Great Cent. Ins. Co. v. Tobias, 87-912

Decision Date08 June 1988
Docket NumberNo. 87-912,87-912
Citation524 N.E.2d 168,37 Ohio St.3d 127
PartiesGREAT CENTRAL INSURANCE COMPANY, Appellee, v. TOBIAS, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

The duty imposed on commercial providers of intoxicating beverages to exercise reasonable care to protect members of the public from physical injury while they are in the commercial provider's place of business does not extend vicariously to patrons who purchase alcohol from the commercial provider for a fellow patron. (R.C. 4301.22[B]; Mason v. Roberts [1973], 33 Ohio St.2d 29, 62 O.O.2d 346, 294 N.E.2d 884; and Settlemyer v. Wilmington Veterans Post No. 49 [1984], 11 Ohio St.3d 123, 11 OBR 421, 464 N.E.2d 521, construed and followed.)

On April 1, 1982, Steven M. Wagner and others, including the appellant, Kenneth E. Tobias, were patrons at the Rainbow Bowling Lanes on South High Street in Columbus. Appellant offered to pay Wagner one hundred dollars if he could drink ten shots of whiskey in rapid succession, after Wagner requested the opportunity for doing so. Appellant purchased ten shots of whiskey from Rainbow Lanes, one at a time, for Wagner to consume. Wagner consumed the ten shots of whiskey in rapid succession and was paid one hundred dollars.

Shortly after consuming the whiskey, Wagner drove his car away from Rainbow Lanes, and approximately two miles further on, drove the car into the side of a string of railroad cars crossing Williams Road at an approximate right angle. He was under the influence of alcohol at the time. Wagner was killed instantly.

Wagner's widow brought a wrongful death action on behalf of herself and her children against Rainbow Lanes. Rainbow Lanes' insurer, appellee Great Central Insurance Company, paid $50,000 to Mrs. Wagner for her individual claim, purchased annuities in the amount of $15,525 for the children, and paid attorney fees of $5,044.95 to settle the wrongful death claims. A full release, which included a release of appellant from all liability, was obtained for this consideration.

Great Central Insurance Company filed the instant action on December 30, 1983, seeking contribution from appellant as a joint tortfeasor, pursuant to R.C. 2307.31 and 2307.32. Appellant moved for summary judgment, and the parties submitted briefs on the motion. On August 7, 1986, the trial court entered summary judgment for appellant, finding "no cases in Ohio creating a cause of action under the present facts."

The court of appeals reversed, holding that a tavern patron who gives substantial encouragement to a tavern keeper to serve liquor to an intoxicated person in violation of R.C. 4301.22(B), knowing such service is tortious, may be jointly liable with the seller for the foreseeable consequences of the violation.

The cause is now before this court upon the allowance of a motion to certify the record.

Siemer & Boynton, Walter J. Siemer and Robert M. Greggo, Columbus, for appellee.

Jerry Weiner and Andrea R. Yagoda, Columbus, for appellant.

HOLMES, Justice.

The issue before us is whether the facts presented below were sufficient to state a cause of action under the existing law of this state. Because we find the court of appeals inappropriately expanded our decisions in Mason v. Roberts (1973), 33 Ohio St.2d 29, 62 O.O.2d 346, 294 N.E.2d 884, and Settlemyer v. Wilmington Veterans Post No. 49 (1984), 11 Ohio St.3d 123, 11 OBR 421, 464 N.E.2d 521, not only as to the standard of care of the innkeeper in these types of cases, but also by extending liability to one who purchases liquor in a tavern for a fellow patron, we must reverse the decision of that court and reinstate the summary judgment issued by the trial court.

Initially, we are in agreement with the court of appeals' conclusion that no liability existed here by virtue of R.C. 4399.01, which provides:

"A husband, wife, child, parent, guardian, employer, or other person injured in person, property, or means of support by an intoxicated person, or in consequence of the intoxication, habitual or otherwise, of a person, after the issuance and during the existence of the order of the department of liquor control prohibiting the sale of intoxicating liquor as defined in section 4301.01 of the Revised Code to such person, has a right of action in his own name, severally or jointly, against any person selling or giving intoxicating liquors which cause such intoxication, in whole or in part, of such person." (Emphasis added.)

The strict liability imposed by this section is broad, and arguably would apply to one who purchases alcohol and gives it to an intoxicated person, provided the name of such person appears on the order, or "blacklist," issued by the Department of Liquor Control. As the decedent Wagner was not on such a blacklist, R.C. 4399.01 cannot apply.

Neither may the appellant-customer be held liable as a matter of common-law negligence. In Mason v. Roberts, supra, this court held, at paragraph two of the syllabus, that:

"The proprietor of a business establishment wherein alcoholic beverages are dispensed for consumption upon the premises owes a duty to members of the public while they are in his place of business to exercise reasonable care to protect them from physical injury as a result of violent acts of third persons."

This duty arises from R.C. 4301.22, which provides, in pertinent part:

"Sales of beer and intoxicating liquor under all classes of permits and from state liquor stores are subject to the following restrictions, in addition to those imposed by the rules or orders of the department of liquor control:

" * * *

"(B) No sales shall be made to an intoxicated person."

In Settlemyer v. Wilmington Veterans Post, supra, we reaffirmed the law as pronounced in Mason, to the effect that R.C. 4399.01 did not provide the exclusive remedy against commercial providers of intoxicating beverages for injuries a patron suffered because of the sale of such beverages to another patron. However, we did not in that case discuss the advisability of extending the duty of the provider to the general public. Based upon the specific issue presented in the present case, we need not address the policy of broadening such common-law right of action here.

R.C. 4301.22(B) proscribes the sale of liquor to an intoxicated person. Such section could well apply to a commercial provider of alcohol where the "sale" is made to one patron with knowledge that the drink in fact was for another patron who was intoxicated. But that is not the issue before us. The facts here only involve knowledge of liquor sales by Rainbow Lanes to appellant, who was not intoxicated. 1 Also, the decedent obviously was not injured as a result of the violent acts of third persons; nor was he injured while in Rainbow Lanes. Under such circumstances, Rainbow Lanes breached no duty arising from R.C. 4301.22 or our decision in Mason. Moreover, appellant was not subject to R.C. 4301.22 since he was a social provider. R.C. 4301.22, unlike R.C. 4399.01, does not expressly extend liability to "any person * * *giving intoxicating liquors" to another. Specifically, Settlemyer stood only for the proposition that a social provider of liquor, such as appellant, cannot be liable to third persons subsequently injured by the intoxicated person. We today hold that the tavern keeper's duty, imposed by R.C. 4301.22(B), may not be enlarged and extended vicariously, through a "conduit" who, like appellant, purchases alcohol from the tavern keeper and gives it to a fellow patron.

"At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the [voluntary] consumption of it by the purchaser or donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it." Nolan v. Morelli (1967), 154 Conn. 432, 436-437, 226 A.2d 383, 386, quoted in Slicer v. Quigley (1980), 180 Conn. 252, 255-256, 429 A.2d 855, 857. 2 See, also, D'Amico v. Christie (1987), 71 N.Y.2d 76, 524 N.Y.Supp.2d 1; Mason, supra, at 33, 62 O.O.2d at 348, 294 N.E.2d at 887; Settlemyer, supra; and Guardianship of Newcomb v. Bowling Green (1987), 36 Ohio App.3d 235, 523 N.E.2d 354. Where, as here, the injured party is the intoxicated person himself, it is the voluntary drinking, and not merely furnishing liquor, which is the proximate cause. Cf. Vesely v. Sager (1971), 5 Cal.3d 153, 157, 95 Cal.Rptr. 623, 625, 486 P.2d 151, 155. Accordingly, it was pointed out in Mason and in Settlemyer that the common law historically provided no remedial basis for third persons injured by intoxicated individuals for recovery from the provider of alcoholic beverages. It was also noted in Mason that courts in other jurisdictions have abandoned this legal principle in view of public policy requirements. We recognize the appropriateness of such a review of public policy in light of compiled statistics relating to vehicular accidents and injuries occasioned by the consumption of alcohol, see, e.g., State, ex rel. Mothers Against Drunk Drivers, v. Gosser (1985), 20 Ohio St.3d 30, 20 OBR 279, 485 N.E.2d 706, but conclude that any substantive amendments to our state's laws in this regard are more appropriately within the legislative arena than within the province of this court's review.

Our decision in Mason identified the only two exceptions to this common-law proximate cause rule: (1) "where the allegations, supported by the evidence, are such that, to the seller's knowledge, the purchaser's will to refrain is so impaired that it is not possible for him to refrain from drinking the...

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