COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60382 WILLIAM HOSAFLOOK : : : JOURNAL ENTRY Plaintiff-Appellant : : : and -vs- : : OPINION BAR-LINN, INC. d.b.a. : GAULWAY INN : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 157366 JUDGMENT: Reversed and remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Thomas A. Kondzer John D. Campbell Kolick & Kondzer Gregory E. O'Brien 24500 Center Ridge Road #175 1490 Illuminating Building Westlake, Ohio 44145 55 Public Square Cleveland, Ohio 44113 - 1 - DYKE, P.J.: William Hosaflook sued Bar-Linn, Inc. d.b.a. Gaulway Inn alleging that the negligence of Inn employees caused him personal injuries. Hosaflook also stated a separate cause of action based upon R.C. 4301.22 which prohibits the sale of alcohol to an intoxicated individual. At the close of Hosaflook's case, the trial court directed a verdict for the Inn on the basis that Hosaflook failed to establish his injuries were proximately caused by Inn employees. Hosaflook filed a timely appeal challenging the trial court's ruling. While the appeal was pending, Hosaflook died and the Executrix of his estate was substituted as a party for purposes of appeal. Upon a review of the record, we reverse and remand. In his complaint, the sixty-one-year-old Hosaflook alleged that Inn employees served him alcohol knowing he was intoxicated and discouraged customers from taking him home. Hosaflook claimed he later fell from a bar stool and struck his head, causing permanent brain damage. The complaint further stated Inn employees then placed him in the back seat of his car. Inn customers later found him on the ground near his car in the parking lot. Hosaflook was unable to testify at trial but presented the following evidence in support of his claims. Inn bartender Sarita Marsh was unavailable at the time of trial but her deposition was read to the jury. Marsh, who worked the 6:00 p.m. to 2:30 p.m. shift at the Inn, averred Hosaflook - 2 - was sitting at the bar when she arrived on the evening of August 17, 1985. Marsh described Hosaflook's speech as slurred and stated he was "slumped" over the bar. Between 7:00 p.m. and 7:30 p.m., Hosaflook ordered a Bloody Mary. Marsh testified she served him tomato juice without any alcohol because of his intoxicated state. When Hosaflook indicated he wanted to go home, Marsh and two customers moved him to a booth. Marsh stated the two customers, Lee Williams and Jim Rave, initially agreed to drive Hosaflook home but when he "started flashing a lot of money and *** urinated on himself" the men changed their minds. According to Marsh, the men were afraid that if Hosaflook's money was later missing they would be accused. Hosaflook then asked Marsh for a ride but the bartender explained she could not leave until her shift ended. According to Marsh, she and some customers took Hosaflook to his auto, where they placed him in the back seat, locked the car doors and kept the keys. Later in the evening, customers informed Marsh a man was lying in the parking lot. Marsh found Hosaflook next to his car and summoned police. Marsh denied observing Hosaflook fall while in the Inn. William Gaul, owner of Gaulway Inn, testified that Marsh told him about the incident with Hosaflook. When asked whether Marsh mentioned Hosaflook falling from a bar stool, Gaul averred that the bartender stated she did not know if "he fell or slid *** but they did help him up ***." (Tr. 194). Kay Spearling, an Inn customer on August 17, 1985, told the jury that sometime during the evening Marsh asked Williams and - 3 - Rave to take Hosaflook home. Marsh also told the men Hosaflook was "flashing quite a bit of money." (Tr. 64). Spearling testified she cautioned the men against taking Hosaflook home and they decided not to assist him. According to Spearling, Marsh stated Hosaflook was drunk and she would not serve him alcohol. Spearling later observed Hosaflook asleep with his head on the bar. At approximately 9:30 p.m., Spearling heard "a solid sound or a thumping sound" and saw Hosaflook on the floor. (Tr. 67). Williams and Rave picked Hosaflook up and took him to a table. Spearling testified Hosaflook was holding his head and mumbling, and that he slid down from his chair. Hosaflook urinated and the men placed him back in the chair but he slid down again. Spearling stated he continued to hold his head until he appeared to fall asleep at the table. Romalee Williams testified he initially agreed to take Hosaflook home from the Inn but changed his mind after Marsh suggested he not assist Hosaflook because of the money he carried. According to Williams, Marsh stated she would not serve him alcohol. Williams did not observe Hosaflook fall but heard a "racket" and saw Hosaflook on the floor. Williams assisted Hosaflook to a chair but he twice slid down from it. Williams did not notice whether Hosaflook was holding his head. Chris Tibbets, a Middleburg Heights paramedic, arrived at the Gaulway Inn at 11:00 p.m. and found Hosaflook sitting in his car with a cut over his right eye. The paramedic described Hosaflook as intoxicated and disoriented. - 4 - Dr. Thomas Tank examined Hosaflook in the emergency room at Parma Hospital at approximately 11:30 p.m. Tank testified Hosaflook suffered a depressed comminuted skull fracture on the right side of his head and a laceration over his right eye. Hosaflook, who had a .353 blood-alcohol level, appeared confused and was unable to extend his left arm and hand. Hosaflook's left hand grip was weak and he could not move his left leg on command. Tank told the jury that, as a result of the skull fracture, Hosaflook had an acute subdural hematoma and an intracerebral hematoma which required surgical intervention. Tank opined the subdural hematoma was one to six hours old. The physician also testified that part of the intracerebral hematoma had formed a clot which was four to eight hours old. Tank further stated that the "fracture along the side of the head was due to a blow delivered directly over the ear on the right side. The laceration of the eyebrow was due to a second blow that hit the edge of the orbit ***." (Tr. 22-23). Finally, Agnes Clutch testified she lived with Hosaflook and served him lunch on August 17, 1985. The meal included "a couple" of beers. Clutch did not see Hosaflook again until she learned he was hospitalized. On cross-examination, Clutch also indicated Hosaflook was taking Percodan and Valium, and walked with a cane at the time of his accident. - 5 - In his sole assignment, Hosaflook asserts the court erred in directing the verdict on the issue of proximate cause. In ruling on a motion for a directed verdict, the court must construe the evidence in a light most favorable to the party opposing the motion. Mitchell v. Cleveland Elec. Illum. Co. (1987), 30 Ohio St. 3d 92, 93; Blair v. Goff-Kirby Co. (1976), 49 Ohio St. 2d 5. The judge must neither weigh the evidence nor determine the credibility of the witnesses. Strother v. Hutchinson (1982), 67 Ohio St. 2d 282. If the court finds that reasonable minds could come to but one conclusion and that conclusion is adverse to the party opposing the motion, the court should direct the verdict. Civ. R. 50(A). See, also, Mitchell, supra. To establish negligence, a plaintiff must show the existence of a duty, breach of that duty and an injury proximately caused by the breach. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77. Hosaflook contends that Gaulway Inn, through its employee Marsh, breached its duty to him as a business invitee by discouraging Williams from taking him home, or calling a cab or police, once she knew he was intoxicated. Hosaflook also argues that since Marsh was aware of his intoxicated condition and his fall from the bar stool, she had an obligation to act with reasonable care once she decided to place him in the car. It is well established that the proprietor of a business owes a duty of ordinary care to business invitees to insure their safety. Presley v. Norwood (1973), 36 Ohio St. 2d 29, 31. Apart from this - 6 - duty, one who voluntarily assists a helpless individual must exercise reasonable care and not leave the individual in a worse position than he was found. 2 Restatement of the Law 2d, Torts (1965), 139, Section 324; Prosser & Keeton, Law of Torts (1984), 380, Section 56. See, also, Sawicki v. Ottawa Hills (1988), 37 Ohio St. 3d 222, 227. Under either theory, Hosaflook was obligated to demonstrate proximate cause. Menifee, supra. In directing the verdict, the trial court stated that Hosaflook had failed to present any expert medical testimony linking his injury to the events at the Gaulway Inn. (Tr. 259). Hosaflook urges that he was not required to present such expert testimony and that the evidence he did produce is sufficient to survive a motion for a directed verdict. We agree. In Darnell v. Eastman (1970), 23 Ohio St. 2d 13, the Supreme Court held: "Except as to questions of cause and effect which are so apparent as to be matters of common knowledge, the issue of causal connection between an injury and a specific subsequent physical disability involves a scientific inquiry and must be established by the opinion of medical witnesses competent to express such opinion. In the absence of such medical opinion, it is error to refuse to withdraw that issue from the consideration of the jury." Id., syllabus. Thus, expert testimony is necessary only if the proximate cause issue is outside the common knowledge of the jury. Id. The record demonstrates that Hosaflook failed to ask Dr. Tank whether the fall to the floor could have caused his injury. We do not find, however, that the absence of such evidence requires a directed verdict in this case. Tank testified that - 7 - Hosaflook sustained two separate "blows" to his head. He specifically stated that the "fracture along the side of the head was due to a blow delivered directly over the ear on the right side of the head." (Tr. 22-23). The second "blow" was to the area above Hosaflook's right eye. As a result of the fracture, Hosaflook developed subdural and intracerebral hematomas. Tank performed surgery at 6:00 a.m., August 18, and estimated the subdural hematoma to be one to six hours old and the clot associated with the other hematoma to be four to eight hours old. Inn customers testified that Hosaflook fell from his bar stool at approximately 9:30 p.m. and they described hearing "a solid sound," "a thumping sound" and a "racket." Spearling told the jury that after the fall Hosaflook held his head. We find that the expert testimony addresses the issue of proximate cause to the extent that Dr. Tank testified the skull fracture resulted from a "blow" to Hosaflook's head. Further, it is within the common knowledge of the jury that a fall on one's head can constitute a "blow" and lead to serious injuries. We find the court erred in directing the verdict on proximate cause. This assignment of error is sustained and the judgment of the trial court is reversed. Reversed and remanded. It is ordered that appellant recover of appellee his costs herein taxed. The Court finds there were reasonable grounds for this appeal. - 8 - It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, J., CONCURS. *COX, J., DISSENTS (SEE ATTACHED DISSENTING OPINION) PRESIDING JUDGE ANN DYKE *(Sitting by Assignment: Judge Edward Cox of the Seventh Appellate District). N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60382 WILLIAM HOSAFLOOK : : Plaintiff-appellant : : D I S S E N T I N G vs. : : O P I N I O N BAR-LINN, INC. d.b.a. : GAULWAY INN : : Defendant-appellee : : : DATE: JUNE 4, 1992 COX, J., DISSENTING: I must respectfully dissent with the majority opinion in this case. The majority, on page 1 of their opinion, state: "Hosaflook claimed he later fell from a bar stool and struck his head, causing permanent brain damage." The testimony at trial as taken from appellant's brief states as follows: "At approximately 9:15 P.M., several bar patrons heard a noise at the bar and turned to find plaintiff, William Hosaflook, on the floor. See TR 75, 67 and 120. He had fallen off the bar stool in his inebriated state. See TR 134, 67 and 121. Mr. Williams and Mr. Rave helped him off the floor to a - 2 - table. See TR 121. Plaintiff, William Hosaflook, was holding his head, mumbling and moaning. See TR 71-74 and 121. He was not visibly bleeding. See TR 134 and 88-90. He slid down in the booth and when pulled up by the two men, slid down again. See TR 71, 122, 133 and 87. He then urinated in his pants. See TR 72, 123 and 169. All this time, he never let go of his head. See TR 87. In a few minutes he laid his head down on the table and appeared to go to sleep. See TR 87 and 72. Rather than seek medical attention for him, defendant left him in this semi-comatose state. See TR 72, 123-124." Further, on this issue, bar patrons Lee Williams and Kay Spearling recalled that they had subsequently heard a noise and looked over to discover the plaintiff lying on the floor. See TR 67, 120. No one actually saw the plaintiff fall, nor did any witness testify to seeing him strike his head on the bar, the stool, the floor or anything else. See TR 67, 120. After being helped into the booth, Mr. Hosaflook put his head down on the table and continued sleeping in the same manner that he had been at the bar. See TR 72. Eventually the patrons took Mr. Hosaflook out to his car, locked him inside so that he could "sleep it off" and kept the keys so that he could not drive. Approximately one hour later the plaintiff was discovered lying in the parking lot outside of his car. There were no witnesses as to how he got out, where he had gone or what had happened to him. However, some time during this period he had suffered a laceration over the eye. - 3 - The attending physician, Dr. Tank, testified that at no time did he take a history from the plaintiff as to the cause of the plaintiff's injuries. On cross examination, the attending physician, Dr. Tank, testified: "Q: You have told us that Mr. Hosaflook had a laceration over his right eye and with ecchymosis, and his eye was closed and that that was a different bump or bang or whatever trauma than the one to the right side of his head above his ear which caused the fracture; is that correct? "A: That's correct. "Q: You cannot, however, I take it, tell me which of those occurred first, can you? "A: No. "Q. Nor can you tell me where either one of those occurred? Obviously you can tell me one is on the right side of his head and one is to the eyebrow. That's not what I meant. The geographical location. You cannot tell me where either one or both of those occurred, can you? "A. I have no idea. "Q. Except for the parameters which you have given us that we have just talked about, you can't really tell me when they occurred, can you? "A: No, outside of those parameters or inside of those parameters." This was the testimony before the trial court. The court, I feel, correctly granted a directed verdict because it would have to speculate as to the cause or connection of the injury. There is no evidence that the appellant hit his head when he fell off the bar stool. We would have to speculate that this is - 4 - in fact what happened. There are no witnesses as to what occurred after the bar patrons put appellant in his car in the parking lot. It would require speculation to assume appellant was hit over the eye, causing a laceration. The jury would be required to speculate further that at the same time he got hit over the eye he did not get another hit over the ear. To allow this case to go to a jury based on the evidence before it would require that the jury make a speculation upon speculation. As such I feel that the finding of the trial court should be affirmed. .