LOGAN – A South Bloomingville gas station/carryout that’s being sued for an underaged alcohol sale that allegedly led to a fatal car crash has argued that a court should grant judgment in its favor, because the specific Ohio law that governs such lawsuits does not allow for the claims included in the legal complaint it’s facing.

The plaintiffs have now answered this argument, asking that the court deny the defense’s motion for favorable judgment, and asserting in a memorandum that what defendant Harper’s Gas and More has said about the legal implications of Ohio’s Dram Shop Act “simply is not true.”

Harper’s and its parent company, JM Harper LLC, were sued in Hocking County Common Pleas Court by the estates of Kyle M. Stuller of Logan and Cody E. Anderson of McArthur, two young men who died in a January 2020 single-vehicle crash. The accident took place after the carryout sold alcohol to the 20-year-old Anderson, which he shared with the 19-year-old Stuller, who was driving during the fatal crash.

In their lawsuit the plaintiffs have included claims of wrongful death; negligent training and supervision of the employee who sold the alcohol; vicarious liability for that employee’s action; and punitive damages. They have also included a claim under Ohio’s Dram Shop Act.

The defendants have argued in a Nov. 30 motion that the wrongful death, negligent training, vicarious liability and punitive damages claims are all precluded by the Dram Shop Act, which they say was meant by legislators to provide “the exclusive remedy” in Ohio law against a liquor permit holder for injuries or death resulting from improper alcohol sales.

In their response, the plaintiffs’ attorneys maintain that it’s wrong to claim, as the defendants do, that any civil complaint against Harper’s can be based only on a violation of the Dram Shop Act, and that “that single cause of action controls (the plaintiffs’) entire complaint to the exclusion of any other claims.”

Although plaintiffs do allege violation of the Dram Shop Act, “that is not the only claim raised in their complaint,” the plaintiffs’ memorandum notes. “Rather, the complaint includes several causes of action based on common-law negligence principles… Each of these claims are grounded in facts independent of any Dram Shop violation and should be considered separate causes of action.”

In addition to arguing that all the plaintiffs’ claims other than the one based on the Dram Shop Act are barred, the defendants also maintain that the plaintiffs have even failed to state a valid claim for relief under the Act.

This assertion is based on the fact that the buyer of the alcohol – Anderson – and the person whose intoxication led to the crash – Stuller – were not the same individual. Therefore neither man’s estate has a valid Dram Shop Act claim against the carryout for their deaths, the defendants argue.

Also incorrect, say the attorneys for the plaintiffs. “Pursuant to a plain reading of (the Dram Shop Act), plaintiffs need only show that JM Harper or one of its employees knowingly sold an intoxicating beverage to a person under the age of 21 years, and that person’s intoxication proximately caused the personal injury or death,” the memorandum states. “In this case, an employee of JM Harper sold Anderson… four alcoholic beverages. Anderson and Stuller then consumed those beverages and were later involved in a single vehicle accident during which they both died. This was not the first time Anderson purchased alcohol from a JM Harper employee. More importantly, the JM Harper employee who sold Anderson alcohol never checked his identification and was never trained to do so.”

If there is any question as to what “proximately caused” the young men’s fatal injuries, the memorandum adds, that is a question of fact that should be decided in court, not in a judgment on the pleadings.

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