Reed v. Breton

Page 770

718 N.W.2d 770

475 Mich. 531

Lawrence REED, Personal Representative of the Estate of Lance Nathan Reed, deceased, Plaintiff-Appellee, v. Frederick BRETON, Personal Representative of the Estate of Curtis Jason Breton, deceased, and HB Resort Enterprises, Inc., a Michigan corporation, a/k/a Eagles Nest, Defendants, and Beach Bar, Inc., a Michigan corporation, a/k/a Beach Bar, Defendant-Appellant.

James D. Kuenner, Personal Representative of the Estate of Adam W. Kuenner, deceased, Plaintiff-Appellee, v. Frederick Breton, Personal Representative of the Estate of Curtis J. Breton, deceased, and HB Resort Enterprises, Inc., a Michigan corporation, a/k/a Eagles Nest, Defendants, and Beach Bar, Inc., a Michigan corporation, a/k/a Beach Bar, Defendant-Appellant.

Docket No. 127703.

Docket No. 127704.

COA No. 5.

Supreme Court of Michigan.

Argued March 7, 2006.

Decided July 19, 2006.

Honigman Miller Schwartz and Cohn L.L.P. (by John D. Pirich and Andrea L. Hansen) for, Lansing, the plaintiffs.

Dennis Hursh & Associates (by Dennis Hursh and Michael S. Rosenthal), Jackson, for Lawrence Reed.

D'Agostini, Sable & Ruggeri, P.L.L.C. (by John M. Ketzler), Sterling Heights, for James D. Kuenner.

Garan Lucow Miller, P.C. (by Megan K. Cavanagh and Kenneth V. Klaus), Detroit, for Beach Bar, Inc.

CORRIGAN, J.

A vehicle driven by an intoxicated driver collided with an oncoming vehicle carrying two young men on US-127 near Lansing, killing all three individuals. The issues on appeal in this dramshop action involve (1) the presumption of nonliability under the dramshop act (DSA), MCL 436.1801(8); and (2) the adequacy of proofs regarding the driver's alleged visible intoxication under MCL 436.1801(3).

MCL 436.1801(8) creates a rebuttable presumption of nonliability for all but the last retail licensee that serves alcohol to a visibly intoxicated person. This novel presumption operates to require that a plaintiff, when opposing a defendant that invokes this presumption, must show more than the prima facie case required under MCL 436.1801(3). A plaintiff rebuts this presumption by showing not only the evidence required for a prima facie case, but clear and convincing evidence. Because the Court of Appeals incorrectly held that plaintiffs satisfactorily rebutted the presumption of nonliability, we reverse the judgment of the Court of Appeals on this issue.

We further hold that to establish "visible intoxication" under MCL 436.1801(3), a plaintiff must present evidence of actual visible intoxication. Because the Court of Appeals held that plaintiffs established their claim without such evidence, relying instead on suppositions drawn from blood alcohol tests, the visible intoxication of another person, and the like, we reverse its judgment and reinstate the trial court's grant of summary disposition for defendant Beach Bar, Inc.

I. FACTS AND PROCEDURAL HISTORY

Plaintiffs, the personal representatives of the estates of Adam W. Kuenner and Lance N. Reed,¹ filed separate dramshop claims against defendant Beach Bar, Inc., alleging that Curtis J. Breton² was served alcohol at defendant's establishment. Plaintiffs contended that Breton was visibly intoxicated when he was served alcohol there, and his subsequent impaired driving resulted in the deaths of plaintiffs' decedents.

Breton had spent the day drinking with his friend, John Marsh. Around 7:30 p.m., they consumed two beers at the Beach Bar. Lindsay Mizerik, the server at defendant's establishment, had received training in identifying visibly intoxicated persons. She served Breton and did not observe him to exhibit slurred speech, an aggressive manner, a lack of coordination, or erratic behavior. She did not consider refusing him service.

Breton and Marsh next went to the Eagles Nest³ where they split a pitcher of beer. There, they encountered their supervisor, Summit Township Fire Department Chief Carl Hendges, who did not think either man was intoxicated. Another witness at the Eagles Nest, Richard Potts,⁴ who knew Breton and who himself owned a convenience store that sold alcoholic beverages, observed that Breton's eyes were not bloodshot or glassy and that he did not appear to be intoxicated. Similarly, Marsh did not notice any change in Breton's speech, in his ability to walk, or redness in his eyes over the course of the day.

Shortly before 10 p.m., Breton drove Marsh home. At approximately 10:11 p.m., Breton crossed the center line of US-127 at a high rate of speed. His vehicle collided head-on with a vehicle carrying plaintiffs' two decedents, taking the lives of all three men. An examination after the collision revealed that Breton's blood alcohol content was 0.215 grams per 100 milliliters of blood.

Defendant, as the second-to-the-last establishment to serve Breton, sought summary disposition under MCR 2.116(C)(10). Defendant relied on the rebuttable presumption of nonliability available to all but the last serving establishment under § 801(8). Defendant argued that plaintiffs failed to rebut the presumption available under § 801(8) because they failed to show that Breton was visibly intoxicated. Plaintiffs responded that a factual issue remained regarding whether defendant's establishment was the last to serve alcohol to Breton and that, regardless, Breton was served alcohol when he was visibly intoxicated. Plaintiffs also offered the expert opinion reports of two toxicologists.

Both of those reports estimated the number of drinks that Breton had consumed and recited his age, weight, and the alcohol levels in his blood and urine after the collision. Given this amount of alcohol and Breton's physical makeup, the toxicologists opined that he must have been significantly impaired.⁵ They listed several manifestations of impairment, such as disorientation and lack of coordination, and concluded that he must have exhibited some of these symptoms.

The trial court held that plaintiffs had shown Breton's visible intoxication by the experts' deductions from the data regarding how Breton must have appeared. The trial court concluded, however, that plaintiffs were required to offer more than circumstantial evidence from experts and so failed to rebut the presumption of nonliability with "positive, unequivocal, strong and credible" evidence in light of Krisher v. Duff, 331 Mich. 699, 50 N.W.2d 332 (1951). Thus, the court granted summary disposition to defendant.

The Court of Appeals granted each plaintiff's application for leave to appeal, consolidated the appeals, reversed the judgment of the trial court, and remanded the cases to the trial court.⁶ It concluded that the trial court had impermissibly heightened plaintiffs' burden of proof to overcome the presumption protecting the second-to-the-last bar. Plaintiffs' experts' testimony, predicated on Breton's physical build and the alcohol in his body at the time of the accident, and testimony about the level of intoxication of Marsh sufficed to create a genuine issue of material fact regarding whether Breton was visibly intoxicated when served at defendant's establishment. The Court of Appeals held that this evidence permitted plaintiffs to withstand summary disposition. We granted leave to appeal. 474 Mich. 886, 705 N.W.2d 30 (2005).

II. STANDARD OF REVIEW

We review a grant or denial of summary disposition de novo. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). When ruling on a motion brought under MCR 2.116(C)(10), the trial court must consider the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the light most favorable to the party opposing the motion. Id. at 120, 597 N.W.2d 817. "Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law." Id. Further, we review a question of statutory interpretation de novo. Nastal v. Henderson & Assoc. Investigations, Inc., 471 Mich. 712, 720, 691 N.W.2d 1 (2005).

III. ANALYSIS

By creating a remedy against retail liquor licensees for persons injured by intoxicated tortfeasors, the DSA abrogated the general common-law rule that no cause of action existed for the negligent selling or furnishing of alcohol to an ablebodied person. Millross v. Plum Hollow Golf Club, 429 Mich. 178, 183-184, 413 N.W.2d 17 (1987). The act provides a remedy for plaintiffs injured by a visibly intoxicated person, allowing suit to be brought against a retail establishment that unlawfully sells alcohol to a minor or a visibly intoxicated person, if the unlawful sale is a proximate cause of the injury. MCL 436.1801(3) provides:

Except as otherwise provided in this section, an individual who suffers damage or who is personally injured by a minor or visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of alcoholic liquor to the minor or visibly intoxicated person, if the unlawful sale is proven to be a proximate cause of the damage, injury, or death, or the spouse, child, parent, or guardian of that individual, shall have a right of action in his or her name against the person who by selling, giving, or furnishing the alcoholic liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the damage, injury, or death. In an action pursuant to this section, the plaintiff shall have the right to recover actual damages in a sum of not less than $50.00 in each case in which the court or jury determines that intoxication was a proximate cause of the damage, injury, or death.

Although a plaintiff must establish the elements of § 801(3) with regard to each defendant in a dramshop claim, the Legislature also created a rebuttable presumption. This presumption affords an additional measure of protection for a retail licensee that was not the last licensee to serve alcohol to a visibly intoxicated person. MCL 436.1801(8) provides:

There shall be a rebuttable presumption that a retail...