In the

Supreme Court of Ohio

NICHOLE JOHNSON, Plaintiff-Appellant, v. MARY E. MONTGOMERY, et al., Defendants-Appellees.

::::::::::

Case No. 2016-0790 On Appeal from the Montgomery County Court of Appeals, Second Appellate District Court of Appeals Case Nos. CA26319, CA26322

______________________________________________________________________________

BRIEF OF AMICUS CURIAE STATE OF OHIO IN SUPPORT OF REVERSAL

______________________________________________________________________________

DOUGLAS R. COLE* (0070665) *Counsel of Record ERIK J. CLARK (0078732) SEAN M. STIFF (0091811) Organ Cole LLP 1330 Dublin Road Columbus, Ohio 43215 614-481-0900 614-481-0904 fax drcole@organcole.com

DENNIS MULVIHILL (0063996) 23240 Chagrin Blvd., Suite 620 Cleveland, Ohio 44122 216-591-0133 216-591-0622 fax dmulvihill@yourlegalhelp.com

STEPHEN B. BEHNKE (0072805) Wright & Schulte, LLC 865 South Dixie Drive Vandalia, Ohio 45377 937-435-7500 937-435-7511 fax sbehnke@legaldayton.com

Counsel for Plaintiff-Appellant Nichole Johnson

MICHAEL DEWINE (0009181) Attorney General of Ohio

ERIC E. MURPHY* (0083284) State Solicitor *Counsel of Record MICHAEL J. HENDERSHOT (0081842) Chief Deputy Solicitor 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 614-466-5087 fax eric.murphy@ohioattorneygeneral.gov

Counsel for Amicus Curiae State of Ohio

Supreme Court of Ohio Clerk of Court - Filed December 05, 2016 - Case No. 2016-0790

JONATHAN B. FREEMAN* (0067683) *Counsel of Record STEVEN E. BACON (0059926) Altick & Corwin Co., L.P.A. One South Main Street, Suite 1590 Dayton, Ohio 45402 937-608-9460 937-223-5100 fax freeman@altickcorwin.com

JEFFREY D. SLYMAN (0010098) 211 Kenbrook Drive, Suite #5 Vandalia, Ohio 45377 937-454-5544 937-898-0432 fax slymanlaw@gmail.com

Counsel for Defendants-Appellees Thirty-Eight Thirty, Inc., d/b/a The Living Room, and Michael C. Ferraro

PETER D. TRASKA* (0079036) *Counsel of Record BERNADETTE MATHESON (0079413) MICHELLE MOLZAN TRASKA (0095237) Traska Law Firm, LLC 4352 Pearl Road, Suite A Cleveland, Ohio 44109 216-661-2644 216-342-7078 fax ptraska@traskalawfirm.com

Attorneys for Amicus Curiae Mothers Against Drunk Driving of Ohio

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ................................................................................................................. i 

TABLE OF AUTHORITIES .......................................................................................................... ii 

INTRODUCTION ...........................................................................................................................1 

STATEMENT OF AMICUS INTEREST .......................................................................................2 

STATEMENT OF THE CASE AND FACTS.................................................................................2 

ARGUMENT ...................................................................................................................................4 

Amicus Curiae State of Ohio’s Proposition of Law:  

Ohio’s Dram Shop Act, R.C. 4399.18, does not preempt common-law negligence suits against liquor-license holders relating to the impairment of their employees or contractors whose on-the-job acceptance of drinks is integral to the licensee’s operations. ...........................................................................................................................4 

A.  The Act does not preempt Johnson’s negligence claim against the strip club for failing to monitor its contractors upon whom it depended to drink on the job. ...................4 

1.  The statute’s focus on sales means it does not preempt common-law suits against licensees who encourage workplace drinking without monitoring the workers who do drink. .............................................................................................4 

2.  The General Assembly frequently drafts preemptive statutes that preserve some common-law actions. ......................................................................................7 

3.  The common law of torts often requires courts to make public policy when the General Assembly has left room for them to do so. .........................................11 

B.  The Second District’s overbroad holding does not withstand scrutiny. ............................13 

CONCLUSION ..............................................................................................................................16 

CERTIFICATE OF SERVICE  

ii

TABLE OF AUTHORITIES

Cases Page(s)

Albain v. Flower Hosp., 50 Ohio St. 3d 251 (1990) .......................................................................................................12

Aubin v. Metzger, 2003-Ohio-5130 (3d Dist.).......................................................................................................14

Auto-Owners Ins. Co. v. JC KC, Inc., No. 18937, 1998 WL 766695 (9th Dist. Nov. 4, 1998) .......................................................5, 14

Bennett v. Ohio Dep’t of Rehab. & Corr., 60 Ohio St. 3d 107 (1991) .........................................................................................................9

Carrel v. Allied Prods. Corp., 78 Ohio St. 3d 284 (1997) ...................................................................................................8, 10

Carter v. Reese, ___ Ohio St. 3d ___, 2016-Ohio-5569.......................................................................................6

Collings-Taylor Co. v. Am. Fid. Co., 96 Ohio St. 123 (1917)...........................................................................................................6, 7

Columbus Bldg. & Const. Trades Council v. Moyer, 163 Ohio St. 189 (1955).............................................................................................................6

Combs v. Ohio Dep’t of Natural Res., 146 Ohio St. 3d 271, 2016-Ohio-1565.............................................................................7, 8, 10

Corporex Dev. & Constr. Mgmt., Inc. v. Shook, Inc., 106 Ohio St. 3d 412, 2005-Ohio-5409.....................................................................................11

D. Houston, Inc. v. Love, 92 S.W.3d 450 (Tex. 2002) ........................................................................................................5

Danziger v. Luse, 103 Ohio St. 3d 337, 2004-Ohio-5227.......................................................................................8

Field v. Mans, 516 U.S. 59 (1995) ...................................................................................................................12

Great Cent. Ins. Co. v. Tobias, 37 Ohio St. 3d 127 (1988) ...........................................................................................10, 13, 15

Gressman v. McClain, 40 Ohio St. 3d 362 (1988) .......................................................................................................15

iii

In re Bruce S., 134 Ohio St. 3d 477, 2012-Ohio-5696.......................................................................................9

In re C.S., 115 Ohio St. 3d 267, 2007-Ohio-4919.......................................................................................8

Kerans v. Porter Paint Co., 61 Ohio St. 3d 486 (1991) .........................................................................................................9

Klever v. Canton Sachsenheim, Inc., 86 Ohio St. 3d 419 (1999) .................................................................................................13, 14

Lake Shore Elec. R. Co. v. Public Utils. Comm’n of Ohio, 115 Ohio St. 311 (1926).............................................................................................................6

LaPuma v. Collinwood Concrete, 75 Ohio St.3d 64 (1996).............................................................................................................9

Lexa v. Zmunt, 123 Ohio St. 510 (1931).............................................................................................................6

Lincoln v. Fairfield-Nobel Co., 257 N.W.2d 148 (Mich. App. 1977) ..........................................................................................5

Litteral v. The Ole Menagerie, No. 95CA33, 1996 WL 511656 (4th Dist. Sept. 4, 1996) .......................................................14

Loudin v. Radiology & Imaging Servs., Inc., 128 Ohio St. 3d 555, 2011-Ohio-1817.....................................................................................11

Mason v. Roberts, 33 Ohio St. 2d 29 (1973) .....................................................................................................9, 10

Mitseff v. Wheeler, 38 Ohio St. 3d 112 (1988) .......................................................................................................10

Morgan v. Fairfield Family Counseling Ctr., 77 Ohio St. 3d 284 (1997) .......................................................................................................12

Nobles v. Wolf, 54 Ohio St. 3d 75 (1990) ...........................................................................................................8

Prince v. Buckeye Union Ins. Co., No. 92-CA-6, 1992 WL 362578 (5th Dist. Dec. 2, 1992) ...................................................5, 14

Pryor v. Dir., Ohio Dep’t of Job & Family Servs., ___ Ohio St. 3d ___, 2016-Ohio-2907.......................................................................................4

iv

Riffle v. Physicians & Surgeons Ambulance Serv., Inc., 135 Ohio St. 3d 357, 2013-Ohio-989.........................................................................................9

Safeco Ins. Co. of Am. v. White, 122 Ohio St. 3d 562, 2009-Ohio-3718.....................................................................................11

Settlemyer v. Wilmington Veterans Post No. 49, 11 Ohio St. 3d 123 (1984) .......................................................................................................10

Smith v. The 10th Inning, Inc., 49 Ohio St. 3d 289 (1990) .......................................................................................................10

Smith v. S.P. Greenville Inn, LLC, 2014-Ohio-4311 (11th Dist.) ...................................................................................................14

Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St. 3d 161, 2010-Ohio-4469.......................................................................................9

State ex rel. Merrill v. Ohio Dep’t of Natural Res., 130 Ohio St. 3d 30, 2011-Ohio-4612.........................................................................................8

State ex rel. Murphy v. Athens Cty. Bd. of Elections, 138 Ohio St. 432 (1941).............................................................................................................7

State v. Blankenship, 145 Ohio St. 3d 221, 2015-Ohio-4624.......................................................................................1

State v. David, 141 P.3d 646 (Wash. Ct. App. 2006) .......................................................................................11

Sutowski v. Eli Lilly & Co., 82 Ohio St. 3d 347 (1998) .......................................................................................................11

Taggart v. Bitzenhofer, 33 Ohio St. 2d 35 (1973) .....................................................................................................9, 10

Vitek v. Wilcox, No. WM89000004, 1990 WL 174163 (6th Dist. Nov. 9, 1990) ..............................................14

Whetstone v. Binner, ___ Ohio St. 3d ___, 2016-Ohio-1006.....................................................................................11

World Harvest Church v. Grange Mut. Cas. Co., ___ Ohio St. 3d ___, 2016-Ohio-2913.....................................................................................13

v

Statutes, Rules, and Constitutional Provisions

Ala. Rev. Code 6-5-71 .....................................................................................................................6

G.C. 6203 (1948) .............................................................................................................................6

Ohio Const. art. II, § 15(D) ..............................................................................................................6

141 Ohio Laws (Part III) 5711 (1986) .............................................................................................7

R.C. 1.01 ..........................................................................................................................................7

R.C. 1.49(D) .....................................................................................................................................8

R.C. 1531.33 ..................................................................................................................................13

R.C. 2307.71(B) .............................................................................................................................10

R.C. 4399.18 .......................................................................................................................... passim

Other Authorities

Restatement (Second) of Torts (1965) ...........................................................................................12

Restatement (Third) of Torts: Phys. & Emotional Harm (2012) ...................................................12

INTRODUCTION

The “General Assembly is the ultimate arbiter of public policy,” State v. Blankenship,

145 Ohio St. 3d 221, 2015-Ohio-4624 ¶ 37 (pl. op.) (internal quotation marks omitted). And the

legislature sometimes decides public policy by leaving questions for the courts to answer through

the common law. That is what the relevant statute does as to the kind of negligence involved

here. Although it preempts a wide array of torts based on the sale of alcohol to patrons, it leaves

to the common law torts like the one committed here, where an employer encouraged workers to

drink as a key part of its business model, knew that such drinking was common, and took no

steps to make sure those workers stayed off Ohio’s roadways while impaired. The General

Assembly could, of course, fully codify the law of responsibility for drunk driving and leave no

role for common-law torts. But it has not. Like many other statutes, Ohio’s Dram Shop Act

preempts only certain torts, while leaving others to common-law development. The Second

District over-read the Act as preempting all torts related to drunk-driving accidents, and should

be reversed.

A jury awarded Nicole Johnson more than $2.8 million for brain injuries and other harms

she suffered when a drunk driver struck her car, leaving her permanently disfigured and

frequently in pain even after 11 surgeries. The drunk driver worked as a dancer at a Dayton-area

strip club that profited by charging a premium for drinks that customers bought to share with the

dancers. The jury found both the dancer and the strip club liable. The Second District reversed

the award against the strip club because it viewed Ohio’s Dram Shop Act as the “sole, exclusive

remedy” for injuries arising from a “person’s intoxication.” Johnson v. Montgomery, 2016-

Ohio-1472 ¶ 17 (2d Dist.).

The judgment below reads the statute more broadly than the text permits. The statute

covers injuries arising from a liquor-licensee’s sales to patrons; it does not address licensee

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oversight of employees or contractors whom the licensee encourages to receive drinks as part of

the licensee’s business model. The judgment below should be reversed.

STATEMENT OF AMICUS INTEREST

The question here is whether a woman has a common-law remedy for injuries she

sustained when stuck by a drunk driver who got intoxicated at work from drinks received as part

of the job. The State has an abiding interest in whether the General Assembly has or has not

precluded that common-law liability. The State also has a strong interest in the safety of its

citizens and the ability of the law to hold accountable those who undermine that safety. Few

public-safety issues are as common and as tragic as the death and disability to innocent Ohioans

that drunk drivers cause each year. Finally, the State has an interest in participating in this case

to ensure that the courts draw the appropriate line between where tavern-owner liability stops

and sole liability of a drunk driver begins.

STATEMENT OF THE CASE AND FACTS

Thirty-Eight Thirty operated a strip club in Dayton. Although its “dancers were not

required to drink, their becoming intoxicated during their shift from the drinks purchased for

them by customers was a regular occurrence.” Johnson v. Montgomery, 2016-Ohio-1472 ¶ 3 (2d

Dist.) (“App. Op.”). “[A] significant portion of Thirty–Eight Thirty’s profits were derived from

the charges for the drinks purchased for the dancers”—more than half the business’s profits,

according to its sole shareholder. Id. ¶¶ 3, 6 “[D]ancers often used alcohol to alter their mental

state enough to enable them to strip in front of strangers, and there was no limit to the amount of

alcohol the dancers were allowed to drink.” Id. ¶ 3. “Although it was known that dancers

occasionally became intoxicated during their shift, it was not a regular practice for the club to

provide them with safe transportation or to confirm that someone not intoxicated was driving

3

them home.” Id. Nor did Thirty-Eight Thirty have any policy “to prevent the dancers from

impaired driving after leaving the club.” Id.

Mary Montgomery was one of Thirty-Eight Thirty’s dancers. When she left the club, on

July 4, 2010, no one took “any steps to prevent her from driving while intoxicated.” Id. ¶ 4. On

her way home on Interstate 70, Montgomery crashed into Nicole Johnson. The crash left

Johnson with “a brain injury, multiple fractures in her head, broken teeth, broken ribs, . . . broken

bones in her upper and lower arm, elbow, pelvis, femur and ankle[,] . . . a lacerated liver and a

collapsed lung.” Id. ¶ 5. These injuries “required eleven surgeries, and physical and

occupational therapy over the next ten months.” Id. “The surgeries left her with nine plates in

her face, and rods in her neck, arms and legs.” Id. These implants impair Nicole’s normal body

functions and “continue to cause pain and suffering.” Id. The injuries also required surgery to

reconstruct Nicole’s face, and left her with permanent scars. Id.

A jury translated these injuries into a $2,854,545 judgment, including more than

$800,000 in medical expenses, split evenly between Montgomery and Thirty-Eight Thirty. Id.

¶ 9. The trial court rejected a directed-verdict motion by Thirty-Eight Thirty. Id. On appeal,

Thirty-Eight Thirty challenged its liability. The Second District agreed, holding that no

common-law liability was possible because Ohio’s Dram Shop Act (“Act”), R.C. 4399.18, is the

“sole, exclusive remedy” for injuries arising from a “person’s intoxication.” Id. ¶ 17.

4

ARGUMENT

Amicus Curiae State of Ohio’s Proposition of Law:

Ohio’s Dram Shop Act, R.C. 4399.18, does not preempt common-law negligence suits against liquor-license holders relating to the impairment of their employees or contractors whose on-the-job acceptance of drinks is integral to the licensee’s operations.

Ohio’s Dram Shop Act is broad, but not unlimited. It broadly preempts common-law

suits against liquor-license holders for the sale of alcohol to patrons. But it does not block every

common-law suit against those licensees. As relevant here, it does not preempt a suit alleging

that the license holder retained and depended upon contractors to drink on the job, and then

negligently permitted the contractors to drive drunk.

A. The Act does not preempt Johnson’s negligence claim against the strip club for failing to monitor its contractors upon whom it depended to drink on the job.

The Act’s text reveals a legislative intent to leave narrow common-law liability in place

for liquor-license holders. That is a technique the General Assembly often uses. Given its

reservation of common-law remedies, common-law principles support liability for the kind of

tort committed against Johnson.

1. The statute’s focus on sales means it does not preempt common-law suits against licensees who encourage workplace drinking without monitoring the workers who do drink.

The “starting point” here is “the statute’s text.” Pryor v. Dir., Ohio Dep’t of Job &

Family Servs., ___ Ohio St. 3d ___, 2016-Ohio-2907 ¶ 14. The key language in the statute

generally prohibits tort suits against liquor licensees if the licensee “sold beer or intoxicating

liquor to the intoxicated person” who caused the injury. R.C. 4399.18. The alleged negligence

here had nothing to do with merely selling alcohol to patrons. Instead, the negligence was the

strip club’s decision to encourage its dancers to accept drinks on the job and then do nothing to

monitor whether those strippers got on Ohio’s roadways impaired from that job-related activity.

5

The negligence at the heart of this suit does not arise from the sale “to [an] intoxicated person,”

R.C. 4399.18, but instead from the failure of the strip club to pair its practice of encouraging

drinking on the job with a policy of monitoring the effects of that drinking.

In a nearly identical case, the Texas Supreme Court held that its dram shop law did not

preempt a common-law suit. The court there reasoned that the suit arose “from the employer-

independent contractor relationship,” not from the “provision of alcohol.” D. Houston, Inc. v.

Love, 92 S.W.3d 450, 453 (Tex. 2002). A Michigan court ruled similarly, concluding that hiring

a contractor with a “history of intoxication” is negligence of the “defendant itself,” not only of

the intoxicated person. Lincoln v. Fairfield-Nobel Co., 257 N.W.2d 148, 150 (Mich. App. 1977)

(reversing trial court; question was for the jury). That same logic applies here, and shows that

the jury award should be reinstated.

Ohio appellate districts have ruled in line with these out-of-state cases. Both the Fifth

and Ninth Districts have recognized that one furnishing alcohol might be negligent in ways not

covered by the Act. See Auto-Owners Ins. Co. v. JC KC, Inc., No. 18937, 1998 WL 766695, at

*4, 6 (9th Dist. Nov. 4, 1998) (licensee’s employee placed person in car driven by intoxicated

person); Prince v. Buckeye Union Ins. Co., No. 92-CA-6, 1992 WL 362578, at *2 (5th Dist. Dec.

2, 1992) (licensee’s employee allowed intoxicated person to retrieve keys previously

confiscated). So too here. The negligence is the workplace policy encouraging unmonitored

workplace drinking, not selling alcohol.

The statute’s focus on sales confirms that it does not preempt all possible tort claims

against a liquor licensee. If the General Assembly meant to cover the kind of workplace

practices involved here, it could have used broader language. The General Assembly had ready

models at hand. A prior Ohio statute had covered both “any person selling or giving” alcohol to

6

another. See G.C. 6203 (1948). And an Alabama statute, for example, covers not only sales, but

also “any person” who gives or “otherwise dispos[es] of” alcohol “to another.” Ala. Rev. Code

6-5-71. If the General Assembly intended a broader meaning, “it would not have been difficult

to find language which would express that purpose.” Lake Shore Elec. R. Co. v. Public Utils.

Comm’n of Ohio, 115 Ohio St. 311, 319 (1926).

The strip club did not sell alcohol to the dancer who caused the car accident. Instead, the

strip club sold a combination drink-and-time-with-a-dancer package to its customers, who in turn

shared those drinks with dancers. Separately, the strip club encouraged its dancers to drink in

this way. Montgomery testified that, while working at the strip club, she “never paid for her own

drinks.” App. Op. ¶ 7. Those transactions went beyond the sales that the Act contemplates. The

statute’s text does not cover the kind of negligence involved here. The statute addresses selling

drinks to patrons, and is silent as to the business-model and monitoring policies implicated here.

That is true both in the statute’s broad preemption provision and its two exceptions that impose

liability for certain patron sales (to minors or to an already noticeably intoxicated patron). It

does not preempt the jury’s common-law tort verdict based on the strip club’s policies towards

workers upon whose acceptance of drinks the business model turns.

The title of the Act confirms that it stops shy of preempting all common-law actions

against licensees. “The title” of a law “must be considered in arriving at a correct interpretation

of its terms.” Lexa v. Zmunt, 123 Ohio St. 510, syll (1931); Columbus Bldg. & Const. Trades

Council v. Moyer, 163 Ohio St. 189, 200 (1955); Carter v. Reese, ___ Ohio St. 3d ___, 2016-

Ohio-5569 ¶ 27 (reaffirming rule, but finding “clear intent” in statute’s body); cf. Ohio Const.

art. II, § 15(D) (a law’s title shall “clearly express[]” its subject). Titles matter because they

often express the legislative intent in “clear and explicit language.” Collings-Taylor Co. v. Am.

7

Fid. Co., 96 Ohio St. 123, 136 (1917). A court should therefore “hesitate to ignore” what is

expressed in a law’s title. Id. at 136. See State ex rel. Murphy v. Athens Cty. Bd. of Elections,

138 Ohio St. 432, 435 (1941) (distinguishing and act’s title from its heading); R.C. 1.01

(headings are not part of the law of Ohio).

The title here explained that the statute covered “negligence in selling to a patron.” 141

Ohio Laws (Part III) 5711 (1986). The title does not refer to monitoring those encouraged to

accept drinks on the job. A law aimed to eliminate all common-law actions would not be styled

as this law is. The Act’s Title reveals a General Assembly that aimed to preempt less than all

common-law torts against liquor licensees.

At the very least, the word “patron” in the title shows that it does not reach the facts of

this case, where a licensee encouraged workers to drink alcohol, generated the bulk of its profits

this way, knew that the workers often altered their mental states with that alcohol, and took no

steps to minimize the obvious risk to others that the workers’ conduct posed.

2. The General Assembly frequently drafts preemptive statutes that preserve some common-law actions.

The pattern of the Dram Shop Act—evident in its text and title—of addressing certain

aspects of potential liquor-licensee liability, but not others—is common. The General Assembly

frequently drafts laws that address only some of the possible tort liability an actor may face. For

example, the Court recently held that, although the “General Assembly amended the common

law rule” for certain landowners, Combs v. Ohio Dep’t of Natural Res., 146 Ohio St. 3d 271,

2016-Ohio-1565 ¶ 14 (lead opinion), the statute did not preempt all liability because it did not

“expressly abrogate” the “common law duty to exercise reasonable care” for landowner activity,

id. ¶ 18. The statute covered liability for conditions of the land, but not all activities on the land.

8

Id. In a similar way, the Act here covers liability for selling alcohol to customers, but not

liability for encouraging contractors to accept drinks and then not monitoring those contractors.

Combs is only the latest in a long line of cases that honor the “principle[] of statutory

construction” that “the General Assembly will not be presumed to have intended to abrogate a

common-law rule unless the language used in the statute clearly shows that intent.” Carrel v.

Allied Prods. Corp., 78 Ohio St. 3d 284, 287 (1997), superseded by R.C. 2307.71(B). Statutes

are “to be read and construed in the light of and with reference to the rules and principles of the

common law in force at the time of their enactment.” Danziger v. Luse, 103 Ohio St. 3d 337,

2004-Ohio-5227 ¶ 11 (pl. op.) (internal quotation marks omitted); In re C.S., 115 Ohio St. 3d

267, 2007-Ohio-4919 ¶ 91 (“presum[ing that] the General Assembly was mindful of the common

law” when passing statute); State ex rel. Merrill v. Ohio Dep’t of Natural Res., 130 Ohio St. 3d

30, 2011-Ohio-4612 ¶¶ 34-35 (statute preserved common law); R.C. 1.49(D) (courts should

consult common-law rules when resolving ambiguity).

Absent “language clearly showing the intention to supersede the common law, the

existing common law is not affected by the statute, but continues in full force.” Carrel, 78 Ohio

St. 3d at 287. Applying this principle, courts should be cautious about reading statutes too

broadly to preempt the common law. They should be doubly so when the statute creates an

“exception to the general principle that persons and entities are liable for harm caused by their

tortious acts.” Nobles v. Wolf, 54 Ohio St. 3d 75, 80 (1990) (F. Sweeney, J., dissenting); cf.

Combs, 2016-Ohio-1565 (statute did not provide immunity). Such statutes should be “applied

only to the class of persons or things which is the object of legislative attention.” Wolf, 54 Ohio

St. at 80 (F. Sweeney, J., dissenting).

9

Examples abound of the General Assembly leaving room for common-law actions. In

one case, the Court held that the workers’-compensation statutes’ bar on most torts did not bar

tort claims for sexual harassment because harassment was not an injury “within the meaning” of

those statutes. Kerans v. Porter Paint Co., 61 Ohio St. 3d 486, 488 (1991); see also LaPuma v.

Collinwood Concrete, 75 Ohio St.3d 64, 66 (1996) (product-liability statute does not cover all

claims related to products). In another, it concluded that the statutory wrongful-imprisonment

cause of action “does not replace the false imprisonment tort but, rather, supplements it.”

Bennett v. Ohio Dep’t of Rehab. & Corr., 60 Ohio St. 3d 107, 111 (1991). And in a more recent

case, the Court concluded that, even though a statute “provides the exclusive means for waiving

the attorney-client privilege,” it did not “cast aside the well-established common-law exceptions

to the attorney-client privilege.” Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp.,

127 Ohio St. 3d 161, 2010-Ohio-4469 ¶¶ 45, 47 (emphasis added).

This Court has already identified the same pattern in the dram-shop context. In two cases

from 1973, the Court analyzed a predecessor to the current Act. In both, it concluded that the

predecessor did not crowd out all common-law negligence. Mason v. Roberts, 33 Ohio St. 2d 29

(1973); Taggart v. Bitzenhofer, 33 Ohio St. 2d 35 (1973), both superseded by R.C. 4399.18.

Those 1973 cases suggest that the later 1986 Act does not preempt all common law torts,

because “‘[i]t is presumed that the General Assembly is fully aware of any prior judicial

interpretation of an existing statute when enacting an amendment.’” Riffle v. Physicians &

Surgeons Ambulance Serv., Inc., 135 Ohio St. 3d 357, 2013-Ohio-989 ¶ 19; cf. In re Bruce S.,

134 Ohio St. 3d 477, 2012-Ohio-5696 ¶ 11 (“‘[T]he General Assembly has shown no hesitation

in acting promptly when it disagrees with appellate rulings involving statutory construction and

interpretation.’”) (citation omitted). When the General Assembly set out to codify certain liquor-

10

licensee liability in 1986, it knew from this Court’s cases that it must use expansive language to

preempt all liquor-licensee torts. The resulting 1986 statute instead preempted only torts related

to running a business serving alcohol to patrons. It did not preempt the kind of negligence

involved when a licensee depends upon its own contractors to accept drinks but then fails to

monitor those workers.

Even after Mason and Taggart, several other cases have addressed common-law liability

of those who furnish alcohol. See, e.g., Settlemyer v. Wilmington Veterans Post No. 49, 11 Ohio

St. 3d 123 (1984) (social hosts not liable); Mitseff v. Wheeler, 38 Ohio St. 3d 112 (1988) (social

host may be liable for serving minor who caused injury); Great Cent. Ins. Co. v. Tobias, 37 Ohio

St. 3d 127, syll. (1988) (one patron not liable for “purchase … for a fellow patron”); cf. Smith v.

The 10th Inning, Inc., 49 Ohio St. 3d 289 (1990) (no liability to person furnished alcohol). The

common law still has a role, albeit a small one.

The Court’s cases both in and out of the liquor-licensee context show that the Act does

not preempt all possible common-law actions. In each of these cases, the General Assembly left

some role for the courts in defining liability under common-law principles. If the General

Assembly had intended instead to preempt all common-law actions, the Act would read like the

statute enacted after the Court concluded that the product-liability statutes did not preempt all

common-law products claims. That statute fulfills the rule that a statute must “clearly shows that

intent,” Carrel, 78 Ohio St. 3d at 287, by proclaiming that it is “intended to abrogate all common

law product liability claims or causes of action.” R.C. 2307.71(B). Comparing that statute to

Ohio’s current Dram Shop Act shows no similar preemption. The Dram Shop Act is,

comparatively, “limited in scope,” Combs, 2016-Ohio-1565 ¶ 21 (lead op.), and “not strong

enough” to “eliminate unmentioned common-law theories,” Carrel, 78 Ohio St. 3d at 288.

11

3. The common law of torts often requires courts to make public policy when the General Assembly has left room for them to do so.

Tort cases often require common-law policy judgments. That is true not only for drunk-

driving cases, but across the spectrum of torts. This Court, for example, has confronted

common-law issues in a host of tort cases over the years. The Court has decided, all as matters

of common law, that Ohio does not recognize market-share liability, Sutowski v. Eli Lilly & Co.,

82 Ohio St. 3d 347 (1998), that Ohio does recognize the economic-loss rule, Corporex Dev. &

Constr. Mgmt., Inc. v. Shook, Inc., 106 Ohio St. 3d 412, 2005-Ohio-5409, and that plaintiffs in

Ohio can recover punitive damages against the estate of a deceased tortfeasor in some

circumstances, Whetstone v. Binner, ___ Ohio St. 3d ___, 2016-Ohio-1006; see also, e.g., Loudin

v. Radiology & Imaging Servs., Inc., 128 Ohio St. 3d 555, 2011-Ohio-1817 ¶¶ 26-30 (O’Donnell,

J., concurring) (tracing history of court’s common-law approach to emotional-distress damages).

Here, the General Assembly has decided that some aspects of Ohio policy as to liability

for drunk driving should be decided under general common-law principles. Following that lead

honors the General Assembly’s choice. See, e.g., State v. David, 141 P.3d 646, 651 (Wash. Ct.

App. 2006) (interpreting crime of driving while intoxicated) (the “Legislature implied that the

judiciary should continue to define ‘proximate causation’ according to common law principles”;

“[i]n this way, the courts follow, rather than subvert, the Legislature's mandate”). As in many

other areas, the Act leaves to common-law norms matters outside of the specific actions it covers

and preempts.

Both in 1986 and later, common-law principles point to liability in a case like this one.

The law has long recognized that an actor may be liable for negligently supervising another. See,

e.g, Safeco Ins. Co. of Am. v. White, 122 Ohio St. 3d 562, 2009-Ohio-3718 ¶ 36. In such cases,

the duty is that of the supervisor, not the party who directly caused the injury. Id. ¶ 37.

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Similarly, employers may be liable for hiring and retaining a negligent contractor. See, e.g.,

Albain v. Flower Hosp., 50 Ohio St. 3d 251, 257 (1990), overruled on other grounds by Clark v.

Southview Hosp. & Family Health Ctr., 68 Ohio St. 3d 435 (1994); Restatement (Second) of

Torts § 411 & illus. 1 (1965) (liability where an actor fails “to exercise reasonable care to

employ a competent and careful contractor”); Restatement (Third) of Torts: Phys. & Emotional

Harm § 55 (2012) (same). As with negligent supervision, negligent hiring or retention involves

the hirer’s “direct[]” liability for “its own negligence.” Albain, 50 Ohio St. 3d at 257. More

generally, tort law recognizes that an actor “ordinarily has a duty to exercise” care when the

actor’s conduct “creates a risk of physical harm.” Restatement (Third) of Torts: Physical &

Emotional Harm § 7(a) & (b). See Morgan v. Fairfield Family Counseling Ctr., 77 Ohio St. 3d

284, 293 (1997) (describing Restatement as establishing “common-law” rule); Field v. Mans,

516 U.S. 59, 70 (1995) (Restatement is “the most widely accepted distillation of the common law

of torts”).

Added together, these common-law principles contemplate the kind of narrow duties that

can govern here where an employer encourages its contractors to drink in the workplace, models

it business around that drinking, knows such drinking is prevalent, and imposes no monitoring to

avoid worker drunk driving after the workday. The strip club breached a duty to keep its

intoxicated dancers off the road after encouraging alcohol consumption during work hours. The

jury award fits comfortably within common-law principles.

To be clear, recognizing such a duty should be quite narrow when measured against the

actions of all who furnish alcohol. Finding tort liability here, as the jury did, says nothing about

liability for social hosts or even for liquor licensees generally. Tort law frequently distinguishes

between those a defendant can’t control (like patrons) and those a defendant can (like

13

employees). See, e.g., R.C. 1531.33 (no liability for acts of third persons); World Harvest

Church v. Grange Mut. Cas. Co., ___ Ohio St. 3d ___, 2016-Ohio-2913 ¶ 33 (discussing

vicarious liability). And even as to employees or contractors, there is a world of difference

between a bartender who is permitted to drink on the job and a dancer who is encouraged to do

so. The statute recognizes degrees of control and does not preempt a common-law action where

the defendant encouraged its contractors to drink, depended on them doing so, and did not

monitor them.

Nor does recognizing liability here hyperliterally narrow the meaning of the word “sold”

to prevent applying the Act to situations where one patron buys a drink for another. As the Court

already observed, a dram-shop statute “could well apply to a commercial provider of alcohol

where the ‘sale’ is made to one patron with knowledge that the drink in fact was for another

patron.” Tobias, 37 Ohio St. 3d at 129. Ohio’s current Act would absolve a license holder from

liability for selling alcohol to one patron who was buying a drink for a second patron, who then

injured a third party. Both are “patrons.” But that principle does not cover this dancer contractor

case.

B. The Second District’s overbroad holding does not withstand scrutiny.

The Second District’s holding that the Act is the “sole, exclusive remedy” for injuries

arising from a “person’s intoxication,” App. Op. ¶ 17, cannot be squared with the text and

context of the Act.

The Second District first cites Klever v. Canton Sachsenheim, Inc., 86 Ohio St. 3d 419

(1999), but its description of the case does not support the judgment below. The court cites

Klever for the point that the Act imposes liability on liquor licensees for injuries arising from

acts of “their intoxicated customers.” App. Op. ¶ 16 (emphasis added). As discussed above, that

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is exactly why this lawsuit, based on the policies of the licensee itself, is outside the scope of the

Act. The Second District’s description of the Act is faithful to it; the court’s holding is not.

Klever itself further undermines the idea that the Act blocks all common-law torts against

liquor licensees. First, the case analyzed only whether the Act itself created a cause of action in

favor of the intoxicated person. It did not decide whether the Act preempts all actions against a

licensee. See 86 Ohio St. 3d at 422 (decision “anchor[ed]” in “statutory construction”). Second,

Klever recognized that the Act codified public policy “developed through decisional law.” Id. at

421. The Act works in harmony with the common law, not in opposition to it.

The Second District also drew on other intermediate-court decisions, but those cases

undercut the judgment below. See App. Opp. ¶ 17. For example, the first case the Second

District cites both recognized that some torts involve negligence other than simply serving

alcohol to patrons and that the Act largely incorporated the common law. See Vitek v. Wilcox,

No. WM89000004, 1990 WL 174163 (6th Dist. Nov. 9, 1990), at *5 (summary judgment denied

for bartender who ejected patron); id. at *9 (Act “codified the common law”). Other cited cases

are similar. See, e.g., Smith v. S.P. Greenville Inn, LLC, 2014-Ohio-4311 ¶ 45 (11th Dist.)

(denying common-law claim for lack of “evidentiary material,” not statutory preemption); Aubin

v. Metzger, 2003-Ohio-5130 ¶ 16 (3d Dist.) (Act “does not exclude all actions against liquor

permit holders.”); Litteral v. The Ole Menagerie, No. 95CA33, 1996 WL 511656, at *3 (4th Dist.

Sept. 4, 1996) (“we deal with an on premises injury to a patron caused by another patron. [The

Act] abrogates the application of common law negligence in this situation.” (emphasis added)).

Finally, the Second District distinguished other intermediate appellate decisions in a way

that highlights the flaw in its judgment. See App. Op. ¶ 18. The Second District described cases

like Prince and Auto-Owners as involving negligence “beyond the furnishing of alcohol.” App.

15

Op. ¶ 18. That is true, but the point undermines rather that supports the judgment below. This

case also involves negligence “beyond the furnishing of alcohol.” The Act therefore does not

preempt the jury’s common-law verdict.

The Act does not extend to business schemes encouraging contractors to accept drinks on

the job, and then failing to monitor them. The Second District erred in concluding that the Act

prohibited it from looking “to the common law of negligence to determine if a cause of action

may proceed against a liquor permit holder that contracts with a worker to engage in conduct that

includes drinking alcohol, when that worker’s intoxication is the proximate cause of a third

person’s injuries.” App. Op. at ¶ 21. This suit involves negligence beyond the sale of alcohol in

the patron context. The Act does not preempt it. Because the Act leaves some role for common-

law decision-making in this area, the judgment below should be reversed. The Dram Shop Act

does not cloak the Thirty-Eight Thirty operator with immunity from its negligence.

* * * *

The genius of common law is its incrementalism. All that is done by reinstating the jury

verdict here is to recognize that an employer who encourages contractor drinking on the job,

depends on that practice, knows that such drinking is common, and does nothing to minimize the

risks to others faces common-law tort liability. Given the “unreasonable risk of harm . . . to

others,” Gressman v. McClain, 40 Ohio St. 3d 362 (1988) (Moyer, C.J.), posed by the conduct

here, the Court would “abdicate” a “responsibility,” Tobias, 37 Ohio St.3d at 134 (H. Brown, J.,

dissenting), to address the common law that the General Assembly left open for development in

this Court if it read the Act as preempting the jury’s verdict. Beyond the narrow common-law

question raised here, any other questions can await a future case.

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CONCLUSION

The Court should reverse the judgment of the Second District and reinstate the jury’s

verdict.

Respectfully submitted, MICHAEL DEWINE (0009181) Attorney General of Ohio

/s Eric E. Murphy ERIC E. MURPHY* (0083284) State Solicitor *Counsel of Record MICHAEL J. HENDERSHOT (0081842) Chief Deputy Solicitor 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 614-466-5087 fax eric.murphy@ohioattorneygeneral.gov

Counsel for Amicus Curiae State of Ohio

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Brief of Amicus Curiae State of Ohio in

Support of Reversal was served on December 5, 2016, by U.S. mail on the following:

Douglas R. Cole Erik J. Clark Sean Stiff Organ Cole LLP 1330 Dublin Road Columbus, Ohio 43215 Dennis Mulvihill 23240 Chagrin Blvd., Suite 620 Cleveland, Ohio 44122 Stephen B. Behnke Wright & Schulte, LLC 865 South Dixie Drive Vandalia, Ohio 45377 Counsel for Plaintiff-Appellant Nichole Johnson

Jonathan B. Freeman Steven E. Bacon Altick & Corwin Co., L.P.A. One South Main Street, Suite 1590 Dayton, Ohio 45402 Jeffrey D. Slyman 211 Kenbrook Drive, Suite #5 Vandalia, Ohio 45377 Counsel for Defendants-Appellees Thirty-Eight Thirty, Inc., d/b/a The Living Room, and Michael C. Ferraro

/s Eric E. Murphy Eric E. Murphy State Solicitor