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Homan v. George4/30/1998
STRAUSBAUGH, Judge.
Plaintiffs-appellants, Brendyn and Kelle Homan, appeal the decision and order of the Franklin County Court of Common Pleas granting the motion to dismiss of defendants-appellees, William George, Judith George, and David Oakley. Appellants assert the following two assignments of error:
"Assignment of Error No. 1:
"Whether the trial court committed reversible error in granting defendants'-appellees' O.R.Civ.P. Rule 12(B)(6) motion to dismiss as to plaintiff-appellant Kelle Homan?"
"Assignment of Error No. 2:
"Whether the trial court committed reversible error in granting defendants'-appellees' O.R.Civ.P. Rule 12(B)(6) motion to dismiss as to plaintiff-appellant Brendyn Homan?"
Appellants' complaint contained two counts. The first count set forth a negligence claim by Kelle Homan based on injuries incurred in a motor vehicle accident and a loss-of-consortium claim by her son, Brendyn Homan. The second count set forth a claim of infliction of emotional distress by Brendyn Homan.
Appellees filed a Civ.R. 12(B)(6) motion to dismiss, asserting that the complaint failed to state a claim upon which relief could be granted. The trial court granted the motion and dismissed the claims.
A motion to dismiss is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd of Commrs. (1992), 65 Ohio St.3d 545, 548, 605 N.E.2d 378, 380-381. When considering a Civ.R. 12(B)(6) motion to dismiss, a court must presume that the factual allegations of the complaint are true and draw all reasonable inferences in favor of the nonmoving party. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas (1995), 72 Ohio St.3d 461, 650 N.E.2d 899. A complaint will not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would warrant relief. O'Brien v. Univ. Community Tenants Union (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus.
The facts set forth in the complaint allege that on May 19, 1996, appellant Kelle Homan visited appellee David Oakley at the home where appellees jointly resided. All appellees knew that she was there and that she was an alcoholic. Oakley served Kelle Homan alcoholic beverages, which caused her to become highly intoxicated, which was known by all appellees. While Kelle Homan was at appellees' home, appellant Brendyn Homan and a family Mend made several telephone calls to the residence inquiring as to Kelle Homan's whereabouts and whether she was intoxicated, and expressing a desire to either pick her up or arrange other transportation so that she would not drive while intoxicated. Appellees denied knowing where Kelle Homan was, denied that she was at their residence, and otherwise prevented steps being taken that would have prevented Kelle Homan from driving away from their residence in an intoxicated state.
Appellants allege that appellees' conduct was negligent, reckless, intentional, and malicious and that this conduct was the proximate cause of Kelle Homan's involvement in and responsibility for a serious motor vehicle accident in which she sustained serious personal injury and property damage.
In the first assignment of error, appellants allege that the trial court erred when it dismissed Kelle Homan's negligence claim.
To establish actionable negligence, one must show the existence of a duty, breach of the duty, and injury resulting proximately therefrom. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265, 269-270. The existence of a duty is a question of law. Id. at 318, 544 N.E.2d at 269-27
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