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Diquattro v. Stellar Group12/7/2005
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{ } Appellant, James Diquattro, appeals from the judgment of the Medina County Court of Common Pleas directing a verdict in favor of Appellee, Stellar Group, Inc., on Appellant's tort action and denying his motion for a new trial. This Court affirms.
I.
{ } Our review of the record reveals that Appellant has not provided this Court with a complete transcript of the trial court proceedings as required by App.R. 9(B); Loc.R. 5. See State v. McCowan, 9th Dist. No. 02CA008124, 2003-Ohio-1797, at (an appellant bears the burden to ensure that the record necessary to determine the appeal is before the appellate court, citing State v. Williams (1995), 73 Ohio St.3d 153, 160). Appellant has only supplied a transcript from the hearing on Appellee's motion for a directed verdict and Appellant's motion for a new trial. We will consider Appellant's assignment of error despite the lack of a complete transcript as this case can be disposed of on the following undisputed facts.
{ } Appellee is the holder of a liquor permit and the owner of The Oaks Lodge ("The Oaks"). On January 30, 2000, Appellant was injured while trying to aid a man who was injured by the intentional actions of Appellee's intoxicated patron. The offending action occurred off Appellee's premises. Appellant filed suit against Appellee in a Dram Shop action in which he sought recovery for his injuries. The action proceeded to trial. On October 15, 2004, at the conclusion of Appellee's case, Appellee moved for a directed verdict on the grounds that R.C. 4399.18 created liability of a liquor permit holder only for off premises injury to a third person caused by the negligent acts of the intoxicated person. Appellee contended that it could not be held statutorily liable because the perpetrator's actions were intentional. The trial court granted Appellee's motion for a directed verdict. Appellant filed a motion for a new trial on October 20, 2004, which was denied. Appellant timely appealed from the trial court's order and has presented one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
"IN A DRAMSHOP ACTION, WHERE THE EVIDENCE, CONSTRUED MOST STRONGLY IN FAVOR OF [APPELLANT], SHOWS THAT THE PERMIT HOLDER SERVED A SEVEN OUNCE GLASS OF WINE AND EIGHT TO TEN MIXED DRINKS TO A PATRON WHO, AS A RESULT OF HIS STATE OF INTOXICATION VIOLENTLY ASSAULTED ANOTHER PERSON OFF THE PREMISES WITHIN MINUTES OF FINISHING HIS LAST DRINK, IT IS ERROR FOR THE TRIAL COURT TO GRANT A DIRECTED VERDICT[.]"
{ } In his only assignment of error, Appellant contends that the trial court erred in directing a verdict in favor of Appellee. We disagree.
{ } A motion for a directed verdict does not present a question of fact, but instead presents a question of law, even though in deciding such motion it is necessary to review and consider the evidence. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, paragraph one of the syllabus. An appellate court reviews de novo the trial court's granting of a directed verdict. Schafer v. RMS Realty (2000), 138 Ohio App.3d 244, 257. An appellate court should affirm the trial court's decision if "when the evidence is viewed most strongly in favor of the nonmoving party, reasonable minds could only find against the nonmoving party." Pusey v. Bator (2002), 94 Ohio St.3d 275, 278, citing Civ.R. 50(A)(4); Galmish v. Cicchini (2000), 90 Ohio St.3d 22, 23.
{ } Pursuant to Civ.R. 50(A)(4), a trial court is authorized to grant a directed verdic
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