Ohio's Dram Shop Act permits a private cause of action for a third party injured off the premises as a result of a liquor establishment serving a noticeably intoxicated patron. The dram shop states:
A person has a cause of action against a permit holder or an employee of a permit holder for personal injury, death, or property damage caused by the negligent actions of an intoxicated person occurring off the premises or away from a parking lot under the permit holder's control only when both of the following can be shown by a preponderance of the evidence: (A) the permit holder or an employee of the permit holder knowingly sold an intoxicating beverage to... (1) a noticeably intoxicated person in violation of division (the) of section 4301.221 of the Revised Code ... and (B) the person's intoxication proximately caused the personal injury, death, or property damage.
- C. 4399.18
The issue usually in dispute in a dram shop case is the knowledge of the permit holder or its employee concerning the condition of the patron being served alcohol. In 1988, the Supreme Court addressed the issue, and held that "actual knowledge of intoxication is a necessary component in fashioning a justiciable claim for relief under R.C. 4301.22 (B). Constructive knowledge will not suffice. It has been observed that to hold otherwise would subject vendors of intoxicating beverages to ruinous liability every time they serve an alcoholic beverage."
Gressman v. McLean (1988), 40 Ohio's St. 3d 359, 363.
In Caplinger v. Korrzan Restaurant Management Inc., 2011 – Ohio – 6020, the 12th District Court of Appeals reviewed the grant of a motion for summary judgment in favor of the permit holder after the plaintiff, the son of the intoxicated driver, was injured in a car accident after his father left a bar. After picking up his son from his ex-wife, the father fell asleep at the wheel and crashed into an embankment. The bar moved for summary judgment. The trial court granted summary judgment, finding that plaintiff failed to present any evidence on the issue of actual knowledge of intoxication at the time that the tortfeasor was served.
The Court of Appeals affirmed the trial court's order, finding that the evidence was lacking on the issue of actual knowledge at the time of service.
Plaintiff presented evidence of the amount of alcohol ingested by the tortfeasor. The general manager of the bar and the bartender who served the tortfeasor were deposed, both indicating they had spoken to the tortfeasor while he was at the bar. The bartender, a 15 year employee, testified that the tortfeasor was not drunk at the time.
In rebuttal, the plaintiff presented the testimony of the tortfeasor's ex-wife, who spoke to him on the phone shortly before he left the bar. The ex-wife, the mother of the plaintiff, testified that the tortfeasor was slurring his speech and was in a hyper mood. Plaintiff also presented the testimony of an expert, who calculated the tortfeasor's blood alcohol level between .179 and .238 at the time that he left the bar.
Despite plaintiff's evidence, the Court of Appeals, in a 2 to 1 decision, held that the evidence presented by the plaintiff addressed the time after he was served, and no evidence was presented as to an intoxicated nature prior to his service. The Court of Appeals recognized that circumstantial evidence can be used to establish intoxication, suggesting, for example, that had another patron testified that the tortfeasor had fallen off his stool and the bartender continued to serve, such evidence would be sufficient to establish actual knowledge. However, in this case, the Court of Appeals held that all of the evidence presented by the plaintiff was insufficient to establish intoxication at the time of service.
The focus of evidence in a Dram Shop Act case must be on condition of the patron prior to the time of service. The court in Caplinger recognized that alcohol affects each person differently, and was not willing to simply accept that a high amount of alcohol intake would lead to obvious signs of intoxication. The dissent pointed out that one does not get to an extremely high level of intoxication instantly, but rather over time, and felt that the expert's evidence of the level of intoxication was sufficient to create an issue of fact as to whether the permit holder should have recognized that the tortfeasor was intoxicated.
The majority suggested that a third-party witness would be sufficient to establish actual knowledge in the absence of an admission from the permit holder. It thus becomes important to identify other patrons at the establishment at or about the time of service to corroborate or dispute other evidence in the case. If you have any questions, or wish a copy of the case, please contact us.