Taggart v. Bitzenhofer

• Decision Date: 28 February 1972
• Citation: 35 Ohio App.2d 23,299 N.E.2d 901
• Parties: , 64 O.O.2d 157 TAGGART Admr., Appellant, v. BITZENHOFER et al., Appellees.
• Court: Ohio Court of Appeals

Page 23

35 Ohio App.2d 23

299 N.E.2d 901, 64 O.O.2d 157

TAGGART Admr., Appellant, v. BITZENHOFER et al., Appellees.

Court of Appeals of Ohio, First District, Hamilton County.

Feb. 28, 1972.

Syllabus by the Court

1. Where the operator of a business that sells intoxicating liquor allows a person who is 'visibly intoxicated' and who exhibits 'peculiar behavior' to purchase alcohol, such operator exposes other patrons of the establishment to an unreasonable risk of harm.

2. A violation of R.C. 4301.22(b) (prohibiting the sale of beer and intoxicating liquor to an intoxicated person) is negligence per se, and a complaint alleging such a violation states a claim for relief.

Bauer, Morelli & Heyd, Cincinnati, for appellant.

Lindhorst & Dreidame, James L. O'Connell, and Freiden, Hoy & Barstow, Cincinnati, for appellees.

SHANNON, Judge.

This cause came on to be heard upon the appeal; the transcript of the docket, journal entries and original papers from the Court of Common Pleas of Hamilton County; and the assignments of error, briefs and arguments of counsel.

Because the appeal is from an order granting a motion to dismiss the complaint, only the well pleaded factual allegations will be recited here.

About 1:15 a. m., December 9, 1969, one Michael Rohe entered the Bachelor's III Cocktail Lounge, an establishment owned and operated by defendants Bitzenhofer, Behr and McKesson, the appellees herein. He immediately began to act in a boisterous and unruly manner and was visibly intoxicated. Plaintiff-appellant's decedent, William J. Taggart, Jr., and one Lloyd Hayes were patrons then within the premises.

The barmaid on duty, Alice Losito, served intoxicating beverages to Rohe and, thereafter, Rohe in her presence displayed a pistol and threatened to shoot and kill Taggart and Hayes. Losito continued to serve alcoholic beverages to Rohe who, approximately thirty-five minutes after uttering his threat, did kill Taggart and wound Hayes.

Plaintiff sought to recover damages on the ground that the owners and employees of the lounge were negligent in serving alcohol to Rohe and in breaching their duty to Taggart and Hayes. Parenthetically, we note that Hayes and his wife are plaintiffs in another action similarly disposed of and separately considered upon appeal. The breach of duty to the patrons is alleged as the failure to control Rohe's conduct and the failure to notify a law enforcement agency and obtain assistance in providing a safe place.

The motion to dismiss was on the ground that the complaint failed to state a cause of action against the defendants, Bitzenhofer, Behr, McKesson, the corporate defendant, and Losito, upon which relief could be granted.

The plaintiff has assigned two errors, the first being in three parts.

The first assignment of error raises the questions: does the plaintiff have a cuase of action founded on common law negligence in that (a) defendants disregarded the safety of patrons by serving alcohol to an intoxicated person; (b) defendants failed to take affirmative action to control Rohe; and (c) defendants allowed a single employee to attend the premises, she being incompetent to protect patrons.

The second assignment of error is that the trial court erred in its conclusion that plaintiff failed to state a cause of action sounding in negligence because the violation of R.C. 4301.22(B), prohibiting the sale of intoxicating liquor to an intoxicated person, constitutes negligence per se.

Apparently, the questions here, certainly against the backdrop of allegations now to be taken as true, have not been answered positively by a court to which we are subordinate. Do the glimmerings, however, appear?

In Robinson v. Stilgenbauer (1968), 14 Ohio St.2d 165, 237 N.E.2d 136, the court considered an action by an executrix for damages for wrongful death. There, a defendant tavern keeper allegedly proximately contributed to the death of plaintiff's decedent in that he sold alcoholic beverages to Stilgenbauer and that subsequently the decedent was killed in a collision with a car driven by Stilgenbauer. The Court of Common Pleas granted a motion for summary judgment made by the tavern keeper. The Court of Appeals affirmed. The Supreme Court, in affirming the Court of Appeals ruling, noted that the tavern keeper had never been notified by the department of liquor control not to sell intoxicants to Stilgenbauer, that there was nothing in the record to support a reasonable inference that he had been drinking when he entered, or was drunk when he left the tavern, or that the intoxicants he consumed while there proximately caused the collision three hours later. The remark significant to us, in our effort to resolve the issues here, concludes the per curiam opinion as follows:

'* * * we do not reach the question of law * * * whether there may be * * * a cause of action against a liquor vendor for damages proximately resulting from his negligent sale of intoxicating beverages to a known habitual drunkard.'

In the case at bar, there is nothing to warrant an inference that Rohe was a known habitual drunkard, but it is claimed that he was visibly intoxicated when he entered the lounge and commenced his boisterous and unruly behavior. We believe the case before us is distinguishable from Stilgenbauer, supra, and that case does not dispose of the issues here.

On the same day the Supreme Court decided Stilgenbauer, it decided Holdshoe v. Whinery (1968), 14 Ohio St.2d 134, 237 N.E.2d 127. There, a patron who had paid to rent a picnic table in a resort area was injured when a car, parked by a patron on a slope up from the table, rolled down and struck her. The Supreme Court held that the trial court erred in directing a verdict for the defendant owner and occupier of the resort at the close of the plaintiff's opening statement.

Paragraph four of the syllabus states:

'Such an owner and occupier of land breaches his duty to invitees who are injured by the negligent acts of third persons, where such owner and occupier fails to exercise reasonable care to discover that such negligent acts of third persons are being done or are likely to be done and fails to give a warning adequate to enable such invitees to avoid harm, or fails to act to protect such invitees against such negligent acts of third parties.'

Some fourteen months later, the court d...