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Copeland v. Tela Corporation10/5/1999
Barnes had become noticeably intoxicated while being served alcoholic beverages on its premises. While the appellant could find no employee to testify that a patron of the Red Dog was served an alcoholic beverage while noticeably intoxicated, the appellant is still entitled to use inference and circumstantial evidence to prove during trial that Barnes was served when noticeably intoxicated. Barnes was found to have a blood alcohol level of .12%, he ran over a pedestrian, and the investigating police officer had a strong enough suspicion of Barnes' sobriety, that the officer had Barnes tested. Enough evidence exists that a reasonable person might reach the Conclusion the employees of the Red Dog either knew or should have known that Barnes was intoxicated as he continued to drink there. In addition, the policies, procedures, training, and environment at the Red Dog operated to prevent its employees from recognizing when a patron had become "noticeably intoxicated."
In his deposition, Donald Mackey stated that:
1. A strong odor of alcohol would be difficult to detect on a patron due to the smell of cigarette smoke in the bar.
2. Due to the volume of music in the bar, a loud patron would not necessarily indicate an intoxicated patron.
3. A patron may purchase 3.2 beer from a waitress, a table dancer, or the bartender.
4. No running tab is kept for patrons in order to keep a tally of how much beer has been served.
5. The Red Dog does not train its employees to keep track of the rate at which its patrons consume alcoholic beverages and employees are not required to do so. There is no training for recognizing intoxicated patrons.
6. The Red Dog has no policy about how much beer can be served to a patron.
7. Waitresses are not assigned a specific section of tables. Therefore, a patron might not have the same waitress each time beer is ordered.
8. Dancers also serve beer to customers. Dancers are allowed to drink while working and the Red Dog sets no limit to how much dancers can drink.
9. The bar is sunken into the floor such that the bartender can see only the tables just in front of him.
10. Intoxicated patrons may leave unobserved through a side exit.
A commercial vendor's self-imposed ignorance concerning the intoxication of its patrons should not operate in its favor to prevent a jury determination of that issue. Because the material fact concerning whether the Red Dog knew or should have known whether Barnes was noticeably intoxicated while being served alcohol at the Red Dog is still an issue, the trial court erred in granting summary judgment.
CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT REVERSED.
All Justices concur.
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