DAVID B. PRIVETT, et al., Plaintiffs-Appellants,
QSL-MILFORD, LLC, et al., Defendants-Appellees.
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2011 CVC 01913
The Moore Law Firm, Donald C. Moore, Jr., Daniel N. Moore, Derrick A. Wyatt, for plaintiffs-appellants, David B., Brenda J., Stephen and Austin Privett.
Mularski, Bonham, Dittmer & Phillips, LLC, Lynne K. Schoenling, for defendant-appellee, QSL-Milford d.b.a. Quaker Steak & Lube.
Kreiner & Peters Co., L.P.A., Todd W. Smith, for defendant-appellee, United Health Care Ins. Co.
(¶ 1} Plaintiffs-appellants, David, Brenda, Stephen and Austin Privett, appeal a decision of the Clermont County Court of Common Pleas, granting summary judgment in favor of defendant-appellee, QSL-Milford dba Quaker Steak & Lube (QSL).
(¶ 2} QSL operates a Quaker Steak & Lube restaurant in Milford, Ohio, that promotes "Bike Night" on Wednesdays during the summer months. On any given Bike Night, QSL invites a band to play live music in the parking lot, as well as various venders who tailor their businesses to motorcycle enthusiasts. In addition to the three bar locations within the restaurant and on the outside patio, patrons also have access to alcohol served in the parking lot. This "beer booth" serves beer in 24-ounce plastic cups and only accepts cash payments.
(¶ 3} On the night of August 17, 2011, Jason Carpenter drove his motorcycle from work to the Quaker Steak & Lube restaurant where QSL employees, including the bartender Felicia Fields, served him between five to seven beers over a span of approximately three hours and 15 minutes. Carpenter also consumed food at the restaurant, including 12 boneless wings and french fries. Carpenter's friends and co-workers, Matt Swartz and Fernando Sanchez, were at the restaurant with Carpenter, and also consumed alcohol with him. After drinking multiple beers inside, Carpenter and Swartz proceeded to the parking lot where it is possible that they consumed an additional one or two beers from the beer booth. Carpenter and Swartz then walked around the parking lot, looking at other motorcycles for approximately 30 to 45 minutes, before they left the restaurant.
(¶ 4} Within a half-mile from the parking lot, Carpenter lost control of his motorcycle, struck a guardrail on the opposite side of the road, and was propelled over an embankment. Carpenter's motorcycle continued down the road, and spun directly into the path of David Privett, who was riding his motorcycle to the restaurant for Bike Night. Privett sustained serious injuries including a fractured pelvis, broken ribs, a fractured wrist and a fractured femur. Carpenter died as a result of his injuries. At the time of his death, Carpenter's blood alcohol level was .169.
(¶ 5} Privett, his wife Brenda, and their two sons, Austin and Stephen, filed suit against QSL, alleging that QSL violated Ohio's Dram Shop Act and was liable for Privett's injuries. QSL filed a motion for summary judgment, and the trial court granted it. The Privetts now appeal the trial court's decision raising the following assignment of error.
(¶ 6} THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT-APPELLEE QSL-MILFORD, LLC.
(¶ 7} The Privetts argue in their assignment of error that the trial court erred in granting summary judgment to QSL.
(¶ 8} This court's review of a trial court's ruling on a summary judgment motion is de novo. Broadnax v. Greene Credit Serv., 118 Ohio App.3d 881, 887 (2d Dist. 1997). Civ.R.56 sets forth the summary judgment standard and requires that (1) there be no genuine issues of material fact to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to only one conclusion being adverse to the nonmoving party. Slowey v. Midland Acres, Inc., 12th Dist. Fayette No. CA2007-08-030, 2008-Ohio-3077, ¶ 8. The moving party has the burden of demonstrating that there is no genuine issue of material fact. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (1978).
(¶ 9} The nonmoving party "may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing the existence of a genuine triable issue." Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996). A dispute of fact can be considered "material" if it affects the outcome of the litigation. Myers v. Jamar Enterprises, 12th Dist. Clermont No. CA2001-06-056, 2001 WL 1567352, *2 (Dec. 10, 2001). Not all disputes of fact create a genuine issue. Instead, a dispute of fact can be ...