Less than an hour after closing his tab, a Columbus nightclub performer with twice the legal limit of alcohol in his system drove his van the wrong way on Interstate 270 and seriously injured another motorist. A trial court found the rock band leader liable for the injuries, but a divided appeals court deemed the nightclub was not responsible for the accident because its staff did not knowingly sell alcohol to an intoxicated person.

The Tenth District Court of Appeals upheld Tuesday the granting of summary judgment to Screamin Willie’s, an east side Columbus nightclub, by a Franklin County Common Pleas Court. The court said the injured driver failed to prove all the elements needed under Ohio law to collect damages from a liquor permit holder selling alcohol to an intoxicated patron.

According to the court, Mark Piras was driving his Ford Taurus on I-270 at approximately 12:45 a.m. on July 16, 2011. John Mirarchi, leader of the band Domino Theory, drove his Ford Econoline van the wrong way on I-270 and collided with Piras. Both suffered serious injuries.

A passerby pulled Mirarchi from the burning van and testified that Mirarchi’s speech was slurred and he smelled of alcohol. He was taken to Grant Hospital and about 45 minutes after the accident Columbus Division of Police Sgt. Tim Myers performed a field sobriety test and concluded Mirarchi failed it. His blood alcohol content was .169, and a urine test was positive for cannabinoids, which was consistent with Mirarchi’s acknowledgement that he smoked marijuana with Screamin Willie patrons in the bar’s parking lot.

Mirarchi gave conflicting testimony with that of two band members regarding the number of alcoholic beverages he consumed the night of the accident. His bar tab showed he purchased his first beer at 7:39 p.m. He closed his tab at 11:54 p.m., having purchased five bottles of beer and seven shots of whiskey. Mirarchi said he shared the drinks with band members, but some band members dispute the amount of drinks they consumed, and the court wrote that it was unclear how much Mirarchi drank at Screamin Willie’s.

At some point in the evening, Mirarchi lost his wallet and testified that while he was outside, where he took two hits of marijuana from a bong, a Screamin Willie’s security guard approached him and returned his wallet. Mirarchi said he was coherent the entire night and did not have problems walking or speaking, which, he said, was evident by his ability to carry a tray of whiskey shots without spilling them.

Band member Nick Kahler testified that he last saw Mirarchi between 9:30 and 10 p.m. and that he looked and walked fine.

In January 2013, Piras filed suit against Mirarchi and Screamin Willie’s. Piras also sued his own auto insurer, Nationwide Insurance Company of America, and his health insurer, Aetna Health Insurance Company. In May 2014, a trial court entered judgments for Piras and Aetna against Mirarchi. Piras settled his claims with Nationwide.

While Piras alleged Screamin Willie’s was liable under R.C. 4399.18, the bar countered that it was entitled to summary judgment because the record contained no evidence that it knowingly sold alcohol to Mirarchi when he was noticeably intoxicated.

Writing for the Tenth District, Judge William A. Klatt cited the provision of the statute that allows a liquor permit holder to be held liable for injuries and damages caused by an intoxicated person off premises. To be liable, a preponderance of the evidence must show “the permit holder or an employee of the permit holder knowingly sold an intoxicating beverage,” and “the person’s intoxication proximately caused the personal injury, death or property damage.”

“We believe that the resolution of this case turns on whether Mirarchi was noticeably intoxicated when he was served at Screamin Willie’s,” Judge Klatt wrote. “The only evidence regarding Mirarchi’s behavior at Screamin Willie’s came from Mirarchi himself and Nick Kahler. Neither the owner of Screamin Willie’s nor the bartender that worked the night of July 15-16, 2011 could remember Mirarchi, so they could not testify as to whether Mirarchi appeared drunk or not.”

Piras argued that Mirarchi must have been noticeably intoxicated based on the amount of alcohol and marijuana he consumed at the bar. Additionally, he argued that Mirarchi’s losing of his wallet is evidence of his intoxication and that after the accident, Mirarchi said he “blacked out” and could not remember anything after about 10 p.m. on that evening. Finally, Piras argued the blood alcohol level and the failed sobriety test from the police must have indicated Mirarchi was noticeably intoxicated at the bar.

“We are unpersuaded,” Judge Klatt wrote. “For a claim to arise under R.C. 4399.18, noticeable intoxication must be evident at the time of service….Mirarchi’s obvious intoxication at the accident scene and hospital does not provide, absent additional evidence, that he was noticeably intoxicated hours earlier when he placed orders at the bar.”

Judge Susan Brown concurred in the decision.

Judge Gary Tyack dissented, writing that summary judgment was not appropriate and he would have ordered the trial court to conduct a hearing to gather more evidence on Mirarchi’s state and  whether the bar staff noticed if he was intoxicated.

Judge Tyack noted that Mirarchi had a tab so the bar staff knew how much alcohol he was purchasing and that an employee was aware he was smoking marijuana

“We know that shortly after leaving the bar, he was so intoxicated that he drove up an exit ramp and then drove the wrong way on the freeway. After the collision, he smelled strongly of alcohol and was basically incoherent. His blood alcohol was over twice the legal limit in Ohio and apparently was so when he left Screamin Willie’s,” he wrote. “Stated concisely, I cannot believe that a person who drank what Mirarchi drank, smoked what Mirarchi smoked and was so out of it soon thereafter that he drove the wrong way on the freeway was not noticeably intoxicated while still buying drinks not long before he left the bar.”

Piras v. Screamin Willie's, 2015-Ohio-255
Opinion: http://sc.ohio.gov/rod/docs/pdf/10/2015/2015-ohio-255.pdf
Civil Appeal From: Franklin County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: Jan. 27, 2015

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