Kemock v. Mark II

• Decision Date: 27 July 1978
• Citation: 62 Ohio App.2d 103,16 O.O.3d 254,404 N.E.2d 766
• Parties: , 16 O.O.3d 254 KEMOCK, Admr., Appellant, v. The MARK II, Appellee. *
• Court: Ohio Court of Appeals

Page 103

62 Ohio App.2d 103

404 N.E.2d 766, 16 O.O.3d 254

KEMOCK, Admr., Appellant, v. The MARK II, Appellee. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

July 27, 1978.

Syllabus by the Court

Where a business establishment sells alcoholic beverages to one it knows or has reason to believe is intoxicated, and that person is killed as a proximate result of his intoxication, such establishment is liable in damages to the estate of the decedent, unless the deceased exhibited an absence of care on his own behalf which was equal to or greater than that of the defendant.

Don C. Iler, Cleveland, for appellant.

Charles M. Kampinski, Cleveland, for appellee.

PATTON, Judge.

This appeal is before the court from a ruling of the court below directing a verdict in favor of the defendant-appellee, The Mark II, in a wrongful death action.

The complaint alleged that the plaintiff-appellant is the duly appointed administrator of the estate of the decedent, Timothy C. Woernley, who died on May 8, 1974. The appellee corporation is alleged to have been at all times relevant hereto a restaurant wherein intoxicating liquors are sold to the public. The gravamen of appellant's complaint is as follows:

"3. On the 8th day of May, 1974, the decedent, Timothy Woernley, entered said defendant's restaurant and defendant's agents, servants and employees unlawfully sold and gave intoxicating liquors in large amounts to Timothy Woernley which he consumed and as a result, became highly intoxicated and his judgment became impaired therefrom.

"4. Defendant's agents, servants and employees sold said Timothy Woernley intoxicating liquor and continued to sell intoxicating liquors to him with full knowledge and notice that he was intoxicated, and/or becoming intoxicated, and continued to sell intoxicating liquors to him after defendant knew, or in the exercise of ordinary care, should have known, he was intoxicated and a danger to himself and/or others. * * *

"7. As a result of the aforesaid negligent acts by the defendant, Timothy Woernley after consumming (sic) said intoxicating liquor which resulted in his loss of judgment and regard for his own safety and health, drove his automobile at a high rate of speed and without due care for his safety and thereby collided with a tree thereby causing him bodily injuries resulting in his death."

The action was brought on behalf of the decedent's five children, all minors. At the time of decedent's death, he was divorced from his ex-wife, the mother of his five children.

Appellee's amended answer generally denies the allegations set forth in the complaint and affirmatively pleads, inter alia, contributory negligence and assumption of the risk on the part of appellant's decedent. Additionally, appellee set forth the defense that the decedent's death occurred as a result of an intervening cause not within appellee's control. Appellee's motion to dismiss the action was overruled by the trial court.

The matter proceeded to trial, and at the close of appellant's evidence, the trial court granted appellee's motion for a directed verdict, pursuant to Civ.R. 50(A). In brief, the court found that the adult decedent acted on his own free will in becoming voluntarily intoxicated. The decedent's conduct, in short, amounted to contributory negligence as a matter of law. It is from the trial court's granting of defendant's motion for a directed verdict which plaintiff appeals and assigns as error the following:

"1. A business establishment that sells intoxicating liquor shall use ordinary care in the sale of such intoxicating liquor to patrons of the establishment who are on the premises, and where a business establishment sells alcoholic beverages to a patron and as a direct result of such sale, the patron becomes intoxicated and injures himself, an action will lie against the business establishment owner for the death or injury of such patron caused by the sale of intoxicating beverages and it is error to direct a verdict for the defendant-business establishment owner in such case.

"2. Where a business establishment that sells intoxicating liquors on its premises has a policy of not selling intoxicating liquors to its patrons who are intoxicated or who are becoming intoxicated, it is error to direct a verdict for said business establishment where the evidence discloses intoxicating liquors were sold by said business establishment to an intoxicated patron, contrary to said policy.

"3. The issue of the proximate cause between the sale of intoxicating liquor and resultant injury and death is properly left to the jury where allegations supported by evidence are such that to a seller's knowledge, the purchaser's will to refrain is so impaired that it is not possible for him to refrain from drinking the liquor when it is placed before him.

"4. The owner of a business establishment that sells intoxicating liquor to its patrons must use ordinary care to protect its patrons from the danger that is reasonable under the circumstances and such exercise of ordinary care is a question for the jury to decide.

"5. Where the defendant, prior to trial and upon deposition of the plaintiff's expert, has fully examined plaintiff's medical expert prior to trial and discovered such expert's opinions and the reasons supporting the expert's opinion, it is error to exclude such expert's testimony at trial for failure by plaintiff to submit a written report of such expert's opinion pursuant to Rule 21(I)(A).

"6. The trial court erred in not applying the law of Comparative Negligence where the Plaintiff's Decedent was contributorily negligent."

For the reasons articulated herein, we affirm the decision of the trial court.

The facts are these. Appellant's decedent, Timothy C. Woernley, arrived at The Mark II at approximately 9:30 p. m. on May 7, 1974. Timothy Woernley went to The Mark II to see his former brother-in-law, Richard Samples, entertain. That evening, the decedent's ex-wife and Samples' sister-in-law, Deborah, and her girl friend, Chris Houser, were also present. When Timothy Woernley entered The Mark II that evening, he made his way to Deborah's table, sat down and ordered a round of drinks. The order was taken by a waitress who then crossed the room to the bar located directly across from the stage where Richard Samples performed. The table was located approximately fifteen feet from the stage.

At his first break, Samples joined the table, and Woernley ordered drinks for each of them. Samples observed that Timothy Woernley had just showered and appeared fresh. According to the testimony, Timothy Woernley had not been drinking prior to his entering The Mark II. Samples' sister-in-law, Deborah, and her friend left just before 10 p. m. Woernley remained and continued drinking. From approximately 11:15 p. m. to 12 midnight, Samples observed the decedent move from table to table, always with a drink in his hand, and "asking strangers' wives to dance * * * laughing and * * * being boisterous." Throughout the course of the evening, according to Samples, several times the manager of The Mark II entered the lounge area where Woernley drank. Around 11:30 p. m., Samples asked Woernley to calm down but "he just laughed and walked away." Richard Samples expressed the opinion that by 11:30 p. m. that evening, Timothy Woernley was "becoming intoxicated." Samples took an early break at approximately 11:50 p. m. and had a discussion with Woernley in the lobby area. As he pulled Woernley out of the lounge into the lobby, Samples again asked him to calm down, but Woernley struck him. Samples pushed Woernley into a chair, told him to sit there and went to get him a cup of coffee and cigarettes. Upon his return, Woernley had a fresh drink in his hand.

At that point, Samples picked up the keys to Woernley's car and told him he was "in no condition for driving a car." He told Woernley that he would call someone to come and drive him home. Woernley indicated to Samples that he should phone his sister, Susan. Samples phoned the sister. Shortly, Susan's husband and Woernley's cousin arrived at The Mark II. Upon seeing them, Woernley became enraged and rushed towards them. Samples jumped in between and attempted to reason with Woernley but to no avail. Samples wrestled Woernley through the doors and out to the parking lot. Timothy Woernley was "just out of his head at the time, screaming and yelling and carrying on." Indicating that he had to go back in and perform, Samples gave the keys to Woernley's car to one of the two relatives and told them under no circumstances should they give the keys to Timothy, since he was in no condition to drive a car. Woernley then attacked Richard Samples and Samples struck him twice, knocking him to the ground each time. Samples returned to The Mark II. The time was approximately midnight.

Woernley continued to raise "so much cain" that Samples testified he was forced to obtain the keys from the relatives and return them to the decedent. He indicated he told Woernley: "I can't babysit for you anymore Tim. Go out and get yourself arrested. I can't do anything more. I've got a job to keep." Timothy Woernley then drove his car out of the parking lot onto Pearl Road "squeal(ing) his tires all around the corner." Richard Samples would not see Timothy Woernley alive again. The time was approximately 12:30 a. m., May 8, 1974.

Richard Samples further testified that during the time the decedent was in the lounge, he did not fight with anyone. Furthermore, he responded affirmatively to appellee's counsel's question that Timothy Woernley was, while in the lounge, "somewhat happy, albeit loud." Timothy Woernley ordered and drank what was called a "Windsor Press" and, according to Samples, had approximately a dozen drinks.

Officer Kenneth Novak, a Parma policeman, was assigned to traffic patrol that morning of May 8th. While driving westbound on Snow Road, the officer's radar screen...