COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73961 LARRY JAMES ROCKWELL, ET AL. : : ACCELERATED DOCKET : JOURNAL ENTRY Plaintiffs-Appellants : AND : OPINION : -vs- : : PER CURIAM RONALD ULLOM, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT : SEPTEMBER 3, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court, Case No. CV-313598 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: Maria L. Shinn, Esq. 420 National City Bank Bldg. 629 Euclid Avenue Cleveland, Ohio 44114 For defendants-appellees: Jay S. Hanson, Esq. 918 Terminal Tower 50 Public Square Cleveland, Ohio 44113 For DAMCS, dba Pioneer Lounge: John J. Kulig, Esq. 6325 York Road Suite 305 Parma Hts., Ohio 44130 For Liberty Pizza, Inc.: Kimberly M. Lord, Esq. 1100 Rockefeller Building -2- Cleveland, Ohio 44113 For Round Fifteen Lounge, Inc.: Robert A. Ruggeri, Esq. 55 Public Square Suite 1450 Cleveland, Ohio 44113 John J. Russo, Esq. Polito & Russo 21270 Lorain Road Fairview Park, Ohio 44126 -3- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc. App.R. 25, the record from the Cuyahoga County Court of Common Pleas and the briefs of counsel. Larry James Rockwell, et al., plaintiffs-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas, General Division, Case No. CV-313598, in which the trial court granted the summary judgment motions of Ronald Ullom, Lipsand Corporation, Round Fifteenth Lounge, Inc., dba Rockamundo's Sports Bar and Round Fifteen Lounge, Inc., dba Rockamundo's Sports Bar, defendants- appellees. Plaintiffs-appellants assign five errors for this court's review. Plaintiffs-appellants' appeal is not well taken. This case arises out of the death of Esta Faye Wiley in an automobile accident that occurred at approximately 2:30 a.m. on April 18, 1996. Mrs. Wiley was a front seat passenger in an automobile operated by an admittedly intoxicated Dennis Saltsman when he drove the car into a parked truck at 12718 Lorain Avenue in Cleveland, Ohio. The automobile was owned by Ronald Ullom, defendant-appellee. Mr. Ullom also owned Lipsand Corporation, defendant-appellee, dba Liberty Pizza. Dennis Saltsman had a working relationship with Liberty Pizza whereby he purchased pizzas from Liberty Pizza and then sold those pizzas to customers of his own choosing. Mr. Saltsman was paid a commission of $2.00 for each pizza sold. Any pizza not sold by Mr. Saltsman was his financial responsibility. Mr. Saltsman earned an -4- average of $150.00 to $200.00 per day selling pizzas. Mr Saltsman was responsible for paying income tax on the money earned selling pizzas. Mr. Saltsman did not own a vehicle at the time of the accident nor did he have a valid Ohio driver's license. Therefore, Mr. Saltsman enlisted the aid of others to drive Mr. Ullom's vehicle in order to sell the pizzas in question. Mr. Ullom maintained that, at no time did he give Mr. Saltsman permission to operate his automobile. Mr. Ullom maintained further that Mr. Saltsman only sold pizzas during the day, not at night. On the night of the accident, Mr Ullom allegedly gave permission for Esta Faye Wiley to use his car for the specific purpose of driving Mr. Saltsman to an Alcoholics Anonymous meeting. However, instead of limiting their use of the automobile to the permitted use, Mr. Saltsman and Mrs. Wiley patronized a number of taverns including Round Fifteenth Lounge, Inc. dba as Rockamundo's Sports Bar and Round Fifteen Lounge, Inc. (hereinafter Rockamundo's ). Apparently, Mr. Saltsman and Mrs. Wiley arrived at Rockamundo's at approximately 11:45 p.m. and remained at the bar until it closed at 2:00 a.m. While at Rockamundo's, Mr. Saltsman admittedly consumed three beers and two shots of alcohol. This was in addition to his alcohol consumption earlier in the evening at other establishments. Shortly after leaving Rockamundo's, Mr. Saltsman's vehicle struck a parked truck along Lorain Avenue in Cleveland, Ohio. Mrs. Wiley died as a result of injuries sustained in the accident. Mr. -5- Saltsman's blood alcohol level was 0.169 when tested at the hospital following the accident. On August 16, 1996, plaintiffs-appellants filed suit against Ronald Ullom, Lipsand Corporation and Rockamundo's alleging negligence under the doctrine of respondeat superior, negligent entrustment, and negligence pursuant to R.C. 4399.18, Ohio's Dram Shop Act. Essentially, plaintiffs-appellants maintained that Dennis Saltsman was, in fact, an employee of Ronald Ullom and/or Lipsand Corporation at the time of the accident and had been acting within the course and scope of his employment at the time the accident occurred. Plaintiffs-appellants maintained further that Mr. Ullom and/or Lipsand Corporation had negligently entrusted the vehicle in question to Mr. Saltsman in light of his past driving record. Finally, plaintiffs-appellants argued that Rockamundo's was liable for Mrs. Wiley's death since it knowingly served intoxicating beverages to Mr. Saltsman when it knew or should have known that Saltsman was in an intoxicated state and unfit to be served such beverages. The named defendants filed respective motions for summary judgment. Ronald Ullom and/or Lipsand Corporation argued that Mr. Saltsman was never an employee, but rather, an independent contractor who sold pizzas he had purchased on a daily basis from Liberty Pizza. Mr. Ullom argued further that, at no time did he allow Saltsman to operate the automobile in question. Rockamundo's maintained that plaintiffs-appellants had failed to put forth any evidence that Mr. Saltsman was noticeably intoxicated at the time -6- he was being served at their establishment and, as such, liability cannot attach. On January 14, 1998, the trial court granted summary judgment in favor of Ronald Ullom, Lipsand Corporation and Rockamundo's finding that no genuine issue of material fact existed and the defendants were entitled to judgment as a matter of law. On February 10, 1998, plaintiffs-appellants filed a timely notice of appeal from the judgment of the trial court. Plaintiffs-appellants' first assignment of error states: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT LIPSAND CORPORATION, AS THERE EXIST GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER DEFENDANT LIPSAND CORPORATION IS LIABLE FOR ESTA FAYE WILEY'S DEATH UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR. Plaintiffs-appellants' second assignment of error states: II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT LIPSAND CORPORATION, AS THERE EXIST GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER DEFENDANT LIPSAND CORPORATION NEGLIGENTLY ENTRUSTED THE TORTFEASOR, DENNIS SALTSMAN, WITH THE USE OF THE MOTOR VEHICLE DENNIS SALTSMAN WAS DRIVING AT THE TIME OF THE ACCIDENT. Plaintiffs-appellants' third assignment of error states: III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT RONALD ULLOM, AS THERE EXIST GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER DEFENDANT RONALD ULLOM IS LIABLE FOR ESTA FAYE WILEY'S DEATH UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR. Plaintiffs-appellants' fourth assignment of error states: IV. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT RONALD ULLOM, AS THERE EXIST GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER RONALD ULLOM NEGLIGENTLY -7- ENTRUSTED THE TORTFEASOR, DENNIS SALTSMAN, WITH THE USE OF THE MOTOR VEHICLE DENNIS SALTSMAN WAS DRIVING AT THE TIME OF THE ACCIDENT. Having a common basis in both law and fact, this court shall consider plaintiffs-appellants' first, second, third and fourth assignments of error simultaneously. Plaintiffs-appellants argue, through their first four assignments of error, that the trial court erred in entering summary judgment in favor of Lipsand Corporation and Ronald Ullom, owner of Lipsand Corporation as well as the automobile involved in the accident. Plaintiffs-appellants maintain that genuine issues of material fact exist as to whether the tortfeasor, Dennis Saltsman, was an employee of Lipsand Corporation and/or Ronald Ullom and whether Mr. Saltsman was acting within the course and scope of his employment at the time of the accident. Plaintiffs- appellants maintain further that genuine issues of material fact exist as to whether the vehicle in question was negligently entrusted to Mr. Saltsman by Lipsand Corporation and/or Ronald Ullom given Saltsman's past driving record and lack of a valid Ohio's driver's license. The standard for granting a motion for summary judgment is set forth in Civ.R. 56(C). In applying this rule, the Ohio Supreme Court has consistently held that, before such a motion can be granted, the moving party must show that: (1) there is no genuine issue of fact; (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 -8- most strongly in favor of the non-moving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383; Welco Industries, Inc. v. Applied Cas. (1993), 67 Ohio St.3d 344; Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, syllabus. The non-movant must also present specific facts and may not merely rely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio St.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court discussed the standard to be applied when reviewing motions for summary judgment. The court stated: Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ.R. 56 (A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C). Id. at 298. -9- The court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See, Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. The doctrine of respondeat superior was set forth by the Ohio Supreme Court in Osborne v. Lyles (1992), 63 Ohio St.3d 326, 329- 330, 587 N.E.2d 825: The doctrine of respondeat superior is expressed in the Restatement of Law 2d, Agency (1958) 481, Section 219(1), which states as follows: A master is subject to liability for the torts of his servants committed while acting in the scope of their employment. Respondeat superior liability attaches only where work performed is that of the master and the servant is subject to control of the master in performing the work. Boch v. New York Life Ins. Co. (1964), 175 Ohio St. 458, 196 N.E.2d 90, paragraph one of the syllabus; Nye v. Kemp (1994), 97 Ohio App.3d 130, 133, 646 N.E.2d 262. Conduct is within the scope of a servant's employment if it is of the kind which he is employed to perform, occurs substantially within the authorized limits of time and space, and is actuated, at least in part, by a purpose to serve the master. Martin v. Central Ohio Transit Auth. (1990), 70 Ohio App.3d 83, 92, 590 N.E.2d 411. Where an act has no relation to the conduct of the master's business, it may not be argued that the servant was acting upon the scope of his authority. Finley v. Schuett (1982), -10- 8 Ohio App.3d 38, 39, 455 N.E.2d 1324. An employer is not liable under the doctrine of respondeat superior where an employee's act of driving an automobile does not render a specific benefit upon the employer. Faber v. Matelweld, Inc. (1992), 89 Ohio App.3d 794, 798, 627 N.E.2d 642. Stated otherwise, an employer is not liable for the independent self-serving acts of his employees which in no way facilitate or promote his business. Byrd v. Faber (1991), 57 Ohio St.3d 56, 59, 565 N.E.2d 584, 588. In Gulla v. Straus (1950), 154 Ohio St. 193, 93 N.E.2d 662, the Ohio Supreme Court set forth the elements of a negligent entrustment claim as follows: The owner of a motor vehicle may be held liable for an injury to a third person upon the ground of negligence if the owner knowingly, either through actual knowledge or through knowledge implied from known facts and circumstances, entrusts its operation to an inexperienced or incompetent driver whose negligent operation results in the injury. Id. at paragraph three of the syllabus. See Darulis v. Pennell (1996), 113 Ohio App.3d 168, 680 N.E.2d 684; Pfund v. Ciesielczyk (1992), 84 Ohio App.3d 159, 163-164, 616 N.E.2d 560, 563. In this case, plaintiffs-appellants maintained that genuine issues of material fact existed as to whether Mr. Saltsman was an employee of Ronald Ullom and/or Lipsand Corporation at the time of the accident and whether the vehicle in question was negligently entrusted to Saltsman by Ronald Ullom and/or Lipsand Corporation on the night in question. A review of the entire record from the trial court fails to support plaintiffs-appellants' assertions. Clearly, Mr. Saltsman was not an employee of Ronald Ullom or -11- Lipsand Corporation at any time during the relevant time period. Saltsman was merely an independent contractor who purchased pizzas from Liberty Pizza and sold them to his own customers on his own volition. Saltsman paid his own income tax and was financially responsible for any pizzas purchased from Liberty Pizza that he did not sell. In addition, on the night of the accident, Mr. Saltsman was not engaged in a business pursuit of any kind, either in furtherance of his own interests or that of Liberty Pizza. He was engaged in a personal undertaking for which neither Ronald Ullom or Lipsand Corporation could be held liable under the doctrine of respondeat superior. Byrd, supra; Cooper v. Grace Baptist Church of Columbus, Ohio, Inc. (1992), 81 Ohio App.3d 728, 737, 612 N.E.2d 357. Similarly, a review of the record fails to support plaintiffs- appellants' negligent entrustment claim against Ronald Ullom and Lipsand Corporation. The deposition testimony of both Mr. Ullom as well as Mr. Saltsman demonstrates that Mr. Saltsman did not have permission to operate the vehicle involved in the accident at any time. On the night of the accident, the only person who had permission to operate the car was the deceased, Esta Faye Wiley, who was only permitted to use the car to drive Mr. Saltsman to an Alcoholics Anonymous meeting. In light of this evidence, it is apparent that plaintiffs-appellants failed to demonstrate a viable claim for negligent entrustment against Ronald Ullom or Lipsand Corporation. Community Mutual Insurance v. Kaczmarski (May 1, 1998), Lucas App. No. L-97-1220, unreported at 4. -12- For the foregoing reasons, plaintiffs-appellants' first, second, third and fourth assignments of error are not well taken. Plaintiffs-appellants' fifth and final assignment of error states: V. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS ROUND FIFTEENTH LOUNGE, INC., dba ROCKAMUNDO'S SPORTS BAR, AND ROUND FIFTEEN LOUNGE, INC., dba ROCKAMUNDO'S SPORTS BAR, AS THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER THESE DEFENDANTS WERE NEGLIGENT PURSUANT TO OHIO REVISED CODE SECTION 4399.18. Plaintiffs-appellants argue, through their fifth and final assignment of error, that the trial court erred in granting summary judgment in favor of Rockamundo's on plaintiffs-appellants' R.C. 4399.18 negligence claim. Specifically, plaintiffs-appellants argue that Rockamundo's knowingly served Dennis Saltsman alcohol even though Saltsman was visibly intoxicated at the time and had consumed enough alcohol to exceed the legal limit for operating a motor vehicle in Ohio. A civil cause of action may be brought against a liquor permit holder or his employee when: (1) a noticeably intoxicated person; (2) is knowingly served alcohol; (3) negligently injures another; (4) away from the premises; and (5) as the proximate result of his or her intoxication. R.C. 4399.18. Tillet v. Tropicana Lounge and Restaurant, Inc. (1991), 81 Ohio App.3d 46, 48; Holley v. Beverage King Co. (1989), 61 Ohio App.3d 113, 116, 572 N.E.2d 189. 191. R.C. 4399.18 requires actual, not constructive, knowledge of intoxication before liability will attach. Gressman v. McClain (1988), 40 Ohio St.3d 359. -13- In this instance, plaintiffs-appellants failed to produce any evidence that Rockamundo's possessed actual knowledge regarding Mr. Saltsman's level of intoxication on the night of the accident. There was no testimony that Saltsman was visibly intoxicated while at Rockamundo's or gave any indication that he had consumed more than the legal amount of alcohol. Contrary to plaintiffs- appellants' position, the mere fact that Saltsman's blood alcohol content was in excess of the legal limit when tested after the accident, does not lead one to conclude, without additional evidence, that Rockamundo's knowingly served alcohol to a visibly intoxicated person in violation of R.C.4399.18. Gressman, supra. Accordingly, plaintiffs-appellants' fifth and final assignment of error is not well taken. Judgment of the trial court is affirmed. -14- It is ordered that appellee recover of appellant 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 Cuyahoga County 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. PATRICIA A. BLACKMON, A.J. KENNETH A. ROCCO, J., JUDGE MICHAEL J. CORRIGAN, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .