Being Drunk ≠ Being Noticeably Intoxicated under O.R.C § 4399.18

Posted on April 9th, 2015 by sutteroconnell

In Ohio, establishments that serve alcohol have a legal duty not to over-serve patrons.  A bartender or waitress who ignores this duty exposes his or her employer to potential lawsuits.  Ohio has a statute, O.R.C. § 4399.18, that holds alcohol-serving establishments financially responsible for damages caused by an over-served patron, even after the intoxicated person has left the premises.

Under § 4399.18, a liquor permit holder is liable for damages caused by the negligent actions of an intoxicated person occurring off the premises if:

  1. the permit holder (or employee) knew that a person is noticeably intoxicated;
  2. the permit holder (or employee) sold an intoxicating beverage to that noticeably intoxicated person; and
  3. the person’s intoxication proximately caused personal injury, death, or property damage.

Ohio’s 10th Appellate District recently decided Piras v. Screamin Willie’s, 10th Dist. No. 14-AP-468, 2015-Ohio-255 which clarified the elements of § 4399.18.  The plaintiff, Mark Piras, got into a serious car accident with an intoxicated driver, John Mirarchi.  The plaintiff sued the defendant, Screamin’ Willie’s, under § 4399.18, for all damages related to the car accident.  The plaintiff alleged that, earlier that evening, the defendant over-served Mirarchi who was noticeably intoxicated at the time.

As with most § 4399.18 cases, the issue was not whether Mirarchi was drunk or whether his intoxication caused the car accident.  It was undisputed that he got behind the wheel with a 0.169 BAC.  Only one question remained: did the defendant serve Mirarchi alcohol knowing that he was noticeably intoxicated?  Ultimately, the court concluded that, although Mirarchi was clearly drunk, there was no evidence that he was noticeably drunk when he was served.  The inquiry was highly fact-sensitive.

Mirarchi was a member of a band scheduled to perform at Screamin’ Willie’s on the evening of the accident.   At 7:39 pm., before his set, Mr. Mirarchi opened up a tab and ordered his first drink: a bottle of Miller High Life.  During the performance, Mirarchi drank another beer (purchased by another band member) and took a shot of whiskey.  After his performance, Mirarchi ordered a round of whiskey shots.  He also had two more beers.

After the third band finished, Mirarchi ordered a second round of whiskey shots.  He took one of the shots.  By the time the fourth band started, Mirarchi had ordered another beer from the bar and drank it as he watched the performance.

In case you’ve lost count, Mirarchi consumed a total of 5 beers and 3 shots.   Mirarchi closed his bar tab at 11:54 p.m.  The receipt indicated that he purchased 5 beers and 7 shots.

The defendant argued that there was no evidence that it knowingly sold alcohol to Mirarchi when he was “noticeably intoxicated.”  The trial court agreed.  Neither the owner nor the bartender even remembered Mirarchi, let alone that he was “noticeably intoxicated.”  Mr. Mirarchi testified that that he had no difficulties standing, walking, or communicating while at Screamin’ Willie’s.   The plaintiff’s claim was dismissed.

The 10th District affirmed.  The court rejected the plaintiff’s argument that Mirarchi’s level intoxication was circumstantial evidence that he was “noticeably intoxicated.”  The court acknowledged that alcohol affects different people differently: “it varies depending on facts such as experience with intoxicants, weight, and food consumed.”  Id. at ¶22.  “[G]iven the variability in how intoxicants affect individuals, we cannot presume that Mirarchi’s intake was sufficient to render him noticeably intoxicated when he was served at Screamin Willie’s.”  Id. “Likewise, the fact that a person’s blood alcohol content exceeded the legal limit when tested after the accident does not lead to the conclusion, absent additional evidence, that the person was noticeably intoxicated when he was served at the liquor establishment.”  Id. ¶ 24.

In sum, alcohol-serving establishments need to be aware of § 4399.18.  Just because a patron leaves the premises does not mean that the restaurant, bar, or club cannot be held responsible for that patron’s negligence.  The “noticeably intoxicated” element is subjective, not objective.  It is not what the employees should have noticed, but what they actually noticed.  For this reason, testimony from staff members (including bartenders, waiters, security guards, etc.) is often the most important evidence in § 4399.18 cases.  Employers need to make sure that all employees, not just those serving alcohol, are aware of the “noticeably intoxicated” standard.   Communication is key.  Employees should be encouraged to inform the bartender of any patrons who exhibit clear signs of intoxication to avoid over-serving.