A Drunk Walks Out of a Bar…

The American bar owner walks a tightrope.  The more liquor the bar owner sells, the more money he makes, but the more liquor he sells, the more likely one of his patrons will do something stupid.  Most of the time, liquor-induced stupidity is harmless.  But sometimes someone gets hurt.

Under certain circumstances, a liquor establishment in Ohio may be held liable for injuries caused by an intoxicated patron it served.  The relevant statutes on liquor liability in Ohio are O.R.C. §4399.18 (sales to intoxicated persons), O.R.C. §4301.22 (restriction of sale of beer and liquor), and O.R.C. §4301.69 (offenses involving underage persons).  Collectively, these are known as “dramshop laws,” the name coming from a time where liquor was measured by the “dram” (the amount of a small shot).

In Ohio, the liquor establishment generally stands in the shoes of the intoxicated patron for the purposes of a civil lawsuit. The typical case is where a bar knowingly serves liquor to an already intoxicated patron and that patron thereafter hurts an innocent party. In such an instance, the innocent party may recover from the bar, regardless of the negligence of the patron.

But other factors play into a determination of liability. If you’re a bar owner in Ohio, knowing the basic contours of Ohio dramshop law will enable you to be proactive in protecting your business and, hopefully, avoid injury and litigation.  While nuances do exist between Ohio appellate jurisdictions, most dramshop law is well established.   Below is a set of questions and answers about liquor establishment liability situations that will serve as a general guide to these statutes and hopefully aid in preventing such situations from occurring.

How old was the intoxicated person?

When someone is injured as a result of the conduct of an intoxicated person, the first question that must be answered is how old the intoxicated person was at the time of the incident.

If the person was a minor (under 18 years old), the liquor establishment may be held liable for serving the minor in violation of its liquor permit. Further, where the liquor establishment’s sale of liquor to a minor proximately causes injuries to the minor or anyone else, the liquor establishment may be held liable for those injuries.

In contrast, underage drinkers between the ages 18 and 21 do not have a cause of action against the liquor establishment for their own injuries as the result of their own intoxication, but the liquor establishment may be held liable for injuries to third parties. Further, the liquor establishment may be held liable for violating its liquor permit when serving someone under 21.

Lastly, a liquor establishment’s serving of patrons over 21 is permitted under Ohio liquor licenses.  Moreover, drinkers over 21 have no cause of action against the liquor establishment for injuries they sustain.  Additionally, a drinker’s beneficiaries or anyone having a derivative claim is also barred from bringing an action against the liquor permit holder under Ohio law.  Smith v. The 10th Inning, Inc.  (1990), 49 Ohio St.3d 289 (this law was established by the Ohio Supreme Court as argued by our law firm on behalf of the bar.) Under the circumstances described below, however, a liquor establishment may be held liable for damages caused to third parties by an intoxicated person served.

Where did the injury happen?

For incidents occurring on the premises of the liquor establishment, it is not necessary for a plaintiff to show that the intoxicated person was exhibiting visible signs of intoxication in the bar and that the bartender must have been aware of these signs in order to succeed against the establishment.  It is sufficient that the person was intoxicated while in the liquor establishment.

However, the more dangerous cases usually involve injuries that occurred off the liquor establishment’s premises (e.g. drunk-driving accidents).  For off-premises liability cases, the initial burden is on the plaintiff to prove that:

  1. the patron was showing visible signs of intoxication while in the liquor establishment,
  2. the patron was served one or more alcoholic beverages after showing signs of intoxication, and
  3. the bar and/or its employees knew of the patron’s intoxication.

What are “visible signs of intoxication”?

Visible signs of alcohol intoxication are a devilish mix of possible symptoms.  Common experience tells us that some people “hold their liquor” better than others. Moreover, some recognized symptoms of alcohol intoxication manifest themselves differently in different people, and some signs of intoxication may not manifest at all.

Some of the more obvious signs of intoxication include various forms of loss of motor control: slurred speech, loss of balance, staggering, spilling drinks, etc.  Further, if a patron is nodding off, sleeping or otherwise unconscious, he really shouldn’t have another.  Other less obvious signs include glassy eyes, redness in the face, sweating, loss of inhibitions, loudness, aggressiveness, and impaired judgment.

In many dramshop cases, the battle before the jury centers on whether the patron was showing “visible signs of intoxication” and whether a bar employee saw these signs.  Typically, the arguments involve the patron’s behavior and physical symptoms in the context of what was going on at the bar at the time.  For example, a plaintiff’s counsel will argue how the bartender should have picked up on the various signs of intoxication from the obnoxious glassy-eyed patron, spilling his beer and tastelessly hitting on every woman at the bar. The defense attorney will in turn argue that the bartender could not be expected to detect such general signs on a busy college-town Friday night when the bar was packed with loud sports nuts after a big game win.  From there, it’s in the jury’s hands as to whether the liquor establishment was on notice of the patron’s intoxication.

When does a bar or bar employee “know” of a patron’s intoxication?

Courts in Ohio are split as to what constitutes “knowledge of intoxication.”  Some judges have held that the standard is actual knowledge, which requires testimony from a witness in the bar that the intoxicated person was exhibiting signs of intoxication, slurring words, spilling drinks, etc., and the bar/bar employee knew it.  Other judges have allowed “knowledge of intoxication” to be established by circumstantial evidence. In these instances, a court may allow a toxicologist to testify that, based on the patron’s blood alcohol level, the patron consumed a certain number of alcoholic beverages and, after that certain number, the patron would have been showing signs of intoxication while still in the bar.

What if the injured plaintiff was also negligent?

Once liability against a liquor permit holder has been established, comparative negligence may apply. In other words, the plaintiff may have some responsibility for his own injuries depending on the circumstances.  If the plaintiff is comparatively negligent and his negligence exceeds 50%, then the plaintiff would be barred from any recovery.  For example, if the plaintiff was a passenger in the drunk patron’s vehicle and the plaintiff had been with the drunk patron the entire evening, it could be argued that the plaintiff knew the degree of the patron’s sobriety or intoxication.  Thus it would be a jury question as to whether the plaintiff was comparably negligent for his own injuries and to what amount of comparative negligence this would be.

What information may be important to collect after an incident?

If you’re the owner of a liquor establishment and have reason to believe that someone was hurt by a patron you served, there are things you can do to help yourself even before the matter goes to court (if it does).  Don’t wait until the lawsuit is filed to collect information about the incident because (a) you may be waiting a long time before a case is filed and (b) much of the relevant information may be fleeting.

If you have knowledge of an incident:

  • Gather documents reflecting witness information.  In other words, who was there and who could have seen the patron?  Documents such as receipts and employee schedules can be very helpful to witness identification;
  •  Gather documents and information reflecting the intoxicated patron’s presence and conduct at your liquor establishment. (If the patron won a dart tournament that night, for example, that may go to show he was not visibly intoxicated.)  Receipts for liquor and food are particularly helpful in most cases;
  • Gather information regarding your liquor establishment on that particular day or night.  Was it a slow night or were you packed with loud college kids?
  •  Does the patron have a history of visiting your liquor establishment? Information regarding the patron’s habits and behaviors may help put his conduct (and outward signs of “intoxication”) in context.  For example, being a loud jerk may be a sign of intoxication, but not if the guy is always a loud jerk.

What are things you can do before an incident ever happens?

Fundamentally, avoiding dramshop liability starts with cutting off that patron before he has one too many.  This means that you and your employees must be watchful for patron intoxication.  Here are some things that will help you avoid dramshop litigation and help the defense of your liquor establishment if a case is brought:

  1. Proper training.  You should make sure that each and every employee who serves liquor is properly trained in the law.  Not only must they be aware that they cannot serve alcohol to someone who is intoxicated, they must be trained in subtle ways a patron may show signs of intoxication.   There is a national organization called TIPS (Training for Intervention ProcedureS) which provides training.
  2. Policies.  Have your policies spelled out very clearly in an employee manual.  These policies should reflect the training (if given the employees) and specifically mention the fact that no one is permitted to serve alcohol to someone who is showing signs of intoxication.
  3. Prudence.  Recognize the risks in sponsoring drinking specials, such as “happy hour” type events, 2-for-1 drinks, or events that would likely lead to excessive drinking, like drinking contests.   Evidence of such conduct is often admissible in lawsuits and can persuade a jury that your establishment is not really serious about avoiding over-serving to patrons.

In allowing the sale of liquor, Ohio imposes some daunting responsibilities on liquor establishment owners.  However, being familiar with Ohio’s dramshop laws and their consequences can help you assess the risks associated with your liquor establishment business and protect you from liability in the future.

3 replies

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