*1 monetary damages may granted grant tion to an injunction compelling declaratory cidentally against relief plaintiffs reimbursement for prior However, in state. the instant case the money claimed deficiencies toor award past compensation due ad- judgment. with the declaratory ministrators is the heart of the contro- assignment Defendants’ second of error versy not be merely considered well taken and is sustained. sought incidental to the other relief reasons, foregoing For the judg- granted. ment the trial part affirmed in part and reversed in and the cause is judgment Declaratory defines remanded for further proceedings consis- rights parties. Such a duties tent with this and in decision accordance distinguished remedy is to be from at- with law. tempt recompense party past a state duty breach official. Judgment ‘part, reversed Assembly General has authorized affirmed and cause remanded. pleas courts of common to determine the duties state officials. It has also Reilly Norris, JJ., concur. deigned grant those same courts jurisdiction grant monetary relief ex-
cept by remedy the limited of mandamus.
The Supreme clearly Court stated (State, the first decision Montrie ex rel. al., et Appellants, v. Berea Home, Inc., Nursing Aggrey Montrie Appellee. Inc., Mug, Pewter [1978], 401]) 2d Ohio St. 394 O.O.3d a proper remedy that mandamus is compel statutory reimbursement to nurs However,
ing homes. standard a petition
review to which a writ subjected
mandamus than is stricter applied declaratory judgment ac A
tion. writ of mandamus will only issue state comply
where officials have failed to legal a “clear duty.” Declaratory only an interpretation involves
by the court of statute or contract necessity
without the im the duties
posed be clear. against
Since any suit is an state law,
abrogation of the common
jurisdiction of courts to entertain strictly
suits must be construed. Because Court has indicated
mandamus state officials is
proper action in case iden essentially case, State,
tical the instant ex rel. Mon Home, Inc., Nursing Aggrey (54 trie 401]), Ohio St. 2d 394 O.O.3d we are jurisdiction
hesitant to expand compel
trial to other actions which
payment of treasury. funds state trial jurisdic- court therefore had no Michael Appellants, Jackson, J. White, Phillip (Danny)
Tome and against ap- this suit for stituted *2 Mug, Inc., the Berea Pewter owner pellee Berea, operator and tavern located appellee a motion for sum- filed Ohio. ground judgment mary guilty of con- and White were Tome assumption of tributory and judgment the risk. The trial court entered appellee issuing opin- for the without appeal, Tome and appellants ion. On genuine there remain White trial, fact for issues of and that judgment entitled to as a matter not law. judgment ren-
Summary properly where, evidentiary dered based court, presented material to the and con- struing strongly such evidence most party against favor of the the mo- whom made, a tion is reasonable could only moving party conclude is en- titled to as a matter of law. Civ. 56(C). R. evidentiary material which was the court case consisted of
before this Tome, White, depositions Gary and Busier, showing copies of an invoice an in- purchase numerous drinks Septem- dividual named “Bonnizzio” on ber
Tome and White sec- went to bar of the Pewter Mug tion Restaurant on 22, 1978, September afternoon of for the Bonnizzio, meeting purpose of Daniel speak employment. about Busier accom- them, panied approx- entered the bar imately fifteen minutes after did. (No. 17, 1982.) 44100 Decided June Tome, White, treated Bonnizzio
Busier to drinks. Busier were and White time, twenty-one years old at only Tome was two and one-half months Komito, Jacobson, Plevin, Nuremberg, being twenty-one. short of Busier had one Co., L.P.A., McCarthy Heller & Mr. An- single drink; sip of a 'Tome and White drew P. Krembs and Mr. Richard S. drinks, Tome be- each had several Alkire, appellants. came intoxicated. Tome described himsélf Troia, Messrs. Petro & Mr. Robert C. being “pretty drunk.” White said McClelland, Largent Messrs. Kehn & slurred, speech but loud and Jeffrey Largent, Mr. W. appellee. According not stumbling. that he was Busier, for a obviously Tome was drunk any “MR. KREMBS: Or time?
good the time in the portion of that he was any “MR. PETRO: At time? that he bar. Busier said had Tome’s “THE WITNESS: No. keys, got and that as Tome he drunk “BY MR. PETRO: created a disturbance because he could So, occasion, “Q. prior you to this bar, keys. Upon not leaving find his or you either drink would would beer — drive; they argued about who would drink Busier and wanted to drive Busier talking “A. You are beer and sober, because he was but insisted No, I did. I Maybe shot at once? never finally gave his own car. Busier whiskey drink a little and drink a would keys, Tome the them Tome drove beer, beer, shot and a little but not like a toward home. no.” Neither Tome nor remem- Busier propose Appellants Tome and White bered how the accident had occurred. arguments support their con- several White testified that Tome started weav- granting tention that the court erred *3 ing the and drove pole into a the summary judgment to Berea left-hand side road. It clear Mug, arguments, These Pewter Inc. day, were and there no obstacles in the from gleaned assignments their of error road which could have caused Tome to appeal,1 set in their are as forth brief n swerve. follows: Both White and Tome had some comparative neg- The “I. doctrine of familiarity with alcohol. had twice ligence applied should this case. be been of disorderly convicted trial erred in “II. The court intoxicated, while and had convic- two either that Tome and White had assumed tions for while under the influence guilty contributory the or were of risk of gave alcohol. Tome following the negligence. testimony about his drinking habits at contributory The of “III. defense pages deposition: 34-35 of his defendants, is to not available “Q. you bit, say party When a little guilty because defendants were of willful you did frequently? drink and wanton misconduct because Objection. “MR. KREMBS: negligently violated statute defendants “THE WITNESS: Just once designed persons the class of while. belonged.” which Tome and White “BY MR. PETRO: propositions sepa- Each of these “Q. you What did you drink when rately discussed below. beverage? drank? What “A. Beer. Comparative Negligence I. “Q. you Did ever liquor? drink Appellants contend that doctrine “A. Maybe little whiskey. applicable comparative negligence of “Q. you Did ever drink case, First, shots for two they this reasons. together beer prior to this day? 20, state that R.C. 2315.192 effective June 1 appellants’ assign Appendix persons, See one or more other person bringing ments of error. the action greater was no than the combined provides part: R.C. 2315.19 relevant recovery of all other from whom actions, “(A)(1) the con- In sought. However, any recoverable person tributory negligence of a not bar bringing action shall be legal representative from pr proportionate- diminished amount that directly recovering percentage negligence, ly equal to his of negligence of proximately resulted retroactively applied to 1980, and the were plaintiff should its effective prior arose of causes which willful and wanton misconduct Second, a matter law. We further concluded of date. comparative negli adopted a appeals plaintiff misconduct of the of cases Kemock v. greater, like denied 62 Ohio gence recovery. standard App. 2d 103 2d, 62 Ohio of Mark II at 119-120. The defense the risk was not considered O.O.3d rights affecting substantive opinion. in that Statutes in effect prospective case at Since the cause action presumptively 20,1980, In v. law. R.C. 1.48. Balcerzak the com- prior Ohio bar arose to June under 1981), No. (July mon law Page doctrine found R.C. this court unreported, fully applicable. “duties, affects the substantive 2315.19 Negligence II. Plaintiffs’ Contributory parties obligations” of the rights Assumption of Risk [1979], Hospital (Denicola v. Providence 290]), O.O.3d St. 2d Contributory negligence assump 57 Ohio given not be it therefore and that tion- of were the risk defined and application. Accordingly, distinguished retroactive the Ohio law doctrine common applicability Popczun (1973), DeAmiches to the facts of contributory negligence page St. 2d O.O.2d 186 in 180 [64 by the subse was not affected opinion: this case 2315.19. enactment of “As quent this writer views the difference in Kemock The terms, decision This court’s ‘assumption between the two II, abrogate the rule supra, did not Mark the risk’ upon is based Kemock, contributory negligence. plaintiff sent of risk and meet the alleged that defen- chances, decedent plaintiffs ‘contributory take her while had the decedent negligence’ tavern sold dant is founded the failure after he had become intoxicated. plaintiff exercise the care *4 had a automobile accident fatal protection. decedent reasonable man for his own This leaving the tavern. court after Obviously, that situations are entry summary trial court’s upheld that, although satisfy meanings, so in favor of in- overlap they neither acknowledged specifically It it tavern. clusive To former nor exclusive. principle that logical would be to apply subjective bar applicable, would standard, test or while the doctrine latter shown that the recovery even it were usually objective tested method.” serving negligent tavern was The as Supreme Court has defined “* * * become after he had intox- as, the decedent sumption of the risk consent * ** 2d, 109-110, App. 62 Ohio acquiescence icated. an appreciated * * * defense, a is not Contributory negligence known (1967), risk.” Wever v. Hicks however, is accused where the defendant 230, 11 Ohio St. 2d 234 O.O.2d [40 203]. and wanton misconduct. Keller of willful in Supreme Court has also Ohio (1964), 176 Ohio v. J. S. Co. dicated it proper man that for a trial court 241], paragraph three O.O.2d St. 320 resolve the issue of of the risk [27 syllabus. a summary judgment. on motion for Ben In Kemock this found jamin (1981), v. Rentals 66 Ohio St. Deffet a that justify sufficient to syllabus. evidence 2d 86 O.O.3d pursuant percentage is determined to division 4113.03 in section to actions described apply (B) this section. This does not section Revised Code.” 102 a highway evidence before trial court by one intox-
unequivocally
responds
demonstrates
that Tome
fully
icated
to all the elements
and White
the known risk”
necessary
gross
“consented to
to constitute
negligence,
driving.
of Tome
Tome insisted on driv-
a
and the
of car
one in
con-
ing;
him,
though
with
he
an
betrays
rode
dition
of any
absence
care and
negli-
knew Tome was drunk. Tome’s
indicates such recklessness and wanton-
gence in driving while
con-
as
an
disregard
drunk also
ness
evinces
utter
injuries.
tributed to
sequences.
Lanferman,
his
Tomasik v.
Appellants
94,
their Wis.
Though age Tome was under every means that care which man prudent consumption lawful (R.C. would exercise under similar circum- 4301.22[A], 4301.63), he was no longer taking a stances. In pru- the conduct of a “minor” (See under Ohio law. standard, dent man as a reference is made 3109.01, eighteen years which sets man; is, as the to the normal sober man. age of majority.) The evidence discloses Ordinary care is not measured what that this man young had imbibed whiskey every prudent drunken man would do before, and beer and was therefore circumstances, like every under but what presumably aware Despite of its effects. prudent sober man do like would under intoxication, his state of the requests If circumstances. care cer- ordinary under friends, appellant of his Tome insisted on tain circumstances require would a cer- driving; justification without excuse or he thing tain to be done or omitted to be lost done, control of his car and caused an acci- the requirement binding on a man, dent. Even if this evidence is construed whether sober or drunk. Powell v. Tome, most strongly Berry, 696, behalf of 753, 145 Ga. S.E. cited reasonable person reach Owens, could no Ry. other Cleveland Co. v. supra.” conclusion than that negligent Yancey Zalewki injuries. 501, contributed to his 504-505 O.O.2d Neither person fact for Lucas Appeals The Court of Coun- incapable intoxicated render him of know- ty has the issue of whether addressed ingly exposing himself to danger. respon- from toxication relieves Sandberg Hoogensen (1978), 201 Neb. sibility negligent acts. The 266 N.W.2d 5 A.L.R. 4th is not a defense: stated that intoxication Court of Nebraska noted “Ordinarily, voluntary well as is more likely is no defense intoxication to “assume risk” person: than sober proceeding, intoxication criminal *5 “The result of the the blood test of action. If negligence intox- no defense passenger prove relevant was his intox- defense crime ication is not a and ication. Intoxication would diminish his it should ordinary negligence, not excuse appreciation danger of and him render consequences not relieve one — likely more greater to take than risks wrong greater negligence than mere usual.” Id. at 4th A.L.R. at 1190. or wanton misconduct heedless willful of disregard safety of the or reckless Moreover, in a decision of the Court premium a puts To otherwise Appeals others. hold of for Hamilton County an intox- the aptly by drunkenness. As stated patron icated aof bar was found to have Wisconsin, of the Supreme Court assumed the risk and to have been con- contributory negligence inapplicable is tributarily negligent voluntarily when he the case at bar. walked an uneven floor with across knowledge of its defective condition. Negligence A. Defendant’s Per Se Palmer Holthaus Defendant three provisions violated 78, 82 2d O.OP.2d Liquor (R.C. Law Chapter of the Control of Appellant Tome the risk assumed 4301) when it Tome on served insisting driving, on over the injury by 22,1978. September by It violated law protests companions. Appellant of his man, serving liquor twenty-year ato old White, with con- repeated arrests and serving liquor by person, to an intoxicated disorderly (intoxica- victions for giving a of li- away and shot beer or DWI, was tion) and cannot claim that he (B), quor. 4301.22(A), (E). being of of ignorant passenger the risk a case, In the contributory negli usual in an driven automobile gence may be invoked even where person. is found to committed opinion It is the considered of “negligence per se.” In Patton Penn a voluntarily court that who is sylvania (1939), 136 Rd. Co. Ohio St. 159 held toxicated must be to the same stan- O.O. the defendant railroad had person, dard of as a sober care its of operated train excess the lawful contributorily negligent. be found This limit, speed but Court never that a who court further holds theless found inter that it entitled to knowingly exposes danger himself to is plaintiff’s a pose as defense the con- subject the affirmative defense ' tributary negligence: risk, though of the “It must be conceded that since person’s capacity appreciate the risk is traveling train was a rate speed diminished because of intoxica- hour, excess of 25 the maximum per miles tion. ordinance, permitted rate case, Under facts of this the trial ordinance, a speed was violation of the court did not err as a matter of Bucyrus, force in the such city of contributorily law that negligence per violation constituted se negligent, both Tome and White part company. of the When had assumed the risk of injury. positive, specific duty and affirmative Negligence III. Defendant’s Per Se and ordinance, enjoined by or statute Willful and Wanton Misconduct se, negligence or per violation thereof is Appellants negligence as a law. correctly note in their matter of Under circumstances, appeal neg- brief on whether the contributory ligence negligence is no when violator is is not de- guilty defense the defendant to have willful and batable. When the violation conceded committed charge, wanton established the court must misconduct. Kellerman v. J. S. Co., law, addition, matter of violator supra. that the some * * * if the “negligence per cases of se” finds that (negligence proximate the violation was the cause of consists violation of statute), injury is made out contributory negligence is not case defense; recognized defendant. as a “However, fact that defen- may not be where the invoked chargeable purpose protect dant is se of the statute is to a class law, preclude as a matter does not who unable to on the themselves. defense of Restatement Torts 2d part plaintiff, Section c. Appellants Comment reasons, plaintiff established tend that for these the defense *6 a proximate person, shown to be cause of the in- vised Code to right has a name, in complains, joint- of which he action his own severally he cannot or * * *” (cita- ly, any person selling recover. St. at giving omitted). toxicating liquors tions cause such intox- ication, part, Section 483 of the in whole or in per- Restatement of such guideline Torts 2d offers a for son.” R.C. 4399.01. determin- ing whether It is certainly arguable leg- the defense of that the islature intended make party charged tavernkeepers is available to a per provides: proximately se. It liable for caused plaintiff’s contributory negli- serving liquor persons
“The on the gence recovery Depart- bars his for the “blacklist” maintained Control, Liquor of the ment of consisting regardless of the viola- of the statute, tion of a fault of the plaintiff. appear unless the effect of the It does not place statute is to responsibility legislature entire intended this result for such harm as has liquor every occurred for sale of per- intoxicated defendant.” Id. son. persuaded We are not that the state B. Defendant’s Willful and Wanton intended, through of Ohio enactment of Misconduct Law, R.C. 4301.22 of the Liquor Control Though the defendant’s place upon tavernkeepers “the entire willful and wanton may misconduct responsibility for such harm as has oc- deprive it defense of all, curred.” After Tome was negligence (see Kellerman v. J. S. se; also it is Co., supra), such behavior does not unlawful persons age under the preclude assumption the defense of of the twenty-one order, purchase or consume Hicks, supra. risk. Wever v. liquor. 4301.63, R.C. 4301.632. It is also held, Court in paragraph the first unlawful for persons intoxicated to drive. Wever, syllabus opinion of its court, R.C. 4511.19. This in Kemock v. follows: II, supra, The Mark expressly held that a “The defense of of the tavernkeeper accused of risk is available to a defendant where a serving patron may assert as a defense plaintiff consents to or acquiesces patron’s contributory negligence. We appreciated, known or obvious risk to the decline to overrule that decision. safety plaintiff, even where wilful There statute which appears wanton misconduct on the designed specific and narrow- proved.” ly defined class of from the ef- Thus, assuming that the conduct fects of alcohol. This statute commonly of the defendant-tavernkeeper is con- Act,” known as the “Dram Shop wanton, strued as willful and as was Chapter provision 4399. The core of this II, found in supra, Kemock v. The Mark statute states: defendant is not liable husband, wife, “A child, parent, the case at bar because as a matter of law guardian, employer, or other both Tome and White assumed the risk of
jured person, property, or means of injury when drove away an intox- support by an person, inor icated state. intoxication, consequence of the habitual Accordingly, the decision of the trial otherwise, a person, after the is- court is affirmed. during suance and the existence of the department order of the liquor control Judgment affirmed. prohibiting intoxicating the sale of Nahra, J., concurs. as defined section 4301.01 of the Re- Markus, P.J., in judgment concurs
only.
Appendix
Appellants’ assignments of error are
as follows:
“Assignment of Error No. One granting ap-
“The trial court erred in
pellee’s summary judgment motion for a genuine
since there is issue of material respect with appellant
fact Michael alleged contributory negligence.
Tome’s
“Assignment of Error No. Two granting ap-
“The trial court erred in
pellee’s summary judgment motion for negligent
since even if MichaelTome was se, this defense insufficient to bar
appellants’ claim as matter of law.
“Assignment Error No. Three granting ap-
“The trial court erred in
pellee’s summary judgment motion for genuine
since there is issue of material respect
fact with Michael alleged the risk.
“Assignment of Error No. Four granting ap-
“The trial court erred in
pellee’s summary judgment motion for genuine
since issue material respect appellant Phillip
fact D. assumption of
White’s the risk.
“Assignment of Error No. Five granting ap-
“The trial court erred in
pellee’s summary judgment motion for (No. 3, 1982.) appellants justiciable August
since 81AP-759 Decided raised cognizable claim for relief. “Assignment of Error Six No. granting ap-
“The trial court erred in pellee’s summary judgment motion for Penn, Mr. Richard W. appellee genuine since there are numerous issues Smith. of material fact and is not en- White, Knepper, Messrs. Arter & titled as matter of law.” Hadden and Mr. Readey, James A. ap-
pellant Acceleration Life Ins. Co. Porter, Messrs. Wright, Morris &Ar- thur and Mr. Trajford, Robert W. for ap- Smith, Exrx., Appellee, pellee Ford Motor Credit Co. Acceleration Co., Life Insurance Appellant; Co., Ford Motor Credit Norris, J. Acceleration Life In- Appellee. Company surance appeals from order
of the Court of CommonPleas of Franklin County granting judgment it,