[Cite as Weeks v. 203 Main Street, L.L.C., 2019-Ohio-2850.]


STATE OF OHIO                     )                           IN THE COURT OF APPEALS
                                  )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

TIMOTHY A. WEEKS

        Appellant/Cross-Appellee
                                                              C.A. Nos.   18CA011405, 18CA011417
        v.

203 MAIN STREET LLC d/b/a MOSEY
INN, ET AL.                                                   APPEAL FROM JUDGMENT
                                                              ENTERED IN THE
        Defendants                                            COURT OF COMMON PLEAS
                                                              COUNTY OF LORAIN, OHIO
        and                                                   CASE No.   17CV193121


OHIO RESTAURANT INVESTMENT OF
WELLINGTON, LLC

        Appellee/Cross-Appellant

                                 DECISION AND JOURNAL ENTRY

Dated: July 15, 2019



        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
                                                2


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.
                                                 3


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 Civil Rule 56(C), summary judgment is appropriate if:

       (1) [n]o genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for

summary judgment, the party moving for summary judgment must first be able to point to

evidentiary materials that demonstrate there is no genuine issue as to any material fact, and that it

is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the

movant satisfies this burden, the nonmoving party “must set forth specific facts showing that

there is a genuine issue for trial.” Id. at 293, quoting Civ.R. 56(E). This Court reviews an award

of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).
                                                4


       {¶8}    “The Ohio Dramshop Act, R.C. 4399.18, embodies [the] general, common-law

rule that a person (or his representative) may not maintain a cause of action against a liquor

permit holder for injury resulting from the acts of an intoxicated person.”            Johnson v.

Montgomery, 151 Ohio St.3d 75, 2017-Ohio-7445, ¶ 7, quoting Klever v. Canton Sachsenheim,

Inc., 86 Ohio St.3d 419, 421 (1999). The Act is the “sole means for imposing liability on a

liquor permit holder when a third party suffers injuries caused by the permit holder’s intoxicated

patron.” Billi v. Moyse-Morgan Ents. Inc., 9th Dist. Lorain No. 12CA010260, 2013-Ohio-1214,

¶ 14, quoting Jackson v. Walker, 9th Dist. Summit No. 22996, 2006-Ohio-4351, ¶ 20. Under the

Act, a person has a cause of action against the owner of a liquor permit holder if the permit

holder or an employee of the holder “knowingly sold an intoxicating beverage to * * * [a]

noticeably intoxicated person * * *” and “[t]he person’s intoxication proximately caused * * *

personal injury, death, or property damage.” R.C. 4399.18(A)(1), (B). It applies “even if the

beer or liquor was not purchased directly by the intoxicated person but was purchased by

someone else and given to [him].” Johnson at ¶ 9.

       {¶9}    Mr. Weeks argues that there is a genuine issue as to whether Carrie Hilton

knowingly sold Mr. McKissick an intoxicating beverage while he was noticeably intoxicated on

the night of the collision. Although neither employee admitted noticing that Mr. McKissick was

intoxicated, Mr. Weeks argues that their knowledge can be demonstrated through circumstantial

evidence. Caplinger v. Korrzan Restaurant Mgt., Inc., 12th Dist. Butler No. CA2011-06-099,

2011-Ohio-6020, ¶ 19 (“It is possible to use circumstantial evidence to demonstrate actual

knowledge * * *.”); Sullivan v. Heritage Lounge, 10th Dist. Franklin No. 04AP-1261, 2005-

Ohio-4675, ¶ 17. As the Tenth District Court of Appeals has recognized, “[g]enerally, in

practice, plaintiffs attempt to establish actual knowledge of intoxication through direct testimony
                                                5


that the patron in question acted intoxicated or expert testimony that the patron would have

appeared intoxicated given the amount of alcohol consumed.” Sullivan at ¶ 17.

        {¶10} In support of his argument, Mr. Weeks submitted the report of an alleged expert

in the forensic toxicology of alcohol and other drugs. According to the expert’s report, which

was alleged to be to a reasonable degree of scientific probability, Ms. Hilton served Mr.

McKissick “at least four half 14-ounce Bud Light beers and about 13 full one-ounce Jody

Bombs[,]” which, in addition to the beers, worked out to a Jody Bomb every 20 minutes that

McKissick was at the Inn. The expert made his calculation based on the height and weight of

Mr. McKissick and the timing of the blood draw. According to employees of the Inn, a Jody

Bomb is a mixed drink that contains a half-ounce of vodka and a half-ounce of whiskey.

According to the expert, McKissick’s blood-alcohol concentration placed him well into the

“[e]xcitement” stage of alcoholic influence, during which he “would have been exhibiting signs

and symptoms of alcoholic influence including decreased inhibitions, loss of critical judgment,

impairment of memory and comprehension, and some emotional instability[.]” The expert also

opined that those “signs of alcohol intoxication would have been noticeable and obvious to the

bartender Carrie Hilton and bar manager Jody Hilton during interactions while serving him, at

least, his last drink or two[.]”

        {¶11} In Morrison v. Fleck, 120 Ohio App.3d 307 (9th Dist.1997), an intoxicated

motorist struck and killed a child a few hours after leaving a bar. An expert calculated that,

based on the motorist’s blood-alcohol level at the time it was taken, the motorist would have had

to have consumed between nine and ten beers while at the bar. According to the expert’s

affidavit, an experienced bartender would have known that serving that amount of alcohol to

someone with the motorist’s body type would result in his intoxication. He further stated that the
                                                   6


motorist’s intoxication would have been noticeable to even a casual observer. Id. at 316. This

Court concluded that the expert’s testimony “was sufficient to create a genuine issue as to

whether an employee of the [bar] knowingly served alcohol to a noticeably intoxicated person.”

Id. at 317.

        {¶12} The Inn argues that the result of the blood-alcohol content test is inadmissible

hearsay, noting that the administrator of the test has not been deposed. Mr. Weeks notes,

however, that the result of the test is part of the certified traffic crash report, which is admissible

as a public record. See State v. Stallings, 9th Dist. Summit No. 16437, 1994 WL 362108, *7

(July 13, 1994).

        {¶13} The Inn also argues that there is no evidence that Mr. McKissick proximately

caused the crash. The Inn, however, did not make this argument in its motion for summary

judgment. “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.” Misteff v. Wheeler, 38 Ohio St.3d 112 (1988), syllabus. Accordingly, we will not

consider the Inn’s argument. See Huntington Natl. Bank v. Calvert, 9th Dist. Summit No. 25684,

2012-Ohio-2883, ¶ 20 (“A trial court cannot grant summary judgment on grounds not raised[.]”);

Koerber v. Levey & Gruhin, 9th Dist. Summit No. 21730, 2004-Ohio-3085, ¶ 37 (“Generally,

issues that are not raised in the trial court cannot be raised for the first time on appeal.”).

        {¶14} The trial court discounted the expert’s opinion because he did not account for any

food that Mr. McKissick ate while at the Inn and did not personally observe the physical

activities that Mr. McKissick engaged in at the Inn that may have had an effect on his

metabolism. On summary judgment, however, the evidence must be construed in a light most

favorable to Mr. Weeks. Viewing the evidence in a light most favorable to Mr. Weeks, we
                                                  7


conclude that the expert’s report is sufficient to establish that there is a genuine question as to

whether Carrie Hilton knowingly sold alcohol to Mr. McKissick while he was noticeably

intoxicated. Mr. Weeks’s first assignment of error is sustained.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON
       THE SPOLIATION CLAIM.

       {¶15} Mr. Weeks next argues that the trial court incorrectly granted summary judgment

to the Inn on his spoliation claim. To establish a claim for spoliation of evidence, a plaintiff

must establish “(1) pending or probable litigation involving the plaintiff, (2) knowledge on the

part of defendant that litigation exists or is probable, (3) willful destruction of evidence by

defendant designed to disrupt the plaintiff’s case, (4) disruption of the plaintiff’s case, and (5)

damages proximately caused by the defendant’s acts[.]” Smith v. Howard Johnson Co., Inc., 67

Ohio St.3d 28, 29 (1993).

       {¶16} The trial court indicated that it would only address the third element of the

spoliation claim.   The court determined that there was no evidence that the Inn willfully

overwrote the surveillance video from the night of the crash to disrupt Mr. Weeks’s case.

Instead, the overwriting happened in the normal course of business after the surveillance unit

was returned to the Inn and before the Inn received Mr. Weeks’s notice to preserve evidence.

       {¶17} Mr. Weeks argues that, because the Inn had reason to believe that a lawsuit would

be filed against it, a jury could discredit the Inn’s allegation that the video was innocently

overwritten during the normal course of its business. He also argues that a jury could find the

Inn’s belief that the Department of Public Safety would keep a copy of the video disingenuous.

According to Mr. Weeks, the department would have no reason to keep a copy of the video after

it decided not to pursue a liquor violation against the Inn.
                                                 8


       {¶18} In its motion for summary judgment, the Inn noted that the agent from the

Department of Public Safety testified in his deposition that he obtained the Inn’s surveillance

system on June 15 and returned the unit to the Inn on June 16. The Inn did not present any

evidence, however, about when the surveillance unit was placed back in service. We also note

that there is sparse evidence about the amount of time that the unit can record before it begins

overwriting prior recordings. Jody Hilton testified that she believed it rewrites after a week but

conceded that it is the owner of the Inn who maintains the system. The Inn submitted a copy of

the notice to preserve evidence that Mr. Weeks sent it on June 29, 2017, which asks it to preserve

all evidence related to the crash, including “any and all video surveillance[.]”

       {¶19} Viewing the evidence in a light most favorable to Mr. Weeks, we conclude that

the Inn did not establish the absence of a material fact on whether the video was recorded over

before the Inn received Mr. Weeks’s notice. See Cechowski v. Goodwill Industries of Akron,

Ohio, Inc., 9th Dist. Summit No. 17944, 1997 WL 270523, * 10 (May 14, 1997). We, therefore,

conclude that it did not satisfy its initial burden under Civil Rule 56(C) to establish that it was

entitled to judgment as a matter of law. Mr. Weeks’s second assignment of error is sustained.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON
       THE PUNITIVE DAMAGES CLAIM.

       {¶20} Mr. Weeks’s final argument is that the trial court incorrectly granted summary

judgment to the Inn on its punitive damages claim. He notes that the court found that the

punitive damages claim failed because the Inn did not have any liability to him on his other

claims. According to Mr. Weeks, if this Court reverses on his other assignments of error, it

should also reverse the trial court’s ruling on his claim for punitive damages.
                                                9


       {¶21} “Punitive damages are not an independent cause of action; rather, they arise

incident to compensable harm.” Whetstone v. Binner, 146 Ohio St.3d 395, 2016-Ohio-1006, ¶

20. The trial court recognized that punitive damages is not a separate cause of action in its

decision and concluded that Mr. Weeks’s claim failed as a matter of law. Upon review of the

record, we agree that, as a matter of law, Mr. Weeks’s may not maintain a separate cause of

action for punitive damages. Id. We, therefore, conclude that the trial court correctly awarded

summary judgment to the Inn on his punitive damages claim.1 Mr. Weeks’s third assignment of

error is overruled.

                              CROSS-ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT DENIED THE MOTION FOR
       PARTIAL JUDGMENT ON THE PLEADINGS.

       {¶22} In its cross-appeal, the Inn argues that it was entitled to a judgment on the

pleadings that Mr. Weeks may not recover punitive damages on his wrongful death action under

the dram shop act. It notes that Section 4399.18(B) provides for “a cause of action * * * for

personal injury, death, or property damage caused by the negligent actions of an intoxicated

person * * *.” According to the Inn, because the statute does not provide for punitive damages

or attorney fees, those may not be recovered on a claim under the act.




       1
         Just as Mr. Weeks’s first assignment of error focused on his “dram shop claim” and his
second assignment of error focused on his “spoliation claim[.]” Mr. Weeks’s third assignment of
error focuses on his “punitive damages claim.” We confine our review to the judgment on Mr.
Weeks’s punitive damages “claim” and express no opinion regarding whether he may be able to
recover punitive damages under his other causes of action. See Crozier v. First Natl. Bank of
Akron, 9th Dist. Summit No. 10140, 1981 WL 4178, *3 (Sept. 30, 1981) (explaining that “claim”
is a synonym of “cause of action”), citing Black’s Law Dictionary 313 (4th Ed.1969).
                                                10




       {¶23} Upon review of the record, we conclude that the Inn’s argument is premature.

This issue may become moot if Mr. Weeks does not prevail on his claims or if the jury declines

to award punitive damages and attorney fees. See Kick v. Smithville W. Care Ctr., 9th Dist.

Wayne No. 12CA0032, 2013-Ohio-2034, ¶ 7 (declining to consider argument on appeal that

could still be decided in appellant’s favor); see also Shiloh Automotive, Inc. v. Levin, 117 Ohio

St.3d 4, 2008-Ohio-68, ¶ 50 (concluding that cross-appeal was premature because party could

appeal later if it was adversely affected by application of order). The Inn’s cross-assignment of

error is overruled.

                                                III.

       {¶24} Mr. Weeks’s first and second assignments of error are sustained.             His third

assignment of error and the Inn’s cross-assignment of error are overruled. The judgment of the

Lorain County Court of Common Pleas is affirmed in part and reversed in part, and this matter is

remanded for proceedings consistent with this decision.

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                11


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     JENNIFER L. HENSAL
                                                     FOR THE COURT


TEODOSIO, P.J.
CONCURS.

CARR, J.
CONCURS IN PART AND DISSENTS IN PART.

       I respectfully dissent with respect to the majority’s resolution of Mr. Weeks’ third

assignment of error. Despite Mr. Weeks’ poor word choice, it is clear that Mr. Weeks does not

actually argue that there exists a separate cause of action for punitive damages. Instead, Mr.

Weeks only seeks to be able to pursue punitive damages against the Inn if the Court were to

reverse the decision granting summary judgment to the Inn on Mr. Weeks’ claims. As I agree

with the majority that it is appropriate to reverse the trial court’s award of summary judgment to

the Inn on Mr. Weeks’ causes of action, Mr. Weeks should be free to pursue punitive damages

against the Inn. To the extent the majority’s opinion can be read to hold otherwise, I dissent.


APPEARANCES:

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.
