• Words of a Wingman: Dramshop Liability based on Bartender’s Actual Knowledge, Not a Beer Buddy’s
  • November 14, 2013 | Author: Thomas S. Mazanec
  • Law Firm: Mazanec, Raskin & Ryder Co., L.P.A. - Cleveland Office
  • Bartender - “We don’t serve drunks here.”
    Customer - “That’s okay.  I didn’t order a drunk.”

    Dramshop laws in Ohio impose liability on a liquor establishment for injuries caused by a “noticeably intoxicated” patron it “knowingly” served.  R.C.  4399.18.  This begs the question: how can a plaintiff show a bar owner or one of his employees “knows” when a patron is “noticeably intoxicated”?

    Long ago, the Ohio Supreme Court ruled that evidence of actual knowledge of noticeable intoxication is a necessary component in a liquor liability claim and evidence of constructive knowledge will not suffice.  Gressman v. McClain (1988), 40 Ohio St.3d 359, 363.  The difference between actual and constructive knowledge is that actual knowledge is stuff you consciously know about, where constructive knowledge is stuff you should know about based on surrounding circumstances.

    Over the years, however, various Courts of Appeals have eroded the Supreme Court standard set forth in Gressman.  These courts have allowed both constructive knowledge and circumstantial evidence of actual knowledge to be admitted in claims against liquor permit holders.  For example, some courts in Ohio have allowed toxicologists to testify that based upon a specific blood alcohol reading, a drunk must have been exhibiting signs of noticeable intoxication during the time he was in the bar and thus a fact question exists for a jury to decide.  Additionally, courts have held that based upon the sheer volume of alcohol consumed by a drunk, a fact question would exist as to whether or not the drunk was showing signs of intoxication and thereafter served. These cases have strayed from the plain language of Ohio’s dramshop law and have increased the threat of suit against liquor establishments.

    Fortunately, a recent 12th District Court of Appeals decision has tightened up the requirements for a plaintiff to show that a patron was served alcohol while noticeably intoxicated.   Privett, et al. v. QSL-Milford, LLC., et al. 2013-Ohio-4129.  In Privett, the plaintiff was a motorcycle driver who was struck and seriously injured by an intoxicated motorcycle driver that had lost control of his motorcycle.  The intoxicated motorcycle driver had come from a restaurant that had served him alcohol and had a blood alcohol level (BAC) of .167 at the time of the accident.  Subsequently, plaintiff sued the restaurant under Ohio’s Dramshop law n R.C. 4399.18 for serving the intoxicated patron (“the patron”).

    The restaurant’s bartender/server who served the patron testified that the patron was not showing signs of intoxication and that she did not believe the patron was intoxicated.  In response, the plaintiff presented testimony of a companion of the patron that testified the patron was intoxicated.  The plaintiff also presented the testimony of a toxicologist who opined that based on the patron’s blood alcohol level, the patron would likely have been exhibiting signs of noticeable intoxication at some point during the evening and therefore would have been served after showing signs.

    On summary judgment, the trial court rejected plaintiff’s arguments, granting the restaurant summary judgment.  The Court of Appeals affirmed.

    The Court of Appeals stated that the trial court properly rejected Plaintiff’s evidence of the companion’s testimony that his friend was intoxicated, his belief could not be imputed to the bartender.  The Court was firm that the plaintiff had to show that the bartender him or herself had actual knowledge that the person was noticeably intoxicated and then served him a drink afterwards.

    The Court of Appeals also dismissed the opinions of plaintiff’s expert and reiterated that expert testimony does not establish that the bar had actual knowledge of the drunk’s noticeable intoxication.

    The fact that this case was decided on summary judgment is important, as these cases typically involve conflicting evidence and the trial court is obliged to view evidence in favor of the non-moving party (typically a plaintiff).  Here, there was conflicting testimony, but only the testimony that spoke to the bartender’s actual knowledge was relevant.  And this type of evidence is hard for a plaintiff to come by.  Plaintiffs are certainly not likely to get it from the liquor establishments they sue.  In over 30 years of handling dram shop cases, I have yet to see an instance where a bartender has admitted that a patron was showing signs of noticeable intoxication and he served the patron anyway.  So, if the Privett line of reasoning holds, it will become virtually impossible for any plaintiff to successfully prosecute a dram shop case.