Mason v. Roberts

The motion for summary judgment was filed on July 29, 1970. Affidavits, as set forth in the majority opinion were filed by the defendant, who moved for the summary judgment. Plaintiff made no response to the motion for summary judgment by affidavit or otherwise, as provided for in Rule 56 of the Rules of Civil Procedure, effective July 1, 1970.

The common pleas court rendered summary judgment in favor of defendant Dorothy Tester from which judgment plaintiff has filed this appeal.

Ordinarily, a vendor of intoxicating liquors is not, at common law, answerable to a third person for injury or damage sustained by the latter as a result of the intoxication of the purchaser of the liquor. See annotation 75 A. L. R. 2d 833 at page 835, for the general rule denying a cause of action and the cases cited thereunder. Also, see, annotation 130 A. L. R. 452. Such common law rule remains unaltered until changed by court decision or legislative enactment. Courts generally, absent a legislative enactment, have refused to alter the common law by court decision so as to give rise to a cause of action against the seller of liquor to an intoxicated person. See Garcia v. Hargrove (1970), 46 Wis. 2d 724,176 N.W.2d 566 where the Supreme Court of Wisconsin, in the absence of any legislative act, held that the sale of liquor to an intoxicated person does not give rise to an action for negligence under Wisconsin law. Although the Wisconsin Supreme Court recognized that the common law rule does not mean that the court is unable to change the law when it no longer meets the economical or social needs of society, that court refused to alter such law by court action in the absence of legislation.

In Meade v. Freeman (1969), 93 Idaho 389, 462 P.2d 54, the Supreme Court of Idaho went further than did the Supreme Court of Wisconsin and held that, the sale of liquor to a person while he is intoxicated, in violation of a criminal statute gives no cause of action against the vendor by the person sustaining injury absent a dram shop act to impose civil liability. The courts holding was that the common law rule — that the sale of intoxicants to an intoxicated person is not the proximate cause of damage to a third person through a tortious or unlawful act of the consumer is not changed by statutes controlling the sale of intoxicants or by wrongful death statutes, absent a statutory provision fixing civil liability for the sale to an intoxicated person in violation of a criminal statute.

Michigan and Illinois have dram shop acts. However, in the case of Waynick v. Chicago's Last Department Store (C. A. 7, 1959), 269 F.2d 322 the United States Court of Appeals held, in a diversity action for damages sustained by the plaintiffs when the automobile in which they were riding collided in Michigan with another automobile, that the dram shop act was not applicable extraterritorily to a situation where the sale of intoxicating liquor takes place in Illinois and the injury therefrom occurred in another state. Likewise, that the Michigan liquor control acts probably have no applicability where the sale of intoxicating liquor in Illinois produced injury in Michigan. The court thus avoided limitations of liability otherwise applicable in Illinois and Michigan because of dram shop acts. The seventh circuit court having first, for the reason stated, found no legislative enactments which were applicable to control civil liability, applied principles applicable generally to common law liability — that every person has a duty to use ordinary care to avoid injury to others from any agency set in operation by him — and then held contrary to such general common law rule. Thus, the court departed from the general common law rule after first determining that under the facts of that particular case there were no applicable statutes.

In the case of Davis v. Shiappacossee (Fla. 1963),155 So. 2d 365, the Supreme Court of Florida held that the sale of alcoholic beverages to a minor in violation of a statute constituted negligence per se, and that the automobile accident which occurred while the minor was under the influence of liquor was reasonably foreseeable and the proximate result of such negligence. Florida did not have a "dram shop act" or "civil damage act."

Certainly the common law need not remain static. It arose from court decisions and although courts should be reluctant to depart from rules which have been longstanding it is within their province, when change has not been controlled bylegislative enactment, to change such law if change is necessary to meet changing conditions of society.

Where there has been a legislative enactment, the courts have generally held that the extent and condition of civil liability are clearly within the power of the creator, the legislature, with the only exception being where injury has resulted from a willful and intentional tort.

See Cowman v. Hansen (1958), 250 Iowa 358, 92 N.W.2d 682.

The third headnote of 92 N.W.2d 682 states:

"The Dram Shop Act is a civil damage act, and its extent and conditions are clearly within power of its creator, the Legislature, which can extend or diminish rights and provide remedy as it sees fit."

In the state of New York, the Legislature has enacted Section 65 of the Alcoholic Beverage Control Act, which provides:

"No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to

"1. Any minor, actually or apparently, under the age of eighteen years;

"2. Any intoxicated person or to any person, actually or apparently, under the influence of liquor;

"3. Any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages. * * *."

In conjunction therewith, Section 11-101 of the General Obligations Law provides in part, as follows:

"1. Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.

"2. In case of the death of either party, the action or right of action given by this section shall survive to or against his or her executor or administrator, and the amount so recovered by either wife or child shall be his or her sole and separate property."

An editorial in the Cleveland Plain Dealer, Cleveland, Ohio, December 5, 1971, relative to the unfitness of motor vehicle drivers, states:

"There is an unusual statistical sidelight. Of the nation's 3808 traffic deaths a half century ago, 780 took place in New York City. Last year, of the country's 54,800 traffic fatalities, only 892 happened in New York, an increase of only 112."

The proposition with which we are confronted is that had the Ohio Legislature intended to impose civil liability for injury caused by the illegal sale of intoxicating liquor as broad as that imposed in New York, and without the necessity of blacklisting, it would have done so. In the instant case, it is undisputed that the person to whom sales were made was not blacklisted.

We turn now to the consideration of the Ohio statutes. R. C.4399.01, including the title, reads as follows:

"Action against seller of liquor for injury caused by intoxicated person to whom sale is prohibited.

"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." (Emphasis added.)

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."

R. C. 4301.22, which is also a part of Title 43, provides, in part:

"(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 or any township in which the individual resides. The order of the department in such case shall remain in effect until revoked by the department."

Clearly, R. C. 4399.01 relates to sales made to intoxicated persons in violation of R. C. 4301.22 (B) and not only to sales to any individual who habitually drinks intoxicating liquor to excess in violation of R. C. 4301.22 (C) for in this respect the pertinent part of R. C. 4399.01 reads:

"A * * * or other person injured in person, property, or means of support, by an intoxicated person, or in consequence ofthe intoxication, habitual or otherwise * * *." (Emphasis added.)

The Ohio legislature has thus altered the common law rule by providing for an "action against [a] seller of liquor for an injury caused by an intoxicated person to whom [the] sale is prohibited" with the conditions upon which such action may be maintained being fixed by the legislature.

Plaintiff contends that even though civil liability was imposed only on persons who have been blacklisted, the legislature did not intend that liability be so limited but intended that there also be civil liability based upon sales to persons who are intoxicated or sales to individuals who habitually drink intoxicating liquor to excess, absent the blacklisting of those persons.

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 and foreseeable cause of harm which proximately results therefrom.

Vendors of alcoholic beverages are licensed by the state of Ohio as are operators of motor vehicles. The license in either case is a permit and the sale of alcoholic beverages is controlled by statute in the like manner the operation of a motor vehicle is controlled by statute. When a licensed driver is negligent for 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. Such liability arises, however, not from the fact of intoxication, but from the respect in which the vehicle is being otherwise unlawfully operated by the intoxicated person, with intoxication being no defense.

I see no difficulty imposing the same reasoning relating to civil liability for the negligence of a licensed vendor in his failure to comply with regulations provided in R. C. 4301.22 (B) and (C), relative to the proximate foreseeable consequences of acts of the person served while intoxicated, except for the absence of a common law liability, coupled with the fact that the legislature has specifically provided for civil liability for damages, but has made no provision for a civil action for damages for the violation of R. C. 4301.22 (B) and (C), absent blacklisting. The statutes indicate that the legislature intended no further civil liability to be imposed upon the vendor other than that specifically provided. Had the legislature so intended, it could have so provided as has been done by the New York legislature in section 11-101, supra, which renders unnecessary any blacklisting as required by the Ohio legislature. See Ramon v. Spike (1951), 92 Ohio App. 49; andLove v. Fountas (1963), 119 Ohio App. 501.

In Rappaport v. Nichols (1959), 31 N. J. 188, 156 A.2d 1, the Supreme Court of New Jersey held a cause of action to arise from the alleged unlawful and negligent sale of alcoholic beverages to a minor which caused intoxication that in turn caused or contributed to his negligent operation of a motor vehicle at the time of a fatal accident. New Jersey had statutes prohibiting sales to minors or to any person actually or apparently intoxicated. The Supreme Court of New Jersey was careful to point out, however, that a prior existing civil damage law had been repealed and that in light of the abandonment of such and its replacement by the alcohol beverage control act, which prohibits sales to minors and intoxicated persons but does not designate any conditions of civil liability, the legislature left unimpaired the fundamental negligence principles prevailing in New Jersey.

As much merit as there is in the reasons for imposing civil liability for negligent sales, I have found no case, includingRappaport v. Nichols, supra, where civil liability for negligent sales, beyond that fixed by legislative enactment, has been imposed by a court where there is in existence a dram shop act by which the legislature has made provisions for civil liability.

In De Villez v. Schifano (1970), 23 Mich. App. 72,178 N.W.2d 147, the Court of Appeals of Michigan circumvented the limitations of the Michigan dram shop act in a situation where an assault by a customer to whom the owner of a tavern sold intoxicants occurred inside the tavern. The court held that an action under the dram shop act was not the sole and exclusive remedy to recover from the tavern keeper because, where a tavern owner owes a common law duty to his customers to exercise reasonable care to provide safe premises, an injured person is entitled to proceed on the additional theory that the owner breached a common law duty to exercise reasonable care to provide safe premises.

The reasoning for the refusal of courts to intervene where the legislature has acted has been that, under the constitutional principle of separation of powers, courts should not make law in an area where the legislature has acted and has, by legislative enactment, determined the extent to which the common law rule of no liability should be modified. However, it still remains difficult to explain why the legislature, which has provided that vendors must be licensed because the operation of their business is a privilege rather than a right has not, by legislative action, imposed upon them the same degree of liability for the negligent and unlawful acts of selling alcoholic beverages to minors or intoxicated persons as is generally imposed upon other persons for negligent and unlawful acts in other respects. There is no legal impediment to such action as that which exists with regard to actions by courts in areas pre-empted by the legislature.

The majority opinion makes reference to willful and intentional tortious acts and cites 75 A. L. R. 2d 833, wherein it is stated that the common law general rule of no liability for a negligent sale is subject to the "limitation, qualification and exception" that in some circumstances a sale by the vendor may constitute a willful violation of his duty to one other than the consumer and be the proximate cause of the injury sustained by a third person, so that for such injury the latter may have a right of action against the vendor.

From the majority opinion, I quote as follows:

"No Ohio case holds that this statute offers immunity to one who knowingly and intentionally sells intoxicants to a person known to him to be physically dangerous to others when such person is drunk. Such conduct is an intentional invasion of the legally protected interest of the public to be free from the intentional loosing upon the community of physical violence. Such conduct is not the mere want of ordinary care or negligence, but is an intentional violation of a substantial socially important legally protected interest at common law.

"For this reason, an analysis of the common law respecting the liabilities of a vendor of intoxicating liquors for negligent sales does not reach all claims of the petition."

"The petition construed most favorably for plaintiff alleged not only a negligent sale of intoxicants but, specifically, that the seller intentionally sold intoxicants to her nephew whom she knew physically assaulted others when he was drunk, and that as a result of such sale her nephew became intoxicated and caused the death of plaintiff's decedent by violently assaulting him outside her tavern — the precise sort of thing her nephew did when he got drunk."

If the foregoing statements were supported by evidence before us, I would concur in the reversal of the summary judgment awarded the defendant and the remand of this cause for further proceedings.

I cannot so concur because I fail to find proper support for such contentions.

First, the allegations set forth in plaintiff's petition are as follows:

"Said defendant, Dorothy Tester, was and is 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 Section4301.22 (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 access [sic]."

I can only construe these allegations of the petition to be an attempt to state a cause of action founded upon negligence and to be insufficient to establish a cause of action founded upon willful and intentional misconduct. Neither, is a claim of willful or intentional misconduct exhibited by an affidavit, deposition, or other document filed by plaintiff in answer to defendant's motion for summary judgment. As stated, the plaintiff made no response to defendant's motion for summary judgment by affidavit or otherwise.

Under existing Ohio law, as declared in Ramon v. Spike (1951), 92 Ohio App. 49, and Love v. Fountas, supra, defendant's affidavits afforded a complete defense to the petition. Assuming, as contended in the majority opinion, that there is an exception in cases of willful and intentional misconduct, we do not have such an issue before us either by allegations contained in plaintiffs petition, affidavit, or other evidentiary matter — plaintiff having filed none in response to defendant's motion for summary judgment. It was especially necessary that he do so if he was claiming an exception to the requirement of blacklisting.

At this point we run into some of the difficulties with which the Supreme Court was confronted in Robinson v.Stilgenbauer (1968), 14 Ohio St. 2d 165. In that case, the demurrer to the petition had been overruled, but the plaintiff filed affidavits which were insufficient. In the instant case, plaintiff filed no affidavits following the defendant's motion for summary judgment.

Civil Rule 56 (E), with reference to summary judgment, provides, in part:

"When a motion for summary judgment is made and supported asprovided in this rule, an adverse party may not rest upon themere allegations or denials of his pleadings, but his response,by affidavit or as otherwise provided in this rule, must setforth specific facts showing that there is a genuine issue fortrial. If he does not so respond, summary judgment, ifappropriate, shall be entered against him." (Emphasis added.)

Contrary to the provisions of Rule 56 (E), plaintiff has sought to rest upon the mere allegations of his petition without, by affidavit or otherwise, setting forth specific facts showing that there is a genuine issue for trial. To hold that he may do so would greatly lessen the effectiveness of summary judgment procedures and, contrary to Rule 56 (E), permit him to rest upon the mere allegations of his pleadings without setting forth specific facts showing that there is a genuine issue for trial. Further, if he is relying upon willful and intentional acts of the defendant which have not been alleged, how can such acts possibly be considered if they are neither alleged in the petition or asserted by affidavit or otherwise in response to the motion for summary judgment.

Without making a determination that there cannot, under some circumstances, be a cause of action against a vendor who sells intoxicants to a known alcoholic not officially designated as such, it is my finding that due to the failure of plaintiff to comply with the provisions of Civil Rule 56(E), no civil liability of defendant Dorothy Tester is demonstrated upon the record presented for the purpose of defendant's motion for summary judgment. Therefore, I would overrule the assigned claim that the common pleas court erred in sustaining the motion of the defendant for a summary judgment in her favor.

As stated by the trial judge, I too may be of the opinion that there ought to be legislation creating greater liability in this field; however, for the reasons herein stated, I would affirm the summary judgment rendered by the common pleas court in favor of defendant Dorothy Tester, d. b. a. Corner Bar, and remand this cause for further proceedings between the plaintiff and defendant Roger Lee Roberts.