PLAINTIFF-APPELLANTS, DAVID, BRENDA, AND AUSTIN PItIVE'II ... liabiliti^ for an off-p'remises injury...

IN THE SUPREME COURT OF OHIO

jCASE NO.

DAVID B. PRIVETT; BRENDA J. PRIVETT; AUSTIN PRIVETT, A MINORPlaintiff-Appellants,

-vs-

QSL-MILFf?RI), LLC; UNITED HEALTHCARE SERVICE, INC.Defendant-Appellees.

ON APPEAL FROM THE OHIO TWELFTH APPELLATE DISTRICT,CLERMONT COUN'I'Y, CASE NO. CA2o13-o4-o25

MEMORANDUM IN SUPPORT OF JURISDICTION OFPLAINTIFF-APPELLANTS, DAVID, BRENDA, AND AUSTIN PItIVE'I"I'

f',^ i}L K. FLGwHRS E'o.

50 nU1)LC Sq., Ste 3500

i:`levelanii, Ohio 44113

{"_' 16) 3449393

Fax: (2] 6) 344r9395

Donald C. Moore, Jr., Esq. (#0003945)Daniel N. Moore, Esq. (#0076430)Derrick A. Wyatt, Esq. (#0089357)THE MOORE LAW FIRM1o6o Nimitzview Drive, Suite 200Cincinnati, Ohio [email protected](513) 232-2000FAX: (513) 232-0700

Paul W. Flowers, Esq. (#0046625)[COUNSEL OF RECORD]PALTL W. FLOWERS Co., L.P.A.Terminal Tower, 35th Floor50 Public SquareCleveland, Ohio 44113(216) 344-9393FAX: (216) 344-9395PvefC?pwfcoecoin

Attorneys for Plaintf ff-Appellants,David, Brenda, andAzistin Privett

John M. Hands, Esq.Pamela K. Ginsburg, Esq.ULtyIER. & BE1tNE LLP6oo Vine Street, Suite 28ooCincinnati, Ohio [email protected]

Attorney for Defendant-Appellee,QSL-Milford, LLC dba Quaker Steak &Lube

Todd W. Smitli, Esq.KREINER & PETERS Co., L.P.A.6047 Frantz Road, Suite 203Dublin, Ohia 43017-3387t5m_rth C^ subroatic^ii -recr^v^z^^. ceazn

Attorney for Defendant-AppelleeUnited Healthcare Services, Inc.

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TABLE OF CONTENTS------------- - - ---- --- ------ ------------- -

TABLE OF CONTENTS ... ............................ ., . ... ...... ............................. . .......... ii

STATEMENT OF ISSUES OF PUBLIC AND GREAT GENERAL IMPORTANCE ..........1

STATEMENT OF THE CASE . ... ...........................,,..................................... ................... 3

STATEMENT OF THE FACTS ............................ ............ ....... ..................................... 5

ARGUMENT .............. ........ ...... .............................. ............................................... 7

I'RLIPOSITION OF LAW_NO_ I: TO ESTABLISH DRA_M SHOP ACTLIABILITI^ FOR AN OFF-P'REMISES INJURY OR FATALITYTHROUGH R.C. 4399.7.8(A)(1), THE PLAINTIFF MUSTDEMONSTRATE THAT A LIQUOR PERMIT HOLDER AGENT OREMPLOYEE "KNOWINGLY" FURNISHED ALCOHOLICBEVERAGES TO A NOTICEABL'Y INTOXICATED PATRON.[Gressrnan V.1VIcClain, 40 Ohio St. 3d 359, 533 N.E. 2d 732 (1988),explained] .......................... ..... ........................ . ....... ........................ 7

PROPOSITION OF LAW NO4..__II: THE KNOWLEDGE ELEMENTDOES NOT HAVE TO BE ESTABLISHED UNDER THE DRAMSHOP ACT THROUGH A CONFESSION, BUT CAN BE PROVENCIRCUMSTANTIALLY ................. ............................. ........................ .., ....... 11

CONCLUSION ... ......... ........................ ..... ,.....,....,..................... ,..................,1,5

CERTIFICATE OF SERVICE .. ........ ...... . . .................... ..... ..........,......,............,. 16

APPENDIX

T-welfth District Judgment Entry . ...... ..........................Twelfth District Opinion............ .. ... ........ ...... . .. .. oooZ. .,... .... ......... ,. 0002Twelfth District Order Denying Reconsideration .. ...... ............... .................. .. 0013

W. Fi.owans C.o.

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STATEMENT t7^' tSSUES PUBLIC AND GREAT GENERAL IMPORTANCE

This personal injury action arises out of a high speed roadway accident during

which an intoxicated motorcycle operator was killed and left another operator lAith

permanently disabling injuries. Two frequently arising and widely misunderstood

aspects of Ohio's Dram Shop Act are now at issue. In affirming the entry of summary

judgment below in favor of the liquor permit holder, the Twelfth District misapplied the

law in both respects. Apx. ooo5-1o, 1J10-24.

First, the majority held that "actual knowledge" of a patron's impairment must be

proven when the controlling statute only requires ainens rea of "knowingly." Id., ooo5,

1I-1l. Second, the court compounded the error by refiising to consider the circumstantial

evidence indicating that the liquor permit holder's staff knowingly served beer to a

visibly intoxicated patron who, all. too predictably, caused the tragic motorcycle accident

only a short distance away from the establishment. Judge Robert P. Ringland was

compelled to concur in deference to stare decisis, but lamented. that the decision

imposes "an unworkable standard [that] renders Ohio's Dram Shop Act toothless." Id.,

000I2, f3o (Ringland, J., concurring).

For sound public policy reasons, the General Assembly has determined that

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liquor permit holders should be held liable for the off-premises injuries and fatalities

that follow when an agent or employee has "knowingly sold an intoxicating beverage to a

noticeably intoxicated person[.]" R.C. 4399..a8(A)(1). The "knowingly" element is often

the determinative factor as to whether civil damages are due. The lower court erred as a

matter of law, and effectively nullified this important legislation, by holding that "actual

knowledge" is necessary and can only be established through an admission of a

violation. Apx. oooxo, 1(24. Plaintiffs were not allowed to follow the traditional

approach of establishing through independent eyewitnesses and expert toxicologists

that the staff likely knew that the customer was inebriated as a restilt of his glazed eyes,

1

slurred speech, and sloppy behavior, but nevertheless continued to serve him one

alcoholic beverage after another. Id., pp. ooo8-1i, f19-24•

As will be developed. in this Memorandum, this minority view conflicts Aith those

appellate decisions that have adopted a more sensible construction of R.C.

4399.18(A)(1). 'Alhile the liquor permit holder's employee or agent must still act

"knowingly[,]" this element can be established circumstantially in those enlightened

jurisdictions. A criminal defendant's mens rea is often proven circumstantially even in

capital cases, and no plausible justification exists for prohibiting sucb demonstrations in

cir,Yil Dram Shop actions.

As was undoubtedly envisioned when the Dram Shop Act was adopted, the cause

of action that is permitted by R.C. 4399.18(A)(1) promotes important policy objectives.

In a case arising from a fatal automobile accident that had been caused by an intoxicated

motorist before the statute took effect, the late Chief Justice Moyer reasoned for the

majority that:

When_ a_._permitholder _or__his____employee__ sells____alcoho^ic

bev_erages.to a person__^ho__is intoxacated, an unreasonablerisk__of_harni to_ the___intoxicated ^erson_and__to__athers__ iscreated. It is a matter of common knowledge that anintoxicated person lacks control of his or her mental andphysical faculties during the period of intoxication and. that aperson who becomes intoxicated at a place where alcoholicbeverages are sold by a permit holder is likely to leave thepermit holder's premises in an automobile. As the facts inthis case so tragically and graphically demonstrate, anautomobile driven by an intoxicated person is a lethalweapon and a hazard to the safety of others. The driving ofan automobile while intoxicated is, of course, only onemeans by which an intoxicated person can injure or kill otherpeople. [emphasis added]

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Gressman v. McClain, 40 Ohio St.3d 359, 362, 533 N.E.2d 732, 735-736 (1988). Now as

then, those establishments that abuse the privilege afforded to them by their liquor

licenses should be expected to fully compensate the ,rictiins of their wrongdoing,

particularly innocent third parties. The specter of civil lawsuits further serves as a

2

f s

powerful deterrent to those who seek to maximize their profits by selling beer, wine, and

liquor to anyone retaining just enough of their facilities to pay for the drinks. If allowed

to stand, the Twelfth District's untenable decision will promote a dangerous precedent

that will allow liability to be imposed under R.C. 4399.18(A)(i) only in the rarest and

most extreme circumstances (if ever). Given the issues of public and great general

importance that are at stake, this Court should accept jurisdiction over the two

Propositions of Law that follow.

STi4TEMENT OF THE CASE

This Dram Shop Act action was commenced in the Clermont County Court of

Common Pleas on October 25, 2011. The Complaint alleges that Plaintiff-Appellant,

David B. Privett, was seriously and permanently disabled in an accident that occurred

on the evening of August 17, 2011 on Round Bottom Road in Milford., Ohio. He had

been traveling westbound in a la,,vful and carefijl manner on his motorcycle. The

collision ensued when Jason Carpenter ("Carpenter") lost control of his own motorcycle

while heading eastbound on the rural road,

Carpenter had just left the "Bike Night" festivities that were being held by

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Defendant--Appellee, QSL-Milford, L.L.C., at a Quaker Stake & Lube Restaurant in

Pa u c W. Fcowus Co.

Sfo Iltiblic Sd.; Ste 3500

Cleveland, Oltio 44113

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Milford, Ohio. Along with over one-thousand other motorcycle enthusiasts, he had

spent over three hours consuming beer that was being served both inside the facility as

well as from parking lot booths. After he was transported in a life-flight helicopter to

the University of Cincinnati Hospital, Carpenter died of his injuries. His blood alcohol

level was measured at .169 by the Coroner. Plaintiff survived with permanent and

debilitating neurological damage, a fractured pelvis, u-rist, and femur, and numerous

broken ribs. Defendant submitted an Answer denying liability and interposing various

affirmative defenses on December 21, 2011. The parties then proceeded with discovery.

Defendant filed a Motion for Summary Judgment on October 3, 2012

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("Defendant's Motion"), The liquor permit holder argued inter alia that "actual

knowledge" is required by R.C. 4399.18(A)(r), which could. not be established since none

of its representatives and employees had admitted during their depositions to having

deliberately violated the law. After an extension was granted to conduct additional

discovery, Plaintiffs' Memoranda Contra followed on November 16, 2012 together with

numerous affidavits and deposition transcripts. Plaintiffs maintained that, when the

entire circumstances precipitating the tragic motorcycle accident were considered,

reasonable minds could logically surmise that Defendant's staff had knowingly served

alcohol to Carpenter despite his visibly intoxicated appearance. When additional

evidence was obtained, Plaintiffs were granted leave to supplement their response on

February 4,2013. Defendant's own Reply followed on February 8, 2013, which nierelv

argued the establishment's earlier positions with greater fervor.

On March 11, 2013, Judge Thomas Hermon granted the motion for summarv

judgment in toto. He concluded that Plaintiffs had been unable to establish the "actual

knowledge" requirement for imposing liability under the Dram Shop Act. Plaintiffs filed

their Notice of Appeal on April 1, 2013,

Following briefing and oral argument, a divided Txvelfth District affirmed the

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trial court's order. The majority rejected Plaintiffs' attempts to establish the claims

circumstantially, and held that no recovery was available since none of Defendant's

representatives or employees had confessed to a knowing violation of the statute. Apx.

0005-11, f12-24. Judge Ringland concurred, but observed that the interpretation of the

Dram Shop Act that prevails in the Twelfth District essentially guarantees that damages

can never be recovered under the statutory cause of action. Id., oo®1X-12, ^26-30.

Given the issues of pubic and great general importance that have been implicated

by the Twelfth District's decision, Plaintiffs now seek further review in the Supreme

Court of ®hio.

4

STATEMENT OF THE FACTS

Defendant Quaker Steak and Lube-Milford is a restaurant in Milford Ohio that

offers at least three bars. (T.d. 55, p. 12, 55). Two are within the facility and the third is

outdoors on the patio. (T.d. 55, P, 55). Every Wednesday during the summer between

6:oo and io:oo p.m., the restaurant promotes "Bike Night." (T.d. 55, p. 15), A live band

plays in the parking lot surrounded by numerous booths and displays erected by

vendors who cater to motorcycle enthusiasts. (T.d. 55, p 116-117). A festival type

atmosphere is thus created and a fourth "beer booth" bar is added in the parking lot.

(T.d. 55, p. 55). The booth only serves beer in 24 ounce plastic cups and only accepts

cash. (T.d. 52, p^ 89, 94)•

On August 17, 2011, Carpenter drove his motorcycle directly from work to

Defendant's Bike Night A7hile following his friend and co-worker Matt Swartz

(4CSwartz"). (T.d. 87, p. 12, 17). T11ere, within a few feet of bartender/server Felicia Fields

("Fields"), he drank approximately five to seven beers from about 3:30 in the afternoon

until about 6:45 p.m., ultimately reaching an estimated blood-alcohol concentration

between.11x and.127 g/dL. (T.d. 97, f 16, .z7, & 19). Carpenter sang songs, talked about

having a "buzz on," became emotional, slurred and spit his words, had difficulty

communicating stories, appeared tired, uncharacteristically gave hugs, and displayed an

altered gate to and from the restroom.. (l:de 55, p. 126; T.d• 88, p. 56-61, 63-64,102-.To6,

and -i19).

According to his second drinking partner, Fernando Sanchez ("Sanchez"),

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Carpenter was "drunk" when Sanchez left Quaker Steak at approximately 6:30 p.m,

(7:d: 88, p. 111). Sanchez knew that Carpenter was too inebriated to ride a motorcycle.

(Id. at p. 8o). All of this behavior occurred writhin a few feet of the same bartender,

Felicia Fields. Id.

But Carpenter was not finished drinking and Defendant's staff was not finished

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ser-Ong. After over three hours of alcohol consumption before Fields, Carpenter and

Swartz proceeded to the parking lot beer booth to purchase and consume at least one, or

likely two more, 24 ounce cups. (T.d. 87, p. 94-95; T.d. 95, Affidavit of ,Ser^qeant

Holden f 7). After walking around and looking at all the bikes, the duo decided it was

finally time to depart. (T d. 87, P. 30).

Upon leaving Defendant's parking lot, Carpenter followed Swartz towards Round

Bottom Road. (T.d. 87, at 23 and 33). As they both pulled away from a traffic light,

Carpenter drove his motorcycle across the double yellow line but still managed to give

Swartz the thumbs up signal, (Id. at 81-83 and ioi).

Plaintiff David Privett, a 48 year-old father and husband, was an avid motorcycle

owner° (T.d. zo2, p. 9-13, 67). On that evening, he decided to take a ride to check out

Bike Night. (T.d. xo2, p. 92). Soon Plaintiff -,tiras laivfi.illy driving his motorcycle within

his lane on Round Bottom Road towards Carpenter and Swartz. (T.d. 102, P. 144-145,

148).

On this clear, dry night, Carpenter had driven less than a half-mile before he lost

control and struck the guardrail on the opposite side of the road. (T.d. 87, pp, 34 & 81),

He was propelled over an embankment to his eventual death. (Id. at 34-37). The

riderless motorcycle continued down Round Bottom Road and spun directly into the

path of Plaintiff, David Privett. (T.d: 10 2, p. 144-145, 148),

Carpenter's blood alcohol level at the time of his death was measured by the

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Coroner as . 169. (T.d. 95, Affidavit of Ernie Chaffin, f3 and Affidavit of Andrea

Hatten). He had consumed no intoxicants prior to arriving at Defendant's event and the

bars and booths were his only source of alcohol. (T.d. 87, p. 19-20 and 24-25).

Carpenter's negligence in causing the motorcycle accident has been established by the

affidavit of reconstruction specialist Dr. Thomas Huston, and has not been contested by

the defense. (.T.d. 120).

6

Plaintiff is now permanently disabled from the injuries he suffered in the crash.

He will never stand or walk normally for the rest of his life. (T.d, 102, p. 201-202 and

247). Plaintiff is unable to continue his work as a machinist or perform any other

activity to support his family because of his constant pain, limited mobility, heavy

medication, and inability to remain standing. (Id. at 251-256).

ARGUMENT

Two Propositions of LawT are being presented for this Court's consideration,

yvhich will be separately addressed in the remainder of this Memorandum.

I: TO ESTABLISH DRAMPROPOSITION- ----OF---- ---- --- - ------LAW NO.--SHOP ACT LIABILITY FOR AN OFF-PREMISES INJURYOR FATALITY THROUGH R.C. 4399.18(A)(1), THEPLAINTIFF MUST DEMONSTRATE THAT A LIQUORPERMIT HOLDER AGENT OR EMPLOYEE"KNOWINGLY" FURNISHED ALCOHOLIC BEVERAGESTO A NOTICEABLY INTOXICATED PATRON. [GressmanV. McCtaln, 40 OHIO ST. 3d 359, 533 N.E. 2d 732 (1988),explained]

For accidents occurring prior to 1986, those who served alcohol to others in

violation of the law could be held liable under the common law for injuries sustained by

innocent third parties as a result. Mitseff v. Wheeler, 38 Ohio St.3d 112, 113-114, 526

N.E.2d 798, 8oo (1988) (social host knowingly serves beer to a minor). Effective July 21,

1986, a statutory cause of action was furnished in the Dram Shop Act. The General

Assembly forcefully established that liquor permit holders can be held liable, in

appropriate instances, for injuries sustained and fatalities suffered by third-parties as a

result of the negligence of a patron who was served alcohol in violation of the law.

UreSSTnan, 40 Ohio St.3d at 362.

In its present form, R.C. 4399.18(A)(1) allows damages to be recovered when a

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liquor permit holder has "knowingly sold an intoxicating beverage *** to [a] noticeably

intoxicated person in violatiori of division (B) of section 4301.22 of the Revised Code[.]"

In turn, that division directs that:

7

No permit holder and no agent or employee of a permitholder shall sell or furnish intoxicating liquor to anintoxicated person.

R.C. 4301.22(B). Under the plain and ordinary terms of these stattites, only the sale has

to be "knowingly" made to an intoxicated customer. Id. The employee or agent does not

necessarily need to appreciate that the patron is legally impaired, only that he/she is

"noticeably intoxicated[.]" Id. By declining to impose a purely subjective test, the

legislature has precluded unscrupulous liquor establishments from evading liability

simply by "dummying up" after an off-premises accident.

When the General Assembly intends to impose an "actual knowledge"

requirement, the legislators have not hesitated to incorporate that specific phrase into

the enactment. See, e.g., R.C. 2305.35(B)(2)(a)(i) (immunity for donors of farm

property); R.C. 2307.89(C)(1) (immunity for property oAjners against certain silicosis

and mixed dust claims); R.C. 2307.941(A)(3)(u) (limiting asbestos liability for premises

owners); R.C. 2317 56(H)(1) &,( 3.)(a) (imposing standards for medical abortions). The

Ohio Dram Shop Act's civil liability provision is not such a statute. R.C. 4399•.r.8(A). Nor

is the prohibition against sales to an "intoxicated person." R.C. 4301,22(B). The

absence of an explicit "actual knowledge" requirement in both statutes is undoubtedly

no accident.

Presumably following substantial debate and analysis, a majority of the

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legislature determined that a liquor permit holder's employee only has to "knowingly"

sell an intoxicating beverage in violation of the law to justify a recovery of damages.

R.C. 4 399.M(A). That is not the same as "actual knowledge," as the Criminal Code

defines the familiar term as follows:

A person acts knotitiringly, regardless of his purpose, when heis aware that his conduct will probably cause a certain resultor will probably be of a certain nature. A person hasknowledge of circumstarices when he is aware that suchcircumstances probably exist.

8

R.C. 2901.22(B). The "probably cause" feature of the term "knowîngly" is antithetical to

a strict understanding of "actual knowledge." Rather than allow countless offenders

who have refused to admit that they have acted "knowingly" to avoid incarceration, a

sensible test has been established by Ohio courts.

"'Knowingly' does not require the offender to have thespecific intent to cause a certain result. That is the definitionof `purposely.' Instead, whether a person acts knowingly canOnly b8 determineCd, abênt_a deêTKlant`s_admiSsion, from all

the surrounding_facts and circumstances, incluciing the cloingo the act itself. " v. Huff(2001), 145 Ohio App.3d 555,763 N.E.2d 695. [underlining added]

State v. Dixon, 8th Dist. No. 82951, 2004-Ohio-24o6,1I16.

Citing Gressman, 40 Ohio St. 3d 359, the Twelfth District held below that "actual

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knowledge" has to be established even though that phrase does not appear in the

controlling statutes. Apx. ooo5, fi1. Significantly, Gressman had arisen from a fatal

automobile accident that had occurred in 1979, which was several years before the

modern version of R.C. 4399.18 was enacted in 1986. Id., at 359. The majority took

care to note that the claim pre-dated the statute, and ultimately held that causes of

action arising prior to the effective date of June 21, 1986 had to be established through

"actual knowledge of intoxication[.j" Id., at 362-363. Contrary to the Twelfth District's

holding, Gressman, did not attempt to modify current R.C. 4399,18(A) by judicially

reworking the phrase "knowingly sold an intoxicating beverage[.]" Id. To the contrary,

Chief Justice Moyer summarized the majority's holding as follows:

Therefore, we hold that to recover damages in a civil actionbased upon a violation of R.C. 4301.22(B), a plaintiff mustprove that the permit holder or his employee knowingly soldan intoxicating beverage to a noticeably intoxicated personwhose intoxication proximately caused the damages sought.[underlining added]

Id., at 363.

The Gressman opinion recognized that actual knowledge, as opposed to

9

constructive knowledge, was required under decisions that pre-date the modern Dram

Shop Act. Id., 40 Ohio St.3d at 363. Unfortunately, some courts have overlooked that

Gressman was governed by the common law standards, not current R.C. 4399.1-8. See,

e.g., Tillett v. Tropicana Lounge & Restaurant, Inc., 8i Ohio App.3d 46, 61o N.E.2d 453

(9th Dist. 1.g9i).

The majority's decision below is at odds with Lesnau v. Andate Ents., Inc., 93

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Ohio St.3d 467, 2oo1-Ohio-1591, 756 N.E.2d 97. The Supreme Court defined the issue

in that case as to whether former R.C. 4399.x8(A)(3) "requires that the liquor permit

holder have actual knowledge of the underage status of the purchaser before liability

may be imposed for injuries to a third person." Id., 93 Ohio St.3d at 467. A drive-thru

employee had allegedly sold beer to a youth who had lied about his age, which

precipitated a fatal automobile accident. Id., pp. 467-468. The trial judge granted

summary judgment against the deceased motorists' estate because there was no proof

the establishment knew the juvenile's true age. Id. In rejecting this logic, Justice

Lundberg Stratton observed with the majority that before R.C. 4399•18 had been

adopted in 1986, "actual knowledge" had been required under the common law. Id., at

469. The Court distinguished Gressman on the grounds that there was no allegation

that the youth was noticeably intoxicated, although another basis would have been that

current R.C. 4399.18 did not apply to that accident. Id., at 472. Citing the

corresponding criminal prohibition, R.C. 43o1.69(A), the Court reasoned that

"knowingly" was used interchangeably with "knows or has reason to know" and adopted

a decidedly objective test. Id., at 473. It should be noted that the liability for knowingly

ser-vYing alcohol to minors that was imposed by former R.C. 4399.18(A)(3) is now set

forth in current R.C. 4399•18(A)(2).

The time has come to clarify that the definition of "knowingly" is precisely the

same for purposes of R.C. 4399.r8(A)(1) (providing alcohol to a noticeably intoxicated

10

person) as for (A)(2) (providing alcohol to a minor). In Gressman, 40 Ohio St.3d at

362, this Court explained. that:

There is no legaldistinctionbehveenthe_violatinn-of-a-dutvnot to furnish intoxicating-- beve_ra zes to a minor and theìolatinn af a du not to furnish intoxicating-beverwês toanintoxicated_-person. See [State v. Morello, 169 Ohio St. 213,216, 158 N.E.2d 525, 527-528 (1959)]. The common goal ineach instance is to protect the consumer of the beveragefrom his or her own conduct and to protect the public fromsuch conduct. See Pond u. Carey Corp. (1986), 34 OhioApp.3d 1og, 112-113, 517 N.E.2d 928, 932-933; Cahn, NewCommon Law Dramshop Rule (1g6o), 9 CI.EVE.-MAR.L.REv.302, 302-305. [underlining added]

Despite this seemingly unassailable pronouncement, the Twelfth District's decision

draws an illogical distinction between R.C. 4399.18(A)(1) and (2). Subjective proof of

"actual knowledge" is indispensable under subsection (A)(1), Apx. ooo5, fi1, but

damages can be recovered through subsection (A)(2) under an objective "has reason to

know" test. Lesnau, 93 Ohio St.3d at 473. Those who have been entrusted with a liquor

license should not be allowed to circumvent a vital subsection of the statute simplv by

denying any "actual knowledge" of a patron's otherwise obvious impairment.

In order to afford the Dram Shop Act the force and effect that the General

Assembly envisioned, this Court should accept jurisdiction over this first Proposition of

La-v%r.

PROPOSITION OF LAW NO. II: THE KNOWLEDGE------------ --- - -------------- ----- --- -ELEMENT DOES NOT HAVE TO BE ESTABLISHEDUNDER THE DRAM SHOP ACT THROUGH ACONFESSION, BUT CAN BE PROVENCIRCUMSTANTIALLY.

Regardless of whether a jury is required to find for purposes of R.C.

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4399,18(A)(1) that the liquor permit holder's employee or agent acted either

"knowingly" or possessed "actual knowledge" of impairment, this Court should establish

that the element can be established circumstantially just as in every other civil and

criminal proceeding. Ì'he Twelfth District refused to do so below, and accepted as true

11

each defense witnesses' highly suspect assurance that Carpenter appeared perfectly fine

throughout his afternoon of heavy drinking. Apx. 0o08-9, ¶19-20. The observations of

his friend and independent witness, Sanchez, were discarded because his own

"knowledge cannot be imputed to [Defendant] where the record does not otherwise

indicate that [Defendant] had actual knowledge that Carpenter was noticeably

intoxicated but chose to serve him any^-vay." Id., ¶2x. Likewise, Dr. Alfred E. Staubus'

compelling expert opinions as to how Carpenter would have likely appeared to any

reasonably attentive bartender were never considered because the "record, however,

does not contain any evidence that [Defendant] saw Carpenter exhibit any of these

symptoms at the time he was served." .Ld., 1122.

There can be no doubt that the majority tvas interested only with direct and

uncontestable proof of the necessary mens rea, as reflected in the opinion's concluding

paragraph.

After reviewing the record, we find that Sanchez's testimonvand the calculations by Dr. Staubus merel 3_ y offer in_fereneesthat__Car-penter_was. intoxzcaatedat the tihe wa^ at__therestaurant. However, such testimony fails to demonstratethat Fields, or any other QSL employee had actual knowledgethat Carpenter was noticeably intoxicated at the time he wasserved. A review of the record indicates that even whenconstruing the evidence in a light most favorable to thePrivetts, the comîlatîon o f infer^nces creates a_suggestzon ofconstruct^ê_knowled e rater_than actual knowle_dge whichis insufficient to maintain an action pursuant to Ohio's DramShop Act. [underlining added]

1'AU6 W. FLOWERS Ch,

50 E'ublit: Sq., Ste 350(1

C'.feveland, Ohio ?4113

(2E 6) 344-9393

Fax: (216) 344-9395

Apx. ooolt'-ii, T24. Quite clearly, the majority has confused circumstantial proof Mth

constructive knowledge. According to this mi.sguided, logic, a civil or criminal

defendant's deliberate, purposefi.il, intentional, malicious, or knowing misconduct can

only ever be proven through an admission.

As is oft recognized. in the criminal context, that is not the law in Ohio. State v.

7uffman, 131 Ohio St. 27, 1 N.E.2d 313 (1936), paragraph four of the syllabus. The

12

requirement of intent may be established circumstantially based upon all the

surrounding facts and circumstances. In re Washington, 81 Ohio St.3d 337, 3409 199$-

Oh1o-627, 6g1 N.E.2d 285.

Indeed, modern courts agree that the trier of fact can draw reasonable inferences

from circumstantial proof. .Markle v. Cement Transit Co., 8th Dist. No. 70175, 1997 W.L.

578940, *3 (Sept. 18, 1997); Barna v. Randall Park Assocs., 8th Dist. Na. 65998, 1994

W.L. 393692, *2 (July 28, 1994). "Ci-rcumstantial evidence is not only sufficient, but

mav also be more certain, satisfying and persuasive than direct eNidence." Rogers v.

14%£issouri Pac. R. Ca., 352 U.S. 500, 508, 77 S. Ct. 443, 449, 1. L. Ed. 2d 493 fn. 17 (1957)

(citations omitted). Ohio law no longer recognizes any distinction in probative value

between these two types of proof. Masonic Health Care, Inc. v. Finley, 176 Ohio App.

3d 529, 2oo8-Ohio-2891, 892 N.E. 2d 942, 9471( 51 (2nd Dist. 20o8); H. Park Ptnrs. v.

Frick, 181 Ohio App. 3d 691, 695, 20ogg-Ohio-1462, 91o N.E. 527, 530, 1! 26 (6th Dist.

2009).

As a result of the Twelfth District's extreme view of how "actual knowledge" must

Pno^ W.FLOwEZSC:o,

50 PublicBq., Ste 3500

Clevelatld, 71 io 44113

(216) 341-9393

Fax: (215) 344-9395

be established, a sharp conflict now exists amongst the appellate courts. Those districts

following the more pragmatic construction of the Dram Shop Act allow the self-seiving

claims of the permit holder's employees to be contested with evidence that the patron

appeared to be intoxicated to others, and an expert toxicologist's opinion that the

heralding signs would have been evident based upon the blood-alcohol level that was

later measured. Sullivan v. Heritage Lounge, 1offi Dist. No.04AP-1261, 2005-Ohio-

4675, ¶17 ("Generally, in practice, plaintiffs attempt to establish actual knowledge of

intoxication through direct testimony that the patron in question acted intoxicated or

expert testimony that the patron would have appeared intoxicated given the amount of

alcohol consumed.") Far from "imputing" the witnesses' knowledge to the permit holder

as the Twelfth District feared, the trier-of-fact is simply being allowed to surmise that

13

the server most likely observed the patron in a visibly intoxicated state and thus

acquired actual knowledge of his/her condition. This Court has specifically

acknowledged that: "It is reasonable to conclude that by virtue of its experience, the

commercial proprietor is more familiar with its customers and their habits and

capacities so as to know when they are intoxicated," Gressman, 40 Ohio St.3d at 363. A

court 's analysis of the surrounding circumstances should not end upon a bartender's or

waitresses' mere say-so.

As an example of the illogical dichotomy that has developed, in Bickel v.lVlailer,

3d Dist. No. 5-94-14, 1994 WL 53o685 (Sep. 29, 1994), the inebriated patron consumed

approximately 1o beers at the defendant's bar, was staggering within a few hours, and

later drove a car off the road and fatally injured his passenger. Id., at *1 . Both the

bartender and co-owner denied that the customer had exhibited any signs of

intoxication. Id. In direct contrast the Tcvelfth District, the Bickel Court acknowledged

that: "Thus, the only way for a third party injured by an intoxicated person to

substantiate his claim against the liquor permit holder would be by use of circumstantial

evidence." M., at *3; The requirement of "actual knowledge" tvas found to have been

established notwithstanding the plaintiffs reliance on circumstantial proof:

Wherever, from competent evidence, either__ direct orcircumstantial, the trier of the facts is entitled to hold as aconclusion of fact and not as a presumption of law that theinformation was personally communicated to or received bythe party, the notice is actual. [emphasis added]

PaUl. W. FLfJwERS CO.


t levelaiid; Ohio 44113

(216) 344-9393

Fax: (216)?A4-9395

Id., at *3; see also Harris v. Pallone Management, Inc., ^,7o Ohio App.3d 207, 590

N.E.2d 874 (Zoth Dist. 199o), (despite lack of direct proof of actual knowledge, a

genuine issue of fact remained considering the circumstantial evidence regarding the

number of alcoholic drinks consumed and the fact the bartenders had the opportunity to

gauge the patron's condition); Studer v. VFW Post 3767, 185 Ohio App.3d 691, 2009-

Ohio-7002, 925 N.E.2d 629 (11th Dist.) (finding genuine issues of fact remained on

14

plaintiffs evidence of the inebriated patron's consumption. of alcoholic drinks at the bar,

at least several of which were admittedly served by the bartender directly, which gave

the defendant's staff multiple opportunities to obsetve the patron's state of

drunkenness); .Balli v. lVloyse-Morgan Enterprises, Inc., 9th Dist. No. 12CA10260, 2013-

Uhio-1214 (plaintiffs affidavit describing the patron's state of inebriation from drinking

at the bar created a genuine issue of material fact necessitating trial); Fandozzi v. Kelly

Hotel, Inc., 711 A.2d 524 (Pa. Super.,z-99$) (trial court erroneously granted summary

judgment in favor of tavern owner where plaintiff presented evidence of intoxicated

patron's staggering and slurring at the tavern after consuming 14 alcoholic drinks in hNto

hours under similar Dram Shop provision). None of these sound authorities can be

reconciled with the Twelfth District's minority view that independent lA*itness and expert

testimony cannot be considered to "impute" actual knowledge to the permit holder.

Apx. 0009-10, f22-24.

This Court should resolve the troubling conflict that now exists amongst Ohio's

appellate courts and accept this Second Proposition of Law for careful consideration.

CONCtUS1ON

Given the issues of public and great general importance that have been

PP. UL W. FLOW HP.5 CO,

501'ubhc Sq„Ste 3500


(216) 344-9393

Fax: (216) 344r-9395

implicated by the 'lwelfth Distxict's misinterpretation of R.C. 4399.18(A)(1) and

confuszon of constructive knowledge with circumstantial proof, this Court should accept

jurisdiction over the two Propositions of Law that are being offered.

Respectfully Submitted,

DQnC^^C, ^oQYe. (perauthority)- --- - - - ------------- --------- --- - ---------- ------------Donald C. Moore, Jr., Esq. (#0003945) Paul W. Flowers, Esq. (#0046625)Daniel N. Moore, Esq. (#0076430) [COUNSEL OF RECORD]THE MooRE LAw FIRIVJt PAUL W. Fr:AUTERS Co., L.P.A.

Attorneys,for Plaintiff-Appellants,David, Brenda, and Ausfin Privett

15

CERTIFICATE OF SERMICE

I certify that a copy of the foregoing Memorandum has been sent by e-mail on

this 27th day of December, 2013 to:

John M. Hands, Esq.Pamela K. Ginsburg, Esq.ULMER & BERNE LLP6oo Vine Street, Suite 28ooCincinnati, Ohio 45202jhanris_CiDulnêr.compginshurgûlmer.com

Attorney.for Z?efendant Appellee,QSL-Milford, LLC dba Quaker Steak &Lube

Todd W. Smith, Esq.KREINER & PErERs Co., L.P.A.6047 Frantz Road, Suite 203Dublin, Ohio 43017-3387tszn ^th _^ s^rbrcâtic^^^-zôc^^ê ^ y. ôr.^:

Attorney fof• 17efendant,United Healthcare Services, Inc.

PaUI;L'J. rLiILVE'RS C(3.

50 Public Sq., Ste :3500


(216) 341-939;3

Fax: (216) 344-9395

Attorneys for Plaintiff-AppelIants,David, Brenda, and Austin Privett

Paul W. Flowers, Esq., (#0046626)PAUL W. FLOWERS Co., L.P.A.

16

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

I

DAVID B. PRIVETT, et aL,

Plaintiffs-Appella nts,

-vs-

QSL-MlLFORD, LLC, et al.,

Defendants-Appellees.

CASE NtJ. CA2013-04-025

JUDGMENT ENTRY

COURT OF APPEALS

FILED

SEP 2 3 2013SARRARACAL , ^^ DENBEIr

c a ERM®NT COUNTY. OH

The assignment of error properly before this court having been ruled upon, it isthe order of this court that the judgment or final order appealed from be, and thesame hereby is, affirmed.

It is further ordered that a mandate be sent to the Clermont County Court ofCommon Pleas for execution upon this judgment and that a certified copy of thisJudgment Entry shall constitute the mandate pursuant to App.R. 27.

Costs to be taxed in compliance wit 4.

Robert P. R,^ Presiding Judgu-

R bin N. PipeN, udge

Mike Powell, Judge

Apx. 0001

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

DAV[D B. PRIVETT, et al.,

PiaintifFs-Appellants, CASE NO. CA2013-04-025

- vs -OPINICQN

9/23/2013

QSL-MILFORD, LLC, et al.,

Defendants-Appellees.

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEASCase No. 2011 CVC 01913

The Moore Law Firm, Donald C. Moore, Jr., Daniel N. Moore, Derrick A. Wyatt, 1060Nimitzview Drive, Suite 200, Cincinnati, Ohio 45230, for plaintiffs-appellants, David 8.,Brenda J., Stephen and Austin Privett

Mularski, Bonham, Ditfimer & Phillips, LLC, Lynne K. Schoeriling,107 W. Johnstown Road,Gahanna, Ohio 43230, for defendant-appellee, QSL-Milford d.b.a. Quaker Steak & Lube

Kreiner & Peters Co., L.P.A., Todd W. Smith, 6047 Frantz RQad, Suite 203, Dublin, Oiiio43017-3387, for defendant-appellee, United Health Care tns. Co,

PIPER, J.

i¶ 1} Plaintiffs-appellants, David, Brenda, Stephen and Austin Privett, appeal a

decision of the Clermont County Court of Common Pleas, granting summary judgment in

Apx. 0002

Clermont CA2013-04-025

favor of defendant-appellee, QSL-Mlford dba Quaker Steak & Lube (QSL).j

112) QSL operates a Quaker Steak & Lube restaurant in Milford, Ohio, that

promotes "Bike Night" on Wednesdays during the summer months. On any given Bike Night,

QSL invites a band to play live music in the parking lot, as well as various venders who tailor

their businesses to motorcycle enthusiasts. !n addition to the three bar locations within the

restaurant and on the outside patio, patrons also have access to alcohol served in the

parking lot. This "beer booth" serves beer in 24-ounce plastic cups and only accepts cash

payments.

1131 On the night of August 17, 2011, Jason Carpenter drove his motorcycle from

work to the Quaker Steak & Lube restaurant where QSL employees, including the bartender

Felicia Fields, served him between five to seven beers over a span of approximately three

hours and 15 minutes. Carpenter also consumed food at the restaurant, including 12

boneless wings and french fries. Carpenter's friends and co-workers, Matt Swartz and

Fernando Sanchez, were at the restaurant with Carpenter, and also consumed alcohol with

him. After drinking multiple beers inside, Carpenter and Swartz proceeded to the parking lot

where it is possible that they consumed an additional one or two beers from the beer booth.

Carpenter and Swartz then walked around the parking iot, looking at other motorcycles for

approximately 30 to 45 minutes, before they left the restaurant.

{14) Within a half-mile from the parking lot, Carpenter lost control of his motorcycle,

struck a guardrail on the opposite side of the road, and was propelled over an embankment.

Carpenter's motorcycle continued down the road, and spun directly into the path of David

Privett, who was riding his motorcycle to the restaurant for Bike Night. Privett sustained

serious injuries including a fractured pelvis, broken ribs, a fractured wrist and a fractured

1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar and place it on theregular calendar for purposes of issuing this opinion.

_ 2 .,

Apx, 0003

Clermont CA2013-04-02a

femur. Carpenter died as a result of his injuries. At the time of his death, Carpenter's blood

alcohol level was .169.

115j Privett, his wife Brenda, and their two sons, Austin and Stephen, filed suit

against QSL, alleging that QSL violated Ohio's Dram Shop Act and was liable for Privett's

injuries. QSL filed a motion for summary judgment, and the trial court granted it. The

Privetts now appeal the trial court's decision raising the following assignment of error.

{16} THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY

JUDGMENT OF DEFENDANT-APPELLEE QSL-MILFORD, LLC.

{^ 71 The Privetts argue in their assignment of error that the trial court erred in

granting summary judgment to QSL.

(q 8} This court's review of a trial court's ruling on a summary judgment motion is de

novo. Broadnax v. Greene Credit Serv., 118 Ohio App.3d 887, 887 (2d Dist.1997). Civ.R.56

sets forth the summary judgment standard and requires that (1) there be no genuine issues

of material fact to be litigated, (2) the moving party is entitled to judgment as a matter of law,

and (3) reasonable minds can come to only one conclusion being adverse to the nonmoving

party. Slowey v. Midland Acres, Inc., 12th Dist. Fayette No. CA2007-08-030, 2008-ahio-

3077,18. The moving party has the burden of demonstrating that there is no genuine issue

of material fact. flarCess v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978).

{19} The nonmoving party "may not rest on the mere allegations of his pleading, but

his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts

showing the existence of a genuine triable issue." Mootispaw v. i;'ckstein, 76 Ohio St.3d 383,

385 (1996). A dispute of fact can be considered "material" if it affects the outcome of the

litigation. Myers v. Jamar Enterprises, 12th Dist, Clermont No. CA2001-06-056, 2001 WL

1567352, *2 (Dec. 10, 2001). Not all disputes of fact create a genuine issue. Instead, a

dispute of fact can be considered "genuine" if it is supported by substantial evidence that

-3-

Apx. 0004


exceeds the allegations in the complaint. Id.

{11O} According to Ohio's Dram Shop Act, as codified in R.C. 4399.18,

a person has a cause of action against a permit holder or anemployee of a permit holder for personal injury, death, orproperty damage caused by the negligent actions of anintoxicated person occurring off the premises or away from aparking lot under the permit holder's control only when both ofthe following can be shown by a preponderance of the evidence:(A) The permit holder or an employee of the permit holderknowingly sold an intoxicating beverage to * * * (1) A noticeablyintoxicated person in violation of division (B) of section 4301.22of the Revised Code *"* [and] (B) The person's intoxicationproximately caused the personal in;ury, death, or propertydamage.

According to R.C. 4301.22(B), "no permit holder and no agent or employee of a permit holder

shall sell or furnish beer or intoxicating liquor to an intoxicated person."

f¶ 11} The Ohio Supreme Court examined Ohio's Dram Shop Act and found that

"actual knowledge of intoxication is a necessary component in fashioning a justiciable claim

for relief under R.C. 4301.22(B). Constructive knowledge will not sutflce. It has been

observed that to hold otherwise would subject vendors of intoxicating beverages to ruinous

liability every time they serve an alcoholic beverage." (Emphasis added and internal citations

omitted.) Gressman v. McClain, 40 Ohio St.3d 359, 363 (1988). In explaining actual

knowledge, the court stated,

knowledge of a patron's intoxication may beobtaiiied from manysources and in many ways, and is furnished or obtained by avariety of facts and circumstances. Generally speaking, aperson has knowledge of'an existing condition when his relationto it, his association with it, his control over it, or his direction of itare such as to give him actual personal information concerningit.

ld.

{¶ 12} After reviewing the record, and construing all facts in a light most favorable to

the Privetts, summary judgment was appropriate because there are no genuine issues of

-4-

Apx. 0005


material fact to be litigated regarding whether QSL knowingly served a noticeably-intoxicated

Carpenter or had "actual knowledge" Carpenter was intoxicated at the time he was served

intoxicating beverages.

{¶ 13} Within his deposition, Matthew Swartz testified to the events on the evening of

the accident. Swartz testified that he, Carpenter, and Sanchez all worked for the same

company and that the three decided to meet at Quaker Steak & Lube after work. Swartz and

Carpenter arrived at the restaurant around 3:30-3:40, and Sanchez joined them later. Swartz

testified that he and Carpenter eventually ieft the restaurant around 8:00 p.m., and that

during the time they were there, they consumed beer. Swartz was unable to recall the exact

amount of beers he consumed, but stated that it was possible that he and Carpenter

consumed beer at both the patio bar as well as the beer booth in the parking lot. After

drinking at the patio bar, but before leaving, Swartz and Carpenterwalked around the parking

lot for approximately 30 to 45 minutes looking at the motorcycles and talking to the other

patrons.

11141 When Swartz was asked whether Carpenter was drunk that night, Swartz

replied, "not that I know of." Swartz later testified that he "couldn't tell" whether Carpenter

was intoxicated, and that Carpenter was not stumbling when walking, was not slurring his

words, and did not have any facial features indicating that he was tired. Swartz also testified

that Carpenter was not loud or belligerent at any time while he was in Carpenter's presence.

When asked "was there ever a time at any point while you were at Quaker Steak that night

that you observed Jason Carpenter and thought that he was intoxicated," Swartz replied,

"no."

f¶ 151 Fernanda Sanchez was also deposed, and testified that he came to the

restaurant after Swartz and Carpenter had already arrived, and joined them in drinking beers

at the patio bar. Sanchez testified that he had approximately five beers, and that he,

_b_

Apx. 000fi


Carpenter, and Swartz were having a good time at the restaurant that night. Sanchez stated

that the men talked about their personal lives, and that the three were acting friendly toward

one another and more casual than they may have acted at work. Sanchez testified that the

three men discussed being "buzzed," but stated that he was unaware if the bartender

necessarily heard them.

11161 Throughout his deposition, Sanchez stated his belief that Carpenter and Swartz

were both intoxicated on the night of the accident, and that he, himself, had been afraid of

getting a Ji1i that nicdht driving home. Sanchez also testified that he listened to Carpenter tell

a story, and that Carpenter slurred his speech, spoke softer and slower than usual, and

became emotional when discussing his wife. Sanchez also testified that if he knew that

Carpenter was riding a motorcycle that night, he would not have let Carpenter drive home.

{¶ 17) While the Privetts assert that Sanchez°s testimony demonstrates that QSL

wouid have known that Carpenter was intoxicated when they served him, nowhere in

Sanchez's deposition does he testify to anything that would have given QSL actual

knowledge that Carpenter was intoxicated at the time he was served. Instead, Sanchez

testified that Carpenter was "very respectful" that night, he did not see Carpenter stumble at

all, that Carpenterhad'"normaP" and'"pieasanY' conversations with others, Carpenter's eyes

did not become red or bloodshot throughout the night, Carpenter did not appear tired,

Carpenter never spilled his drink, Carpenter never fell down or dropped anything, and that

Carpenter never showed anger or engaged in excessive cursing. The fact that Sanchez

believed Carpenter to be drunk is insufficient to establish that QSL had actual knowledge that

Carpenter was intoxicated and served him anyway.

{^ 18} The law does not permit Sanchez's belief as to Carpenter's intoxication to be

imputed to QSL. See Caplinger v. Korrzan Restaurant Mgt., Inc., 12th Dist. Butler No.

CA2091-06-O99, 2011-Ohio-6420,% 19 (noting that the'"Ohio Supreme Court has specifically

_6,.

Apx. 0007

Clermont CA2013-04-Q25

stated that constructive knowledge (i.e. arguments of what someone should have known],

whether it is based on direct or circumstantial evidence, will not suff^ce to demonstrate a

claim under Ohio's Dram Shop Act"). (Emphasis sic.} Despite Sanchez's personal belief that

Carpenterwas intoxicated, the record demonstrates that QSL had no actual knowledge that

Carpenter was intoxicated or that its employees knowingly served a noticeably-intoxicated

Carpenter.

{1119} Felicia Fields was deposed, and testified that she served Carpenter, Sanchez,

and Swartz on the night of the accident. Fields, who at the time of her deposition was

employed as a server and bartender by QSL, testified that she was trained to monitor patrons

with respect to alcohol consumption. Fields testified that as part of her training, she was

taught to Cook for signs of intoxication, such as a flushed face, an increased volume of

speech, the patron talking more than before, slurred speech, as well as how the patron is

walking. Fields also testified to being aware of how many drinks a patron consumed within a

given amount of time, and the need to further observe the patron for other signs of

intoxication. During her testimony, Fields stated that she did not see any signs that would

have indicated that Carpenterwas becoming intoxicated arwas intoxicated when she served

him. Fields also testified that Carpenter was very respectful on the night she served him, and

that she was not so busy that evening that she could not observe Carpenter for signs of

intoxication.2

2. The Privetts argue that Carpenter was not being respectfui on the night of the accident, and point to a portionof Fietds' testimony wherein she recalled that Carpenter and Swartz sang "t.a Cucaracha" to Sanchez. ThePrivetts argue that Carpenter was "making fun of 1Sanchezt for his Mexican heritage," which the Privetts arguewould show that Carpenter was visibly intoxicated. However, Fields testified that the singing was "in good fun"and that all three were having fun during the singing. Sanchez also testified that Carpenter was "very respectful"on the night of the accident, and never testified that Carpenter was being disrespectful to him or his heritage onthe night of the accident. When asked about Carpenter singing "La Cucaracha," Sanchez testified that they werelaughing, having a "good time." Sanchez reiterated again that Carpenter was "being respectful all this time,"Therefore, the record is clear that Sanchez did not feel that Carpenter was being disrespeciful to him, or makingfun of his heritage as the Privetts assert.

-7-

Apx. 0008


11201 Several other QSL. employees were deposed; however, not one testified to

having any actual knowledge that Carpenter was noticeably intoxicated when he was served.

In fact, most of the other employees testified that they had not served Carpenter that night, or

were unable to say for sure whether they had even served Carpenter. These employees

included Michael Tringelof, the manager of the patio bar and outside dining area; Megan

Freeman, another bartender who was working on the evening of the accident; James Mills,

QSL's Vice President of Operations^, Kathleen Donahoe, the general manager of the

restattrant, Sean Dever, a bartender who worked on the night of the accident; R. Thcmas

Rogers, who worked in the beer booth in the parking lot on the night of the accident; Gary

Stansbury, a bar manager; Stephanie Evans, a waitress and bartender who worked at the

restaurant on the night of the accident; Timothy Hecktor, another worker at the beer booth in

the parking lot; and Michael Melton, who managed the inside portion of the restaurant. Not a

single one of these QSL, employees testified to seeing Carpenter in any state of intoxication,

let alone serving him alcohol while he was visibly intoxicated.

{¶ 21} In an effort to create a genuine issue of material fact, the Privetts claim that the

testimony from Sanchez is sufficient to raise genuine issues of material fact as to whether

QSL had actual knowledge of Carpenter's intoxicated state. However, we have aiready

established that Sanchez's knowledge cannot be imputed to QSL where the record does not

otherwise indicate that QSL had actual knowiedge that Carpenter was nofrGeably intox(icated

but chose to serve him anyway.

t¶ 22} In addition to Sanchez's testimony, the Privetts also point to the deposition

testimony from Dr. Alfred Staubus in which he discussed pharmacokinetic calculations

regarding to,what degree Carpenter was intoxicated at approximate times during the night of

the accident. Dr. Staubus estimated that based upon the level of aicohat in Carpenter's

blood at the time of his death, Carpenter's blood alcohol level at approximately 6:45 p.m. that

_g_

Apx. ®aDs

C[ermont CA2013-04-026

night would have been between .111 to .127. In Dr. Staubus' estimation, a person with a

blood alcohol content level between .111 to.127 would likely exhibit signs of being within the

`°excitement stage of alcoholic influence." According to Dr. Staubus, some of the symptoms

of the excitement state of alcoholic influence include: emotional instability, decreased

inhibitions, loss of critical judgment, impairment of memory and comprehension, decreased

sensory response, increased reaction time, and some muscular incoordination. The record,

however, does not contain any evidence that QSL saw Carpenter exhibit any of these

symptoms at the time he was served,

{¶ 23} The testimony regarding calculations and the likelihood of exhibiting signs of

alcoholic influence does not establish that QSL had ectuai knowledge that Carpenter was

intoxicated yet served him anyway. "The mere fact that [a person's] blood alcohol content

was in excess of the legal limit when tested after the accident, does not lead one to conclude,

without additional evidence, that [an establishment] knowingly served aicohol to a visibly

intoxicated person in violation of R.C. 4399.18." Rockwell v. Ulfom, 8th Dist. Cuyahoga No.

73961, 1998 WL 563967, *6 (1998). The Rockwell court affirmed the trial court's grant of

summary judgment where the tortfeasor°s blood alcohol content was .169 but the appellant

failed to produce evidence that the servers had actual knowledge that he was visibly

intoxicated at the time of service.

{1j 24} After reviewing the record, we find that Sanchex's testimony and the

calculations by Dr. Staubus merely offer inferences that Carpenter was intoxicated at the time

he was at the restaurant. However, such testimony fails to demonstrate that Fieids, or any

other QSL employee had actual knowledge that Carpenter was noticeably intoxicated at the

time he was served, A review of the record indicates that even when construing the evidence

in a light most favorable to the Privetts, the compilation of inferences creates a suggestion of

constructive knowledge rather than actual knowledge, which is insufficient to maintain an

-9-

Apx. 00010

Ciermont CA2013-04-025

action pursuant to Ohio's Dram Shop Act. As such, the Privetts' assignment of error is

overruled.

{¶ 25) Judgment affirmed.

M. POWELL, J., concurs.

RINGLAND, P.J., concurs separately.

RINGLAND, P.J., concurring separately.

{¶ 2611 concur w►th the judgment of the majority. However, I write separately to

address the standard required to prove that a permit holder or employee of the permit holder

had knowledge that a patron was intoxicated.

$¶ 271 I cannot disagree with the majority's legal analysis of Ohio case law that

requires a permit holder or employee of the permit holder to have actual knowledge of

intoxication. However,l must note that by forbidding constructive knowledge as a means of

proving that a permit holder or its employee knowingly sold an intoxicating beverage to an

intoxicated person, the burden for proving knowledge has been rendered entirely

unworkable.

{¶ 28} Were proof of constructive knowledge sufficient, the present case may have

survived the motion for summary judgment. Sancheztest•ified thatthe men discussed being

buzzed, that Carpenter was intoxicated, slurred his speech, spoke softer and slower than

usual and was emotional when discussing his wife. Sanchez was able to observe enough

evidence of Carpenter's intoxication to state that he would not have let Carpenter drive home

had he known he was driving a motorcycle. In addition, Dr. Staubus' testimony regarding

Carpenter's blood alcohol content level and the correlating symptoms he would likely be

exhibiting provided additional evidence that QSL had constructive knowiedge of Carpenter's

-10 -

Apx. 00011

Clermont CA201 3-04-025

intoxication. This evidence would likely have created a material issue of fact as to whether

QSL had such knowledge.

{¶ 29} Instead, we are left with a standard that essentlaliy requires offenders to openly

admit that they knew they were serving an intoxicating beverage to a. noticeably intoxicated

person. Absent such an admission, it appears there can be no question of fact to allow the

claim to proceed to trial.

{¶ 30} Therefore, while I accept that we are constrained to the actual knowledge

standard by stare decisis and I thus co ►',cur with. the rtiajority, I am veilcerneci thot such an

unworkable standard renders Ohio's Dram Shop Act toothless.

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THE COURT OF APPEALS FOR CLERMONT COUNTY, OHIO

DAVID B. PRIVETT, et al., CASE NO. CA2013-04-025

Appellants,

vs.

QSL-MILFORD, LLC,

Appellees.

';:.n_ ,IFNTRY DEGoUp,T OF APKAl.S F '. R RE

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CLERKC;LEfIM`7N,1T ColtN T1', Ui;i

PPLICATION:RATION

The above cause is before the court pursuant to an appiicatiori for reconsider-

ation filed by counsel for appellants, David B. Privett, et al., on October 3, 2013.

When reviewing an application for reconsideration, an appellate court deter-

mines whether the application calls the attention of the court to an obvious error in its

decision, or raises an issue for consideration that was either not considered at all or

not fully considered by the court when it should have been. Orabill v. bVorthingtor7

industries, Inc., 91 Ohio App.3d 469 (1Qth Dist.1993).

This case involves the appeal of a motion for summary judgment graiited in

I

favor of appellee, Quaker Steak & Lube restaurant ("QSL-Milford"). Appellants, the

Privett family, filed suit against QSL alleging violation of Ohio's Dram Shop Act. On

appeal, the Privetts argued that the trial court should not have granted summary

judgment where reasonable minds could reach different conclusions as to whether

QSL served alcohol to a noticeably intoxicated patron who thereafter caused a motor-

cycle accident. This court found that there were no facts in the record to raise a

genuine issue of material fact and that summary judgment was properly granted.

The Privetts argue on reconsideration that this court's decision was erroneous

because there are genuine issues of material fact raised by deposition testimony and

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other evidence to suggest that the restaurant patron, Jason Carpenter, was noticeably

intoxicated on the night that he was served at QSL. However, the Privetts do not

raise any issue that was not already considered by this court in its decision. At best,

the facts as reargued in the application for recortsideratioai suggest that QSL may

have had constructive knowledge of Carpenter's intoxication, which is not sufficient as

a matter of law to establish a violation of Ohio's Dram Shop Act. Catalinger v. Korrzan

Restairrartt Management, Inc., 12th Dist. Butler No. CA2011-06-099, 2011-Ohio-6020.

Based upon the foregoing, the application for reconsideration is DENIED.

IT IS SO ORDERED.

Robert^?-:'Rin'V'aroM Presic^ing Judge

Robin N. P-ip,&Y^J

P-t7--^

Mike Powell, Judge

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PLAINTIFF-APPELLANTS, DAVID, BRENDA, AND AUSTIN PItIVE'II ... liabiliti^ for an off-p'remises injury...

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