[Cite as Piras v. Screamin Willie's, 2015-Ohio-255.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Mark Piras, : 

 Plaintiff-Appellant, : 

 No. 14AP-468 

v. : (C.P.C. No. 13CV-414)

Screamin Willie's et al., : (REGULAR CALENDAR) 

 Defendants-Appellees. : 

 

D E C I S I O N 

Rendered on January 27, 2015 

 

Kisling, Nestico & Redick, LLC, and Walter W. Messenger, for 

appellant. 

Mazanec, Raskin & Ryder Co., L.P.A., Thomas S. Mazanec, 

Jeffery S. Maynard and David K. Frank, for appellees All 

American Food Service, Inc. dba Screamin Willie's and 

Screamin Willie's. 

Kahler Law Office, LLC, and Tyler W. Kahler, for Amicus 

Curiae Buckeye Liquor Permit Holders Association. 

 

APPEAL from the Franklin County Court of Common Pleas 

KLATT, J. 

{¶ 1} Plaintiff-appellant, Mark Piras, appeals a judgment of the Franklin County 

Court of Common Pleas granting summary judgment to defendants-appellees, Screamin 

Willie's and All American Food Service, Inc. d/b/a Screamin Willie's (hereinafter 

collectively referred to as "Screamin Willie's"). For the following reasons, we affirm that 

judgment. 
No. 14AP-468 2 

{¶ 2} At approximately 12:45 a.m. on July 16, 2011, John Mirarchi, who was 

driving his Ford Econoline van the wrong way on I-270, collided with Piras' Ford Taurus. 

Both Piras and Mirarchi were seriously injured. 

{¶ 3} The evening prior to the crash, Mirarchi and his band, Domino Theory, had 

played at Screamin Willie's, an entertainment venue and bar. Mirarchi arrived at 

Screamin Willie's to set up his band's equipment sometime after 5:00 p.m. on Friday, 

July 15. Around 6:00 p.m., he walked to a nearby Burger King restaurant for dinner. 

Mirarchi then returned to Screamin Willie's, opened a tab at the bar, and ordered a bottle 

of beer. The receipt for Mirarchi's bar tab shows that the bartender began the tab at 7:39 

p.m. 

{¶ 4} According to Mirarchi, when Domino Theory took the stage, he found a 

bucket of four bottles of beer provided by another band playing that night. Mirarchi 

drank one beer from that bucket as he performed. 

{¶ 5} According to Nick Kahler, Domino Theory's guitarist, the band did not 

receive a bucket of beer. Sam Kahler, Nick's brother and Domino Theory's drummer, also 

did not see a bucket of beer. Sam, however, did recall the entire band doing a shot of 

whiskey on stage about halfway through their set. Nick denied doing a shot on stage. 

Nick remembered some of the band members drinking a shot during the performance, 

but he could not identify which members. 

{¶ 6} After Domino Theory finished their performance, Mirarchi and the other 

band members removed their equipment from the stage. At this point, Mirarchi's version 

of events again diverges from the Kahler brothers' version. According to Mirarchi, he 

went to the bar and ordered a round of whiskey shots for himself and his fellow band 

members. Mirarchi claims that the band drank their shots together. The Kahler brothers 

testified that, after loading their equipment into their vehicles, they spent the remainder 

of the night with family. Sam did not see Mirarchi the rest of the night; Nick only saw 

Mirarchi in passing. 

{¶ 7} Mirarchi next went outside and found a group of people smoking marijuana 

from a bong. Mirarchi took two hits. While Mirarchi was outside, a Screamin Willie's 

security guard found him and gave him his wallet. Sometime after Mirarchi opened a tab 
No. 14AP-468 3 

at the bar, his wallet, which he kept in his back pocket, was either lost or stolen. Mirarchi 

did not know his wallet was missing until the security guard returned it. 

{¶ 8} Upon returning inside, Mirarchi went back to the bar and ordered another 

bottle of beer. Mirarchi walked to the dance floor and watched the third band on the 

night's roster perform. After the third band finished, Mirarchi ordered a second round of 

whiskey shots for his band. According to Mirarchi, he sat with his fellow band members 

as they all drank the shots.1 When the fourth band began playing, Mirarchi ordered 

another bottle of beer from the bar and drank it as he watched the band perform. 

Mirarchi liked the fourth band's music, so he went backstage to talk with the band 

members. Mirarchi had a conversation with the lead singer and his girlfriend. After that 

conversation, which occurred around 10:00 or 10:30 p.m., Mirarchi cannot remember 

anything until waking in a hospital bed the next morning. 

{¶ 9} According to Mirarchi, he was coherent throughout the night. He did not 

have problems standing, walking, speaking, or understanding what was said to him. He 

carried trays of shots without dropping or spilling the drinks. According to Nick Kahler, 

he and Mirarchi walked past each other around 9:30 or 10:00 p.m. Nick stated that 

Mirarchi "was walking fine [and] [l]ooked fine." (Nick Kahler deposition, at 22.) 

{¶ 10} The receipt for Mirarchi's tab shows that he closed his tab at 11:54 p.m. The 

receipt indicates that Mirarchi paid for five bottles of Miller High Life beer2 and seven 

Jameson whiskey shots. 

{¶ 11} Approximately one hour after Mirarchi closed his tab, Mirarchi's van struck 

Piras' car. A passing motorist, Jaron Paima, pulled Mirarchi from his burning van. Paima 

later testified that Mirarchi spoke to him, but did not make any sense. Mirarchi's speech 

was slurred, and he smelled of alcohol. 

{¶ 12} Tim Myers, a sergeant with the Columbus Division of Police, arrived at 

Grant Hospital at 1:34 a.m. to interview Mirarchi. During the interview, Mirarchi spoke 

with a thick tongue and slurred his speech. His breath smelled strongly of alcohol. Myers 

performed a horizontal gaze nystagmus test on Mirarchi and observed six of six clues of 

 

1 Again, this version of events is inconsistent with the Kahler brothers' memories of the evening. 

2 Mirarchi claims that he was drinking Miller Lite that night, not Miller High Life. 
No. 14AP-468 4 

impairment. A blood test revealed that Mirarchi's blood alcohol content was .169. 

Additionally, Mirarchi's urine tested positive for cannabinoids. 

{¶ 13} On January 11, 2013, Piras filed suit against Screamin Willie's, alleging that 

it was liable for his injuries pursuant to R.C. 4399.18. Piras also sued Mirarchi; 

Nationwide Insurance Company of America, Piras' automobile insurer; and Aetna Health 

Insurance Company, Piras' health insurer. Nationwide and Aetna both filed cross-claims 

against Mirarchi and Screamin Willie's. 

{¶ 14} After the parties conducted discovery, Screamin Willie's moved for 

summary judgment. Screamin Willie's argued that summary judgment was appropriate 

because the record contained no evidence that it knowingly sold alcohol to Mirarchi when 

he was noticeably intoxicated. The trial court granted that motion. On May 20, 2014, the 

trial court entered judgment resolving the remaining claims.3

{¶ 15} Piras now appeals, and he assigns the following error: 

The Trial Court erred in granting Defendant-Appellee's 

Motion for Summary Judgment because an issue of fact 

remains as to whether Defendant-Appellee knowingly sold 

alcohol to a noticeably intoxicated patron. 

{¶ 16} By this assignment of error, Piras argues that the trial court erred in 

concluding that there was no evidence that Screamin Willie's knowingly sold alcohol to 

Mirarchi when he was noticeably intoxicated. We disagree. 

{¶ 17} A trial court will grant summary judgment under Civ.R. 56 when the 

moving party demonstrates that: (1) there is no genuine issue of material fact; (2) the 

moving party is entitled to judgment as a matter of law; and (3) reasonable minds can 

come to but one conclusion when viewing the evidence most strongly in favor of the 

nonmoving party, and that conclusion is adverse to the nonmoving party. Hudson v. 

Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 

116 Ohio St.3d 158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a 

motion for summary judgment is de novo. Hudson at ¶ 29. This means that an appellate 

court conducts an independent review, without deference to the trial court's 

determination. Zurz v. 770 W. Broad AGA, L.L.C., 192 Ohio App.3d 521, 2011-Ohio-832, 

 

3 In the May 20, 2014 judgment, the trial court entered judgment in favor of Piras and Aetna, and against 

Mirarchi. Both Piras' claim against Nationwide and Nationwide's cross-claim were terminated through 

voluntary dismissal. 
No. 14AP-468 5 

¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th 

Dist.). 

{¶ 18} When seeking summary judgment on the ground that the nonmoving party 

cannot prove its case, the moving party bears the initial burden of informing the trial 

court of the basis for the motion and identifying those portions of the record that 

demonstrate the absence of a genuine issue of material fact on an essential element of the 

nonmoving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving 

party does not discharge this initial burden under Civ.R. 56 by simply making a 

conclusory allegation that the nonmoving party has no evidence to prove its case. Id. 

Rather, the moving party must affirmatively demonstrate by affidavit or other evidence 

allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims. 

Id. If the moving party meets its burden, then the nonmoving party has a reciprocal 

burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R. 

56(E); Dresher at 293. If the nonmoving party does not so respond, summary judgment, 

if appropriate, shall be entered against the nonmoving party. Id. 

{¶ 19} Pursuant to R.C. 4399.18: 

A person has a cause of action against a [liquor] 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 * * *: 

(1) A noticeably intoxicated person in violation of division (B) 

of section 4301.22 of the Revised Code.4

* * * 

(B) The person's intoxication proximately caused the 

personal injury, death, or property damage. 

 

4 R.C. 4301.22(B) states, "No permit holder and no agent or employee of a permit holder shall sell or 

furnish beer or intoxicating liquor to an intoxicated person." 
No. 14AP-468 6 

The word "knowingly" in R.C. 4399.18(A) describes the object of the sale, i.e., the 

"noticeably intoxicated person." Lesnau v. Andate Ents., Inc., 93 Ohio St.3d 467, 472 

(2001). Moreover, the knowledge required by the statute is actual knowledge that the 

person buying the alcohol is noticeably intoxicated. Id.; Gressman v. McClain, 40 Ohio 

St.3d 359, 363 (1988). Constructive knowledge is insufficient. Id.

{¶ 20} We believe that the resolution of this case turns on whether Mirarchi was 

noticeably intoxicated when he was served at Screamin Willie's. If the record lacks any 

evidence that Mirarchi was or would have been noticeably intoxicated when he was served 

at Screamin Willie's, then Screamin Willie's is entitled to summary judgment. 

{¶ 21} 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. According to Mirarchi, he 

had no difficulties standing, walking, or communicating with others while he was at 

Screamin Willie's. Nick Kahler thought Mirarchi was "fine" when he saw Mirarchi around 

9:30 or 10:00 p.m. Although Mirarchi has no memory of anything that occurred after 

10:00 or 10:30 p.m., the record contains no evidence that Mirarchi was noticeably 

intoxicated at Screamin Willie's after that point. Considering the totality of the evidence, 

we conclude that no genuine issue of material fact remains regarding whether Mirarchi 

was noticeably intoxicated when he was served. All the evidence produced demonstrates 

that he was not. 

{¶ 22} Piras essentially argues that Mirarchi must have been noticeably intoxicated 

based on the amount of intoxicants he ingested while he was at Screamin Willie's. The 

effect of intoxicants differs with each person, and it varies depending on factors such as 

experience with intoxicants, weight, and food consumed. Caplinger v. Korrzan 

Restaurant Mgt., Inc., 12th Dist. No. CA2011-06-099, 2011-Ohio-6020, ¶ 21. Mirarchi 

inhaled marijuana twice and drank between two to seven shots of whiskey and between 

five to six bottles of beer over the course of approximately four hours. While Mirarchi 

ingested a significant amount of intoxicants, given the variability in how intoxicants affect 

individuals, we cannot presume that Mirarchi's intake was sufficient to render him 

noticeably intoxicated when he was served at Screamin Willie's. 
No. 14AP-468 7 

{¶ 23} Second, Piras argues that Mirarchi must have been noticeably intoxicated 

because he "forgot" his wallet and forgetfulness evinces intoxication. The evidence, 

however, does not establish how Mirarchi was separated from his wallet. A Screamin 

Willie's security guard found the wallet in the bar's restroom. As Mirarchi had not been in 

the restroom, he could not have left the wallet there himself. Moreover, when the security 

guard found Mirarchi's wallet, the cash in the wallet was missing. Based on these facts, 

we can envision multiple scenarios: Mirarchi's wallet fell out of his back pocket as he was 

moving band equipment, someone stole the wallet, or Mirarchi accidentally left the wallet 

on the bar after starting his tab. Given the ambiguity in the situation, we cannot assume 

that Mirarchi's loss of his wallet is evidence of noticeable intoxication, as Piras urges us to 

do. 

{¶ 24} Third, Piras argues that Mirarchi must have been noticeably intoxicated 

when he was served at Screamin Willie's because, after the accident, Mirarchi had a blood 

alcohol content of .169, slurred his words, smelled of alcohol, and failed the horizontal 

gaze nystagmus test. We are unpersuaded. For a claim to arise under R.C. 4399.18, 

noticeable intoxication must be evident at the time of service. Smith v. S.P. Greenville 

Inn, L.L.C., 11th Dist. No. 2014-G-3184, 2014-Ohio-4311, ¶ 31; Caplinger at ¶ 24; Hlusak 

v. Sullivan, 8th Dist. No. 74367 (June 29, 2000). Mirarchi's obvious intoxication at the 

accident scene and hospital does not prove, absent additional evidence, that he was 

noticeably intoxicated hours earlier when he placed orders at the bar. Barnes v. Hallam, 

7th Dist. No. 04 CO 39, 2005-Ohio-2934, ¶ 32. Likewise, the fact that a person's blood 

alcohol content exceeded the legal limit when tested after the accident does not lead to the 

conclusion, absent additional evidence, that the person was noticeably intoxicated when 

he was served at the liquor establishment. Caplinger at ¶ 30; Barnes at ¶ 26; Stillwell v. 

Johnson, 76 Ohio App.3d 684, 689 (1st Dist.1991). 

{¶ 25} Finally, Piras argues that Mirarchi was noticeably intoxicated because he 

"blacked out," i.e., he could not remember events that occurred after a certain point. Even 

if we assume that alcohol (rather than the subsequent accident) caused this memory 

lapse, there is no evidence that Mirarchi exhibited any outward signs of noticeable 

intoxication after the point of his memory loss. Thus, Mirarchi's memory loss is not 

evidence that he was noticeably intoxicated when he was served. 
No. 14AP-468 8 

{¶ 26} In sum, we conclude that the record lacks any evidence that Mirarchi was or 

would have been noticeably intoxicated when he was served at Screamin Willie's. The 

trial court, therefore, did not err in granting Screamin Willie's summary judgment. 

{¶ 27} As a final matter, we must address Screamin Willie's motion to strike 

portions of Piras' reply brief. We deny that motion. 

{¶ 28} For the foregoing reasons, we overrule Piras' sole assignment of error, and 

we affirm the judgment of the Franklin County Court of Common Pleas. 

Motion denied; judgment affirmed. 

BROWN, J., concurs. 

TYACK, J., dissents. 

TYACK, J. dissenting. 

{¶ 29} I do not believe that summary judgment was appropriate in this case, so I 

therefore respectfully dissent. Way too much of the suggested facts depend on the claims 

of John Mirarchi. Mirarchi's claims as to what happened are extremely self-serving. His 

memory of what happened transitions from self-serving to non-existent for a period of 

hours before he drove the wrong way in the lanes of an interstate highway and seriously 

injured an innocent driver. 

{¶ 30} To cite a few examples, Mirarchi purchased a round of shots of whiskey 

which he claims he shared with other members of his band. One of his band members 

denied getting a shot. 

{¶ 31} Mirarchi claimed to have come into possession of four bottles of beer after 

he purchased a beer for himself. Mirarchi's drinking allegedly started around 7:39 p.m., 

assuming he had no drinks before he went to Screamin Willies. 

{¶ 32} Mirarchi admits smoking marijuana from a bong, although he claims he 

only took two hits. While Mirarchi was smoking the marijuana, he was approached by an 

employee of Screamin Willies who was returning his wallet. This demonstrates that 

Screamin Willies was aware that Mirarchi had purchased several beers and several shots 

of whiskey which he then followed with smoking marijuana. An employee of Screamin 

Willies was also aware that Mirarchi had left his wallet somewhere in the bar and was 

unaware he had left it or lost it. 
No. 14AP-468 9 

{¶ 33} Mirarchi apparently closed his bar tab shortly before midnight, but that 

does not mean he stopped drinking then. He apparently could not remember which kind 

of Miller beer he was drinking, claiming a lite beer as opposed to a regular beer. 

{¶ 34} Shortly after leaving the bar, Mirarchi got into his van and drove onto the 

freeway heading into oncoming traffic. Another motorist, Jaron Paima pulled Mirarchi 

from Mirarchi's burning van after the serious collision caused by Mirarchi's intoxication. 

Paima described Mirarchi as incoherent and smelling of alcohol. For purposes of a 

summary judgment motion and construing the facts strongly in favor of the innocent 

driver Mirarchi injured, Mirarchi was in that condition when he stopped drinking at 

Screamin Willies and left the bar. Again, construing the facts in favor of Mark Piras, the 

innocent driver Mirarchi injured, Mirarchi was in that condition while still buying drinks 

at Screamin Willies shortly before he left the bar. If Mirarchi was in that condition when 

he bought drinks before closing his tab, Screamin Willies had to know it was serving an 

intoxicated person. 

{¶ 35} After the collision, Mirarchi's blood test showed he had the active chemical 

in marijuana in his system and that he had the equivalent of over eight drinks still in his 

blood after almost five hours of drinking at the bar. 

{¶ 36} I also note that Mirarchi's claim of no memory of events which occurred 

approximately two hours before he closed his tab might be an indication that he had 

consumed so much alcohol that he was in an alcohol induced blackout hours before he 

stopped buying drinks. 

{¶ 37} The undisputed facts are that Mirarchi himself bought five bottles of beer 

and seven shots of whisky at Screamin Willies. We cannot know how many other drinks 

were bought for him as a performer in a band or how many drinks he consumed before he 

opened his tab at Screamin Willies. 

{¶ 38} We also know Mirarchi had cannabinoids in his system and an employee of 

Screamin Willies saw him 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 Willies. 
No. 14AP-468 10 

{¶ 39} The fact Mirarchi did not know his wallet was gone is a further indication he 

was impaired and the impairment was known to Screamin Willies' staff. I realize that 

R.C. 4399.18 has been crafted by lobbyists for the liquor industry in a way that minimizes 

the liability of those bar owners who serve alcoholics well past the legal limit and then 

wish to avoid liability for the harm done both to the alcoholics themselves and to innocent 

members of the motoring public. Perhaps our Governor, who lost his own parents to a 

drunk driver, will wish to have the statute revisited. Even under the words of the present 

statute, I do not believe that Screamin Willies can avoid liability, at least at the summary 

judgment stage. 

{¶ 40} 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. 

{¶ 41} I would reverse the trial court's granting of summary judgment and remand 

the case for a trial. Since the majority of this panel does not do so, I respectfully dissent.