Courtroom Observation Review of the 2008 2l Moot Court Tournament at the Liberty University School of Law

Courtroom Observation Review of the 2008 2L Moot Court Tournament at the Liberty University School of Law

The plaintiff in this case is Deborah White. Mrs. White is represented by moot court attorney Amanda Babbitt and Jackson Walsh. The defendants in this case are Patrick Gibbs; and Stand Alone Properties, L.L.C., d/b/a O'Malley's Tavern. Moot court attorneys Benjamin Walton and Jordan Van Meter represent the defendants.

"The State of Indiana requires that a plaintiff meet the following elements in order to recover damages: the defendant must have actual knowledge that the person to whom the alcoholic beverage was furnished was visibly intoxicated at the time the alcoholic beverage was furnished, and 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" (Gumprecht, 1). The intent of this courtroom process is to challenge the State of Indiana law regarding material fact, while also arguing the defendants' motion for summary judgment. The plaintiff, however, desires to proceed to trial.

On Saturday, July 28, 2007, Mr. Bruno and Mrs. Deborah White arrived at O'Malley's Tavern, in Gary, Indiana, around 7:00 p.m. Edward Hard, a frequent patron of the bar and Mrs. Whites former fiancé, was also present that night. "Almost immediately after they walked in, Mr. Hard approached the Whites, kindly offered his congratulations regarding their marriage and returned to his stool at the bar to resume drinking" (Gumprecht, 2). As asserted by Mrs. White and the bartender John Daniels, Mr. Hard drank four to six shots of hard liquor inside twenty-eight minutes. Mr. Daniels, a licensed bartender, served Mr. Hard each of these shot of liquor and other alcoholic beverages, as Mr. Daniels was the only bartender working at O'Malley's that evening.

Upon finishing his last shot of liquor, Mr. Hard knocked over his stool as he stood up and then Mr. Hard fell and many other customers witnessed Mr. Hard's fall. Mr. Hard was able to regain his composure and sit back on his bar stool, after which Mr. Daniels served him another beer. As the White's were leaving O'Malley's Tavern Mr. Hard shouted, "She should be my wife!" before they reached the door. The White's ignore the comment and exited the tavern. "Mr. Hard saw them leaving, pursued them, and raised his hand in an attempt to strike one of them but he fell to the ground as he swung... As the Whites left the tavern, Mr. Hard rose and began to chase the Whites into the parking lot, shouting, 'This isn't over yet'" (Gumprecht, 3). At this point Mr. Daniels agrees that Mr. Hard appeared intoxicated.

The White's entered their vehicle and began to drive away. As the White's were leaving Mrs. White witnessed Mr. Hard enter his vehicle and begin to pursue them. Mrs. White placed a call with 911 requesting emergency assistance.

"Approximately a half-mile from the tavern, Mr. White turned left while Mr. Hard, driving on the wrong side of the street and without slowing down, slammed into the Whites' driver-side door" (Gumprecht, 3). As a result of the collision caused by Mr. Hard, Mr. Bruno White was killed and Mrs. White sustained significant injuries. "Beyond the emotional suffering incurred by Mrs. White as the result of the death of her husband Mrs. White has sustained significant injuries to the left side of her body" (Gumprecht, 4).

During the police investigation it was determined that Mr. Hard's blood-alcohol level was 0.20 well in excess of the state's legal limit of 0.08. Also, as stipulated by Mr. Daniel, Mr. Hard did appear intoxicated when exiting the tavern. Which is easily explained as the computerized bar tab revealed "... that Mr. Hard ordered thirteen alcoholic drinks under the supervision of Mr. Daniels" (Gumprecht, 2). In addition, it is further shown in Mr. Hard's past history that he frequently drove while intoxicated, based on first hand knowledge of O'Malley's owners and bartenders, and the City of Gary Police Department.

In the argument for the defendants (Appellee), Benjamin Walton and Jordan Van Meter, present that the actual knowledge of visible intoxication and proximate causation are required under the Indiana Dram Shop Act were absent and not proven by the evidence.

Mr. Walton presents that the evidence did not show that Mr. Hard engaging in any activities that would display intoxication. According to the Dram Shop Act, visible intoxication is required. Under this act, the bartender and owner are only held liable if the bartender or owner has actual knowledge of the patrons visible intoxication at the time the alcoholic beverage was furnished.

As presented by the defense, supported by the Indiana Seventh Circuit Court and the Indiana Supreme Court constructive knowledge of intoxication will not suffice because actual knowledge is required under the Act. In the Indiana Supreme Court case from 1988, Gariup Construction Company v. Foster, the court specifically upheld that constructive knowledge was insufficient; therefore, constructive knowledge would not suffice when determining visible intoxication required under the Act.

Mr. Daniels was not able to observe intoxication level of Mr. Hard since he was sitting on a barstool. In addition, Mr. Daniels did not witness when Mr. Hard tripped over the pool stick. However, when Mr. Hard fell in his attempt to punch Mr. White, Mr. Daniels did notice Mr. Hard's intoxication; however, this event transpired after Mr. Hard was served his last drink.

Mr. Van Meter contends that since Mr. Hard's intoxication was not the proximate cause of the injury there is no genuine issue of material fact and summary judgment is required as a matter of law. In general proximate cause is when an event is sufficiently related to a legally recognizable injury, which can be held to be the cause of that injury. As supported in Gaines - Tabb v. ICI Explosives, companies are not liable for the criminal acts of third parties, unless the company knew or should have known that their negligence might allow the crime to occur.

In support of this position Mr. Van Meter further contends the plaintiff was a victim of a crime, not negligence caused by the defendants. Mr. Hard's intoxication was not the proximate cause of the injury in based on two facts. First, his criminal act, which is evidence of his pre-existing criminal intent to cause harm to Mr. White is a superseding intervening cause, which breaks the cause of connection between any negligence of the defendant and the injury