Kirchner v. Shooters On the Water, Inc.

• Decision Date: 13 July 2006
• Docket Number: No. 86919.,86919.
• Citation: 167 Ohio App.3d 708,856 N.E.2d 1026,2006 Ohio 3583
• Parties: KIRCHNER, Admr., Appellant, v. SHOOTERS ON THE WATER, INC. et al., Appellees.
• Court: Ohio Court of Appeals

856 N.E.2d 1026

167 Ohio App.3d 708

2006-Ohio-3583

KIRCHNER, Admr., Appellant, v. SHOOTERS ON THE WATER, INC. et al., Appellees.

No. 86919.

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

Decided July 13, 2006.

Paul W. Flowers Co., L.P.A., and Paul W. Flowers, Cleveland; and Leon M. Plevin, for appellant.

Jeffrey M. Elzeer; Taft, Stettinius & Hollister, L.L.P., and Mark J. Valponi, Cleveland, for appellees Shooters on the Water, Inc. and Roger Loecy.

Davis & Young Co., L.P.A., and George W. Lutjen, West Cleveland, for appellees Gabrielle, Michael, and Judith Miller.

Reminger & Reminger Co., L.P.A., and Andrew A. Kabat, Cleveland, for appellee Proactive Security Services, Inc.

Dennis R. Spirgen, for appellee Sugar Warehouse Ltd. Partnership.

MARY EILEEN KILBANE, Judge.

{¶ 1} Paul M. Kirchner, administrator of the estate of Paul C. Kirchner, appeals the trial court's decision granting summary judgment in favor of defendants-appellees. Paul M. Kirchner ("plaintiff") argues that the trial court erred in granting summary judgment because genuine issues of material fact remained to be litigated against each of defendants-appellees. For the following reasons, we affirm the decision of the trial court.

{¶ 2} This appeal arises out of the drowning death of plaintiff Paul M. Kirchner's son, Paul C. Kirchner ("Kirchner"), in the Cuyahoga River on August 6, 2000. The incident occurred at approximately 2:15 a.m., next to the premises of Shooters on the Water ("Shooters"). Kirchner was 20 years old at the time of his death.

{¶ 3} Prior to arriving at Shooters on the night of August 5, 2000, Kirchner and his friends Charles Homolka and Aaron Gibson attended a Hawaiian luau party at the home of defendants Gabrielle, Michael, and Judith Miller in Wickliffe, Ohio. Michael and Judith Miller are the parents of Gabrielle, who had invited approximately 40 to 50 of her friends to the party. Kirchner and his friends remained at the party for several hours drinking beer and vodka Jell-O shots.

{¶ 4} While at the party, Kirchner and his friends decided to go to Shooters. Kirchner, Homolka, and Gibson left the party and drove to Shooters at approximately 1:15 a.m.

{¶ 5} Shooters is a restaurant/bar located on the west bank of the Flats in down-town Cleveland, Ohio. Shooters leased the premises from defendant Sugar Warehouse Limited Partnership. At all relevant times to this action, defendant Roger Loecy owned Shooters. At the time of the incident, defendant Proactive Security Services provided security services for Shooters.

{¶ 6} When the young men arrived at Shooters, they walked to the back entrance of Shooters, where they encountered other friends. The group went to the back entrance because they believed they had a better chance of getting into the bar since numerous members of their group, including Kirchner, were under the legal drinking age. The entire group managed to gain entry into Shooters despite their underage status.

{¶ 7} Kirchner was at Shooters for approximately one hour prior to the incident. According to his friends, Kirchner drank beer, mixed drinks, and shots. At approximately 2:15 a.m., Kirchner and his friends made plans to leave Shooters. However, Kirchner told his friends that he was going to urinate off the dock of Shooters, into the Cuyahoga River. Kirchner's friends and Dave Schuster, an off-duty Cleveland firefighter, observed Kirchner walk to the end of the dock, lean against a pole, and begin urinating. Shortly thereafter, Kirchner fell into the river. Kirchner's friends ran to the end of the dock and after seeing no sign of their friend, jumped in after him. The U.S. Coast Guard arrived and eventually recovered Kirchner's body from the river. He was pronounced dead at 4:40 a.m. The coroner's toxicology report indicated that Kirchner had a blood alcohol level of .24, which is three times the legal limit for operating a motor vehicle in Ohio.

{¶ 8} On July 11, 2001, plaintiff filed this wrongful death action against Shooters, Loecy, Proactive, Sugar Warehouse, and the Millers. Plaintiff later voluntarily dismissed the initial suit. He then refiled the lawsuit on January 26, 2004, against the same defendants. The lawsuit alleged that defendants negligently (1) permitted Kirchner to enter Shooters and purchase alcoholic beverages and (2) failed to provide adequate safety measures to protect patrons from the hazards of slipping and falling into the Cuyahoga River from an adjacent boardwalk.

{¶ 9} Plaintiff further clarified the claims in a later pleading where he claimed relief for (1) exposing business invitees to unacceptable dangers, (2) failing to provide necessary and appropriate security, and (3) serving alcohol to underage individuals. Additionally, plaintiff claims that Kirchner suffered conscious pain and suffering prior to his death and sought compensatory and punitive damages.

{¶ 10} Each defendant filed an answer denying liability and Shooters, Loecy, and Sugar Warehouse filed cross-claims. All defendants moved for summary judgment, and plaintiff opposed the requests in a consolidated memorandum. In an order dated August 10, 2005, the trial court granted summary judgment in favor of each defendant. Shooters, Loecy, and Sugar Warehouse voluntarily dismissed their pending cross-claims without prejudice.

{¶ 11} Plaintiff appeals the trial court's order, raising the three assignments of error contained in the appendix to this opinion.

{¶ 12} We review an appeal from summary judgment under a de novo standard of review. Baiko v. Mays (2000), 140 Ohio App.3d 1, 746 N.E.2d 618, citing Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 30 OBR 78, 506 N.E.2d 212. Accordingly, we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate. Northeast Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs. (1997), 121 Ohio App.3d 188, 699 N.E.2d 534, citing Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153. Under Civ.R. 56, summary judgment is appropriate when (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion and that conclusion is adverse to the nonmoving party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267.

{¶ 13} The moving party carries an initial burden of setting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264. If the movant fails to meet this burden, summary judgment is not appropriate; if the movant does meet this burden, summary judgment will be appropriate only if the nonmovant fails to establish the existence of a genuine issue of material fact. Id. at 293, 662 N.E.2d 264.

{¶ 14} In his first assignment of error, plaintiff argues:

The trial court erred, as a matter of law, by granting summary judgment in favor of defendant-appellees Shooters on the Water, Inc. and Sugar Warehouse Ltd., upon the claims of premises liability and Ohio Basic Building Code violations.

{¶ 15} In the complaint, plaintiff alleges that Shooters, Proactive Security, Sugar Warehouse, and Loecy "are negligent for failing to provide adequate safety measures to protect their patrons from the hazards of falling into the Cuyahoga River from their dock, inadequate lighting, failure to monitor the ingress and egress of patrons, * * * and as a result, plaintiff was caused to fall into said body of water, whereby drowning." However, in this appeal, plaintiff does not claim error with the trial court's grant of summary judgment in favor of defendants Loecy and Proactive Security on the claim of premises liability. Plaintiff's first assignment of error appeals only the grant of summary judgment in favor of Shooters and Sugar Warehouse on the claim of premises liability.

{¶ 16} In this assigned error, Shooters and Sugar Warehouse argue that plaintiff's claim of premises liability must be dismissed because any dangers Kirchner confronted on August 6, 2000, were open and obvious, and, therefore, neither Shooters nor Sugar Warehouse owed Kirchner any duty of care. Additionally, Sugar Warehouse submitted several other grounds upon which summary judgment could have been granted. In response, plaintiff argues that the trial court erred in granting summary judgment because genuine issues of material fact existed as to whether the dangers were open and obvious and whether defendants violated the Ohio Basic Building Code ("OBBC").

{¶ 17} It is well settled in Ohio that the elements of an ordinary negligence action between private parties are (1) the existence of a legal duty, (2) the defendant's breach of that duty, and (3) a resulting injury that is the proximate cause of the defendant's breach. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265. The plaintiff has the burden of proof to establish each of these elements by a preponderance of the evidence. Id. Whether a duty exists is a question of law for the court to decide. Id.

{¶ 18} "In Ohio, the status of the person who enters upon the land of another (i.e., trespasser, licensee, or invitee) continues to define the scope of the legal duty that the landowner owes the entrant." Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 315, 662 N.E.2d 287. "Invitees are persons who rightfully come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner." Id.; McManes v. Kor Group, Montgomery App. No. 19550, 2003-Ohio-1763, 2003 WL 1795575, at ¶ 37. With regard to invitees, a landowner has a duty to exercise ordinary care in maintaining its premises in a reasonably safe condition in order to insure that the...