669 N.E.2d 253 | Ohio Ct. App. | 1995
In this case, Cole was allegedly able to purchase the beer without identification and without questioning by the cashier. After attending a get-together and drinking an unknown quantity of the beer at the home of a friend, Cole drove off by himself in spite of his friends' attempts to dissuade him. Cole made it back to his own home, but then left again, skidded off of the road and collided with a *575 telephone pole. Cole sustained serious injuries, including permanent brain damage.
Cole asserted a negligence claim against Broomsticks for his injuries based on its employee's violation of R.C.
In their two assignments of error, the Coles assert that the trial court erred in granting summary judgment to Broomsticks on (1) John Cole's negligence claim and (2) Connie Cole's loss-of-consortium claim. For the reasons that follow, we overrule both assignments.
In this case, Broomsticks argues that no cause of action arose under the undisputed facts because Cole assumed the risk of his own voluntary intoxication, and that Broomsticks was therefore entitled to judgment as a matter of law.
In Gressman v. McClain (1988),
However, in Smith v. 10th Inning, Inc. (1990),
"As between the patron and the permit holder, we believe that the patron is in the best position to prevent intoxication before it occurs and, therefore, we find that the patron should, in this context, be denied a cause of action to recompense his or her own drunken behavior. In sum, we find that the intoxicated patron is not the type of `innocent party' who was intended to be protected under R.C.
Broomsticks draws a parallel between R.C.
Cole distinguishes the statutes by claiming that he was a minor for the purposes of becoming intoxicated and hence incompetent to responsibly assimilate the effects of alcohol, unlike the adult plaintiff in Smith. However, R.C.
The distinction between minor and underage person is apparent in Lee v. Peabody's, Inc. (June 9, 1994), Cuyahoga App. No. 65090, unreported, 1994 WL 258640. In Lee, the Eighth District Court of Appeals held that an underage person for the purpose of drinking alcohol who is not a minor is primarily responsible for becoming voluntarily intoxicated and has no cause of action under *577
R.C.
The decision to drink and drive made by the underage drinker in Lee was considered a primary assumption of the risk, following the rationale in Tome v. Berea Pewter Mug, Inc.
(1982),
Following these decisions, we must agree that because Cole assumed the risk of his own voluntary intoxication, Broomsticks was entitled to judgment as a matter of law.
Judgment affirmed.
HILDEBRANDT, P.J., and MARIANNA BROWN BETTMAN, J., concur.