This is another one of those Ohio Supreme Court cases that I find hard to swallow. Johnson v. Montgomery, 2017-Ohio-1472.

Montgomery was a stripper in The Living Room. The Living Room was owned by Thirty-Eight-Thirty. Montgomery was not an employee, but “rented” a dancing space for $30 per night. Montgomery’s job was to encourage customers to drink and to buy her drinks. She earned her tips. Ninety-five percent of the club’s profits came from alcohol sales. Dancers drank to “embolden themselves to perform,” i.e. get high. So the deal in a nutshell is you, the dancer, get customers to buy alcoholic drinks for you and themselves, you both get high, the dancer makes the customer happy, and the customer tips the dancer and Thirty-Eight-Thirty makes money from the drinks. Alcohol sales and sex are the linchpin of the business model. No limits were placed on how many drinks a dancer could have.

On the day in question Montgomery, snorted some cocaine and drank while renting her space and dancing. When she left The Living Room, she admitted she was drunk. On her way home she caused a crash, seriously injuring Johnson.

Johnson sued Thirty-Eight-Thirty. The issue was the liability of Thirty-Eight-Thirty under Ohio’s Dram Shop Act.

The act reads as follows:

A person has a cause of action against a permit holder or an employee of a permit holder for personal injury, death, or property damage caused by the negligent actions of an intoxicated person occurring off the premises or away from a parking lot under the permit holder’s control only when both of the following can be shown by a preponderance of the evidence:

(A) The permit holder or an employee of the permit holder knowingly sold an intoxicating beverage to at least one of the following:

(1) A noticeably intoxicated person in violation of division (B) of section 4301.22 of the Revised Code;

(B) The person’s intoxication proximately caused the personal injury, death, or property damage.

Johnson loses because Montgomery was allegedly not “noticeably intoxicated” as a matter of law, i.e. the magistrate determined that fact, not the jury. This defies plain and simple justice.

In my humble opinion, whether she was noticeably intoxicated is a question of fact for the jury. Would you expect the renters/dancers at The Living Room who are all drinking to be reliable witnesses against their landlord Thirty-Eight-Thirty? Nothing like having a room full of drunks as your witnesses and having a judge believe them.

Now I guarantee when someone is stopped by the Ohio State Highway Patrol, or any other police agency, after three beers, the officer will testify that the person appeared intoxicated. I guarantee in those circumstances, if the person at trial is found guilty, that nearly every court in Ohio would have a hard time overturning the verdict. Here Montgomery said she had a “few” beers – which in my mind is more than three and cocaine as a bumper.

So when you own a bar, never assess a persons lack of sobriety when you serve them alcohol. So what if they have a hard time walking. This reminds me of my Army days. Guys would get so drunk they could not walk. But as one of my buddies said, “Just get me to my car, I can sit down to drive.”

My opinion – the case should have been sent back to the trial court, for another trial. The jury should have been instructed to determine whether Montgomery was or was not noticeably intoxicated when she was sold alcohol in The Living Room.