Mitseff v. Wheeler, 87-922

Citation38 Ohio St.3d 112,526 N.E.2d 798
Decision Date03 August 1988
Docket NumberNo. 87-922,87-922
PartiesMITSEFF, Executor, Appellant, v. WHEELER, Appellee, et al.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court

A party seeking summary judgment must specifically delineate the basis upon which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond.

On October 9, 1983, Jennifer Johnson, then seventeen years of age, visited the home of defendant-appellee, Douglas Wheeler, who was then past the age of twenty-three years. Johnson stayed at the Wheeler residence from approximately 1:00 p.m. to approximately 4:30 p.m. While there, Johnson consumed four beers provided to her by appellee. Appellee furnished the beer to Johnson even though he knew Johnson had not yet reached the age of nineteen, the legal age at which a person at that time could consume beer.

Upon leaving appellee's residence, Johnson proceeded to the Reedurban Tavern where she was again served alcohol. Johnson departed the tavern and at approximately 8:42 p.m. was involved in the accident that took the life of Kathryn Mitseff.

Plaintiff-appellant, executor of the decedent's estate, brought an action seeking damages for himself and for the wrongful death of Kathryn Mitseff against Douglas R. Wheeler and William G. Jones (d.b.a. Reedurban Tavern) for knowingly serving alcohol to Johnson, a minor. It was further alleged that Johnson's alcohol consumption caused her to become intoxicated, which, in turn, caused her to act in such a manner as to create an unreasonable risk of harm to third persons, and that Kathryn Mitseff's death was proximately caused by the negligence of defendants.

On July 18, 1986, appellee filed a motion for summary judgment with his personal affidavit attached thereto. In his brief in support of his motion, appellee asserted that: (1) as a social host who gratuitously served intoxicating liquor to a guest, appellee was not liable to a third party for injuries caused by the guest after leaving the host's premises; and (2) nothing in the record substantiated the claim that Kathryn Mitseff's injuries were proximately caused by the negligence of appellee. Specifically, the second assertion of appellee was that no evidence existed that appellee knew Johnson was intoxicated when she left appellee's home.

Appellant responded by: (1) denying that appellee was immune from liability due to his social host status; and (2) attaching an affidavit of an expert that discussed the effects of alcohol served Johnson by appellee on Johnson's blood-alcohol count. 1

On September 5, 1986, the trial court, though giving no reasons for its decision, sustained appellee's motion for summary judgment. Appellee's counsel was ordered to prepare the judgment entry. The judgment entry, as signed by the trial judge, likewise gave no indication of the basis for the court's decision.

Upon appeal, the court of appeals affirmed the granting of summary judgment. The court held that, while appellee's interpretation of Settlemyer v. Wilmington Veteran's Post No. 49 (1984), 11 Ohio St.3d 123, 11 OBR 421, 464 N.E.2d 521, was incorrect, summary judgment was appropriately granted to appellee essentially because appellant had introduced no evidence to show that Johnson's negligence had caused the fatal accident. The court of appeals answered appellant's argument that the issue of Johnson's negligence was not disputed by appellee at the trial level, by noting that a motion for summary judgment puts the non-moving party on notice that the entire claim is being challenged.

The court of appeals, finding its decision to be in conflict with the decision of the Court of Appeals for Franklin County in Rayburn v. J.C. Penney Outlet Store (1982), 3 Ohio App.3d 463, 3 OBR 544, 445 N.E.2d 1167, certified the record of the case to this court for review and final determination.

Scanlon & Gearinger Co., L.P.A., and Mark Hilkert, Akron, for appellant.

Day, Ketterer, Raley, Wright & Rybolt, Louis A. Boettler and Craig G. Pelini, Canton, for appellee.

DOUGLAS, Justice.

The cause before this court presents two issues. The first issue raised is whether appellee violated a duty for which he could be held civilly liable to a third person for damages to such person arising as a consequence of appellee's having served Jennifer Johnson alcoholic beverages. We agree with the court of appeals that a social host has a duty to refrain from furnishing alcohol to a minor and may be civilly liable for damages to third persons if said duty is violated. The second issue concerns the motion for summary judgment. We find that the moving party must specifically give the basis of a summary judgment motion in order to allow the non-moving party an opportunity to fully respond.


Appellee relies on this court's holding in Settlemyer, supra, as support for the position that a social host owes no duty to third persons for damages caused as a result of the gratuitous serving of alcohol to a guest. In Settlemyer, a social provider of alcohol served alcohol to a guest. 2 The guest then left the premises and was involved in an automobile accident that took the life of a third person. This court expressed its " * * * reluctance to extend potential liability to the social provider of alcoholic beverages * * *." Settlemyer, supra, 11 Ohio St.3d at 127, 11 OBR at 425, 464 N.E.2d at 524.

Based on the reasoning of Settlemyer, appellee asserts that he owes no duty as a social host to third persons for damages resulting from providing his guest, Johnson, with alcohol. Therefore, appellee maintains that he cannot be liable in any way for damages caused by Johnson. We do not agree.

There exists a clear distinction between Settlemyer, supra, and the case before this court. Settlemyer concerned a social host providing alcohol to one who was apparently an adult guest, 3 an act that is not precluded by statute. However, appellee provided Johnson, a seventeen-year-old minor, with alcohol. This action was clearly in violation of R.C. 4301.69, 4 which then provided in pertinent part:

"No person shall sell intoxicating liquor to a person under the age of twenty-one years or sell beer to a person under the age of nineteen, or buy intoxicating liquor for, or furnish it to, a person under the age of twenty-one years, or buy beer for or furnish it to a person under the age of nineteen, unless given by a physician in the regular line of his practice, or by a parent or legal guardian." (Emphasis added.)

Therefore, it is incorrect to maintain that appellee's action, which violated a statute, can be equated with Settlemyer, supra. The statute created a duty that appellee, because of Johnson's age, refrain from furnishing Johnson with alcohol. Accordingly, Settlemyer, being distinguishable, does not apply.


An equally important issue in this case concerns the motion for summary judgment. Civ.R. 7(B)(1) provides in part that: "[a]n application to the court for an order shall be by motion which * * * shall be made in writing. A motion * * * shall state with particularity the grounds therefor, and shall set forth the relief or order sought." (Emphasis added.) Fed.R.Civ.P. 7(b)(1) is substantially the same as our Ohio rule. In Steingut v. National City Bank of New York (E.D.N.Y.1941), 36 F.Supp. 486, 487, the court stated that the prerequisite of particularity " * * * was not intended to be a matter of form but was real and substantial." See, also, Upper W. Fork River Watershed v. Corps. of Engrs. (D.W.Va.1976), 414 F.Supp. 908. Given the explicit language of Civ.R. 7(B)(1), it is clear that appellee's motion for summary judgment must state with particularity the reasons why the moving party considers summary judgment appropriate.

In support of appellee's argument that he, as the moving party, is not obligated to negate every claim of the non-moving party, appellee relies heavily on Celotex v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. This reliance is misplaced. While Celotex says that a moving party does not have to support its motion with affidavits 5 negating the opponent's claims, Celotex also plainly states that "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, supra, at 323, 106 S.Ct. at 2553.

Accordingly, even Celotex makes clear that a party moving for summary judgment has certain obligations that must be met. These obligations are set forth in Massaro v. Vernitron Corp. (D.Mass.1983), 559 F.Supp. 1068. Massaro held that the party seeking summary judgment " * * * bears the burden of affirmatively demonstrating that, with respect to every essential issue of each count in the complaint, there is no genuine issue of fact." Massaro, supra, at 1073 (citing Mack v. Cape Elizabeth School Board [C.A.1, 1977], 553 F.2d 720, 722)....

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