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DeStock #146/17/1999
TO BE PUBLISHED
AFFIRMING AND REMANDING
While stopped at a red light, an automobile operated by Christopher Reid and occupied by Heather Alvey was struck in the rear by an automobile operated by James Logsdon. The collision pushed Reid's vehicle forward, causing it to collide with a third vehicle which was also stopped at the red light. Reid and Alvey -both were injured as a result of the collision and brought this action in the McCracken Circuit Court seeking damages against Logsdon. They also sued DeStock #14, Inc., d/b/a Applebee's Neighborhood Grill & Bar, asserting liability under Kentucky's dram shop statute, KRS 413.241. DeStock cross-claimed against Logsdon for indemnity for any sums which it might be required to pay in damages to Reid and/or Alvey.
Logsdon testified in his discovery deposition that prior to the accident he had purchased and consumed four to six glasses of draft beer at Applebee's, each glass containing approximately ten to twelve ounces of beer. He had then consumed one non-alcoholic beer at another bar before purchasing a sandwich and a soft drink at a drive-through restaurant. According to Logsdon, the accident occurred when he attempted to retrieve the sandwich from the passenger seat of his vehicle and failed to observe that traffic was stopped in front of him. A breathalyzer test performed after the accident measured Logsdon's blood alcohol concentration at 0.235%. In Kentucky, a person with a blood alcohol concentration of 0.10% or more is prohibited from operating a motor vehicle. KRS 189A.010(1) (a).
Logsdon was the named insured of a policy of automobile insurance providing liability coverage of $100,000.00 per person/$300,000.00 per accident. Upon completion of discovery, the claims of Reid and Alvey against Logsdon were settled by payment of $6,000.00 to Reid and $45,000.00 to Alvey. Subsequently, summary judgments were entered dismissing the claims of Reid and Alvey against DeStock, as well as the cross claim of DeStock against Logsdon for indemnity. Reid and Alvey appealed the dismissal of their claims against DeStock, and DeStock filed a precautionary appeal of the dismissal of its cross claim against Logsdon. The Court of Appeals reversed both summary judgments and remanded the case to the McCracken Circuit Court for further proceedings. Because this case involves an issue of first impression, i.e., interpretation of the meaning and effect of KRS 413.241, we granted discretionary review.
I.
Prior to 1988, dram shop liability in Kentucky had its basis in the common law. Grayson Fraternal Order of Eagles, Aerie No. 3738. Inc. v. Clavwell, KY., 736 S.W.2d 328 (1987).
here 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 (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. See also Pike v. George, KY., 434 S.W.2d 626 (1968), which had previously created dram shop liability with respect to a sale or service of intoxicating beverages to a minor.
The appeals in both Grayson and Pike were from summary dismissals holding that a claim against a dram shop for selling or serving intoxicating beverages to one who subsequently injures another did not state a cause of action. Thus, neither decision reached the issue of the nature of the dram shop's potential liability, i.e., whether the liability of the drunken driver is imputed to the dram shop, as when a motor vehicle is negl
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