707 N.E.2d 1201 | Ohio Ct. App. | 1997
Lead Opinion
This is an appeal by plaintiff, Bruce Walker III, from a summary judgment rendered by the Franklin County Court of Common Pleas in favor of defendants, Capri Enterprises, Inc., and Virginia A. Palermo.
Defendant Capri Enterprises, Inc.; operates Capri Lanes, a bowling alley located at 5860 Roche Drive, Columbus. Virginia A. Palermo, at all times relevant to the facts of this case, worked as a bartender at Capri Lanes under the employment of Capri Enterprises, Inc.
Bruce Walker, Jr., died in the early morning hours of January 16, 1994; decedent was a patron at the Capri Lanes at the time of his death. The coroner's report listed the immediate cause of death as "acute ethanol intoxication."
On November 27, 1996, plaintiff, as the administrator of decedents estate, brought a wrongful death action against defendants. Plaintiffs complaint alleged that defendants had served alcohol to decedent while he was already intoxicated and subsequent to a 2:30 a.m deadline for serving alcohol, in violation of the establishments liquor permit. It alleged that defendants actions in serving alcohol to decedent proximately caused his death and set forth causes of action for negligence, reckless, willful, wanton and/or intentional misconduct,respondeat superior, and negligent hiring.
On January 22, 1997, defendants filed a motion for summary judgment. In the accompanying memorandum, defendants argued that Ohio case law as well as public policy precluded a claim against a liquor permit holder. Defendants also argued that the claim against defendant Virginia Palermo was barred by the twoyear statute of limitations under R.C.
On February 10, 1997, plaintiff filed a memorandum in opposition to defendants motion for summary judgment. Attached to the memorandum was the affidavit of Alfred E. Staubus, Ph.D. Defendants filed a reply memorandum on March 3, 1997. *156
By entry filed April 10, 1997, the trial court rendered a decision granting defendants motion for summary judgment. The trial court, in granting summary judgment as to defendant Capri Enterprises, Inc., relied on the Ohio Supreme Court's decision inSmith v. 10th Inning, Inc. (1990),
On appeal, plaintiff sets forth the following single assignment of error for review:
"The Franklin County Court of Common Pleas erred in granting summary judgment to defendant Capri Enterprises, Inc. because its decision was based solely upon an unprecedented, overbroad and inaccurate interpretation of the Ohio Supreme Court's decision inSmith v. The 10th Inning, Inc. (1990),
Under his single assignment of error, plaintiff contends that the trial court erred in holding that public-policy considerations preclude recovery by an intoxicated patron or the administrator of the patrons estate in an action against a liquor permit holder, More specifically, plaintiff argues that the trial court erred in its application and reliance on the Ohio Supreme Court's decision in Smith, supra, and therefore improperly granted summary judgment in favor of defendant Capri Enterprises, Inc. (hereinafter "defendant").1
In Temple v. Wean United, Inc. (1977),
"Civ. R. 56 (C) specifically provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party."
In Smith, supra,
Plaintiff asserts that the facts of the instant case are distinguishable from Smith. First, plaintiff contends that the tortious activity alleged in Smith was simply that defendant served plaintiff alcohol after he was already intoxicated, while in the instant case plaintiffs theory of liability is predicated upon the additional claim that defendant served the decedent after the hours of 2:30 a.m., in violation of state law and contrary to the deadline prescribed in defendants liquor permit. Thus, plaintiff argues, under the facts of Smith, the issue of serving alcohol to an intoxicated person necessarily implicated a subjective evaluation by a bartender to determine whether a patron had consumed too much alcohol. Plaintiff contends that the duty of a liquor establishment not to serve alcohol to patrons after the mandatory closing time, is distinguishable because it involves no such subjective evaluation.
Plaintiff also contends that Smith is distinguishable because the injury sustained by the intoxicated patron in that case occurred off the premises of the permit holder as opposed to the facts of the instant case, where decedent was found dead at defendants establishment. Furthermore, plaintiff argues, the cause of action in Smith involved a claim of negligence per se,
whereas in the instant case plaintiff seeks recovery for causes of action recognized under common law. We note that, although not cited in plaintiffs initial brief before this court, plaintiff's reply brief states that "[l]iability is based upon R.C.
Subsequent to the Ohio Supreme Court's holding in Smith, a number of appellate courts have reviewed actions brought by patrons or their representatives for injuries received by those patrons after consuming intoxicating liquors at a liquor establishment. Our review of Ohio case law fails to reveal any case subsequent to Smith (nor has plaintiff cited such a case) in which a court has determined that a cause of action exists on behalf of an adult intoxicated patron or his or her estate against a permit holder, regardless of whether the theory of *158
recovery was under common-law negligence or pursuant to a statute such as R.C.
Thus, in Fifer v. Buffalo Cafe (1991),
In Gillum v. Fairgreens Country Club (1996),
On appeal, plaintiff asserted that she had a common-law negligence action against defendant based upon defendants alleged violation of R.C.
Regarding the claim that defendant engaged in the sale of liquor without a permit, in violation of statute, the court noted that the purpose of R.C.
The court in Gillum next addressed plaintiffs argument that the holding in Smith barred an intoxicated patrons cause of action only when the injury was proximately caused by the patrons own intoxication. The court rejected this argument, holding:
"Appellant asserts that because the patrons own intoxication may not always be solely responsible for the injury, this leaves open the possibility of more than one proximate cause. Appellant argues that because this possibility exists, the causation issue should be submitted to the jury, which should then determine which actors should bear responsibility and allocate the appropriate portion of fault to each.
"In addressing appellants argument, we acknowledge that under Ohio's comparative negligence system, such an allocation of fault by the jury may seem logical. See Hicks v. Consol. Rail Corp.
(1993),
"`Some might suggest that this court permit a cause of action by the intoxicated patron and allow the court or jury to determine the comparative negligence of the permit holder and the intoxicated patron. While this alternative seems attractive, we decline such a course * * *.' Id.,
Monateri v. Polito, Zebark, Inc. (Dec. 18, 1992), Lake App. No. 92-L-088, unreported, 1992 WL 387363, involved a case in which the plaintiff, a paraplegic, bad patronized defendants bar for approximately four and one half hours; she was later discovered slumped in her wheelchair, unconscious, in the parking lot of the bar. In that case, the court discussed the relationship between R.C.
Accordingly, the holdings in these cases indicate that appellate courts have not limited the holding in Smith solely to actions brought asserting negligence per se under R.C.
As noted above, plaintiff contends that the instant case is distinguishable from other Ohio cases because it involves a violation of a statute prohibiting the sale of liquor after hours. Regarding the issue of when a statutory violation may give rise to a civil action, one commentator has noted the following:
"It is not every provision of a criminal statute or ordinance which will be adopted by the court, in a civil action for negligence, as the standard of conduct of a reasonable person. Otherwise stated, there are statutes which are considered to create no duty of conduct toward the plaintiff, and to afford no basis for the creation of such a duty by the court. The courts in such cases have been careful not to exceed the purpose which they attribute to the legislature. * * *
"* * *
"In many cases the evident policy of the legislature is to protect only a limited class of individuals. If so, the plaintiff must bring himself within that class in order to maintain an action based on the statute. * * *
"The purpose of the legislation is of course a matter of interpretation of its terms, in the light of the evil to be remedied. * * *
"The same limitation of the effect of the statute to accomplish only the supposed policy of the legislature is found in the overlapping requirement that the harm suffered must be of the kind which the statute was intended, in general, to prevent." Prosser Keeton on Torts (5 Ed. 1984) 222, 224-225, Section 36.
At issue in the instant case is the purpose of Ohio's statutory provisions prohibiting the sale of intoxicating liquors after certain hours. This issue was addressed by the court in Lajoie v.Maumee River Yacht Club (Feb. 2, 1990), Lucas App. No. L-89-014, unreported, 1990 WL 7976, in which, a plaintiff alleged that the defendant establishment was negligent in serving alcoholic beverages beyond authorized hours. Under the facts of that case, the plaintiffs husband, after consuming alcohol at a yacht club in the early morning hours, lost his balance while walking along a dock, fell in the water, and drowned. Plaintiff alleged that the defendant had been negligent in serving alcoholic beverages *161
either beyond the time authorized under its liquor permit or after 2:30 a.m. on a Sunday, in violation of R.C.
The court in Lajoie, relying in part on provisions of the treatise cited above, rejected plaintiffs argument, holding:
"It is well-settled law in Ohio that for violation of a statute to constitute negligence per se the injured person must be a part of the class the statute was designed to protect. See Marshv. Koons (1908),
We agree with the court in Lajoie that a statute prohibiting the sale of liquor after a certain hour is intended to protect the public at large rather than afford protection to a particular class of individuals, i.e., intoxicated patrons. Thus, we find unpersuasive plaintiffs argument that a violation of the statute at issue would give rise to a cause of action on behalf of an intoxicated person or his estate.
As previously noted, in his reply brief, plaintiff cites R.C.
"Notwithstanding division (A) of section
We note that at least two appellate courts have construed the language of R.C.
As noted by the court in Gillum, while it is possible that "the patrons own intoxication may not always be solely responsible for the injury," leaving open the possibility of "more than one proximate cause," the Ohio Supreme Court in Smith considered this issue in light of Ohio's comparative negligence system and "rejected the idea on the same public policy grounds that decided the outcome of the entire case." Gillum, supra,
"Some might suggest that this court permit a cause of action by the intoxicated patron and allow the court or jury to determine the comparative negligence of the permit holder and the intoxicated patron. While this alternative seems attractive, we decline such a course for several reasons. Basically, comparing the negligence of the parties in this context presents a classic `chicken or egg' question: Is the permit holder who admittedly has experience in knowing the predilections and capacities of his or her customers more negligent or blameworthy than the intoxicated patron who is clever enough to mask his or her own intoxication in order to be served another drink[?] In any event, we find that one of the strongest reasons compelling rejection of such a cause of action by the intoxicated patron against the permit holder is one grounded firmly in commonsense public policy; namely, that an adult who is permitted to drink alcohol must be the one who is primarily responsible for his or her own behavior and resulting voluntary actions. Clearly, permitting the intoxicated patron a cause of action in this context would simply send the wrong message to all our citizens, because such a message would essentially state that a patron who has purchased alcoholic beverages from a permit holder may drink such alcohol with unbridled, unfettered impunity and with full knowledge that the permit holder will be ultimately responsible for any harm caused by the patrons intoxication. In our opinion, such a message should never be countenanced by this court."Id.,
As previously discussed, plaintiff has failed to cite any authority subsequent to Smith in which an adult intoxicated patron has recovered from a permit holder for injuries sustained for injuries resulting from the patrons own intoxication. Rather, courts have consistently held, based upon the policy considerations expressed in Smith, that a cause of action does not exist under such circumstances even though the theories of recovery have differed from the Smith case. In the present case, we agree with the trial courts determination that the holding inSmith was based upon broad public-policy considerations that are not limited *163
solely to actions brought pursuant to R.C.
Based upon the foregoing, plaintiffs single assignment of error is overruled, and the judgment of the trial court is hereby affirmed.
Judgment affirmed.
PEGGY BRYANT, J., concurs.
TYACK, P.J., dissents.
Dissenting Opinion
I respectfully dissent.
The facts before us indicate that Bruce Walker, Jr., was an alcoholic. He was known to be an alcoholic by employees of Capri Enterprises, Inc., especially Virginia Palermo. On the night Walker died, Palermo apparently gave him a bottle of Wild Turkey and allowed him to finish drinking himself to death. Her only precaution was to take his car keys away from him, so he would not attempt to drive in his drunken state.
Walker drank until he passed out. Nobody apparently took much notice, leading me to believe that employees of Capri Enterprises, Inc., had seen Walker consume incredible amounts of alcohol before. He passed out long after the bar and bowling alley were supposed to have closed. He passed out long after the employees had to have known he was intoxicated. He passed out when only a handful of people were still present. Therefore, we are not addressing a situation where liability should be considered for a liquor license holder who had some excuse for not knowing that it was endangering a patron.
The autopsy performed upon Bruce Walker, Jr., indicated that at the time he died, he had a blood-alcohol level of .39 grams percent. Given Walker's weight of two hundred fifty-two pounds, I conclude that he probably had consumed in excess of thirty drinks during the hours before his death. If the testimony of *164 family members who saw him at 1:45 a.m. is to be believed, many of those drinks had to have been consumed after the bar was supposedly closed.
This case does not present a situation where a person who drank too much is attempting to reap some sort of financial reward. The person who drank too much is dead. instead, this case involves the question of whether or not the heirs of Bruce Walker, Jr., have some financial claim against the bar which recklessly provided him the means to kill himself.
I personally believe that Smith v. 10th Inning, Inc. (1990),
Human nature being what it is, there will always be some bar owners who are more concerned about making a profit than about looking out for the welfare of patrons-not to mention the welfare of innocent motorists or family members of alcoholics. There is much more profit to be made from serving an alcoholic dozens of drinks than there is to be made from honoring the letter and spirit of the law about when to stop serving alcohol. Some of this profit should go to the heirs of the Bruce Walker, Jrs. of Ohio and to increased premium rates for the insurance companies of Ohio once the fact is known that part of the financial risk from misconduct such as is presented here must be borne by those permit holders who flagrantly ignore their legal responsibilities.
Needless to say, I would not affirm the summary judgment rendered by the trial court. Since a majority of this court does, I respectfully dissent. *165