Workers Can Be “Intoxicated Persons” Too

Workers Can Be “Intoxicated Persons” Too

October 10, 2017

For those of you who are purveyors of alcohol or who are counselling purveyors of alcohol, the Ohio Supreme Court recently clarified that a liquor establishment’s workers and independent contractors, if they are served alcohol by the establishment directly or indirectly, are covered by Ohio’s Dram Shop Act, R.C. 4399.18.

In Johnson v. Montgomery, 2017-Ohio-7445, the Court reviewed a case where a strip-club dancer, who, after work, got into an accident while she was intoxicated, in part by alcohol that club patrons had purchased for her (the other part was cocaine). The plaintiff, who was injured in the accident, brought, among others, negligence and Dram Shop Act claims against the club. The jury awarded the plaintiff $2.8 million on the negligence claim.

The club argued on appeal that there is no common law cause of action in negligence for furnishing a tortfeasor with intoxicating beverages and that, instead, the only possible claim the plaintiff could have had against the club would have been under the Dram Shop Act, which imposes liability on the holder of a liquor permit only if it sold an intoxicating beverage to a “noticeably intoxicated person” whose intoxication proximately caused an injury.

The Ohio Supreme Court agreed, holding that “person” as used in the Dram Shop Act does not refer narrowly only to patrons of the establishment, but instead that “intoxicated person” includes an intoxicated worker. Here, the dancer was not noticeably intoxicated, so the club could not be held liable under the Dram Shop Act.

The takeaway? Statutes mean what they say. The protections afforded to liquor establishments by the Dram Shop Act extend beyond patrons to injuries caused (at least in some instances) by workers drinking on the job.

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