[Cite as Perkins v. 122 E. 6th St., L.L.C., 2017-Ohio-5592.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
GLENN PERKINS, as Personal : APPEAL NO. C-160628
Representative of the Estate of Beverly TRIAL NO. A-1402379
Readnour, :
O P I N I O N.
Plaintiff-Appellant, :
:
vs.
:
122 E. 6TH STREET, LLC, d.b.a.
IGBY’S, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 30, 2017
Jenner, Pattison, Sutter & Wynn, LLP, Mark Wynn and David R. Sutter, for
Plaintiff-Appellant,
Reminger Co., L.P.A., Robert W. Hojnoski, Carrie M. Starts and Nathan A. Lennon,
for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Plaintiff-appellant Glenn Perkins, as personal representative of the
estate of Beverly Readnour, challenges the trial court’s entry granting summary
judgment to defendant-appellee 122 E. 6th Street, LLC, d.b.a. Igby’s (“Igby’s”) in
Perkins’s wrongful-death dram-shop-liability action. We affirm.
Factual and Procedural Background
{¶2} On November 11, 2012, at approximately 5:30 in the morning, William
Martin, Jr., and Beverly Readnour were involved in an automobile accident. Both
died from injuries sustained in the accident, which the police determined to be
Martin’s fault. Approximately 30 minutes after the accident, Martin’s blood-alcohol
level was tested and found to be 0.172 grams of alcohol per 100 milliliters of blood.
{¶3} Perkins, as representative of Readnour’s estate, filed suit against
Igby’s, a liquor permit holder located in downtown Cincinnati, alleging that on
November 10 and 11, 2012, Igby’s employees had knowingly sold alcohol to a
noticeably intoxicated Martin, in violation of Ohio’s dram shop statute, R.C. 4399.18.
The suit further alleged that Martin then drove his motor vehicle in an intoxicated
condition, causing the accident which resulted in Readnour’s death.
{¶4} Igby’s moved for summary judgment, arguing that Perkins had no
evidence that an employee of Igby’s had served alcohol to Martin with actual
knowledge that Martin was noticeably intoxicated. The trial court granted Igby’s
motion. Perkins has appealed, arguing in a single assignment of error that the trial
court’s grant of summary judgment was in error.
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OHIO FIRST DISTRICT COURT OF APPEALS
Summary Judgment
{¶5} We review a trial court’s grant of summary judgment de novo. Grafton
v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary
judgment is appropriately granted when there exist no genuine issues of material
fact, the party moving for summary judgment is entitled to judgment as a matter of
law, and the evidence, when viewed in favor of the nonmoving party, permits only
one reasonable conclusion that is adverse to that party. State ex rel. Howard v.
Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994).
{¶6} When a party moves for summary judgment on the ground that the
nonmoving party has no evidence to prove its case, it has the initial burden of
demonstrating that there are no genuine issues of material fact. Dresher v. Burt, 75
Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). To meet that burden, the moving party
may not merely make a conclusory assertion that the nonmoving party has no
evidence. Id. Rather, it must support its assertion with some type of evidence
provided for in Civ.R. 56(C) to affirmatively show that the nonmoving party has no
evidence to support its claim. If the moving party meets its initial burden, the
burden then shifts to the nonmoving party to set forth evidence establishing that
there is a genuine issue of material fact, as provided for in Civ.R. 56(E). Id.
R.C. 4399.18
{¶7} R.C. 4399.18, Ohio’s dram shop statute, provides that:
A person has a cause of action against a permit holder or an employee
of a permit holder for personal injury, death, or property damage
caused by the negligent actions of an intoxicated person occurring off
the premises or away from a parking lot under the permit holder’s
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OHIO FIRST DISTRICT COURT OF APPEALS
control only when both of the following can be shown by a
preponderance of the evidence:
(A) The permit holder or an employee of the permit holder knowingly
sold an intoxicating beverage to at least one of the following:
(1) A noticeably intoxicated person in violation of division (B)
of section 4301.22 of the Revised Code;
(2) A person in violation of section 4301.69 of the Revised
Code.
(B) The person’s intoxication proximately caused the personal injury,
death, or property damage.
{¶8} A plaintiff bringing an action under R.C. 4399.18 must establish that a
liquor permit holder or its employee had actual knowledge that the person to whom
an intoxicating beverage was sold was noticeably intoxicated. Lesnau v. Andate Ent.,
Inc., 93 Ohio St.3d 467, 472, 756 N.E.2d 97 (2001). Constructive knowledge is not
enough. Gressman v. McClain, 40 Ohio St.3d 359, 363, 533 N.E.2d 732 (1988).
Actual knowledge may be established through direct or circumstantial evidence.
Sullivan v. Heritage Lounge, 10th Dist. Franklin No. 04AP-1261, 2005-Ohio-4675, ¶
17.
{¶9} Igby’s argued that Perkins had no evidence to establish that an Igby’s
employee had ever served an alcoholic beverage to Martin. It further argued that
even if there was such evidence, Perkins had no evidence to show that the employee
had actual knowledge that Martin was noticeably intoxicated.
{¶10} In support of its motion for summary judgment, Igby’s relied on
several depositions filed with the trial court. Shana Cronican was the wife of a co-
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OHIO FIRST DISTRICT COURT OF APPEALS
owner of Igby’s, and Martin had been her personal trainer. Cronican testified that
she had seen Martin in line to enter Igby’s sometime between 10:00 and 10:30 p.m.
on November 10, 2012, the opening night of Igby’s. Cronican allowed Martin to
enter Igby’s through an alternative entrance with her. She noticed that Martin
seemed happier than normal and asked him if he had been drinking. Martin said he
had not, but told her that he had smoked marijuana. He also said that he was
carrying a plastic bottle that contained a mixture of a sports drink and vodka. While
Cronican noticed that Martin was smiling and seemed happy, she did not see him
slurring his words or stumbling. Cronican and Martin separated after they entered
Igby’s, and she did not see him again that evening.
{¶11} Igby’s also filed an affidavit of Ben Klopp. Klopp, a co-owner of Igby’s,
stated that he had reviewed Igby’s point-of-sale software to examine the credit-card
transactions that had taken place at Igby’s on the evening of November 10, 2012, and
the early morning hours of November 11, 2012. None of the transactions were made
with a credit card bearing Martin’s name. Klopp further stated that none of the
employees working at Igby’s during that same time period recalled serving Martin an
alcoholic beverage or observing Martin in an intoxicated state. Klopp had seen
Martin waiting in line to enter Igby’s on November 10, and Martin had not appeared
to Klopp to be intoxicated. He never saw him again.
{¶12} Igby’s also presented testimony from several employees that had been
working at Igby’s on opening night. None of them knew Martin or recognized him
when shown a picture.
{¶13} Igby’s met its initial burden under Civ.R. 56(C) by pointing to specific
evidence demonstrating that Perkins could not prove his claim under R.C. 4399.18.
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OHIO FIRST DISTRICT COURT OF APPEALS
See Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264. Consequently, the burden
shifted to Perkins to set forth specific facts showing a genuine issue of material fact.
Id.
{¶14} Even though Perkins had several additional names of Igby’s
employees, he presented no testimony from anyone who had served Martin that
night or who had seen him intoxicated.
{¶15} Rather, Perkins supported his memorandum in opposition to Igby’s
motion for summary judgment with a police vehicle-collision report generated
following an investigation into the automobile accident between Martin and
Readnour. The police report indicated that Martin had been operating his vehicle
under the influence of alcohol and had caused the automobile accident. The report
contained summaries of various witnesses’ statements, including Shana Cronican,
mistakenly referred to in the report as Shauna Yingling. The police report indicated
that Cronican had stated that Martin had appeared stoned to her when she saw him
waiting to enter Igby’s, and that Martin had told her that he was high on marijuana.
{¶16} Perkins also filed an affidavit of Brianna Eberhardt, who had been
Martin’s girlfriend at the time of his death. Eberhardt stated that she had both
spoken and texted with Martin on the evening of November 10, 2012, and the early
morning hours of November 11, 2012. She further stated that Martin told her that he
had taken shots with friends while at Igby’s, that Martin told her that he was
extremely intoxicated at the time that he left Igby’s, and that she could personally tell
that Martin was intoxicated based on their conversation. Martin had not told her
that he drank at any other establishment after leaving Igby’s.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Igby’s argues that various statements contained in the police report
and in Eberhardt’s affidavit are inadmissible and therefore cannot be considered for
purposes of summary judgment. We need not reach this issue. Even if all the
information contained in the police report and Eberhardt’s affidavit is admissible, we
find that it does not establish a genuine issue of material fact.
{¶18} Although Eberhardt personally believed that Martin was intoxicated,
her belief cannot be imputed to Igby’s to demonstrate actual knowledge of
intoxication. Privett v. QSL-Milford, L.L.C., 12th Dist. Clermont No. CA2013-04-
025, 2013-Ohio-4129, ¶ 18 (a witness’s testimony that a patron allegedly served in
violation of R.C. 4399.18 was intoxicated could not be used to impute actual
knowledge of noticeable intoxication to the liquor permit holder); Caplinger v.
Korrzan Restaurant Mgmt., Inc, 12th Dist. Butler No. CA2011-06-099, 2011-Ohio-
6020, ¶ 24 (testimony from a witness who had received a phone call from a patron
allegedly served in violation of R.C. 4399.18 that she knew the patron was drunk
because of the way he spoke and his hyper mood did not establish that the patron
had been noticeably intoxicated at the time that he had been served alcohol).
{¶19} Likewise, Martin’s statement to Eberhardt that he was intoxicated at
the time that he had left Igby’s provided no evidence that an Igby’s employee had
seen Martin in a noticeably intoxicated state or that an Igby’s employee had sold him
an alcoholic beverage when Martin was in such a state. See Caplinger at ¶ 24 (“a
person must be noticeably intoxicated at the time of service—not at the time he
leaves the bar—for purposes of the Dram Shop Act”).
{¶20} Perkins further contends that Cronican’s testimony created a genuine
issue of material fact as to whether an Igby’s employee had actual knowledge that
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OHIO FIRST DISTRICT COURT OF APPEALS
Martin had been noticeably intoxicated. In addition to the fact that Cronican was not
an employee of Igby’s, her testimony did not indicate that Martin was noticeably
intoxicated. On the contrary, Cronican testified that Martin was not stumbling or
slurring his words or demonstrating any other signs of intoxication.
{¶21} In short, Perkins has presented no admissible evidence that any Igby’s
employee served alcohol to Martin. Even if an inference could be made that Martin
was served alcohol, Perkins has presented no evidence that Martin had been
noticeably intoxicated while at Igby’s or that an Igby’s employee had knowingly
served Martin an alcoholic beverage with actual knowledge that he was noticeably
intoxicated. The trial court did not err in granting summary judgment to Igby’s.
Perkins’s assignment of error is overruled, and the judgment of the trial court is
affirmed.
Judgment affirmed.
CUNNINGHAM, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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