Mason v. Roberts

• Decision Date: 08 December 1971
• Parties: , 64 O.O.2d 160 MASON, Admr., Appellant, v. ROBERTS; Tester, Appellee.
• Court: Ohio Court of Appeals

Page 29

35 Ohio App.2d 29

300 N.E.2d 211, 64 O.O.2d 160

MASON, Admr., Appellant, v. ROBERTS; Tester, Appellee.

Court of Appeals of Ohio, Fifth District, Ashland County.

Dec. 8, 1971.

Syllabus by the Court

1. A complaint which states facts sufficient to show a cause of action upon its face, but which is not supported by affidavits as to those facts, must stand against a defendant's motion for summary judgment that is accompanied by affidavits as to facts which neither negate an essential element of the plaintiff's cause, nor establish any affirmative defense or immunity against liability.

2. A sellar of intoxicating liquors who intentionally sells liquor to a person known to him to be physically violent to others when drunk is liable in damages when the sale proximately results in harm to the interests of a third person because of the intoxication of the buyer.

Mason, Mason & Fridline, Ashland, for appellant.

G. P. Gongwer and Phillip H. Shafer, Ashland, for appellee.

PUTMAN, Judge.

This appeal poses two central questions:

1. Is a motion for a summary judgment filed by a defendant 'supported.' as provided for in Civil Rule 59(E), by affidavits which, if true, neither negate any essential element of plaintiff's case, nor constitute a legally sufficient affirmative defense to or immunity from the claim of the petition.

2. Has the enactment of R.C. 4399.01 created an immunity from civil liability in all cases not covered therein.

This is an appeal from a summary judgment rendered in favor of defendant Dorothy Tester, dba Corner Bar.

Plaintiff, the administrator of the estate of Pual L. Sparr, deceased, commenced this wrongful death action against the defendants, Roger Lee Roberts and Dorothy Tester, dba Corner Bar, by the filing of a petition alleging that he is a qualified and acting administrator of the estate of Paul L. Sparr, deceased, and that Dorothy Tester is duly licensed to operate, at all times mentioned, a tavern at 136 East Main Street, Ashland, Ohio, where certain intoxicating liquors consisting of beer and wine were permitted by law to be sold to and consumed by the general public, subject to all the rules, regulations and laws of the state of Ohio relating to such a business operation.

Plaintiff further alleged that on October 24, 1969, in mid-afternoon, Roger Lee Roberts entered said Corner Bar and proceeded to drink and consume intoxicating liquors sold to him and dispensed to him by said defendant, Dorothy Tester, her agents, servants and employees; that during the course of said day and the ensuing evening said defendant, Roger Lee Roberts, became intoxicated from said intoxicating liquors so served by the defendant. Dorothy Tester, her agents and employees and after said Roger Lee Roberts became intoxicated, said defendant Dorothy Tester, her agents and employees continued to sell and dispense additional intoxicating liquors to said Roger Lee Roberts until approximately 1 a. m. on October 25, 1969; that the defendant, Dorothy Tester, was and is the aunt of said defendant and she, her agents, servants and employees knew or should have known that said Roger Lee Roberts when intoxicated became violent and abusive and disorderly and also, became dangerous to the physical and mental welfare of others; and that said Dorothy Tester, defendant, her agents, employees and servants knew or had reason to believe that said defendant had become intoxicated while drinking intoxicating liquor in said Corner Bar and yet said defendant Dorothy Tester, her agents, employees and servants continued to serve intoxicating liquors to said defendant, Roger Lee Roberts.

Plaintiff, also alleged that in continuing to serve the defendant, Dorothy Tester, her agents and servants and employees violated R.C. 4301.22(B) and R.C. 4301.22(C) by selling intoxicating liquors to an intoxicated person and by selling intoxicating liquors to an individual who habitually drinks intoxicating liquor to excess and that as a direct and proximate result of the aforesaid sales of intoxicating liquors to the defendant, Roger Lee Roberts, by the defendant, Dorothy tester, her agents, employees and servants, said Roger Lee Roberts became disorderly and in a drunken condition and while in said condition he followed plaintiff's decedent out of said Corner Bar at approximately 1 a. m. and violently and forcefully assaulted plaintiff's decedent, knocking him to the ground and causing him injuries from which he died on the 30th day of October, 1969.

Defendant Dorothy Tester filed a separate answer to the petition, admitting that, as alleged, she was at all times mentioned duly licensed to operate and did operate, at such times, the Corner Bar where intoxicating liquors were permitted by law to be sold to and consumed by the general public, and that she was the aunt of Roger Lee Roberts.

Defendant Tester denied each and every other allegation and statement contained in the petition.

Defendant Tester then moved for a summary judgment in her favor and, with such motion, filed an affidavit that at all relevant times she was licensed by the state of Ohio, department of liquor control, under permanent permit No. 8855488, and that at no time had she ever received any order or been notified either orally or in writing or had any knowledge regarding the issuance or existence of any order made by the state of Ohio, department of liquor control, prohibiting her from giving away or selling liguor to Roger Lee Roberts, a defendant in the within action, as such order is contemplated by the applicable provisions of R.C. 4399.01 and R.C. 4301.22(C).

A certificate was also filed by Donald D. Cook, director of the department of liquor control, state of Ohio, under authority of R.C. 121.20 and R.C. 4301.10 stating that a check of the records of the department of liquor control indicated that Roger Lee Roberts of Ashland, Ohio, does not now, nor has his name ever appeared on any blacklist of the department, pursuant to R.C. 4301.22(C).

The motion for summary judgment was filed on July 29, 1970. Plaintiff made no further response to such motion by affidavit or otherwise, as provided for in Civil Rule 56, effective July 1, 1970.

The Court of Common Pleas rendered a summary judgment in favor of defendant Dorothy Tester from which plaintiff has filed this appeal.

We turn now to the consideration of the Ohio statutes. R.C. 4399.01 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.'

R.C. 4399.08, relative to a violation of the provisions of R.C. 4399.01, reads:

'A suit for damages under sections 4399.01 to 4399.08, inclusive, of the Revised Code, shall be by a civil action in any court having jurisdiction thereof.'

In a separate chapter of Title 43, R.C. 4301.22 provides:

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

'(C) No intoxicating liquor shall be sold to any individual who habitually drinks intoxicating liquor to excess, or to whom the department has, after investigation, determined to prohibit the sale of such intoxicating liquor, because of cause shown by the husband, wife, father, mother, brother, sister, or other person dependent upon, or in charge of such individual, or by the mayor of any municipal corporation, or a township trustee of any township in which the individual resides. The order of the department in such case shall remain in effect until revoked by the department.'

Under the Ohio statute, when a sale is made to a person who has been blacklisted under the provisions of R.C. 4301.22(C), the person injured in person, property or means of support by the intoxicated person, in consequence of the intoxication during the existence of the blacklisting, has a right of action against the person selling or giving liquor which causes such intoxication, in whole or in part, of such person, as provided by R.C. 4399.01 (Ohio Dramshop Act), and R.C. 4399.08, which specifically authorizes a civil action for the recovery of damages under R.C. 4399.01. Such an authorized action relates solely to the prohibition against sales to a blacklisted person, in violation of the provisions of R.C. 4399.01. It makes no provision for the bringing of a civil action for damages proximately caused by sales to a person who has not been blacklisted but to whom sales are made in violation of the provisions of R.C. 4301.22(B) and (C) which prohibit sales to an intoxicated person and to individuals who habitually drink intoxicating liquor to excess.

Clearly, the provisions of R.C. 4301.22(B) and (C) impose a duty upon vendors not to sell beer and intoxicating liquor to an intoxicated person or to an individual who habitually drinks intoxicating liquor to excess. A violation of a duty imposed by statute is a basis upon which negligence is founded and normally liability arises from such negligence to the extent that it is the proximate cause of damage.

Vendors of alcoholic beverages are licensed by the state of Ohio, as are operators of motor vehicle. The license in either case is a permit. The sale of alcoholic beverages is controlled by statute in the same general sense that the operation of motor vehicles is controlled by statute. When a licensed driver is negligent by violating a regulatory statute relating to the operation of the automobile, civil liability is imposed for such violation absent a specific provision providing for such liability.

To avoid the compelling social...