Suing the Bar After a Drunk-Driving Crash: What Johnson v. Montgomery Means for Dayton Victims

Published September 19, 2017 · Ohio Supreme Court

Last year we wrote about a Montgomery County jury that awarded Nichole Johnson $2.85 million after a dancer who had been drinking on shift at a North Dixie Drive strip club crashed into her car on I-70, and about the Second District's decision taking that verdict away. Ms. Johnson asked the Supreme Court of Ohio to restore it. On September 6, the Court said no. Johnson v. Montgomery, 2017-Ohio-7445, affirms the Second District and closes the door on the argument that a bar can be sued for ordinary negligence when the drunk driver was its own worker rather than a customer.

The decision is bad for drunk-driving victims, and I want to be honest about that. But it also lays out exactly what a victim has to prove to hold a bar responsible, and that roadmap is worth reading before the evidence in your own case disappears.

What happened

The facts, as the Supreme Court recited them, are ugly. Mary Montgomery leased space to dance at The Living Room, paying the club $30 a night and keeping her tips. Dancers there drank as a matter of course, waitresses urged customers to buy drinks for them, and the club charged more for those drinks. The owner testified that 95 percent of the club's profits came from alcohol. Montgomery admitted she was intoxicated when she left work; she drove into the car in which Ms. Johnson was a passenger and caused severe, permanent injuries.

At trial, a magistrate directed a verdict against Ms. Johnson on her Dram Shop Act claim, finding no testimony that Montgomery was noticeably intoxicated when served. The jury then found the club liable on a common-law negligence theory and awarded $2,854,645.55. The Second District held that the Dram Shop Act is the only claim available against a liquor-permit holder for the acts of someone it served, and vacated the verdict. We covered that ruling in A Dayton Jury Gave a Crash Victim $2.85 Million. The Dram Shop Act Took It Away.

The Supreme Court's reasoning

Ms. Johnson's argument at the Supreme Court was narrow: the Dram Shop Act, R.C. 4399.18, speaks of an "intoxicated person," and earlier cases had used the word "patron," so the statute should govern only claims involving customers. Because Montgomery was a worker, the argument went, the club's liability should be decided under ordinary negligence principles, and the jury's verdict should stand.

The Court rejected that reading. Writing for the majority, Justice DeWine held that when a statute does not define a word, courts give it its everyday meaning, and "The plain, everyday meaning of 'person' is not limited to patrons." A dancer, a worker, or an independent contractor is a person. The Court also noted that the statute defines a "sale" broadly enough to include drinks bought by someone else and given to the intoxicated person, so it made no difference that customers, not Montgomery, paid for the beer.

Because the Act applied, it was the exclusive route to liability, and because the finding that Montgomery was not noticeably intoxicated had never been challenged on appeal, the club owed nothing. The majority said any fight over the statute's wording belongs in the General Assembly.

Justice O'Neill dissented alone. He agreed with the majority's reading of the word "person" but would have found plain error in the directed verdict, since Montgomery herself testified she had become drunk while working and a jury could infer her condition was noticeable to the bartenders serving her. He called the club's business model "as unbelievable as it is unconscionable."

What the Dram Shop Act now clearly requires

Set the facts of this case aside and look at the rule. Under R.C. 4399.18, when a drunk driver injures you somewhere other than the bar's own premises or parking lot, you can recover from the bar only if you prove two things by a preponderance of the evidence:

1. The permit holder or its employee knowingly sold an intoxicating beverage to a noticeably intoxicated person (or to an underage person), and
2. That person's intoxication proximately caused your injury.

After Johnson, this test governs whether the drunk driver was a customer, a dancer, a bartender, or anyone else the permit holder served. There is no fallback negligence claim against the bar for encouraging drinking or failing to monitor its workers. For a fuller discussion of the Act itself, see our 2013 post on dram shop claims against bars.

The word that decides these cases is "noticeably." It is not enough that the driver was legally drunk, or even admits being drunk. You must show the intoxication was apparent to the person serving the drinks: slurred speech, stumbling, glassy eyes, a long tab in a short time. That is what the magistrate found missing in Ms. Johnson's case.

The evidence that must be gathered immediately

Noticeable intoxication is proved with evidence that exists only briefly. If you or a family member has been hit by a drunk driver, these are the items we move on in the first days:

• The criminal case file. The arresting officer's report, field sobriety test results, the blood or breath test, and body-camera or cruiser video often show how impaired the driver looked an hour or two after leaving the bar. A toxicologist can work backward from a blood-alcohol number to estimate how impaired the driver was when the last drink was served.
• Bar receipts and point-of-sale records. A tab showing nine drinks in two hours is evidence that intoxication should have been obvious. These records can be deleted or overwritten quickly.
• Surveillance video. Most bars have cameras. The footage shows the driver's condition at the bar, who served the drinks, and when. Retention is often days, not weeks.
• Witnesses. Other patrons, servers, the driver's companions, and anyone who saw the driver walk to the car. The driver's own statements to police about where and how much he drank are often the starting point.

A preservation letter to the bar should go out immediately, demanding that video, receipts, and employee schedules be kept. Once a bar has been told that litigation is anticipated and destroys the footage anyway, a court can let the jury draw an inference against it.

Do not forget the other sources of recovery

Even when a dram shop claim is weak, a drunk-driving victim is rarely without options. The drunk driver's own liability policy responds to an ordinary car accident claim, and punitive damages are available against a driver who chose to drive drunk. When the driver's coverage is too small, as it usually is, your own uninsured and underinsured motorist coverage fills the gap. And the state's new Annie's Law penalties, while they do not pay a victim a dollar, make the driver's prior record easier to find and harder to hide.

What this means for you

Johnson v. Montgomery makes bar liability harder in one specific way: it removes the negligence theory that a Dayton jury found persuasive enough to award nearly three million dollars. It does not change the Dram Shop Act itself. Bars that knowingly keep pouring for people who are visibly drunk can still be held responsible, and the Supreme Court's own description of The Living Room's practices shows how much evidence of that kind can exist.

What the case teaches is that the proof has to be built early and aimed precisely at the statute's words. The time to gather it is in the days after the crash, not after the criminal case ends months later.