Submitted May 24, 1988 —
Decided August 3, 1988.
Civil procedure — Summary judgment — Party seeking summary judgment must specifically delineate basis upon which judgment is sought — Civ. R. 7(B)(1) — Torts — Social host has duty to refrain from furnishing alcoholic beverage to minor — R.C. 4301.69 — Injured third party may seek damages.
O.Jur 2d Judgments §§ 897, 898.
A party seeking summary judgment must specifically delineate the basis upon which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond.
CERTIFIED by the Court of Appeals for Stark County, No. CA-6997.
On October 9, 1983, Jennifer Johnson, then seventeen years of age, visited the home of defendant-appellee, Douglas Wheeler, who was then past the age of twenty-three years. Johnson stayed at the Wheeler residence from approximately 1:00 p.m. to approximately 4:30 p.m. While there, Johnson consumed four beers provided to her by appellee. Appellee furnished the beer to Johnson even though he knew Johnson had not yet reached the age of nineteen, the legal age at which a person at that time could consume beer.
Upon leaving appellee's residence, Johnson proceeded to the Reedurban Tavern where she was again served alcohol. Johnson departed the tavern and at approximately 8:42 p.m. was involved in the accident that took the life of Kathryn Mitseff.
Plaintiff-appellant, executor of the decedent's estate, brought an action seeking damages for himself and for the wrongful death of Kathryn Mitseff against Douglas R. Wheeler and William G. Jones (d.b.a. Reedurban Tavern) for knowingly serving alcohol to Johnson, a minor. It was further alleged that Johnson's alcohol consumption caused her to become intoxicated, which, in turn, caused her to act in such a manner as to create an unreasonable risk of harm to third persons, and that Kathryn Mitseff's death was proximately caused by the negligence of defendants.
On July 18, 1986, appellee filed a motion for summary judgment with his personal affidavit attached thereto. In his brief in support of his motion, appellee asserted that: (1) as a social host who gratuitously served intoxicating liquor to a guest, appellee was not liable to a third party for injuries caused by the guest after leaving the host's premises; and (2) nothing in the record substantiated the claim that Kathryn Mitseff's injuries were proximately caused by the negligence of appellee. Specifically, the second assertion of appellee was that no evidence existed that appellee knew Johnson was intoxicated when she left appellee's home.
Appellant responded by: (1) denying that appellee was immune from liability due to his social host status; and (2) attaching an affidavit of an expert that discussed the effects of alcohol served Johnson by appellee on Johnson's blood-alcohol count.
A blood test performed on Johnson revealed a blood-alcohol count of .26. A person is legally intoxicated and prohibited from driving an automobile when that person's blood-alcohol content is .10, or higher. R.C. 4511.19(A)(2).
On September 5, 1986, the trial court, though giving no reasons for its decision, sustained appellee's motion for summary judgment. Appellee's counsel was ordered to prepare the judgment entry. The judgment entry, as signed by the trial judge, likewise gave no indication of the basis for the court's decision.
Upon appeal, the court of appeals affirmed the granting of summary judgment. The court held that, while appellee's interpretation of Settlemyer v. Wilmington Veteran's Post No. 49 (1984), 11 Ohio St.3d 123, 11 OBR 421, 464 N.E.2d 521, was incorrect, summary judgment was appropriately granted to appellee essentially because appellant had introduced no evidence to show that Johnson's negligence had caused the fatal accident. The court of appeals answered appellant's argument that the issue of Johnson's negligence was not disputed by appellee at the trial level, by noting that a motion for summary judgment puts the non-moving party on notice that the entire claim is being challenged.
The court of appeals, finding its decision to be in conflict with the decision of the Court of Appeals for Franklin County in Rayburn v. J.C. Penney Outlet Store (1982), 3 Ohio App.3d 463, 3 OBR 544, 445 N.E.2d 1167, certified the record of the case to this court for review and final determination.
Scanlon Gearinger Co., L.P.A., and Mark Hilkert, for appellant.
Day, Ketterer, Raley, Wright Rybolt, Louis A. Boettler and Craig G. Pelini, for appellee.
The cause before this court presents two issues. The first issue raised is whether appellee violated a duty for which he could be held civilly liable to a third person for damages to such person arising as a consequence of appellee's having served Jennifer Johnson alcoholic beverages. We agree with the court of appeals that a social host has a duty to refrain from furnishing alcohol to a minor and may be civilly liable for damages to third persons if said duty is violated. The second issue concerns the motion for summary judgment. We find that the moving party must specifically give the basis of a summary judgment motion in order to allow the non-moving party an opportunity to fully respond.
Appellee relies on this court's holding in Settlemyer, supra, as support for the position that a social host owes no duty to third persons for damages caused as a result of the gratuitous serving of alcohol to a guest. In Settlemyer, a social provider of alcohol served alcohol to a guest. The guest then left the premises and was involved in an automobile accident that took the life of a third person. This court expressed its "* * * reluctance to extend potential liability to the social provider of alcoholic beverages * * *." Settlemyer, supra, at 127, 11 OBR at 425, 464 N.E.2d at 524.
While the provider in Settlemyer was a Veteran's Post of the American Legion, Inc., it was apparently presumed that such provider was a gratuitous social host.
Based on the reasoning of Settlemyer, appellee asserts that he owes no duty as a social host to third persons for damages resulting from providing his guest, Johnson, with alcohol. Therefore, appellee maintains that he cannot be liable in any way for damages caused by Johnson. We do not agree.
There exists a clear distinction between Settlemyer, supra, and the case before this court. Settlemyer concerned a social host providing alcohol to one who was apparently an adult guest, an act that is not precluded by statute. However, appellee provided Johnson, a seventeen-year-old minor, with alcohol. This action was clearly in violation of R.C. 4301.69, which then provided in pertinent part:
No issue was raised as to the age of the recipient.
R.C. 4301.69 was amended, effective July 31, 1987, to make the legal age for the purchase or consumption of all alcoholic beverages twenty-one years of age.
"No person shall sell intoxicating liquor to a person under the age of twenty-one years or sell beer to a person under the age of nineteen, or buy intoxicating liquor for, or furnish it to, a person under the age of twenty-one years, or buy beer for or furnish it to a person under the age of nineteen, unless given by a physician in the regular line of his practice, or by a parent or legal guardian." (Emphasis added.)
Therefore, it is incorrect to maintain that appellee's action, which violated a statute, can be equated with Settlemyer, supra. The statute created a duty that appellee, because of Johnson's age, refrain from furnishing Johnson with alcohol. Accordingly, Settlemyer, being distinguishable, does not apply.
An equally important issue in this case concerns the motion for summary judgment. Civ. R. 7(B)(1) provides in part that: "[a]n application to the court for an order shall be by motion which * * * shall be made in writing. A motion * * * shall state with particularity the grounds therefor, and shall set forth the relief or order sought." (Emphasis added.) Fed.R.Civ.P. 7(b)(1) is substantially the same as our Ohio rule. In Steingut v. National City Bank of New York (E.D. N.Y. 1941), 36 F. Supp. 486, 487, the court stated that the prerequisite of particularity "* * * was not intended to be a matter of form but was real and substantial." See, also, Upper W. Fork River Watershed v. Corps. of Engrs. (D.W. Va. 1976), 414 F. Supp. 908. Given the explicit language of Civ. R. 7(B)(1), it is clear that appellee's motion for summary judgment must state with particularity the reasons why the moving party considers summary judgment appropriate.
In support of appellee's argument that he, as the moving party, is not obligated to negate every claim of the non-moving party, appellee relies heavily on Celotex v. Catrett (1986), 477 U.S. 317. This reliance is misplaced. While Celotex says that a moving party does not have to support its motion with affidavits negating the opponent's claims, Celotex also plainly states that "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, supra, at 323.
A reading of Civ. R. 56(B) reaches the same conclusion. The rule states:
"A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. If the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court."
Accordingly, even Celotex makes clear that a party moving for summary judgment has certain obligations that must be met. These obligations are set forth in Massaro v. Vernitron Corp. (D. Mass. 1983), 559 F. Supp. 1068. Massaro held that the party seeking summary judgment "* * * bears the burden of affirmatively demonstrating that, with respect to every essential issue of each count in the complaint, there is no genuine issue of fact." Massaro, supra, at 1073 (citing Mack v. Cape Elizabeth School Board [C.A. 1, 1977], 533 F.2d 720, 722). The moving party bears this burden "* * * even with regard to issues on which plaintiffs * * * would have the burden of proof should the case go to trial." Massaro, supra, at 1073, citing Ramsey v. Cooper (C.A. 1, 1977), 553 F.2d 237, 240-241, fn. 8; Adickes v. S.H. Kress Co. (1970), 398 U.S. 144, 159-161. See, also, Bird v. Zimmerman Fur Institute, Inc. (S.D. Ohio 1968), 294 F. Supp. 202.
The requirement that a party seeking summary judgment disclose the basis for the motion and support the motion with evidence is well founded in Ohio law. "The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting a summary judgment." Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O. 3d 73, 74, 375 N.E.2d 46, 47, citing Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520, 26 O.O. 2d 206, 207, 196 N.E.2d 781, 783-784. Reading the requirement of Harless, supra, in conjunction with Civ. R. 56 and 7(B)(1), it can readily be seen that the moving party must state specifically which areas of the opponent's claim raise no genuine issue of material fact and such assertion may be supported by affidavits or otherwise as allowed by Civ. R. 56(C).
It should be noted that placing the above-mentioned requirements on the moving party does not mean the non-moving party bears no burden. Requiring that the moving party provide specific reasons and evidence gives rise to a reciprocal burden of specificity for the non-moving party. Civ. R. 56(E) provides in part: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Rather than eliminate the non-moving party's burden, the requirement that the moving party, here appellee, be specific in his reasons for requesting summary judgment provides the non-moving party with the information needed to formulate an appropriate response as required by Civ. R. 56(E).
Turning to the facts at bar, appellee's motion for summary judgment raised two issues. The first, concerning the application of Settlemyer, has been discussed supra. Appellee also raised the issue of proximate cause, arguing that no evidence existed to support the claim that Johnson was intoxicated when she left appellee's residence. In support of this argument, appellee attached an affidavit stating that Johnson did not appear intoxicated when she departed appellee's premises.
Appellant responded to the motion for summary judgment with an affidavit directed to the question of Johnson's intoxication. However, after the trial court granted summary judgment and an appeal was taken, appellee argued for the first time that no evidence existed that Johnson had been negligent. This argument was accepted by the court of appeals in affirming the judgment of the trial court.
In light of the discussion above, the specific issue raised at the trial level by appellee concerning proximate cause involved only Johnson's state of intoxication. No other issues were raised and supported by appellee. Appellee cannot on appeal expand the basis for seeking summary judgment. A party seeking summary judgment must specifically delineate the basis for which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond.
In conclusion, by filing an affidavit in opposition to appellee's motion for summary judgment, appellant effectively raised a triable issue of fact not susceptible to summary judgment. Since it appears that the trial court granted summary judgment based on the applicability of Settlemyer, and, as we have seen, Settlemyer does not apply, we affirm the judgment of the court of appeals in part, reverse it in part and remand the cause to the trial court for further proceedings not inconsistent with this opinion.
Judgment affirmed in part, reversed in part and cause remanded.
MOYER, C.J., SWEENEY, LOCHER, HOLMES and H. BROWN, JJ., concur.
WRIGHT, J., concurs in the syllabus and judgment only.