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Homan v. George4/30/1998
0. The existence of a duty depends on the foreseeability of the injury, although foreseeability alone is not always sufficient to establish the existence of a duty. Estates of Morgan v. Fairfield Family Counseling Ctr. (1997), 77 Ohio St.3d 284, 293, 673 N.E.2d 1311, 1319. "Duty `* * * is the court's "expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (Prosser, Law of Torts (4th ed. 1971) pp. 325-326). Any number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall. (Prosser, Palsgraf Revisited (1953), 52 Mich.L.Rev. 1, 15). * * *' Weirum v. RKO General, Inc. (1975),15 Cal.3d 40,46, 123 Cal.Rptr. 468, 471, 539 P.2d 36, 39." Id.
Common law has traditionally recognized a distinction between misfeasance and nonfeasance. Morgan, 77 Ohio St.3d at 293, 673 N.E.2d at 1319, fn. 2. The law imposes a duty to refrain from active misconduct that causes a positive injury to others, but does not impose a duty to take affirmative action to aid or protect another. Id.
At common law, it was the general rule that the proximate cause of injuries caused by intoxicated persons was the voluntary consumption of the alcohol. Great Cent. Ins. Co. v. Tobias (1988), 37 Ohio St.3d 127, 129-130, 524 N.E.2d 168, 170-172. Thus, the common law historically provided no remedy for third persons injured by intoxicated persons or the intoxicated person to recover from the provider of alcoholic beverages. Id. As to third persons injured by intoxicated persons, public policy interests have led to the creation of exceptions to this principle that dilute the extreme effect of the blanket immunity of providers. Settlemyer v. Wilmington Veterans Post No. 49 (1984), 11 Ohio St.3d 123, 125, 11 OBR 421, 422-423, 464 N.E.2d 521, 522-523; and Great Cent. Ins. Co., 37 Ohio St.3d at 130, 524 N.E.2d at 171-172. However, the Ohio Supreme Court has not extended the exceptions to give an intoxicated person a negligence claim against the provider.
In Smith v. 10th Inning, Inc. (1990), 49 Ohio St.3d 289, 551 N.E.2d 1296, the court refused to find that a statute that gives a cause of action against a liquor permit holder who sold alcoholic beverages to an intoxicated person to a third person injured by the intoxicated person also gives a cause of action to the intoxicated person. The court's main reason for rejecting this suggestion was the public policy that "an adult who is permitted to drink alcohol must be the one who is primarily responsible for his or her own behavior and resulting voluntary actions. Clearly, permitting the intoxicated patron a cause of action in this context would simply send the wrong message to all our citizens, because such a message would essentially state that a patron who has purchased alcoholic beverages from a permit holder may drink such alcohol with unbridled, unfettered impunity and with full knowledge that the permit holder will be ultimately responsible for any harm caused by the patron's intoxication." Id. at 291, 551 N.E.2d at 1298.
As a general rule, social hosts are not subject to liability for injuries proximately caused by their intoxicated guests. Tobias, 37 Ohio St.3d at 129, 524 N.E.2d at 170-171. This rule is consistent with both the common-law principle that there is no duty to affirmatively act to protect another and the policy that persons should be responsible for their drinking. But, see, id. at 132-133, 524 N.E.2d at 173-174 (Douglas, J., dissenting).
Appellants assert
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