Goss v. Richmond

• Decision Date: 24 February 1986
• Docket Number: Docket No. 78843
• Court: Court of Appeal of Michigan — District of US
• Parties: Arthur Dryden GOSS, Mary Goss, and Arthur Dryden Goss, Jr., Plaintiffs-Appellants, v. Robert Dale RICHMOND, Defendant, and Le-Rob Corporation, d/b/a Lasabre's Lounge, Defendant-Appellee. 146 Mich.App. 610, 381 N.W.2d 776

Page 776

381 N.W.2d 776

Arthur Dryden GOSS, Mary Goss, and Arthur Dryden Goss, Jr., Plaintiffs-Appellants, v. Robert Dale RICHMOND, Defendant, and Le-Rob Corporation, d/b/a Lasabre's Lounge,

Defendant-Appellee.

Docket No. 78843.

146 Mich.App. 610, 381 N.W.2d 776

Court of Appeals of Michigan.

Submitted April 9, 1985.

Decided Oct. 22, 1985.

Released for Publication Feb. 24, 1986.

[146 MICHAPP 611] Henry M. Hanflik and David Melkus, Flint, for Arthur D. Goss, jr.

Kallas, Azoni, Henk & Geik by Wayne A. Geik, Bloomfield Hills, for Le-Rob Corp.

Before R.B. BURNS, P.J., and SHEPHERD and JASPER ^*, JJ.

PER CURIAM.

Plaintiffs appeal as of right the granting of summary judgment, GCR 1963, 117.2(3), to defendant Le-Rob Corporation in a dramshop action, M.C.L. Sec. 436.22 et seq.; M.S.A. Sec. 18.993 et seq. Since the claims of Arthur Goss and Mary Goss were derivative from the claim of Arthur Goss, Jr., we use the word plaintiff in the singular to refer only to Arthur Jr.'s claim.

Plaintiff alleged in his dramshop action that [146 MICHAPP 612] defendant Le-Rob, a licensed seller of alcoholic beverages, illegally sold intoxicating liquor to a visibly intoxicated person, defendant Robert Richmond. Richmond allegedly drove his automobile off the road and struck a tree. Plaintiff was a passenger in the Richmond automobile and suffered serious injuries.

Plaintiff testified in his pretrial deposition that he and defendant Richmond purchased pitchers of beer in "rounds", each taking turns buying pitchers. The trial court held that buying such "rounds" amount to buying drinks for defendant Richmond. The court held that, by doing so, plaintiff was a noninnocent party under the dramshop act and was thus precluded from proceeding under the act. See Kangas v. Suchorski, 372 Mich. 396, 126 N.W.2d 803 (1964); Barrett v. Campbell, 131 Mich.App. 552, 345 N.W.2d 614 (1983).

Plaintiff argues that his 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).

Initially, we note that two panels of this Court have previously rejected this argument, reasoning that the dramshop act is a legislatively created exclusive remedy, not a common-law negligence action. See Barrett v. Campbell, supra; Dahn v. Sheets, 104 Mich.App. 584, 591, 305 N.W.2d 547 (1981), lv.den. 412 Mich. 928 (1982).

However, plaintiff asks this Court to critically reassess the applicability of Placek to dramshop actions, arguing that the "innocent party" doctrine is "judge-made law," just as was the doctrine of contributory negligence.

Our independent analysis of plaintiff's argument leads us to the same conclusion reached by the [146 MICHAPP 613] Barrett and Dahn panels. The objective of the Legislature in enacting the dramshop act was to discourage bars from selling intoxicating liquors to visibly intoxicated persons and minors and to provide for recovery under certain circumstances by those injured as a result of the sale of intoxicating liquor. Browder v. International Fidelity Ins. Co., 413 Mich. 603, 611-612, 321 N.W.2d 668 (1982). To permit one who has been an intentional accessory to the illegality to shift the loss resulting from it to the tavern owner would lead to a result we believe the Legislature did not intend. A person who buys drinks for an obviously intoxicated person, or one whom he knows to be a minor, is at least as much the cause of the resulting or continued intoxication as the bartender who served the consumer illegally. In short, barring recovery by a wrongdoer by holding that the wrongdoer is not among those to whom the Legislature intended to provide a remedy advances both purposes of the act, to suppress illegal sales and to provide a remedy for those injured as a result of the illegality.

Plaintiff next argues that the "innocent party" doctrine as applied in this case denies him equal protection of the laws. Plaintiff claims that, because he could recover if he and defendant Richmond, instead of buying "rounds", would each have purchased their own pitchers and drank side by side, the "innocent party" doctrine as applied in this case creates an arbitrary distinction between persons of the same class.

Social and economic legislation is subject to equal protection review under the traditional equal protection test. A statutory discrimination will be set aside under that test if any state of facts "reasonably may be conceived to justify it". Dandridge v....