prior to the

entry of judgment. Finally, Appellants could well have been entitled to the benefit

of a spoliation or missing evidence instruction along with the appropriate

inferences arising out of Malabu’s failure to retain the bar’s video from that night

and to safeguard the tab book which reflected drinks purchased.

Iowa’s Dram Shop Act11 is similar to Kentucky’s in that it contains a

requirement that the server must have “known or should have known” that the

patron who inflicted the injury was intoxicated at the time of service. In Smith v.

Shagnasty’s Inc., 688 N.W.2d 67, 75 (Iowa 2004), the trial court granted the bar’s

11 Iowa Code § 123.92.

-36- motion for summary judgment and the Court of Appeals affirmed. On appeal, the

Supreme Court of Iowa reversed and remanded on the grounds that there were

genuine issues of material fact as to whether the server knew or should have

known that the bar patron was intoxicated. In so doing, the Court held that

circumstantial evidence is not only a sufficient element to show scienter but may

be sufficient without any direct evidence. In so doing, the Court quoted Ward v. D

& A Enters. Of Clark County, Inc., 714 N.E.2d 728, 730 (Ind. App. 1999), which

held that:

when viewed most favorably to the non-moving party, the fact that [a bar] 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 intoxicated person] was visibly intoxicated at the time [of service].

In Torrance v. Murphy’s Grill, 884 N.W.2d 223, 2016 WL 1680470

(Iowa Apr. 27, 2016), where the Court affirmed the trial court’s granting of

summary judgment, that the court had the benefit of expert testimony as to the

blood alcohol level of the patron. However, in the case before this Court, no

experts had been disclosed prior to the entry of summary judgment. While expert

testimony in this regard is not required, its absence should be a consideration in

determining if summary judgment has been awarded prematurely.

-37- More importantly, the Torrence case also deals with an allegation of

evidence lost or destroyed in the form of video from the bar and receipts from the

day of the accident. The Court stated that:

[T]he intentional destruction of or the failure to produce documents or physical evidence relevant to the proof of an issue in a legal proceeding supports an inference that the evidence would have been unfavorable to the party responsible for its destruction or nonproduction. The nonproduction, alteration, or destruction of evidence is commonly referred to as spoliation. When established, the inference is regarded as an admission by conduct of the weakness of the party’s case.

Phillips v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001) (citations omitted). The inference “is not warranted if the disappearance of the evidence is due to mere negligence, or if the evidence was destroyed during a routine procedure.” Id. at 719.

Id. at *3.

Similarly, in University Medical Center v. Beglin, 375 S.W. 3d 783,

792 (Ky. 2011), the Supreme Court of Kentucky held that a missing evidence or

adverse inference instruction may be given “when it may be reasonably believed

that material evidence within the exclusive possession and control of a party, or its

agents or employees, was lost without explanation or is otherwise unaccountably

missing, the trier of fact may find that the evidence was intentionally and in bad

faith destroyed or concealed by the party possessing it and that the evidence, if

available, would be adverse to that party or favorable to his opponent.” I

-38- acknowledge that this is an evidentiary decision to be made at a later time by the

trial court. However, I reiterate that summary judgment was entered prematurely

in this case.

Finally, courts in other jurisdictions, most notably Indiana, have made

clear statements of law that both indirect and circumstantial evidence and the

inferences to be drawn therefrom are appropriate considerations as to the issue of

intoxication. Admittedly, Indiana’s Dram Shop statute differs from Kentucky’s in

that the former requires the server to have “actual knowledge” of “visible”

intoxication. In fact, while such a standard would seem to impose a need for a

higher quantum of evidence, Indiana courts have not so interpreted it.

In BGC Entertainment, Inc. v. Buchanan, 41 N.E.3d 692, 698 (Ind.

App. 2015), the court held that, in the absence of a server’s admission,

circumstantial evidence is appropriate to determine “actual knowledge.” The court

in Booker, Inc. v. Morrill, 639 N.E. 2d 358, 362 (Ind. App. 1994), noted that the

trier of fact could determine whether or not to believe the denials of the bartenders

as to the driver’s state of intoxication. Indeed, in BGC, supra, the Court likewise

found that it is for the fact finder to determine the weight and credibility of the

evidence and thus not appropriate for the court in summary judgment proceedings.

Surely, this is also the analysis applicable to summary judgment proceedings in

-39- Kentucky today, see James Graham Brown Foundation, Inc. v. St. Paul Fire &

Marine Ins. Company, 814 S.W.2d 273 (Ky. 1991).

Although it is clearly not a Dram Shop case, I find the case of Ogden

v. Employers Fire Insurance Company, 503 S.W.2d 727, 729 (Ky. 1973), to be

instructive as to the use of circumstantial evidence and its effect upon the entry of

summary judgment. Summary judgment was granted in favor of an uninsured

motorist insurer based upon the trial court’s finding that there was no evidence of

contact between two vehicles in an auto accident. On appeal, the Court reversed,

holding that while the direct and circumstantial evidence may have been “weak,”

contact could reasonably have been inferred from it. The Court noted the

obligation of the trial court to consider the evidence and the inferences to be drawn

from it most favorably to the non-moving party and leave issues of the weight and

credibility for the jury. As stated in Embs v. Pepsi-Cola Bottling Company of

Lexington, Kentucky, Inc., 528 S.W.2d 703, 706 (Ky. 1975), “It matters not that the

evidence be circumstantial for as Thoreau put it ‘Some circumstantial evidence is

very strong, as when you find a trout in the milk.’” I have seen no authority for the

proposition that such “strong” evidence should be excepted from consideration in

Dram Shop cases. Thus, I am of the opinion that the trial court erred by invading

the province of the jury and would have reversed its summary judgment herein.

-40- BRIEFS FOR APPELLANT BRIEFS FOR APPELLEE HANK MICHAEL J. MOORE, AS THE INVESTMENTS, INC. d/b/a ADMINISTRATOR OF THE MALABU PUB: ESTATE OF TIMOTHY M. MOORE: Carroll M. Redford, III Grahmn N. Morgan Elizabeth C. Woodford Kristeena L. Johnson Lexington, Kentucky Lexington, Kentucky

BRIEFS FOR APPELLANT JESSICA SCHWEITZER, INDIVIDUALLY AND AS NEXT FRIEND TO HER MINOR CHILDREN, AVERY SCHWEITZER AND JACKSON SCHWEITZER, AND AS EXECUTRIX OF THE ESTATE OF JASON SCHWEITZER:

Ann B. Oldfather Michael R. Hasken Nicole A. Bush Louisville, Kentucky

ORAL ARGUMENT FOR ORAL ARGUMENT FOR APPELLANT MICHAEL J. APPELLEES: MOORE: Carroll M. Redford, III Kristeena L. Johnson Lexington, Kentucky Lexington, Kentucky

ORAL ARGUMENT FOR APPELLANT JESSICA SCHWEITZER:

Nicole A. Bush Louisville, Kentucky

-41-