COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67892 ROBERT J. PIATAK : ACCELERATED DOCKET : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION BREEGE, INC. DBA ATTITUDES, : ET AL. : Defendants-Appellees : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 16, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-271715 JUDGMENT: AFFIRM. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: RUSSELL Z. BARON (#0025663) TICKTIN, BARON, KOEPPER & CO. 1700 The Keith Building 1621 Euclid Avenue Cleveland, OH 44115 For Defendants-Appellees: GARY R. AXNER (#0018278) 2000 East 9th Street,Suite 629 Cleveland, Ohio 44114 - 2 - PER CURIAM: Plaintiff-appellant Robert Piatak appeals the dismissal of his action against defendants-appellees Breege, Inc., dba Attitudes, and Gerald Stefan, president of Breege, Inc. Piatak raises the following assignment of error: THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS' MOTION TO DISMISS BECAUSE A PLAINTIFF DOES STATE A CAUSE OF ACTION UNDER THE AUTHORITY OF MASON V. ROBERTS, WHEN A LIQUOR ESTABLISHMENT CONTINUES TO SERVE A PATRON ALCOHOL BEYOND THE POINT AT WHICH THE PATRON CAN REFRAIN FROM DRINKING THE ALCOHOL, AND THE PATRON SUSTAINS INJURIES AS A DIRECT AND PROXIMATE RESULT OF THE SERVING OF THE ALCOHOL. I. Piatak brought this action alleging he became intoxicated at Attitudes and subsequently suffered injuries in an automobile accident. He further alleges that Attitudes continued serving him after he became intoxicated and his "will to refrain was so impaired that it was not possible for him to refrain from drinking the alcohol placed before him." II. Smith v. The 10th Inning, Inc. (1990), 49 Ohio St.3d 289, syllabus, holds that: An intoxicated patron has no cause of action against a liquor permit holder under R.C. 4301.22(B) where the injury, death or pro- perty damage sustained by the intoxicated patron off the premises of the permit holder was proximately caused by the patron's own intoxication. In reaching its holding, Smith concludes: - 3 - [W]e find that one of the strongest reasons compelling rejection of such a cause of action by the intoxicated patron against the permit holder is one grounded firmly in commonsense public policy; namely, that an adult who is permitted to drink alcohol must be the one who is primarily responsible for his or her own behavior and resulting voluntary actions. Clearly, permitting the intoxicated patron a cause of action in this context would simply send the wrong message to all our citizens, because such a message would essentially state that a patron who has purchased alcoholic beverages from a permit holder may drink such alcohol with unbridled, unfettered impunity and with full knowledge that the permit holder will be ultimately responsible for any harm caused by the patron's intoxication. In our opinion, such a message should never be countenanced by this court. * * * By denying the intoxicated patron the right of recourse from the only other person arguably responsible for the patron's intoxication (i.e., the permit holder), this court reiterates the basic commonsense notion that responsibility for one's voluntary liquor consumption should be one's own, since it reflects basic public policy considerations. As between the patron and the permit holder, we believe that the patron is in the best position to prevent intoxication before it occurs and, therefore, we find that the patron should, in this context, be denied a cause of action to recompense his or her own drunken behavior. Id., at 291-293. Piatak argues that he has stated a valid cause of action because Attitudes continued to serve him after he became so intoxicated that he was unable to refrain from drinking. Essentially Piatak is arguing that his drinking ceased to be voluntary after he became severely intoxicated. Smith, however, clearly rejects this argument. - 4 - Piatak further argues that the serving of alcohol was one of several proximate causes for his injuries and that liability should be proportioned by the factfinder. Smith rejects this argument as well. Accordingly, Piatak's assignment of error is not well taken. Judgment affirmed. - 5 - This cause is affirmed. It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. 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. LEO M. SPELLACY, PRESIDING JUDGE SARA J. HARPER, JUDGE DAVID T. MATIA, JUDGE 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. .