King v. Lindsay, s. 92AP-1577
| Decision Date | 27 April 1993 |
| Docket Number | 92AP-1791,Nos. 92AP-1577,s. 92AP-1577 |
| Citation | 622 N.E.2d 396,87 Ohio App.3d 383 |
| Parties | KING, Appellant, v. LINDSAY; Wullum Corporation, Appellee. |
| Court | Ohio Court of Appeals |
David M. Buda, Columbus, for appellant.
McGrath, Kaufman & Hatcher and Eric J. Wittenberg, Columbus, for appellee.
On November 24, 1990, Lori A. King and several of her friends went to Mean Mr. Mustards ("Mustards"), a bar just off The Ohio State University ("OSU") campus. It was the Saturday night of the OSU-Michigan football game, and the game had been played in Columbus. King was a regular customer of Mustards, as she went there often to dance and socialize with her friends. By King's recollection, she was dancing on the dance floor when a man, Paul David Lindsay, nudged her and asked her if she had a problem. She responded that she did not. Later, he nudged her again and asked her if she was a boy or a girl. She responded that it was none of his business. As King turned away, Lindsay grabbed her, punched her, threw her to the floor, and continued hitting her. King was approximately five feet, four inches tall and one hundred four pounds, while Lindsay was approximately five feet, eleven inches tall and one hundred seventy pounds. Lindsay had spent virtually the entire day drinking and socializing with friends.
King and some of her friends were able to get Lindsay off of her. King then moved a short distance away and got up on a large speaker platform to join her boyfriend. Lindsay followed her, pulled her off the platform by her shirt, and punched her in the face. King punched back, hitting him in the face. According to King, she then heard a crash and saw blood. During the entire encounter, Lindsay had had a long-neck beer bottle purchased at Mustards in his hand. King recalls never being on the floor during this second altercation. As a result of being hit in the face with a beer bottle, King sustained serious cuts to her face and neck which left permanent scars.
After the beer bottle hit her face, King remembers someone screaming that she had been hit, and she recalls being separated from Lindsay. Only then did the disc jockey turn on the lights and call for the bouncers over the public address system. Additional pertinent facts are set forth below.
King filed suit against Lindsay and the owner and operator of Mustards, The Wullum Corporation, Inc. ("Wullum") on October 16, 1991; however, the suit against Lindsay was ultimately settled. Wullum filed a motion for summary judgment, which was granted by the trial court based on various affidavits and depositions. Thereafter, Wullum filed a motion for sanctions against King, and a hearing was held on the matter before a referee. The referee's report recommended that sanctions be imposed upon King's counsel, and King timely objected. However, the court agreed with the referee and awarded attorney fees in favor of Wullum (hereinafter "appellee") against King's counsel. King (hereinafter "appellant") has timely appealed, assigning seven errors for our consideration:
The first three assignments of error involve the issue of whether summary judgment was appropriate and will, therefore, be addressed together. Summary judgment is governed by Civ.R. 56(C), which states:
" * * * Summary judgment shall be rendered forthwith if the pleading[s], depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. * * * "
The essence of appellant's suit was that appellee was negligent in failing to provide adequate security. The Supreme Court of Ohio has held:
"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." Mason v. Roberts (1973), 33 Ohio St.2d 29, 62 O.O.2d 346, 294 N.E.2d 884, paragraph two of the syllabus.
According to Bradley S. Miller, appellee's president, there are usually eight security personnel, or bouncers, on staff for a normal OSU football weekend. However, fifteen were on staff that night because of the OSU-Michigan game. Additionally, Miller asserted that because OSU students were on Thanksgiving break that weekend, the crowd was no heavier than for a normal football weekend. In an affidavit, he claimed that, in addition to the disc jockey watching the dance floor, one bouncer was stationed on the dance floor. However, John Jarrett, the only bouncer to submit an affidavit in this case, stated that he was the first security personnel to reach appellant after she was injured, yet he did not indicate that he was assigned to the dance floor area.
Appellant, however, stated that she saw seven bouncers that night and indicated that most of them were at the entrance as they usually were, checking IDs and collecting the cover charge. She also indicated that she knew for a fact that bouncers were not posted on the dance floor. Jennifer Mann, appellant's friend who accompanied her to the bar that evening and witnessed everything, also stated that there were no bouncers in the area of the dance floor. Appellant stated that the disc jockey, whose booth was above the dance floor, "watched...
To continue reading
Request your trial
-
Iron Workers Local Union No. 17 v. Philip Morris, 1:97-CV-1422.
...Wissel v. Ohio High Sch. Athletic Ass'n, 78 Ohio App.3d 529, 605 N.E.2d 458 (Ohio App.1st Dist.1992); King v. Lindsay, 87 Ohio App.3d 383, 622 N.E.2d 396 (Ohio App.10th Dist.1993). Under Ohio law, a claim for breach of a voluntarily undertaken duty must allege physical injury. In Hinton v. ......
-
Power v. Boles
...258 N.E.2d 597, 602; Wissel v. Ohio High School Athletic Assn. (1992), 78 Ohio App.3d 529, 605 N.E.2d 458; and King v. Lindsay (1993), 87 Ohio App.3d 383, 622 N.E.2d 396. In Wissel, supra, a high school football player who was rendered a quadriplegic when he tackled an opposing player broug......
-
Sabat v. Garfield Mall Assoc., 2006 Ohio 4764 (Ohio App. 9/14/2006)
...liability or the defendants in those cases were presently providing security when the crimes occurred. In both King v. Lindsay (1993), 87 Ohio App.3d 383, 622 N.E.2d 396, and Pamer v. Pritchard Bros. (1990), 61 Ohio Misc.2d 150, 575 N.E.2d 900, security was present at the time the crime occ......
-
March v. Steed Enters., Inc., Case No. CT2012-0058
...crimes and the specifics of the incident itself, to determine whether the criminal act was foreseeable. King v. Lindsay, 87 Ohio App.3d 383, 387, 622 N.E.2d 396(10th Dist. 1993), quoting Meyers v. Ramada Inn of Columbus, 14 Ohio App.3d 311, 313, 471 N.E.2d 176(10th Dist. 1984). Because crim......