Grasser v. Fleming

• Decision Date: 29 March 1977
• Docket Number: Docket No. 25200
• Citation: 98 A.L.R.3d 1220,253 N.W.2d 757,74 Mich.App. 338
• Parties: Helen M. GRASSER, Executrix of the Estate of Joseph Koshir, Deceased, Plaintiff-Appellee, v. Herman J. FLEMING and Jean M. Fleming, d/b/a Blue Flame Lounge, Defendants-Appellants, and Redford Township, a Michigan Public Body Corporation, jointly and severally. 74 Mich.App. 338, 253 N.W.2d 757, 98 A.L.R.3d 1220
• Court: Court of Appeal of Michigan — District of US

Page 757

253 N.W.2d 757

Helen M. GRASSER, Executrix of the Estate of Joseph Koshir, Deceased, Plaintiff-Appellee, v. Herman J. FLEMING and Jean M. Fleming, d/b/a Blue Flame

Lounge, Defendants-Appellants,

and

Redford Township, a Michigan Public Body Corporation,

jointly and severally.

Docket No. 25200.

74 Mich.App. 338, 253 N.W.2d 757, 98 A.L.R.3d 1220

Court of Appeals of Michigan.

March 29, 1977.

Released for Publication June 2, 1977.

[74 MICHAPP 339] Seth H. Barsky, Southfield, for Blue Flame Lounge.

Owen J. Cummings, Livonia, for Redford Twp.

Katsoulos & Gillis, Huntington Woods by David J. Wellman, Troy, for plaintiff-appellee.

Before KELLY, P. J., and KAUFMAN and WALSH, JJ.

KELLY, Judge.

The primary issue is whether [74 MICHAPP 340] there is a common law cause of action for gross negligence or wilful, wanton and intentional misconduct by a tavern owner in selling alcohol to an intoxicated person, who is a known compulsive alcoholic, contrary to an agreement not to serve such person by the tavern owner. This issue appears to be one of first impression in this State.

The parties have stipulated to a concise statement of facts. Plaintiff, the daughter of Joseph Koshir and executrix of his estate, brought a common law cause of action under the wrongful death act, M.C.L.A. § 600.2921, et seq.; M.S.A. § 27A.2921, et seq., alleging gross negligence and wilful, wanton and intentional misconduct against defendants for serving alcoholic beverages to the decedent. Plaintiff alleged that the defendants knew that the decedent was an alcoholic, unable to refuse alcoholic beverages; that defendants had been requested by plaintiff and had agreed not to serve the decedent, an elderly man, any alcoholic beverages.

Plaintiff alleged that on October 21, 1973, the decedent, already intoxicated, was a patron of defendants' bar, the Blue Flame Lounge, and that they or their employees served decedent alcohol which resulted in an abject state of intoxication; that the decedent left the bar and walked to a bridge over the Rouge River, which he tried to negotiate by walking a 20-inch unguarded concrete projection; that he lost his balance and fell eight feet to the ground suffering injuries which caused his death the next day.

Plaintiff also alleged that the defendants owed a common law duty to the decedent, after being advised that he was an habitual drunkard, to refuse him drink. Defendant Redford Township, which is not involved in this appeal, was alleged to [74 MICHAPP 341] have breached a duty to provide a reasonably safe and convenient means of pedestrian travel across the Rouge River.

Defendants filed a motion for summary judgment based on the dramshop act, M.C.L.A. § 436.22; M.S.A. § 18.993, requesting that the action be dismissed for failure to join the intoxicated person as a party defendant. An additional motion for summary judgment was filed by the defendants requesting a dismissal of the common law cause of action and for reduction of the ad damnum clause to remove any claim for punitive damages. Thereafter, answer to both motions were filed and a hearing was held before the Honorable Richard D. Dunn of the Wayne County Circuit Court on February 21, 1975. ¹ On March 5, 1975, the defendants filed an amended motion for summary judgment for failure of plaintiff to state a cause of action.

On April 2, 1975, the trial court denied defendants' motion for summary judgment. The trial court noted that the case of Hollerud v. Malamis, 20 Mich.App. 748, 174 N.W.2d 626 (1969), had not foreclosed the issue of whether or not there is a common law cause of action in Michigan, independent of the dramshop act, for serving intoxicating beverages to one known to be addicted to alcohol or who is already intoxicated to the point of helplessness. The trial court held as follows:

"Accordingly, it is apparent to the writer that, regardless of the Dramshop Act, a liquor licensee in this State who serves intoxicating beverages to one known to be addicted to alcohol, or who is already intoxicated to the point of helplessness, should be required to answer in a common law action for gross negligence. To do otherwise would be to indicate that party litigants [74 MICHAPP 342] before this Court are confronted with a Court where Justice is blind. The modern enlightened view is to hold that there is such a common law duty where gross negligence is alleged.

"I recognize that there are no cases on this question, however a start must be made somewhere. Accordingly, the Court will deny the Motion for Summary Judgment, preserving to the defendants the right of appeal."

In reviewing a grant or denial of a motion for summary judgment we accept as true all of plaintiff's factual allegations including any reasonable inferences which may be drawn from those allegations. Hoag v. Paul C. Chapman & Sons, Inc., 62 Mich.App. 290, 295, 233 N.W.2d 530 (1975). Further, a motion for summary judgment for failure to state a claim upon which relief can be granted, GCR 1963, 117.2(1), tests only the legal, not factual sufficiency of the pleadings.

Plaintiff has alleged that the defendants sold intoxicating beverages to the decedent after he was intoxicated and after they had been warned at least twice that the decedent was a hopeless alcoholic unable to refuse alcoholic beverages; that they agreed thereafter not to serve alcoholic beverages to the decedent. Plaintiff also alleges that the defendants "wilfully, knowingly, maliciously and intentionally" violated their common law duty not to serve alcohol to an intoxicated, known alcoholic, and that this "careless and wilful" disregard of such duty caused reasonably foreseeable injuries.

It is interesting to note that since plaintiff is bringing her action under the wrongful death act, M.C.L.A. § 600.2922; M.S.A. § 27A.2922, plaintiff's decedent, had he not died, must have been entitled to maintain this action in order for plaintiff to recover under this act. Hoag, supra, 62 Mich.App. 296, 233 N.W.2d 530. Plaintiff does not plead the dramshop act, M.C.L.A. § 436.22; [74 MICHAPP 343] M.S.A. § 18.993, as the basis of her cause of action. Plaintiff could not state a cause of action under the dramshop act because an intoxicated person has no right of action under the act. See Scholten v. Rhoades, 67 Mich.App. 736, 742, 242 N.W.2d 509 (1976), Hollerud v. Malamis, supra, 20 Mich.App. 752-753, 174 N.W.2d 626. ² Our concern is whether an intoxicated person has a common law cause of action under the pleaded facts.

In Hollerud, supra, the plaintiff consumed numerous bottles of beer at two different bars, then became involved in an Indian wrestling contest with the bartender at the second bar injuring the fingers on his left hand. He brought an action against the owners of the bars asserting that his injuries were caused by their violations of the dramshop act and by their negligence in selling him liquor. Judge (now Justice) Levin, after concluding that the intoxicated person had no cause of action under the dramshop act, proceeded to discuss a common law cause of action:

"Edward Hollerud alternatively asserts that he has a common-law cause of action for negligence independent of the statute. In our opinion this issue is not necessarily foreclosed by the statements of our Supreme Court in Jones v. Bourrie (1963), 369 Mich. 473, 476, 120 N.W.2d 236, and Kangas v. Suchorski, supra, 372 Mich. (396), p. 401, 126 N.W.2d 803 (1964), that the dramshop act provides the exclusive remedy. While the Supreme Court may yet declare that the dramshop act is so far exclusive of other remedies that the tavern owner has [74 MICHAPP 344] no liability whatsoever except under the dramshop act, we prefer not to anticipate such a holding and note that in both Jones and Kangas the plaintiffs sought to recover for injuries caused by an intoxicated person. Here a claim is advanced on account of injuries sustained by an intoxicated person who, as previously mentioned, has no remedy under the dramshop act. Additionally, this aspect of Edward Hollerud's common-law theory is not predicated on the absolute liability of §§ 22 and 29 (MCLA 436.22, MCLA 436.29; MSA 18.993, MSA 18.1000) but, rather, is based on the defendant tavern owners' alleged fault in selling him liquor when he was visibly intoxicated." 20 Mich.App. 748, 753-754, 174 N.W.2d 626, 629. (footnotes omitted).

The question is, to what extent is the dramshop act the exclusive remedy against a tavern owner for wrongful service of intoxicants? In Manuel v. Weitzman, 386 Mich. 157, 163, 191 N.W.2d 474 (1971), the Supreme Court recognized that the remedy of the dramshop act is not exclusive since there exists a common law cause of action for breach of the duty to maintain a safe place of business. The Court noted:

"The common-law duty of a liquor establishment to maintain a safe place of business for its customers is the same duty any business owes to those it invites upon its premises. The dramshop act was not intended to affect that duty. Dramshop acts were passed because under the common law it was not a tort to sell or furnish intoxicating liquor to an ordinary able-bodied man, even though as a result of his becoming intoxicated injury resulted to himself or to others. Their purpose was to fill a void in the law, not to remove the well-recognized duty of a tavern keeper to exercise due care for the welfare and safety of invited patrons." 386 Mich. 157, 163, 191 N.W.2d 474, 476 (footnotes omitted).

The Court then concluded:

[74 MICHAPP 345] "The decisions in Kangas (v. Suchorski, 372 Mich. 396, 126 N.W.2d 803 (1964)) and Jones (v. Bourrie, 369 Mich. 473, 120 N.W.2d 236 (1963)) are in error insofar as they purport to hold that the liability provisions of the dramshop act not only preempt any common-law action for negligent sale, but also preempt a common-law action for 'negligence in failing to maintain a suitable place and safe conditions for business invitees.' The Court of Appeals...