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Trexler v. R.M.D.M. Enterprises8/7/2001
of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280. If the moving party makes that showing, the non-moving party then must produce evidence on any issue for which the party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus (Celotex v. Catrett , 477 U.S. 317, approved and followed).
The question before us is whether the trial court correctly granted summary judgment to appellees because the injury resulted from an intentional tort that took place off its premises. Appellant argues that since the aggressive acts of King began on the parking lot in The New Point Café and proceeded uninterrupted to the adjacent lot where the stabbing occurred, the trial court erred in concluding that the injury occurred off the premises of appellees; thus summary judgment was inappropriate. On the other hand, appellees argue that the trial court correctly granted its motion for summary judgment based on the plain reading of R.C. 4399.18, which states in relevant part:
o person * who suffers personal injury , death, or property damage as a result of the actions of an intoxicated person has a cause of action against any liquor permit holder or his employee who sold beer or intoxicating liquor to the intoxicated person unless the injury, death, or property damage occurred on the permit holder's premises or in a parking lot under his control and was proximately caused by the negligence of the permit holder or his employees.
The above quoted portion of R.C. 4399.18 addresses the intentional acts of the patron in the case at bar. The section of R.C. 4399.18 which applies to the negligent actions of an intoxicated patron for which, if there is proximate cause, may extend off premises, is not applicable unless there is proof that the owner or his employee knowingly sold intoxicating beverages to a noticeably intoxicated person. There is no proof of knowingly selling intoxicating beverages to King. In fact, no one noticed any evidence of intoxication at the time he was served, thus only the quoted part of R.C. 4399.18 is applicable.
Where the injury is caused by the intoxicated person and occurs on premises, including the bar's parking lot, a plaintiff must show that the injury was not only proximately caused by the person's intoxication, but also proximately caused by the negligence of the permit holder or his employees. An example of the latter is where the permit holder fails to provide adequate lighting in the parking lot of his or her establishment. Thus, the issues are first whether the injury was the result of an action of an intoxicated person proximately caused by the negligence of the permit holder or his employee, and second whether the injury occurred on the premises, including a parking lot under the control of the owner. There must be proof of both elements upon which reasonable minds can differ to avoid summary judgment.
There is sufficient proof to overcome summary judgment that the permit holder's employee served an intoxicated person (King) and the employee's negligence was a proximate result of appellant's injuries since arguably the police should have been called rather than simply ordering King and McNicholson out of the premises. While it is more likely that McNicholson would be injured, that negligence is arguably transferable to appellant as the exact injury need not be forecast to preclude liability.
The crucial issue is whether there is proof upon which reasonable minds can differ that the injury of appellant occurred on the permit holder's premises or in a parking lot under the permit holder's control. There is no extension of lia
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