TIMOTHY A. WEEKS Appellant/Cross-Appellee
203 MAIN STREET LLC d/b/a MOSEY INN, ET AL. Defendants and OHIO RESTAURANT INVESTMENT OF WELLINGTON, LLC Appellee/Cross-Appellant
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 17CV193121
KATHLEEN J. ST. JOHN, JAMIE R. LEBOVITZ, and JORDAN D.
LEBOVITZ, Attorneys at Law, for Appellant/Cross-Appellee.
T. WINCHESTER and JESSE M. SCHMIDT, Attorneys at Law, for
DECISION AND JOURNAL ENTRY
Timothy Weeks, administrator of the estate of Christine
Weeks, has appealed a judgment of the Lorain County Court of
Common Pleas that granted summary judgment to Ohio Restaurant
Investment of Wellington, LLC, dba the Mosey Inn (the Inn) on
his dram shop wrongful death and spoliation of evidence
claims. The Inn has cross-appealed the denial of its motion
for partial judgment on the pleadings. This Court affirms in
part and reverses in part.
Between 5:00 p.m. and 5:30 p.m. on June 14, 2017, Raymond
McKissick, his fiancé Natasha Orick, and Tristen
Truelson arrived at the Inn to celebrate Mr. Truelson's
21st birthday. Carrie Hilton was the bartender on duty and
her sister, Jody Hilton, was managing the bar.
Around 9:20 p.m., Mr. McKissick drove from the bar with Mr.
Truelson to pick up Mr. Truelson's girlfriend. Only a
couple of minutes up the road, Mr. McKissick drove left of
center and collided with a vehicle being driven by Ms. Weeks,
killing her. Mr. McKissick was transported to the hospital,
and his blood was later shown to have a blood alcohol
concentration of 0.188 grams.
After learning of the crash, an agent from the Ohio
Department of Public Safety retrieved the Inn's video
surveillance unit. He reviewed the video from the night of
the crash to determine if Mr. McKissick had been over-served.
Concluding that there was not enough evidence to bring
criminal charges, he returned the surveillance unit to the
Inn. On June 29, 2017, Mr. Weeks sent a notice to the Inn to
preserve evidence from the night of the crash, including
"any and all video surveillance[.]" Mr. Weeks later
learned that the surveillance footage had been recorded over.
In August 2017, Mr. Weeks filed a complaint against the Inn,
the company that owns the building where the Inn is located,
Mr. McKissick, the owner of the vehicle Mr. McKissick was
driving, and Ms. Weeks's auto insurance company, alleging
three counts of wrongful death, a survival claim, a punitive
damages claim, and a uninsured/underinsured motorists claim.
After he learned that the surveillance footage from the night
of the crash did not exist, Mr. Weeks amended his complaint
to add a spoliation claim. He later dismissed the owner of
the building from the action.
The Inn moved for a partial judgment on the pleadings,
arguing that punitive damages may not be recovered on a dram
shop claim. The trial court denied its motion. Following
discovery, the Inn moved for summary judgment, arguing that
it was entitled to judgment as a matter of law because there
was no evidence that its employees knowingly served Mr.
McKissick while he was noticeably intoxicated. Mr. Weeks
opposed the motion, but the trial court granted it,
concluding that the expert testimony he submitted did not
create a genuine issue of material fact as to whether Mr.
McKissick was noticeably intoxicated while he was at the Inn.
The court also concluded that there was no evidence that the
Inn willfully destroyed the surveillance footage from the
night of the crash. Mr. Weeks has appealed, assigning three
errors. The Inn has cross-appealed the denial of its motion
for a partial judgment on the pleadings.
OF ERROR I
TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE DRAM
Mr. Weeks argues that the trial court incorrectly granted
summary judgment to the Inn on his dram shop claim. Under