Drunk Driver Wrongful Death Claims in Ohio

Losing someone to an impaired driver brings a particular kind of grief. The death was not just sudden; it was preventable, and it came from a choice someone made before getting behind the wheel. Many families feel anger alongside the sorrow, and both are understandable. We are sorry for your loss.

This page explains how Ohio law handles a death caused by a drunk or drugged driver: how the criminal case and the civil case relate, when punitive damages may be available, when a bar, store or party host can also be held responsible, and what your family should know about insurance and deadlines. For the rules that apply in every crash case, see our page on car crash wrongful death claims.

How these deaths happen

Impaired driving deaths take many forms: a wrong-way driver on the interstate, a driver who runs a red light after a night out, a driver impaired by drugs or a mix of alcohol and medication, or a young driver leaving a party where alcohol was served. In each case, the impairment usually shows up as the same failures seen in other crashes, such as speed, delayed reaction and drifting across lanes, only worse.

The criminal case and the civil case

When an impaired driver causes a death in Ohio, the driver may be charged with aggravated vehicular homicide, which includes causing a death as the proximate result of an OVI (operating a vehicle impaired) offense (R.C. 2903.06(A)(1) and (B)(1)). The prosecutor decides what charges to file and represents the State, not your family.

Your family's wrongful death claim is a separate civil case. It seeks compensation, not punishment by the State, and it has its own rules and its own deadline. A criminal conviction can be important evidence, but the civil case does not have to wait for it. Our chapter on criminal and civil cases explains how the two fit together.

What the investigation must capture

Some of the most important evidence in an impaired driving case is held by others and disappears quickly:

• Police chemical tests, or the record that the driver refused a test.
• Hospital blood work drawn after the crash, which may differ from police testing and must be obtained through proper legal process.
• Receipts, tabs and card records from bars, restaurants or stores where the driver bought alcohol.
• Video from those businesses, which is often overwritten within days or weeks.
• Witnesses who saw the driver drinking, or saw the driver's condition when leaving.
• Social media posts, texts and ride records showing where the driver had been and with whom.

When a bar or host may be involved, a preservation letter should go out quickly. Video and point-of-sale records are among the first things lost.

Punitive damages when a driver was impaired

Punitive damages are meant to punish especially bad conduct and deter others, rather than to compensate. In Ohio they require proof of "malice or aggravated or egregious fraud," and the family must prove entitlement by clear and convincing evidence (R.C. 2315.21(C)(1) and (D)(4)).

The Supreme Court of Ohio addressed drunk driving directly in Cabe v. Lunich, 70 Ohio St.3d 598, 1994-Ohio-4. The court held that actual malice includes "a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm," and that evidence a negligent driver consumed alcohol before a crash is admissible on punitive damages. The court also held that when a properly administered chemical test shows the driver was at or above the statutory limit, the trial court abuses its discretion if it refuses, on the plaintiff's motion, to instruct the jury that it may award punitive damages. The court reached the same result when the driver refused the test and there was evidence of drinking.

There is an important limit for families to understand. The Supreme Court of Ohio held in Rubeck v. Huffman, 54 Ohio St.2d 20 (1978), that punitive damages are not available in a wrongful death action itself, but may be recovered in the separate survival claim that belongs to the estate when the person who died suffered injury before death. The Second District Court of Appeals, which covers Montgomery County, applied that rule in LaMusga v. Summit Square Rehab., L.L.C., 2015-Ohio-5305, ¶ 32. Whether your loved one survived the crash, even briefly, can therefore matter a great deal; see our chapter on damages.

Two more practical points:

• Caps. Ohio generally limits punitive damages to two times the compensatory damages, and against an individual to the lesser of that amount or 10 percent of the individual's net worth, up to $350,000 (R.C. 2315.21(D)(2)(a) and (b)). Narrow exceptions apply when the defendant acted purposely or knowingly and was convicted of a felony with that mental state (R.C. 2315.21(D)(6)).
• Insurance does not pay them. Ohio law prohibits auto and other liability policies from covering punitive damages (R.C. 3937.182(B)). Any punitive award must be collected from the driver personally, which can be difficult.

When a bar or store is also responsible: Ohio's dram shop law

Ohio law limits when a business that sold alcohol can be held responsible for what an intoxicated customer does. Under R.C. 4399.18:

• If the death happened on the permit holder's premises or in a parking lot it controls, the family must show the death was proximately caused by the negligence of the permit holder or its employee.
• If the death happened elsewhere, such as on the road after the driver left, the family must prove that the permit holder or an employee knowingly sold alcohol to a noticeably intoxicated person, in violation of R.C. 4301.22(B), or to a person in violation of R.C. 4301.69, which prohibits furnishing alcohol to anyone under 21; and that the person's intoxication proximately caused the death.

The word "knowingly" makes these cases demanding. Evidence of how much the driver was served, how the driver appeared, and what staff saw is essential, and it fades quickly. The statute also generally bars claims against a landlord who leased the premises to the permit holder, unless the landlord and permit holder are the same (R.C. 4399.18).

Social hosts: adults and minors are treated differently

Ohio has not extended liability to a private, noncommercial host who serves alcohol to an adult guest who later causes a crash. In Settlemyer v. Wilmington Veterans Post No. 49, 11 Ohio St.3d 123 (1984), the Supreme Court of Ohio declined to extend that liability and suggested the question was for the legislature.

The rule is different for minors. In Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988), the court held that a social host has a duty not to furnish alcohol to a minor and may be civilly liable to third persons when that duty is violated, because furnishing alcohol to an underage person violates R.C. 4301.69. Today that statute prohibits furnishing beer or liquor to anyone under 21, with limited exceptions such as when the underage person is supervised by a parent, a spouse who is not underage, or a legal guardian (R.C. 4301.69(A) and (H)(5)). When a teenager or young adult was served at a party before a fatal crash, the host's role deserves a close look.

Which insurance may apply

Coverage may include the impaired driver's auto liability policy, the vehicle owner's policy, your family's own uninsured and underinsured motorist coverage, and, where the facts support it, the liability coverage of a bar, restaurant, store or host. Because punitive damages cannot be insured, identifying every compensatory source matters even more.

What your family can recover

Ohio law allows compensation for loss of support, loss of services, loss of society, loss of prospective inheritance, and the mental anguish of the surviving family (R.C. 2125.02(D)), plus reasonable funeral and burial expenses (R.C. 2125.02(C)(1)). Ohio's general caps on noneconomic damages do not apply to wrongful death actions (R.C. 2315.18(H)(3)). If your loved one survived for a time, the estate's survival claim can include conscious pain and suffering (R.C. 2305.21) and, as explained above, may support punitive damages. See wrongful death compensation.

The two-year deadline

An Ohio wrongful death action generally must be filed within two years after the date of death (R.C. 2125.02(F)(1)). The criminal case does not stop that clock. Read more about Ohio's two-year rule and its exceptions.

Common questions