Craig v. Larson, Docket No. 81609

• Court: Supreme Court of Michigan
• Writing for the Court: CAVANAGH; GRIFFIN, C.J., BRICKLEY, BOYLE and GRIFFIN, J.J., concurred with Cavanaugh; LEVIN; We would reverse and remand for trial. Archer, J., concurred with LEVIN
• Citation: 432 Mich. 346,439 N.W.2d 899
• Parties: Harry CRAIG, Plaintiff-Appellant, v. Kirk A. LARSON, Defendant, and Firebird Lanes, Inc., doing business as JB's Firebird Lounge, Defendant-Appellee. ,
• Docket Number: Docket No. 81609
• Decision Date: 01 October 1988

Page 899

439 N.W.2d 899 432 Mich. 346 Harry CRAIG, Plaintiff-Appellant,
v.
Kirk A. LARSON, Defendant,
and
Firebird Lanes, Inc., doing business as JB's Firebird
Lounge, Defendant-Appellee. Docket No. 81609, Oct. Term, 1988. Supreme Court of Michigan. Argued Oct. 4, 1988.
Decided May 9, 1989.

[432 Mich. 348] Barnett, Knight, Preston, Falvay, Drolet & Freeman, Bloomfield Hills, for plaintiff-appellant.

Page 900

Kaufman and Payton by Jo Robin Davis, Farmington Hills, for defendant-appellee.

OPINION

CAVANAGH, Justice.

I

Late in the evening of April 2, 1983, plaintiff-appellant Harry Craig, then aged twenty, joined [432 Mich. 349] defendant Kirk Larson, aged nineteen, in Larson's car. Appellant brought several cans of beer with him. With Larson driving, the two went to JB's Firebird Lounge, consuming some of the beer en route. At the lounge, appellant and Larson drank beer served to them by the lounge. Larson testified in his deposition that they alternated paying for the beer. Appellant testified in his deposition that either of them could have paid for the beer. The two young men left the lounge in Larson's car, with Larson driving. A short time later, appellant was seriously injured when Larson's car collided with another vehicle.

Appellant brought this action against Larson, seeking damages for negligence, and against appellee Firebird Lanes, Inc., seeking damages under Michigan's dramshop act ¹ M.C.L. Sec. 436.22; M.S.A. Sec. 18.993. The trial court granted summary judgment to defendant-appellee Firebird Lanes, Inc., holding that appellant could not recover under the dramshop act against appellee Firebird Lanes, Inc., because appellant actively participated in Larson's intoxication. The Court of Appeals affirmed.

We granted leave to consider the following issues: (1) whether or not principles of comparative negligence should replace the rule, also known as the noninnocent party doctrine, that a plaintiff may not recover under the dramshop act if the plaintiff actively participated in the intoxication of the tortfeasor, and (2) whether or not the rule should be applied differently where the plaintiff is a minor. We hold that comparative negligence has not replaced the noninnocent party doctrine as a defense in a dramshop action, and we decline to apply the noninnocent party doctrine differently when the plaintiff is a minor.

[432 Mich. 350] II

The section of the Liquor Control Act governing dramshop actions at the time this case was filed provides in part:

"A wife, husband, child, parent, guardian, or other person injured in person, property, means of support, or otherwise, by a visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of intoxicating liquor to the person, if the sale is proven to be a proximate cause of the injury or death, shall have a right of action in his or her name against the person who by the selling, giving, or furnishing the liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the injury." 1933 (Ex.Sess.) P.A. 8, as amended by 1980 P.A. 351, M.C.L. Sec. 436.22(5); M.S.A. Sec. 18.993(5).

Recently, this Court declared, "Under this state's dramshop act, the intoxicated person himself and those who contributed to his intoxication have no right of action under the act." Jackson v. PKM Corp., 430 Mich. 262, 267-268, 422 N.W.2d 657 (1988) (interpreting the provision quoted above). This interpretation of the act has prevailed for several decades. Malone v. Lambrecht, 305 Mich. 58, 61-62, 8 N.W.2d 910 (1943); Kangas v. Suchorski, 372 Mich. 396, 399, 126 N.W.2d 803 (1964). ² Appellant urges us to reevaluate this interpretation and exercise our authority to reshape the common law by replacing the noninnocent party doctrine with principles of comparative fault.

Citing Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979), where this Court abandoned [432 Mich. 351] the common-law doctrine

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of contributory negligence and adopted comparative negligence, appellant argues that the noninnocent party doctrine is of common-law, not legislative, origin, and is therefore subject to change by the judiciary. The dramshop act does not state specifically that a plaintiff who participates in the intoxication of the allegedly intoxicated person may not recover damages under Sec. 22. Regarding defenses, the statute says only that "all factual defenses open to the alleged intoxicated person or minor shall be open and available to the principal and surety." ³ Thus, the noninnocent party doctrine is not mandated by an express declaration of the Legislature. However, keeping in mind that the object of statutory construction is "to ascertain and give effect to the intention of the Legislature," Browder v. Int'l Fidelity Ins. Co., 413 Mich. 603, 611, 321 N.W.2d 668 (1982), we decline to disturb our long-settled judicial interpretation of the Legislature's intent. A

In Rosecrants v. Shoemaker, 60 Mich. 4, 26 N.W. 794 (1886), this Court interpreted 1881 P.A. 259, as amended by 1883 P.A. 191, a precursor of the provision before us today, as barring recovery by a plaintiff who suffered injuries as the result of an unlawful sale of liquor to her husband if the plaintiff herself caused, encouraged, or requested the sale. The Court reasoned that such a plaintiff "does not stand on the footing of an innocent injured party." Id. at 7, 26 N.W. 794. The Court in Morton v. Roth, 189 Mich. 198, 202, 155 N.W. 459 (1915), again held that a person who participates in the intoxication[432 Mich. 352] of the intoxicated person "is not an 'other person' within the meaning of the statute...." In Malone, the Court reviewedRosecrants and Morton and recognized that the more recent enactment, 1933 (Ex.Sess.) P.A. 8, as amended by 1937 P.A. 281, failed to change the noninnocent party defense earlier held to be intended by the Legislature.

"If the Legislature in enacting our more recent statutes had intended to depart from the long-established construction of the civil-damage provisions of like enactments above noted, it seems certain that it would have expressed such intention in clear and definite terms. Instead the recent enactments follow quite literally the wording of the earlier provisions of like character." Malone, 305 Mich. 61-62, 8 N.W.2d 910.

The same reasoning applies to the present question. The Legislature amended the Liquor Control Act several times between the time Malone was decided and the events of this case, ⁴ modifying the language of Sec. 22 in 1958, 1961, 1972, and 1980. ⁵ In none of these efforts to revise the scope of the dramshop cause of action did the Legislature undertake to limit or preclude the noninnocent party doctrine, despite this Court's reaffirmance that the noninnocent party doctrine was a complete defense to a dramshop action in Malone, McDaniel v. Crapo, 326 Mich. 555, 558, 40 N.W.2d 724 (1950), and Kangas, supra. ⁶ Instead, the language defining who may bring a civil damage action remained essentially the same.

[432 Mich. 353] In addition, between 1980 and 1986, when the Legislature again amended Sec. 22, published opinions continued to apply the noninnocent party doctrine. ⁷ Three of these decisions expressly rejected an argument, similar to appellant's that comparative

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negligence has replaced the defense. Goss v. Richmond, 146 Mich.App. 610, 381 N.W.2d 776 (1985); Barrett v. Campbell, 131 Mich.App. 552, 345 N.W.2d 614 (1983), lv. den.419 Mich. 877 (1984); Dahn v. Sheets, 104 Mich.App. 584, 591, 305 N.W.2d 547 (1981), lv. den. 412 Mich. 928 (1982). Yet the Legislature, in its extensive 1986 amendments of the act, failed to suggest any intention to modify or eliminate the judiciary's construction. Under these circumstances, we construe the Legislature's silence over the past decades as an affirmance of this Court's interpretation. See Longstreth v. Gensel, 423 Mich. 675, 691, 377 N.W.2d 804 (1985); Wikman v. City of Novi, 413 Mich. 617, 638, 322 N.W.2d 103 (1982); Smith v. Detroit, 388 Mich. 637, 650-651, 202 N.W.2d 300 (1972); In re Clayton Estate, 343 Mich. 101, 106-107, 72 N.W.2d 1 (1955). B

Not only does the Legislature's acquiescence in this established interpretation counsel against announcing a new rule adopting comparative negligence for noninnocent parties, the language in Sec. 22 itself is inconsistent with such a rule. The statute allows recovery by a "wife, husband, child, parent, guardian, or other person injured ... by a visibly intoxicated person...." M.C.L. Sec. 436.22(5); M.S.A. Sec. [432 Mich. 354] 18.993(5) (emphasis added). ⁸ Given this language, the intoxicated person who injures himself cannot recover any damages from the dramshop, even though the dramshop may be partially responsible for his injuries. ⁹ In light of the Legislature's clear intention to preclude partial recovery by the intoxicated person himself, we cannot conclude that the Legislature nevertheless intended partial recovery to be available to a dramshop plaintiff who actively participates in the intoxication of the person who thereafter injures her. ¹⁰ It seems unlikely that the Legislature intended that the principles of comparative fault would apply in cases brought by some noninnocent plaintiffs, but not in cases brought by others.

C

The modification in common-law negligence defenses wrought by the 1979 decision in Placek fails to provide a basis for revising our conclusion that [432 Mich. 355] the Legislature intended to bar noninnocent parties from recovering damages under the dramshop act. The civil damage action defined in the dramshop act is not a common-law remedy based on common-law negligence principles. Longstreth, 423 Mich. 696, 377 N.W.2d 804. Instead, the remedy of Sec. 22 was created long ago by the Legislature to "fill the void left by the common law's general rule of nonliability." Jackson, 430 Mich. 267, 422 N.W.2d 657. It was intended to be "a complete and...