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Great Central Ins. Co. v. Tobias6/8/1988
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 businessestablishment 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
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