[Cite as Williams v. United States Liab. Ins. Group, 2012-Ohio-1288.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STEPHANIE WILLIAMS 

 Plaintiff-Appellant 

-vsUNITED STATES LIABILITY 

INSURANCE GROUP 

 Defendant-Appellee 

JUDGES: 

Hon. Patricia A. Delaney, P. J. 

Hon. John W. Wise, J. 

Hon. Julie A. Edwards, J. 

Case No. 2011 CA 00252 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 2011 CV 00744 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: March 19, 2012 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

JEFFREY V. HAWKINS LARRY C. GREATHOUSE 

SLATER & ZURZ RICHARD C. O. REZIE 

One Cascade Plaza, Suite 2210 GALLAGHER SHARP 

Suite 2210 6th Floor Bulkley Building 

Akron, Ohio 44308-1135 1501 Euclid Avenue 

 Cleveland, Ohio 44115 
Stark County, Case No. 2011 CA 00252 2

Wise, J. 

{¶1} Plaintiff-Appellant Stephanie Williams appeals the decision of the Court of 

Common Pleas, Stark County, which overruled her motion for summary judgment and 

granted Appellee United States Liability Insurance Group’s (“USLIG”) motion for 

summary judgment in appellant’s suit seeking recovery under a commercial insurance 

policy. The relevant facts leading to this appeal are as follows. 

{¶2} On November 10, 2007, appellant was a patron at Smitty’s Pub in Canton, 

which was insured by Appellee USLIG under the name “John Abel, dba Smitty’s Pub.” 

While appellant was seated at a booth near the dance floor that evening, a couple of 

other patrons collided with each other. Some words were exchanged between various 

patrons and the pub’s security personnel, and appellant decided it was time to leave. 

However, the disc jockey on duty that night had purportedly blocked the nearest exit 

with his equipment, causing appellant to head toward another door. As she was on her 

way out, she was allegedly struck or landed on by several persons who had become 

involved in another altercation on the premises. 

{¶3} On October 1, 2009, appellant filed a lawsuit in the Stark County Court of 

Common Pleas (case no. 2009CV03790), captioned as “Stephanie Williams v. John M. 

Abel, d/b/a Smitty’s Pub” and other defendants. In her complaint in that suit, appellant 

alleged, in pertinent part, that she had been a business invitee at Smitty’s on or about 

November 10, 2007, and that Smitty’s, its agents, servants, and/or employees were 

negligent in failing to provide adequate security, failure to warn “as to the propensity for 

potential violence,” and failure to allow for appropriate emergency exits. See Exhibit A to 

Plaintiff’s Amended Complaint, April 26, 2011. 
Stark County, Case No. 2011 CA 00252 3

{¶4} The case against Smitty’s ultimately resulted in a consent judgment entry 

granting a judgment for $50,000.00 in favor of appellant. 

{¶5} On March 4, 2011, appellant filed an action against Appellee USLIG in the 

Stark County Court of Common Pleas, pursuant to R.C. 2721.02(B), seeking 

declaratory judgment and money damages.1

 On April 26, 2011, with leave of court, 

appellant filed an amended complaint. 

{¶6} Both sides thereafter filed motions for summary judgment. On October 4, 

2011, the trial court issued a judgment entry denying appellant’s motion for summary 

judgment and granting appellee’s motion for summary judgment. 

{¶7} On November 3, 2011, appellant filed a notice of appeal. She herein 

raises the following sole Assignment of Error: 

{¶8} “I. THE TRIAL COURT ERRED IN OVERRULING THE PLAINTIFFAPPELLANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING THE 

DEFENDANT-APPELLE’S (SIC) MOTION FOR SUMMARY JUDGMENT.” 

I. 

{¶9} In her sole Assignment of Error, appellant contends the trial court erred in 

denying appellant’s motion for summary judgment and granting appellee’s motion for 

summary judgment. We disagree. 

 

1

 R.C. 2721.02(B) states as follows: “A plaintiff who is not an insured under a particular 

policy of liability insurance may not commence against the insurer that issued the policy 

an action or proceeding under this chapter that seeks a declaratory judgment or decree 

as to whether the policy's coverage provisions extend to an injury, death, or loss to 

person or property that a particular insured under the policy allegedly tortiously caused 

the plaintiff to sustain or caused another person for whom the plaintiff is a legal 

representative to sustain, until a court of record enters in a distinct civil action for 

damages between the plaintiff and that insured as a tortfeasor a final judgment 

awarding the plaintiff damages for the injury, death, or loss to person or property 

involved.” 
Stark County, Case No. 2011 CA 00252 4

{¶10} Summary judgment proceedings present the appellate court with the 

unique opportunity of reviewing the evidence in the same manner as the trial court. 

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As 

such, we must refer to Civ.R. 56 which provides, in pertinent part: “Summary judgment 

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, 

written admissions, affidavits, transcripts of evidence in the pending case and written 

stipulations of fact, if any, timely filed in the action, show that there is no genuine issue 

as to any material fact and that the moving party is entitled to judgment as a matter of 

law. * * * A summary judgment shall not be rendered unless it appears from the 

evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to have the 

evidence or stipulation construed most strongly in the party's favor.” 

{¶11} Pursuant to the above rule, a trial court may not enter summary judgment 

if it appears a material fact is genuinely disputed. The party moving for summary 

judgment bears the initial burden of informing the trial court of the basis for its motion 

and identifying those portions of the record that demonstrate the absence of a genuine 

issue of material fact. The moving party may not make a conclusory assertion that the 

non-moving party has no evidence to prove its case. The moving party must specifically 

point to some evidence which demonstrates the non-moving party cannot support its 

claim. If the moving party satisfies this requirement, the burden shifts to the non-moving 

party to set forth specific facts demonstrating there is a genuine issue of material fact for 
Stark County, Case No. 2011 CA 00252 5

trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, citing Dresher v. 

Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264. 

{¶12} It is undisputed that the USLIG policy in question contains an assault or 

battery exclusion, which states in pertinent part that coverage is not provided for “[a]ny 

claim, demand or ‘suit’ based on ‘assault’ or ‘battery,’ or out of any act or omission in 

connection with the prevention or suppression of any ‘assault’ or ‘battery’ *** whether 

caused by or at the instigation or direction of an insured, its ‘employees,’ agents, 

officers, or directors, patrons or any other person.” 

{¶13} Appellant maintains that Smitty’s disc jockey’s alleged blockage of one of 

the fire exits on the evening in question constitutes negligence per se, directing us to 

O.A.C. 1301:7-7-10(BB)(5), which requires that a means of egress shall be free from 

obstructions that would prevent its use. Appellant also proposes that the “based on 

assault or battery” language in the aforesaid USLIG policy exclusion is ambiguous and 

must be construed strictly against the insurer. 

{¶14} Appellee USLIG responds with reference to a number of cases which 

have addressed similar claims under an “assault and battery” exclusion. For example, in 

Sphere Drake Ins. Co. v. Ross (1992), 80 Ohio App.3d 506, the Ninth District Court of 

Appeals addressed a tavern insurer’s argument that it had no duty to indemnify under 

an assault and battery exclusion, where a patron, Kelly Ross, had been assaulted 

during a scuffle with the tavern’s security personnel at an establishment known as 

“Froggies.” The Court determined: “Because Ross' injuries resulted directly from an 

assault and battery, the exclusion operates to exempt Sphere from any liability under 

the policy. Even should Ross prevail in his negligence action against Froggies, it would 
Stark County, Case No. 2011 CA 00252 6

not affect this result. The fact that a concurrent cause in negligence may have 

contributed to Ross' injury does not change the fact that his injury was the result of an 

assault and battery, the very thing the policy excludes from its coverage.” Id. at 510. 

{¶15} Upon review, we reach a similar result in the case sub judice. We find 

reasonable minds could only determine that despite appellant’s concurrent claims of 

negligence against Smitty’s, the injuries claimed by appellant were “based on” the chain 

of events stemming from a physical altercation between other persons in the pub, as 

well as alleged omissions by Smitty’s employees in connection with the suppression of 

an assault or battery on the premises, thus falling under the USLIG policy exclusion at 

issue. 

{¶16} Appellee USLIG also responds, via a cross-assignment of error, that it 

was no longer “legally obligated” to indemnify, as per the language of the policy, based 

on the agreement between appellant and Smitty’s, in the prior consent judgment, that 

appellant would not pursue collection against the pub. However, we find it unnecessary 

to reach this issue under the circumstances of the case sub judice. 

 
Stark County, Case No. 2011 CA 00252 7

{¶17} Appellant’s sole Assignment of Error is therefore overruled. 

{¶18} For the reasons stated in the foregoing opinion, the judgment of the Court 

of Common Pleas, Stark County, Ohio, is hereby affirmed. 

By: Wise, J. 

Delaney, P. J., and 

Edwards, J., concur. 

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 ___________________________________ 

 JUDGES 

JWW/d 0213 
Stark County, Case No. 2011 CA 00252 8

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STEPHANIE WILLIAMS : 

 : 

 Plaintiff-Appellant : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

UNITED STATES LIABILITY : 

INSURANCE GROUP : 

 : 

 Defendant-Appellee : Case No. 2011 CA 00252 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed. 

 Costs assessed to appellant. 

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 JUDGES