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9th District reverses dram shop wrongful death ruling

TRACEY BLAIR
Legal News Reporter

Published: August 19, 2019

A Lorain County trial court erred by granting summary judgment in favor of a Wellington bar accused of selling alcohol to a noticeably intoxicated man who was the driver in a fatal crash, the 9th District Court of Appeals has ruled.

Timothy Weeks, administrator of the estate of Christine Weeks, filed dram shop wrongful death and spoliation of evidence claims against the Mosey Inn and the building’s owner, Ohio Restaurant Investment of Wellington, LLC. The inn cross-appealed the denial of its motion for partial judgment on the pleadings.

According to court records, Raymond McKissick, his fiancé, Natasha Orick and Tristen Truelson arrived at the inn around 5 p.m. on June 14, 2017, to celebrate Truelson’s 21st birthday.

Around 9:30 p.m. McKissick drove from the bar with Truelson to pick up Truelson’s girlfriend. A short drive later, McKissick drove left of center into a vehicle driven by Christine Weeks, killing her. McKissick’s blood-alcohol concentration measured 0.188 grams.

After reviewing the inn’s video surveillance to determine if McKissick had been over-served, an Ohio Department of Public Safety agent concluded there was not enough evidence to file criminal charges. The surveillance unit was returned to the inn. Weeks later learned the footage had been recorded over.

Timothy Weeks also sued the owner of the car McKissick was driving, the victim’s auto insurance company and McKissick. After he learned the surveillance footage of the crash did not exist, he amended his complaint to add a spoliation claim and later dismissed the owner of the building from the action.

The inn argued there was no evidence its employees knowingly served McKissick while he was visibly impaired. The trial court determined the expert testimony Weeks submitted did not create a genuine issue of material fact on that issue, and that there was no evidence the inn purposely destroyed the footage.

Although bartender Carrie Hilton denied she knew McKissick was impaired the night of the collision, Weeks said there was enough circumstantial evidence to the contrary.

For instance, Weeks submitted a forensic toxicology expert’s report estimating that Hilton served McKissick “at least four half 14-ounce Bud Light beers and about 13 full one-ounce Jody Bombs,” a mixed drink with a half-ounce of vodka and a half-ounce of whiskey. The expert added that “signs of alcohol intoxication” would have been noticeable to the bartender and bar manager Jody Hilton.

However, the inn alleged the blood-alcohol content test results are inadmissible hearsay because the test administrator had not been deposed. Weeks countered the results are admissible as a public record since they are part of the certified traffic crash report.

The trial court discounted the expert’s opinion because he did not account for any food McKissick ate at the inn and did not personally observe the physical activities he engaged in while there that may have had an effect on his metabolism.

The appellate court noted that evidence must be construed in a light most favorable to Weeks on summary judgment.

“Viewing the evidence in a light most favorable to Mr. Weeks, we conclude that the expert’s report is sufficient to establish that there is a genuine question as to whether Carrie Hilton knowingly sold alcohol to Mr. McKissick while he was noticeably intoxicated,” 9th District Judge Jennifer Hensal wrote in her majority opinion.

The panel also found the trial court incorrectly granted summary judgment to the inn on Week’s spoliation claim.

Weeks argued that the inn had reason to believe a lawsuit would be filed against it, so a jury could discredit its allegation that the video was innocently overwritten during the normal course of its business. In addition, Weeks called the inn’s statement that they believed the Department of Public Safety would keep a copy of the video even after not pursuing a liquor violation against the inn to be “disingenuous.”

The appellate court noted the inn did not present any evidence about when the surveillance unit was placed back in service after it was returned to them.

“We also note that there is sparse evidence about the amount of time that the unit can record before it begins overwriting prior recordings,” Judge Hensal added.

The panel agreed with the trial court that Weeks may not maintain a separate cause of action for punitive damages.

Ninth District Judge Thomas Teodosio concurred. Appellate Judge Donna Carr concurred in part and dissented in part, finding Weeks should be free to pursue punitive damages against the inn.

The case is cited Weeks v. 203 Main Street, L.L.C., 2019-Ohio-2850.


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