Mason v. Roberts

• Decision Date: 14 March 1973
• Docket Number: No. 72-67,72-67
• Citation: 33 Ohio St.2d 29,294 N.E.2d 884,62 O.O.2d 346
• Parties: , 62 O.O.2d 346 MASON, Adm., Appellee, v. ROBERTS: Tester, d. b. a. Corner Bar, Appellant.
• Court: Ohio Supreme Court

Page 29

33 Ohio St.2d 29

294 N.E.2d 884, 62 O.O.2d 346

MASON, Adm., Appellee, v. ROBERTS: Tester, d. b. a. Corner Bar, Appellant.

No. 72-67.

Supreme Court of Ohio.

Decided March 14, 1973.

Syllabus by the Court

1. R.C. 4399.01, commonly known as the Dram Shop Act, does not provide the exclusive remedy against a liquor permit holder, to recover damages for the death of a bar patron.

2. 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.

3. In a wrongful death action against a liquor holder to recover damages for the death of a bar patron, whether the death resulted from an assault and battery committed by a drunken patron, whether the defendant continuing to serve liquor to the drunken patron created a danger to the decedent, whether the defendant realized or in the exercise of reasonable care should have realized the danger to decedent, and whether the action taken by the defendant to protect the deceased patron from that danger was reasonable under all of the circumstances, are ordinarily questions for the jury.

This wrongful death action was initiated in the Court of Common Pleas of Ashland County by thr filing of a petition which alleged, in pertinent part:

'On the 24th day of October, 1969, the defendant, Roger Lee Roberts entered said Corner Bar in mid-afternoon and proceed to drink and consume intoxicating liquors sold to him and dispensed to him by said defendant, Dorothy Tester, her agents, servants and employees. 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 1:00 a. m. on October 25, 1969.

'Said defendant, Dorothy Tester, was and is the aunt of said defendant, Roger Lee Roberts, and she, her agents, servants and employees knew or should have known in the exercise of reasonable care 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 said Dorothy Tester, defendant, her agents, employees and servants knew or had reason to believe that said defendant, Roger Lee Roberts, 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.

'In continuing to serve the defendant, Dorothy Tester, her agents and servants and employees violated Revised Code Section 4301.22(B) and Ohio Revised Code Section 4301.22(C) by selling intoxicating liquors to an intoxicated person and by selling said intoxicating liquors to an individual who habitually drinks intoxicating liquor to excess.'

A separate answer by defendant Tester admitted certain formal facts and that she was the aunt of defendant Roberts. Tester denied all the other allegations of the petition.

Thereafter, Tester filed a motion for summary judgment, and filed affidavits which stated that no notice, actual or constructive, was received by the employees or owner of the Corner Bar of the issuance or existence of any order made by the state of Ohio, Department of Liquor Control, prohibiting the sale or gift of intoxicating liquor to defendant Roberts as is contemplated by R.C. 4399.01 and 4301.22.

Tester also filed a certificate by the Director of Liquor Control in which he stated that in checking the records of his department such records revealed that the name of defendant Roberts did not appear on any 'blacklist' issued by his department pursuant to R.C. 4301.22(C).

The motion for summary judgment was sustained, it being the trial court's opinion that the petition failed to state a cause of action under R.C. 4399.01 (commonly known as the Dram Shop Act), and that R.C. 4399.01 was the exclusive remedy for a cause of action such as was alleged by the petition.

Upon appeal, the Court of Appeals, reversing the judgment of the Court of Common Pleas, stated that it 'finds that genuine dispute exists with respect to all allegations of the complaint not affirmatively admitted to be true by the answer.'

The cause is now in this court pursuant to the allowance of a motion to certify the record.

Gongwer & Shafer, and Philip H. Shafer, Ashland, for appellant.

Mason, Mason & Fridline, and Josiah L. Mason, Ashland, for appellee.

STERN, Justice.

The Court of Common Pleas, in sustaining defendant's motion for summary judgment, viewed this cause as singularly involving R.C. 4399.01 (The Dram Shop Act), and concluded that this statute constituted the exclusive remedy for the recovery of damages in a wrongful death action brought against a liquor permit holder who sold intoxicating liquor for consumption on the premises to another allegedly intoxicated patron who committed the violent act. It having been shown by affidavits that the name of the patron who committed the act did not appear on any 'blacklist,' as required by R.C. 4301.22(C), the Court of Common Pleas concluded that this action could not lie.

We agree that an action brought under R.C. 4399.01 will not lie unless the name of the allegedly intoxicated patron appeared on the requisite order set forth by the Department...