Great Central Insurance v. Tobias

Holmes, J. The issue before us is whether the facts presented below were sufficient to state a cause of action under the existing law of this state. Because we find the court of appeals inappropriately expanded our decisions in Mason v. Roberts (1973), 33 Ohio St. 2d 29, 62 O.O. 2d 346, 294 N.E. 2d 884, and Settlemyer v. Wilmington Veterans Post No. 49 (1984), 11 Ohio St. 3d 123, 11 OBR 421, 464 N.E. 2d 521, not only as to the standard of care of the innkeeper in these types of cases, but also by extending liability to one who purchases liquor in a tavern for a fellow patron, we must reverse the decision of that court and reinstate the summary judgment issued by the trial court. Initially, we are in agreement with the court of appeals’ conclusion that no liability existed here by virtue of R.C. 4399.01, which provides: “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.) The strict liability imposed by this section is broad, and arguably would apply to one who purchases alcohol and gives it to an intoxicated person, provided the name of such person appears on the order, or “blacklist,” issued by the Department of Liquor Control. As the decedent Wagner was not on such a blacklist, R.C. 4399.01 cannot apply. Neither may the appellant-customer be held liable as a matter of common-law negligence. In Mason v. Roberts, supra, this court held, at paragraph two of the syllabus, that: “The proprietor of a business [129] establishment wherein alcoholic beverages are dispensed for consumption upon the premises owes a duty to members of the public while they are in his place of business to exercise reasonable care to protect them from physical injury as a result of violent acts of third persons.” This duty arises from R.C. 4301.22, which provides, in pertinent part: “Sales of beer and intoxicating liquor under all classes of permits and from state liquor stores are subject to the following restrictions, in addition to those imposed by the rules or orders of the department of liquor control: <<* * * “(B) No sales shall be made to an intoxicated person.” In Settlemyer v. Wilmington Veterans Post, supra, we reaffirmed the law as pronounced in Mason, to the effect that R.C. 4399.01 did not provide the exclusive remedy against commercial providers of intoxicating beverages for injuries a patron suffered because of the sale of such beverages to another patron. However, we did not in that case discuss the advisability of extending the duty of the provider to the general public. Based upon the specific issue presented in the present case, we need not address the policy of broadening such common-law right of action here. R.C. 4301.22(B) proscribes the sale of liquor to an intoxicated person. Such section could well apply to a commercial provider of alcohol where the “sale” is made to one patron with knowledge that the drink in fact was for another patron who was intoxicated. But that is not the issue before us. The facts here only involve knowledge of liquor sales by Rainbow Lanes to appellant, who was not intoxicated.1 Also, the decedent obviously was not injured as a result of the violent acts of third persons; nor was he injured while in Rainbow Lanes. Under such circumstances, Rainbow Lanes breached no duty arising from R.C. 4301.22 or our decision in Mason. Moreover, appellant was not subject to R.C. 4301.22 since he was a social provider. R.C. 4301.22, unlike R.C. 4399.01, does not expressly extend liability to “any person * * * giving intoxicating liquors” to another. Specifically, Settlemyer stood only for the proposition that a social provider of liquor, such as appellant, cannot be liable to third persons subsequently injured by the intoxicated person. We today hold that the tavern keeper’s duty, imposed by R.C. 4301.22(B), may not be enlarged and extended vicariously, through a “conduit” who, like appellant, purchases alcohol from the tavern keeper and gives it to a fellow patron. “At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or [130] of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the [voluntary] consumption of it by the purchaser or donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it.” Nolan v. Morelli (1967), 154 Conn. 432, 436-437, 226 A. 2d 383, 386, quoted in Slicer v. Quigley (1980), 180 Conn. 252, 255-256, 429 A. 2d 855, 857.2 See, also, D’Amico v. Christie (1987), 71 N.Y. 2d 76, 524 N.Y. Supp. 2d 1; Mason, supra, at 33, 62 O.O. 2d at 348, 294 N.E. 2d at 887; Settlemyer, supra; and Guardianship of Newcomb v. Bowling Green (1987), 36 Ohio App. 3d 235, 523 N.E. 2d 354. Where, as here, the injured party is the intoxicated person himself, it is the voluntary drinking, and not merely furnishing liquor, which is the proximate cause. Cf. Vesely v. Sager (1971), 5 Cal. 3d 153, 157, 95 Cal. Rptr. 623, 625, 486 P. 2d 151, 155. Accordingly, it was pointed out in Mason and in Settlemyer that the common law historically provided no remedial basis for third persons injured by intoxicated individuals for recovery from the provider of alcoholic beverages. It was also noted in Mason that courts in other jurisdictions have abandoned this legal principle in view of public policy requirements. We recognize the appropriateness of such a review of public policy in light of compiled statistics relating to vehicular accidents and injuries occasioned by the consumption of alcohol, see, e.g., State, ex rel. Mothers Against Drunk Drivers, v. Gosser (1985), 20 Ohio St. 3d 30, 20 OBR 279, 485 N.E. 2d 706, but conclude that any substantive amendments to our state’s laws in this regard are more appropriately within the legislative arena than within the province of this court’s review. Our decision in Mason identified the only two exceptions to this common-law proximate cause rule: (1) “where the allegations, supported by the evidence, are such that, to the seller’s knowledge, the purchaser’s will to refrain is so impaired that it is not possible for him to refrain from drinking the liquor when it is placed before him,” id. at 33, 62 O.O. 2d at 348, 294 N.E. 2d at 887, and (2) “[w]hen the sale is contrary to statute,” id. As discussed above, neither of these exceptions is met here. In spite of this absence of liability on the part of either the tavern3 or the tavern patron herein, appellee argues, and the court of appeals held, that appellant could be liable on a concert of action theory as set forth within Section 876(b) of the Restatement of the Law 2d, Torts (1979) 315. Section 876 provides: “For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he [131] <<* * * “(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself * * (Emphasis added.) By its own terms, this principle has application only when the principal actor’s behavior amounts to tortious conduct. Since we have determined that the tavern keeper here did not breach the duty of care owed to his patrons, the theory of joint liability for the encouragement of tortious conduct adopted by the court of appeals cannot apply to appellant under these circumstances.4 Furthermore, even if Rainbow Lanes had engaged in tortious conduct, appellee failed to set forth any such cause of action in its complaint. The trial court correctly determined that appellee stated no cognizable cause of action, and entered summary judgment in favor of appellant. The judgment of the court of appeals is reversed, and that of the trial court is reinstated. Judgment reversed. Moyer, C.J., Sweeney, Locher and Wright, JJ., concur. Douglas and H. Brown, JJ., dissent. Footnotes [1] Appellee argues that a commercial transaction, hence a “sale,” occurred when appellant and the decedent entered into the wager and payment was made. This argument wholly misconstrues R.C. 4301.22(B) and the rationale of our Mason decision. As we pointed out in Settlemyer, supra, at fn. 1, the terms “sale” or “sell” are confined to their ordinary meaning in that statute, and we are unaware of any ordinary use of the word sale as a synonym for a wager of any kind. In addition, the scope of R.C. 4301.22 is limited by its terms to sales by state liquor stores and holders of permits issued by the Department of Liquor Control. Appellant is neither. [2] We note with interest that the court in Slicer, over a strong dissent, upheld the common-law rule in face of a statute which proscribed the mere delivery or provision of intoxicating liquors to minors, Conn. G.S. 30-86, which is much like our own R.C. 4301.69 (prohibiting the mere furnishing of liquor to a minor) and R.C. 4399.01, supra (prohibiting giving liquor to a “blacklisted” person). As noted above, the statute at issue here, R.C. 4301.22, prohibits only a sale to an intoxicated person, thus obviating the arguments of the dissenters in Slicer. [3] Appellee does not concede any liability on the part of its insured, Rainbow Lanes, either in its release of claims to the Wagner widow or in its complaint below. [4] We are not faced with, nor do we decide herein, whether a cause of action exists against a tavern patron who encourages the tavern keeper to sell liquor to an intoxicated person.