IN THE SUPREME COURT OF OHIO Samantha Bishop, Administratrix of the Estate of James Bishop, Jr. and Virginia Bishop On appeal from the Hamilton County Court of Appeals Appellant, First Appellate District vs.. Court of Appeals Case No. C-0700591 Carpenters' Union Local #126, et al.. Supreme Court Case No. 2008-1319 Appeliees MEMORANDUM IN OPPOSITION TO JURISDICTION OF APPELLEES, CARPENTERS LOCAL UNION #126, DAVID MEIER, JEFFREY SMITH, AND JOHN WISHER Mark A. MacDonald (0009473) Freund, Freeze & Arnold 105 East Fourth Street, Ste. 1400 Cinciimati, OH 45202-4006 Telephone: (513) 665-3500 Facsimile: (513) 665-3503 mmacdonald@ffalaw.com COUNSEL FOR APPELLEE CARPENTERS' UNIONT LOCAL #126 William C. Knapp (0031937) Weber & Knapp Co., LPA 8044 Montgomery Road, Suite 120 Cincinnati, OH 45236 Telephone: (513) 936-0001 Facsimile: (513) 936-0002 wknapp1404@aol.com COUNSEL FOR APPELLANT SAMANTHA BISHOP, ADMX. Lawrence E. Barbiere (0027106) Schroeder Maundrell Barbiere & Powers 11935 Mason Road, Ste. 110 Cincinnati, OH 45249 Telephone: 583-4210 Facsimile: 583-4203 lbarbiere @smbplaw.com COUNSEL FOR APPELLEE STRICKER'S GROVE,LLC FIED AUG 0 7 2008 CLERK OF COURT SUPREME COURT OF OHIO I
Christine Steele (0055288) Eagen & Wycoff Co. LPA 2349 Victory Parlcway Cincinnati, OH 45203 Telephone: (513) 621-7600 Facsimile: (513) 455-8246 csteele@eagenandwycoff.com COUNSEL FOR JENNIFER WEIR Melissa Subit (0071070) Buckley King LPA 201 East Fifth Street, Ste. 1420 Telephone: (513) 373-4865 Facsimile: (513) 412-5401 subit@buckleyking. corn COUNSEL FOR APPELLEE JOHN WISHER Timotlry Heather (0002776) Benjamin Yocum & Heather LLC 300 Pike Street, Ste. 500-4222 Telephone: (513) 721-5672 Facsimile: (513) 562-4388 tpheather@byhlaw.com COUNSEL FOR APPELLEE DAVID Iv1EIER Joseph Kammer (0012504) The Nathaniel Ropes Building 917 Main St., Second Floor Telephone: (513) 241-0738 Facsimile: (513) 621-5410 No email COUNSEL FOR APPELLEE JOHN WISHER
TABLE OF CONTENTS THIS CASE IS NOT OF PUBLIC OR GREAT GENERAL INTEREST...:...1 STATEMENT OF THE CASE AND FACTS...1 ARGUMENTS IN SUPPORT OF APPELLEE'S POSITION ON PROPOSITIONS OF LAW...1 Appellant's Proposition of Law No. I Requiring the payment of an admission fee to gain entrance into a premises where those in attendance are provided alcoholic beverages without further charge constitutes the "sale" of alcoholic beverages... I Appellant's Proposition of Law No. 2 Persons who wilawfully sell alcoholic beverages without a permit are liable in tort to innocent third parties injured by intoxicated persons leaving the event...3 CONCLUSION... 4 CERTIFICATE OF SERVICE...:...:...5 i A Legal Professional Associa[ion
THIS CASE IS NOT OF PUBLIC OR GREAT GENERAL INTEREST This case involves an area of law that has been well developed in prior decisions of this Court. Resolution of this case did not require the creation of any new law but only the.application of well established law to the unique facts of this case. As such, this case is not of great general or public interest but is of significant interest only to the parties themselves. Indeed, the current state of the law, as set forth in Settlemyer, infra, and its progeny, already prevents the commercial exploitation of the social host rule that Appellant raises as a specter of future disaster. The social host rule does not permit commercial sellers of alcohol to throw "drink and drown parties." It only permits social hosts to avoid liquor liability. STATEMENT OF THE CASE AND FACTS In the case at bar, these Appellees are a labor union and some of its individual members and the claims against them arose from their amiual picnic, a social event. The procedural posture and pertinent facts are succinctly set forth in the decision of the court of appeals, attached to Appellant's memorandum in support of jurisdiction. We add only that it is undisputed that the union lost a total of $9,547.74 hosting the picnic and was clearly not a commercial proprietor with a profit motive. ARGUMENTS IN SUPPORT OF APPELLEE'S POSITION ON PROPOSITIONS OF LAW Appellant's Proposition of Law No. I Requiring the payment of an admission fee to gain entrance into a premises where those in attendance are provided alcoholic beverages without further charge constitutes the "sale" of alcoholic beverages. In Settlemyer v. Wilmington Veterans Post No. 49 (1984), 11 Ohio St.3d 123, 464 N.E.2d 521, this Court made it clear that a social (non-comrnercial) provider of alcoholic beverages cannot be liable to a third person subsequently injured bv an intoxicated person served by that -1- FREUND,FREEZE & ARNOLD
social host. This Court created an exception to that rule in Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 526 N.E.2d 798, which held that a social host can be liable to a third party injured by an intoxicated person if the social host provided alcohol to a minor in violation of statute and that minor caused injury to the third person by virtue of his intoxication. This Cour-t lias already stated that the terms "sale" or "sell" are confined to their ordinary meaning when analyzing the question of whether or not there was a sale of alcoholic beverages in this context. Settlemyer, supra, 11 Ohio St. 3d at 127, 464 N.E.2d at 524. The court of appeals correctly determined that the admission charge paid by Jennifer Weir, if any, was payment for admission to the event and did not qualify as a sale of beer. To hold otherwise would be to say that the purchase of a ticket at the front gate constituted a sale of beer. If that were the case, the union sold beer to everyone who paid an admission fee whether or not they drank beer. The truth is that the payment of an admission fee does not constitute a sale of beer as the term "sale" is ordinarily used. Equally irnportant to this analysis is the fact that the union was sponsoring a social event, not engaging in a commercial enterprise. This is obvious from the fact that it is an annual picnic on which the union lost a lot of money. it was an event that included a picnic, food, rides, and soft drinks as well as beer in return for the price of admission. The policy reasons supporting a distinction between a social host and a commercial provider of alcohol were set forth by this Court in Settlernyer as follows:... a social provider of intoxicating beverages should not be held to the same duty of care that a commercial proprietor is subject to under Mason. As the appellee points out, the commercial proprietor has a proprietary interest and profit motive, and should be expected to exercise greater supervision than in the (noncommercial) social setting. Moreover, a person in the business of selling and serving alcohol is usually better organized to control patrons, and has the financial wherewithal to do so. It is also reasonable to conclude that by virtue of its
experience, the commercial proprietor is more familiar with its customers and their habits and capacities. Settlenxyer, supra, I l Ohio St.3d at 127, 464NT.E.2d at 524. It is worth noting that the decision of the court of appeals below is in accord with Stevens v. Local UnitedAuto Workers (7"' Dist. 1996), 110 Ohio App. 3d 153, 673 N.E.2d 930, which is a remarkably similar case involving a third party's claim of injury due to an intoxicated person who had consumed alcohol at a labor union event. As in the case at bar, the court of appeals in Stevens was able to reach a well reasoned decision based on the guidance previously provided by this Court in Settlemyer, supra and Mitseff, supra In the end, Ohio c6urts must analyze the facts and circumstances of each individual case to determine whether or not there was a sale of beer. In the case at bar, both the trial court and a unanimous court of appeals' panel determined that there was no sale of beer on the facts and circumstances presented. The conclusions of these courts is clearly correct and in accord with the reasoning of the 7`h Dist. Court of Appeals on similar facts in Stevens, supra, 110 Ohic App.3d at 158, 673 N.E.2d at 934. Appellant's Pronosition of Law No. 2 Persons who uniawfuiiy sell aicoholic beverages without a permit are liable in tort to innocent third parties injured by intoxicated personsleaving the event. This proposition of law has no application to the facts of this case because, as argued above, there was no sale of beer by Appellees. Unlike the social host in Mitseff v. Wheeler, supra, Appellees provided beer lawfully to their guests. Jemiifer Weir was not a minor and no statute was being violated. Even if one assumes that there was a sale of beer by Appellees to Jennifer Weir, and if one further assumes that this constituted the sale of beer wifllout a permit, such conduct should not make Appellees an insurer of Jennifer Weir. -3- FREUND,FREEZE & ARNOLD A Legal Professinnal Association
Statutes requiring permits. to sell beer are not specific safety statutes and, therefore, violation of the permit requirernent should not be considered negligence per se. See Chambers v. St. Mary's School (1998), 82 Ohio St.3d 563, 697 N.E.2d 198. Negligence would still need to be proven. In addition, a proximate cause requirement would still be necessary. The record below is devoid of any real evidence of negligence or proximate cause. Thus, even if one makes the incorrect assumptiori inherent in the proposition of law that there was a sale of beer by the union to Jennifer Weir, the proposition of law is still incoitect. One who sells beer without a permit should not thereby automatically become an insurer of those to whom the beer was sold. Therefore, the proposition of law should not be adopted by this Court. CONCLUSION The rule of no liability for social hosts-articulated by this Court in Settlemyer and its progeny is well established in Ohio law. The policy reasons supporting the different legal standards for a commercial provider of alcohol versus a social host are as sound today as they were when first articulated by this Court in Settlemyer. As a factual matter, Appellees were social providers of beer which was giveri away to guests in attendance at the annual picnic. The fact that Jennifer Weir may have paid an admission fee to gain entrance to the event does not, in any case, constitute a sale of beer. In view of the fact that the law in this area is not in need of further development by this. Court and because the trial court and the court of appeals correctly applied existing law to the unique facts presented, there is no need for this Court to spend its valuable time on this case. -4-
Respectfully submitted, CERTIFICATE OF SERVICE Mark A. MacDonald (0009473) Freund, Freeze & Arnold 105 East Fourth Street, Ste. 1400 Telephone: (5L3) 665-3500 Facsimile: (513) 665-3503 mmacdonald0ffalaw.com Counsel for Appellees I hereby certify that a true and accurate copy of the foregoing was served this day of August, 2008, via regular mail upon the following: William C. Knapp, Esq. Weber & Knapp Co., LPA Bank One Towers 8044 Montgomery Road, Ste. 120 Cincinnati, OH 45236 Lawrence E. Barbiere, Esq. Schroeder Maundrell Barbiere & Powers 11935 Mason Road, Ste. 110 Cincinnati, OH 45249 Christine Steele, Esq. Eagen & Wycoff Co. LPA 2349 Victory Parkway Cinciimati, OH 45203 Melissa Subit, Esq. Buckley King LPA 201 East Fifth Street, Ste. 1420 Timothy Heatlrer, Esq. Benjamin Yocum & Heather LLC 300 Pike Street, Ste. 500 Cincinnati, OII 45202-4222 -5- FREUND,FREEZE & ARNOLD -
Joseph Kamnmer,Esq. The Nathaniel Ropes Building 917 Main St., Second Floor Mark A. MacDonald -6-