[Cite as Marougi v. Hashim Assocs., Inc., 2016-Ohio-2664.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Dominic J. Marougi Court of Appeals No. L-15-1242
Appellant Trial Court No. CI0201305671
v.
Hashim Associates, Inc., et al. DECISION AND JUDGMENT
Appellees Decided: April 22, 2016
*****
Joseph W. Westmeyer, III, for appellant.
Timothy C. James and Kathleen M. Davis, for appellee.
JENSEN, P.J.
Introduction
{¶ 1} Dominic J. Marougi, the plaintiff appellant, brings this accelerated appeal
from a decision by the Lucas County Court of Common Pleas to grant summary
judgment to defendant-appellee, Hashim Associates, Inc. (d.b.a. Jo-Jo’s Pizza).
Appellant claims he was injured by four unidentified patrons while inside the bar- restaurant and that appellee is liable for his injuries. Appellant’s claims against appellee
included a common law negligence claim and a statutory claim for violation of Ohio’s
“Dram Shop Act.”
{¶ 2} Appellee moved for summary judgment, and the trial court granted the
motion. For the reasons that follow, we affirm the lower court’s judgment.
Procedural History and Facts
{¶ 3} According to appellant’s deposition testimony, the incident occurred on
December 19, 2012, at around 1:30 a.m. Appellant arrived at the bar approximately 3.5
hours earlier and spent his time playing pool and drinking beer. Appellant estimated that
he drank four beers that night.
{¶ 4} Around 1:30 a.m., two patrons approached the pool table and asked him
about the “dog tags” he was wearing. The two men told appellant that he was not worthy
to wear the dog tags because he had not served in the armed forces. A third patron was
watching appellant, and appellant felt “completely threatened for my life.” He described
them as “guys you didn’t want to mess with.”
{¶ 5} Appellant asked the bartender, who was behind the bar, to “get these guys
away from the pool table.” The bartender responded to “go fight outside.” He asked the
bartender again to “get these guys away from the pool table. They are messing with me.”
The bartender replied “Get the F outside and fight.”
2. {¶ 6} In appellant’s opinion, the bartender essentially gave the patrons a “green
light to fight” and caused them to become “very aggressive” toward appellant. He
described what followed next:
The biggest gentleman [stared] at me directly in my eyes, I felt
threatened by him. He was almost as big as me, and I noticed that
wherever I walked he stepped where I stepped. So I knew he was going to
be trouble. So I slapped him in the face to get him away from me. As soon
as I did that, they all jumped on me like a hurricane. One guy came behind
me. It was one buddy. He put me in a choke hold and took me down.
{¶ 7} Appellant made eye contact with the bartender as he was being taken down,
but the bartender just “shook his head, * * * walked away and just let them * * * beat me
to a pulp.” There were four attackers in all, identified as John Doe #1, #2, #3, and #4,
who struck appellant with their hands and feet, resulting in severe injuries to appellant’s
head, back and hand.
{¶ 8} After the incident, appellant drove himself home and later went to the
emergency room, where he was treated and released.
{¶ 9} Appellant filed suit on December 19, 2013. In Count 1, he alleged that
appellee and the bartender, identified as John Doe #5, were negligent by failing to
provide security and to maintain the establishment in a safe manner. In Count 4,
appellant alleged that appellee violated R.C. 4399.16 and 4399.18, Ohio’s “Dram Shop
3. Act,” by permitting “such conduct to exist” and for failing to take any action to prevent
his injuries.
{¶ 10} The remaining claims, set forth in Counts 2 and 3, were negligence and
malicious battery claims, respectively, against all four John Does. Appellant voluntarily
dismissed them and the bartender, John Doe #5, from the case without prejudice,
pursuant to Civ.R. 41(A).
{¶ 11} Following appellant’s deposition, appellee moved for summary judgment,
which appellant opposed. By decision dated, May 4, 2015, the trial court found that
appellant’s common law negligence claim was not actionable because the Dram Shop Act
provides the exclusive remedy to a plaintiff asserting a personal injury claim against a
liquor-permit holder for the actions of intoxicated patrons. The trial court also dismissed
appellant’s Dram Shop claim, finding that appellant failed to put forth any evidence that
appellee knowingly sold an alcoholic beverage to an intoxicated person.
{¶ 12} On appeal, appellant asserts two assignments of error for our review.
I. THE TRIAL COURT ERRED IN DETERMINING THAT
DOMINIC’S NEGLIGENCE CLAIM AGAINST JO-JO’S IN COUNT
ONE OF HIS COMPLAINT WAS NOT ACTIONABLE.
II. THE TRIAL COURT ERRED IN DETERMINING THAT
THERE WAS NO EVIDENCE THAT JO-JO’S KNOWINGLY SERVED
INTOXICATED PATRONS.
4. Standard of Review
{¶ 13} Appellate review of a trial court’s decision to grant summary judgment is
de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
We apply the same standard as the trial courts, without deference to the trial court’s
findings. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198
(9th Dist.1989).
{¶ 14} A motion for summary judgment may be granted only when it is
demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, who is entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375
N.E.2d 46 (1978), Civ.R. 56(C).
{¶ 15} When seeking summary judgment, a party must specifically delineate the
basis upon which the motion is brought and identify those portions of the record that
demonstrate the absence of a genuine issue of material fact. Mitseff v. Wheeler, 38 Ohio
St.3d 112, 526 N.E.2d 798 (1988), syllabus; Dresher v. Burt, 75 Ohio St.3d 280, 293, 662
N.E.2d 264 (1996). When a properly supported motion for summary judgment is made,
an adverse party may not rest on mere allegations or denials in the pleadings, but must
5. respond with specific facts showing that there is a genuine issue of material fact. Civ.R.
56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A
“material” fact is one which would affect the outcome of the suit under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733
N.E.2d 1186 (6th Dist.1999).
Law and Analysis
{¶ 16} “Historically, common law in Ohio prohibited a cause of action against a
liquor permit holder for injury caused by an intoxicated person.” Lesnau v. Andate Ents,
Inc., 93 Ohio St.3d 467, 468,
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[Cite as Marougi v. Hashim Assocs., Inc., 2016-Ohio-2664.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Dominic J. Marougi Court of Appeals No. L-15-1242
Appellant Trial Court No. CI0201305671
v.
Hashim Associates, Inc., et al. DECISION AND JUDGMENT
Appellees Decided: April 22, 2016
*****
Joseph W. Westmeyer, III, for appellant.
Timothy C. James and Kathleen M. Davis, for appellee.
JENSEN, P.J.
Introduction
{¶ 1} Dominic J. Marougi, the plaintiff appellant, brings this accelerated appeal
from a decision by the Lucas County Court of Common Pleas to grant summary
judgment to defendant-appellee, Hashim Associates, Inc. (d.b.a. Jo-Jo’s Pizza).
Appellant claims he was injured by four unidentified patrons while inside the bar- restaurant and that appellee is liable for his injuries. Appellant’s claims against appellee
included a common law negligence claim and a statutory claim for violation of Ohio’s
“Dram Shop Act.”
{¶ 2} Appellee moved for summary judgment, and the trial court granted the
motion. For the reasons that follow, we affirm the lower court’s judgment.
Procedural History and Facts
{¶ 3} According to appellant’s deposition testimony, the incident occurred on
December 19, 2012, at around 1:30 a.m. Appellant arrived at the bar approximately 3.5
hours earlier and spent his time playing pool and drinking beer. Appellant estimated that
he drank four beers that night.
{¶ 4} Around 1:30 a.m., two patrons approached the pool table and asked him
about the “dog tags” he was wearing. The two men told appellant that he was not worthy
to wear the dog tags because he had not served in the armed forces. A third patron was
watching appellant, and appellant felt “completely threatened for my life.” He described
them as “guys you didn’t want to mess with.”
{¶ 5} Appellant asked the bartender, who was behind the bar, to “get these guys
away from the pool table.” The bartender responded to “go fight outside.” He asked the
bartender again to “get these guys away from the pool table. They are messing with me.”
The bartender replied “Get the F outside and fight.”
2. {¶ 6} In appellant’s opinion, the bartender essentially gave the patrons a “green
light to fight” and caused them to become “very aggressive” toward appellant. He
described what followed next:
The biggest gentleman [stared] at me directly in my eyes, I felt
threatened by him. He was almost as big as me, and I noticed that
wherever I walked he stepped where I stepped. So I knew he was going to
be trouble. So I slapped him in the face to get him away from me. As soon
as I did that, they all jumped on me like a hurricane. One guy came behind
me. It was one buddy. He put me in a choke hold and took me down.
{¶ 7} Appellant made eye contact with the bartender as he was being taken down,
but the bartender just “shook his head, * * * walked away and just let them * * * beat me
to a pulp.” There were four attackers in all, identified as John Doe #1, #2, #3, and #4,
who struck appellant with their hands and feet, resulting in severe injuries to appellant’s
head, back and hand.
{¶ 8} After the incident, appellant drove himself home and later went to the
emergency room, where he was treated and released.
{¶ 9} Appellant filed suit on December 19, 2013. In Count 1, he alleged that
appellee and the bartender, identified as John Doe #5, were negligent by failing to
provide security and to maintain the establishment in a safe manner. In Count 4,
appellant alleged that appellee violated R.C. 4399.16 and 4399.18, Ohio’s “Dram Shop
3. Act,” by permitting “such conduct to exist” and for failing to take any action to prevent
his injuries.
{¶ 10} The remaining claims, set forth in Counts 2 and 3, were negligence and
malicious battery claims, respectively, against all four John Does. Appellant voluntarily
dismissed them and the bartender, John Doe #5, from the case without prejudice,
pursuant to Civ.R. 41(A).
{¶ 11} Following appellant’s deposition, appellee moved for summary judgment,
which appellant opposed. By decision dated, May 4, 2015, the trial court found that
appellant’s common law negligence claim was not actionable because the Dram Shop Act
provides the exclusive remedy to a plaintiff asserting a personal injury claim against a
liquor-permit holder for the actions of intoxicated patrons. The trial court also dismissed
appellant’s Dram Shop claim, finding that appellant failed to put forth any evidence that
appellee knowingly sold an alcoholic beverage to an intoxicated person.
{¶ 12} On appeal, appellant asserts two assignments of error for our review.
I. THE TRIAL COURT ERRED IN DETERMINING THAT
DOMINIC’S NEGLIGENCE CLAIM AGAINST JO-JO’S IN COUNT
ONE OF HIS COMPLAINT WAS NOT ACTIONABLE.
II. THE TRIAL COURT ERRED IN DETERMINING THAT
THERE WAS NO EVIDENCE THAT JO-JO’S KNOWINGLY SERVED
INTOXICATED PATRONS.
4. Standard of Review
{¶ 13} Appellate review of a trial court’s decision to grant summary judgment is
de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
We apply the same standard as the trial courts, without deference to the trial court’s
findings. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198
(9th Dist.1989).
{¶ 14} A motion for summary judgment may be granted only when it is
demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, who is entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375
N.E.2d 46 (1978), Civ.R. 56(C).
{¶ 15} When seeking summary judgment, a party must specifically delineate the
basis upon which the motion is brought and identify those portions of the record that
demonstrate the absence of a genuine issue of material fact. Mitseff v. Wheeler, 38 Ohio
St.3d 112, 526 N.E.2d 798 (1988), syllabus; Dresher v. Burt, 75 Ohio St.3d 280, 293, 662
N.E.2d 264 (1996). When a properly supported motion for summary judgment is made,
an adverse party may not rest on mere allegations or denials in the pleadings, but must
5. respond with specific facts showing that there is a genuine issue of material fact. Civ.R.
56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A
“material” fact is one which would affect the outcome of the suit under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733
N.E.2d 1186 (6th Dist.1999).
Law and Analysis
{¶ 16} “Historically, common law in Ohio prohibited a cause of action against a
liquor permit holder for injury caused by an intoxicated person.” Lesnau v. Andate Ents,
Inc., 93 Ohio St.3d 467, 468, 756 N.E.2d 97 (2001). The law presumed that the
proximate cause of injury was the consumption of the alcohol, not the sale. Brown v.
Hyatt-Allen Am. Legion Post No. 538, 6th Dist. Lucas No. L-89-336, 1990 WL 174317,
*3 (Nov. 9, 1990).
{¶ 17} The Dram Shop Act codified certain exceptions to the general rule of
prohibiting liability. The act, as set forth in R.C. 4399.18, states, in pertinent part,
[N]o person * * * who suffers personal injury * * * as a result of the
actions of an intoxicated person has a cause of action against any liquor
permit holder or an employee of a liquor permit holder who sold beer or
intoxicating liquor to the intoxicated person unless the personal injury, * *
* occurred on the permit holder's premises * * * and was proximately
caused by the negligence of the permit holder or an employee of the permit
holder. * * *
6. {¶ 18} “Since the enactment of R.C. 4399.18 in 1986, it has been consistently held
that the General Assembly clearly intended that 4399.18 provided the exclusive remedy
against liquor permit holders * * * for the negligent acts of intoxicated patrons * * *.”
Cummins v. Rubio, 87 Ohio App.3d 516, 521, 622 N.E.2d 700 (2d Dist.1993). See also
Jackson v. Walker, 9th Dist. Summit No. 22996, 2006-Ohio-4351, ¶ 20.
{¶ 19} Turning to the facts of this case, appellant argues that the trial court erred in
finding that his negligence claim was abrogated by R.C. 4399.18. Appellant argues that
the Dram Shop Act does not preclude negligence claims against a liquor permit holder for
“an attack by one who is not intoxicated.” (Emphasis added.) Aubin v. Metzger, 3d Dist.
Allen No. 1-03-08, 2003-Ohio-5130, ¶16. In support of his negligence claim, appellant
points out that nowhere in Count I of his complaint did he allege that John Doe #1, #2,
#3, or #4 was intoxicated. Therefore, appellant maintains that the Dram Shop Act is not
implicated, and does not bar, his negligence claim.
{¶ 20} As pointed out by appellee, this court resolved a case that was procedurally
and substantively similar to the one at bar. Wietrzykowski v. J-Ard Corp., 6th Dist. Lucas
No. L-99-1120, 1999 WL 1267365, *3 (Dec. 23, 1999). In that case, the plaintiff was
assaulted by two patrons in a bar. The plaintiff brought a negligence and a R.C. 4399.18
claim against the bar. We affirmed the grant of summary judgment to the bar, finding,
Throughout this case [plaintiffs] have asserted, and have made every
effort to prove, that the assailants were in fact intoxicated, that [the bar] had
notice of their condition, and that [the bar] should have taken steps to
7. protect [the victim-plaintiff] from the type of injuries that occurred. It now
appears that [the plaintiffs] may be trying to assert that the assailants were
not intoxicated, so that they can remove their case from the scope of R.C.
4399.01 and 4399.18 and present it under a common law theory of
negligence. Such a common law theory of negligence is not the argument
that [plaintiffs] presented in the trial court or the argument the trial court
considered in making its ruling on summary judgment. The trial court
found that under the facts of this case, R.C. 4399.18 and 4399.01 provide
the sole remedies. This court agrees. (Emphasis in original.)
{¶ 21} As in Wietrzykowski, appellant in this case argued below that his attackers
were intoxicated. He testified to that effect during his deposition and argued in his legal
memorandum that “the proximate cause of [his] injuries was due to an intoxicated
person.” Moreover, he did not present an alternative theory, i.e. that his injuries were
caused by person(s) who were not intoxicated. Appellant may not do so now.
{¶ 22} Arguments that parties raise for the first time on appeal will not be
considered by an appellate court. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio
St.3d 78, 81, 679 N.E.2d 706 (1997). “Parties are not given a second chance to raise
arguments that they should have raised below.” (Citations omitted.) Perlmutter v.
People's Jewelry Co., 6th Dist. Lucas No. L-04-1271, 2005-Ohio-5031, ¶ 29.
{¶ 23} Thus, we will not address appellant’s new argument that his negligence
claim may proceed on the theory that his attackers may have been sober, or something
8. less than intoxicated. Moreover, we agree with the trial court’s legal conclusion that
appellant’s common law negligence claim is not actionable herein inasmuch as his
claims are premised upon the actions of intoxicated patrons and therefore that R.C.
4399.18 sets froth the exclusive remedy available to him.
{¶ 24} Appellant’s first assignment of error is not well taken.
{¶ 25} A plaintiff seeking to establish a prima facie claim under the Dram Shop
Act must show:
(1) the act of an intoxicated person caused the personal injury * * *;
(2) the intoxicated person's act occurred on the liquor permit
holder's premises; and
(3) the intoxicated person's act was proximately caused by the
liquor permit holder's negligence in knowingly serving intoxicating
beverages to the already intoxicated person. Jackson v. Walker, 9th Dist.
Summit No. 22996, 2006-Ohio-4351, ¶ 21.
{¶ 26} In his second assignment of error, appellant disputes the trial court’s
finding that there was no evidence that appellee “knowingly sold alcoholic beverages to
an intoxicated person.”
{¶ 27} The resolution of the issue turns on whether any of appellant’s attackers
were noticeably intoxicated when served by appellee. If the record lacks evidence that
they were or would have been noticeably intoxicated when served, then appellee is
9. entitled to summary judgment. Piras v. Screamin Willie's, 10th Dist. No. 14AP-468,
2015-Ohio-255, 27 N.E.3d 973, ¶ 19-20.
{¶ 28} Prior to the assault, appellant testified that he observed a group of 4 or 5
people, including all 4 John Does, consume 4 or 5 pitchers of beer, over 3.5 hours. Based
on the size of the group and the number of pitchers, he assumes that each John Doe drank
an entire pitcher of beer in that time frame. He admits, however, that he “wasn’t
watching them the whole time.” The only other evidence of intoxication by appellant
was his claim that he smelled beer on their breath and their aggression toward him at the
time of the assault. Appellant concludes that “it is reasonable to assume that John Does
1-4 were intoxicated when they purchased alcohol. A reasonable outcome of consuming
multiple pitchers is that upon the purchase of the final two or at least one is that the
purchaser is intoxicated.” (Emphasis added.)
{¶ 29} First, appellant testified that he assumes that each John Doe consumed one
pitcher of beer at most, and even that is speculative, as he concedes that he was not
watching them the whole time. Moreover, there is no evidence in the record to
demonstrate that appellee actually ever served John Doe #1 - #4, how any behaved at the
time of service, or how much alcohol was actually consumed by each of them. It must be
shown that the John Does appeared intoxicated at the time of service, not when the
assault occurred. Privett v. QSL-Milford, LLC, 12th Dist. No. CA2013-04-025, 2013-
Ohio-4129, ¶ 17. Finally, the fact that appellant smelled alcohol on their breath is
evidence of drinking; it is not evidence of intoxication.
10. {¶ 30} Based upon the record before us, there is simply no evidence to indicate
that appellee knowingly sold alcohol to an intoxicated person. We agree with the
conclusion of the trial court that the evidence relied upon by appellant does not create a
genuine issue of material fact. Appellant’s second assignment of error is not well-taken.
{¶ 31} Having found appellant’s assignments of error not well-taken, we hereby
affirm the judgment of Lucas County Court of Common Pleas. Costs are assessed to
appellant in accordance with App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Stephen A. Yarbrough, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
11.