Barrett v. Campbell

• Decision Date: 25 May 1984
• Docket Number: Docket No. 63445
• Citation: 131 Mich.App. 552,345 N.W.2d 614
• Parties: Michael J. BARRETT, Plaintiff-Appellant, v. Stephen M. CAMPBELL and Cheryl K. Hughes, d/b/a Blue Boat Inn, Defendants- Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 614

345 N.W.2d 614

131 Mich.App. 552

Michael J. BARRETT, Plaintiff-Appellant, v. Stephen M. CAMPBELL and Cheryl K. Hughes, d/b/a Blue Boat

Inn, Defendants- Appellees.

Docket No. 63445.

Court of Appeals of Michigan.

Submitted June 30, 1983.

Decided Nov. 23, 1983.

Released for Publication March 20, 1984.

Leave to Appeal Denied May 25, 1984.

James A. Brescoll, P.C. by Dennis P. Brescoll, Mount Clemens, for plaintiff-appellant.

Fitzgerald, Hodgman, Kazul, Rutledge, Cawthorne & King, P.C. by Alvin A. Rutledge, Detroit, for Cheryl Hughes.

Before CYNAR, P.J., and HOOD and JASON ^*, JJ.

PER CURIAM.

Plaintiff appeals as of right from an order granting summary judgment, GCR 1963, 117.2(3), to defendant Hughes in a dramshop action, M.C.L. Sec. 436.22; M.S.A. 18.993, and from a second order of summary judgment, GCR 1963, 117.2(1), granted to defendant Hughes after plaintiff filed an amended complaint.

Plaintiff alleged in his complaint a dramshop action against defendant Hughes as a licensed seller of alcoholic beverages illegally selling intoxicating liquor to a visibly intoxicated person, defendant Stephen Campbell. Defendant Campbell allegedly drove his automobile off the road striking a tree while plaintiff was a passenger. Plaintiff suffered serious injuries.

Defendant Hughes filed a motion for summary judgment with an affidavit attached and with reference to deposition testimony. In its April 24, 1981, opinion granting the motion, the trial court treated the motion as one brought pursuant to GCR 1963, 117.2(3), no genuine issue of material fact. The court found that undisputed deposition testimony showed that plaintiff and defendant Campbell drank together at the Blue Boat Inn before the accident. They purchased their drinks in "rounds" with one or several other friends. This method of purchasing liquor was voluntary and cooperative and implied the expectation that each person would consume and purchase his per capita share. The trial court held that buying such "rounds" amounted to buying drinks for other people. Thus, the trial court found that plaintiff bought liquor for the intoxicated defendant, Campbell. By doing so, plaintiff was a noninnocent party under the dramshop act and, thus, was precluded from proceeding under the act. See Kangas v. Suchorski, 372 Mich. 396, 126 N.W.2d 803 (1964).

Plaintiff argues that a genuine issue of fact remains: whether the purchase of "rounds" of liquor amounts to the purchase of liquor for another. Plaintiff states that the purchase of such "rounds" amounts only to the purchasing of liquor for oneself. Therefore, plaintiff argues, as he only purchased liquor for himself, he is not precluded from bringing this dramshop action against defendant Hughes.

We find that the question of whether buying rounds of liquor is the purchasing of liquor for another or only oneself is not material. What is a material question in this case is whether plaintiff actively participated in causing Campbell's inebriation. Malone v. Lambrecht, 305 Mich. 58, 60, 8 N.W.2d 910 (1943); Todd v. Biglow, 51 Mich.App. 346, 351, 214 N.W.2d 733 (1974). One who actively brings about the alleged intoxication may not recover for injuries sustained therefrom. Malone, supra.

In deciding whether there was a genuine issue of material fact regarding plaintiff's status as a noninnocent party under the dramshop act, the trial court was obligated to consider affidavits, depositions and interrogatories, or, in short, the entire record. Rizzo v. Kretschmer, 389 Mich. 363, 207 N.W.2d 316 (1973). Giving every reasonable doubt to the opposing party, to grant judgment the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Partrich v. Muscat, 84 Mich.App. 724, 270 N.W.2d 506 (1978).

In this case, plaintiff, defendant Campbell, and one other participant in the drinking at the Blue Boat Inn on the night of the accident all agreed in deposition testimony that their group drank beer and schnapps in "rounds". When a participant purchased the liquor, he did not purchase a quantity only for himself. Rather, he purchased a beer and a shot of schnapps for each drinker. In this fashion, both plaintiff and defendant Campbell consumed at least 8 to 10 beers and shots of schnapps.

We find that the purchasing of "rounds" in this manner does not show that plaintiff merely drank with Campbell. See Dahn v. Sheets, 104 Mich.App. 584, 591, 305 N.W.2d 547 (1981), lv. den. 412 Mich. 928 (1982). Rather, we find that by drinking in this manner plaintiff actively participated in the intoxication of Campbell, whether or not he eventually assumed the cost of the liquor he consumed. Thus, the trial court correctly granted defendant Hughes a summary judgment because there is no genuine dispute that plaintiff is a non-innocent party.

Plaintiff also argues that the dramshop action should not have been dismissed because a person's active participation in bringing about the injury-producing intoxication should not bar recovery. Rather, plaintiff argues that the doctrine of comparative negligence should apply to such actions. See Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979). We follow the decision in Dahn v. Sheets, supra, 104 Mich.App. p. 593, 305 N.W.2d 547, and reject this argument. The dramshop statute is a legislatively-created exclusive remedy for injuries arising out of unlawful sales of intoxicating beverages by licensed retailers. A dramshop action is not a common law negligence action. See Browder v. International Fidelity Ins. Co., 413 Mich. 603, 615-616, 321...