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Weeks v. 203 Main Street LLC

Court of Appeals of Ohio, Ninth District, Lorain

July 15, 2019

TIMOTHY A. WEEKS Appellant/Cross-Appellee
v.
203 MAIN STREET LLC d/b/a MOSEY INN, ET AL. Defendants and OHIO RESTAURANT INVESTMENT OF WELLINGTON, LLC Appellee/Cross-Appellant

          APPEAL 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.

          BRIAN T. WINCHESTER and JESSE M. SCHMIDT, Attorneys at Law, for Appellee/Cross-Appellant.

          DECISION AND JOURNAL ENTRY

          HENSAL, JUDGE.

         {¶1} 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.

         I.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         II.

         ASSIGNMENT OF ERROR I

         THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE DRAM SHOP CLAIM.

         {¶7} Mr. Weeks argues that the trial court incorrectly granted summary judgment to the Inn on his dram shop claim. Under ...


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