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Diquattro v. Stellar Group12/7/2005
llant has not disputed that the perpetrator's action was intentional but rather contends that R.C. 4399.18 encompasses intentional as well as reckless conduct. In support of this contention, Appellant cites Gressman v. McClain (1988), 40 Ohio St.3d 359, in which the Supreme Court held that, in actions arising before July 21, 1986 (the effective date of R.C. 4399.18), the holder of a liquor permit could be held liable to third persons for injuries or death occurring off the premises of the permit holder. Appellant further contends that Gressman states the pre-existing public policy that permit holders should be liable for off premises conduct committed by their intoxicated patrons, regardless of the patron's mental state. Appellant urges this Court to follow this alleged pre-existing public policy.
{ } First and foremost, we note that the Supreme Court expressly limited Gressman to events occurring prior to the enactment of R.C. 4399.18 in 1986 and consequently, Gressman has no binding effect on this matter. In addition, Gressman involved negligent conduct, i.e. the failure to control a motor vehicle, and is clearly distinguishable. Moreover, the Gressman court expressly held that " n 1986, after this cause of action arose, the General Assembly clearly set forth the pre-existing public policy on this issue in R.C. 4399.18." Id. at 362. In contrast to Appellant's assertion, the public policy embodied in R.C. 4399.18 provides that permit holders should only be liable for negligent actions of intoxicated patrons, and only when two additional conditions are met. See R.C. 4399.18(A) and (B). Appellant has cited no law in support of his contention that R.C. 4399.18 encompasses intentional conduct. "It is the duty of the appellant, not this court, to demonstrate his assigned error through an argument that is supported by citations to legal authority and facts in the record." State v. Taylor (Feb. 9, 1999), 9th Dist. No. 2783-M, at *3. See, also, App.R. 16(A)(7); Loc.R. 7(A)(7).
{ } Appellant also urges us to apply the criminal code's definition of "negligence" which provides that " hen the section defining an offense provides that negligence suffices to establish an element thereof, then recklessness, knowledge, or purpose is also sufficient culpability for such element." R.C. 2901.22(E). Again, Appellant fails to cite any authority for the application of R.C. 2901.22(E) and further, fails to refute that this matter involves intentional conduct. Several courts have recognized the distinction between negligent and intentional conduct in actions against liquor permit holders. See McKinley v. Chris' Band Box, 153 Ohio App.3d 387, 2003-Ohio-4086, at (finding that an assault is an intentional act and that the portion of R.C. 4399.18 pertaining to negligent acts has no application to an intentional act); Colburn v. Maynard (1996), 111 Ohio App.3d 246, 250, fn. 3 ("the text of R.C. 4399.18, when addressing injuries occurring off the premises of the permit holder, specifically limits liability to injuries resulting from negligent acts of an intoxicated patron. * Thus, the Ohio General Assembly apparently intended to exclude those victims intentionally injured away from the permit holder's premises from recovering under this statute"); Trexler v. R.M.D.M. Ent. (Aug. 7. 2001), 10th Dist. No. 00AP-1193, at *3 ("A permit holder's liability for intentional criminal acts ends where his control ends. This intention is especially clear since off-premises liability for knowingly serving a noticeably intoxicated patron is limited to negligent conduct by the patron and does not apply to intentional misconduct").
{ } The actions at issue here were clearly intentional and Appellee cannot therefore be held liable
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