Hollerud v. Malamis

Decision Date10 December 1969
Docket NumberDocket No. 4173,No. 1,1
Citation20 Mich.App. 748,174 N.W.2d 626
PartiesEdward HOLLERUD, and Edward Hollerud as Next Friend of Karen Dell Hollerud, Plaintiffs-Appellants, v. Spiros J. MALAMIS et al., Defendants-Appellees
CourtCourt of Appeal of Michigan — District of US

Charles H. Novelli, Highland Park, for plaintiffs-appellants.

Harvey, Kruse & Weston, Thomas C. Schrader and Gilbert E. Metry, Metry, Metry, Sanom, Ashare & Goldman, Detroit, for defendant-appellee.

Before LEVIN, P.J., and HOLBROOK and ROOD, * JJ.

LEVIN, Judge.

On December 14, 1962, plaintiff Edward Hollerud consumed 12 bottles of beer in Pinky's Bar, had dinner, and then moved on to the Rainbow Bar where he had 4 additional beers. In the Rainbow Bar he engaged in an Indian wrestling contest with the bartender and injured fingers on his left hand. 1 The complaint states 3 separate causes of action:

1. Edward Hollerud's claim against the owners of the 2 bars asserting that his injuries were caused by their violations of the dramshop act. M.C.L.A. § 436.22 (Stat.Ann.1969 Cum.Supp. § 18.993), and by their negligence in selling him liquor.

2. Karen Hollerud's claim under the dramshop act alleging that her father's injuries deprived her of 'means of support.'

3. Edward Hollerud's claim asserting that the bartender at the Rainbow Bar committed an assault and battery upon him.

The trial judge granted the defendants' motions for summary judgment dismissing plaintiffs' claims on the ground that Edward Hollerud failed to state a cause of action and Karen Hollerud failed to show that there is a genuine issue of material fact. 2


The Michigan liquor control act 3 contains 2 relevant sections, sections 22 4 and 29. Section 22 (the dramshop act) provides a cause of action against a tavern owner who furnishes liquor to an intoxicated person in favor of 'every wife, husband, child, parent, guardian or other persons' damaged by the intoxicated person. Edward Hollerud now concedes that he, the consumer of the liquor, has no cause of action under § 22.

In Malone v. Lambrecht (1943), 305 Mich. 58, 62, 8 N.W.2d 910, 912, the Michigan Supreme Court considered and rejected the argument that § 29, 'No vendor shall sell any alcoholic liquor to any person in an intoxicated condition.', establishes a statutory duty independent of § 22, and that an intoxicated person injured by a breach of such statutory duty may recover for damage caused by the breach. 5 The Court reviewed its decisions under pre-prohibition dramshop statutes holding that the intoxicated person himself cannot assert a claim and concluded that it was not intended by post-prohibition § 29 to enlarge the category of persons who might recover. Malone's holding that the intoxicated person has no rights under § 29 was followed in McDaniel v. Crapo (1950), 326 Mich. 555, 40 N.W.2d 724, and in Kangas v. Suchorski (1964), 372 Mich. 396, 6 126 N.W.2d 803.

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. p. 401, 126 N.W.2d 803, that the dramshop act provides the exclusive remedy. 7 While the Supreme Court may yet declare that the dramshop act is so far exclusive of other remedies that the tavern owner has no liability whatsoever except under the dramshop act, 8 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. 9 Additionally, this aspect of Edward Hollerud's common law theory is not predicated on the absolute liability of §§ 22 and 29 but, rather, is based on the defendant tavern owners' alleged fault in selling him liquor when he was visibly intoxicated.

In Cruse v. Aden (1889), 127 Ill. 231, 20 N.E. 73, the Supreme Court of Illinois declared (in dictum), without citation of authority, that at common law it was not a tort to sell or give intoxicating liquor to a strong and able-bodied man. This statement has been repeated by many courts and found its way into the encyclopedias. 10 Recovery has been denied on various theories. In some cases it was simply concluded that the consumption rather than the supplying of the liquor was the 'proximate cause' of the intoxicated person's injury. In other cases, the courts went on to argue that the consumption of the liquor was independent of the sale, the result of the free exercise of the consumer's will, an intervening cause. Still other courts declared that a consumer could not recover because his condition was caused by his contributory negligence. 11

These judicial pronouncements were modified by statutes (such as our dramshop act) imposing civil liability. Broad form dramshop acts, like Michigan's, make the tavern owner liable for damage caused third persons by an intoxicated person to whom the tavern owner sells liquor even if the tavern owner exercised due care to avoid making a sale to an intoxicated person. The enactment of dramshop acts in some 37 States no doubt greatly inhibited the development of the common law concerning the civil liability of liquor vendors.

Many States repealed their dramshop acts at the beginning or end of national prohibition. Today 10 States have broad form dramshop acts, but many, while eliminating the express remedy of the dramshop act, retained or enacted statutes prohibiting the sale (and sometimes, the giving) of liquor to minors, drunkards or visibly intoxicated persons. 12

The New Jersey statute prohibits the sale of liquor to minors. In Rappaport v. Nichols (1959), 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821, that State's Supreme Court rejected the argument that when its legislature repealed its dramshop act it intended to eliminate altogether the civil liability of tavern owners, and held that a third person injured by an inebriated minor could recover for the tavern owner's Common law negligence in violating the statutory prohibition. Rappaport is generally regarded as the seminal opinion recognizing a common law right of action independent of the express remedy provided by a dramshop act. 13 Even though it represents merely an application to sales of liquor of the familiar principle that it is or may be negligence to violate a standard of care set out in a statute which the court decides was intended to benefit a class of persons or the public as a whole, this decision was widely and favorably commented upon; 14 it has been frequently followed by other courts, 15 but not always. 16

While there has been much discussion 17 of the 'new' common law liability for negligent sale of intoxicants, we have found but one case (see footnote 22) where liability has been imposed for ordinary negligence (E.g., sale to a visibly intoxicated person) independently of a statute establishing a standard of care in regard to the sale of liquor. 18

In LeGault v. Klebba (1967), 7 Mich.App. 640, 152 N.W.2d 712, our Court held that one who hosts a party has no liability for injuries caused by an intoxicated guest. 19 Concern has been expressed that recognizing liability for ordinary negligence in dispensing liquor might be too fruitful a source of litigation. 20

The experience of New Jersey and of the other States which adopted Rappaport and that of States such as our own which impose the absolute liability of the dramshop act is, of course, some evidence that the amount of ensuing litigation is manageable.

Nevertheless, having in mind our function as an intermediate appellate court, 21 we do not think that we would be justified in announcing liability for Ordinary negligence in this sector of the law completely independent of a statute prescribing a standard of care. 22 The announcement in opposition to a large generally accepted body of precedent of new rules of law, without precedent (other than analogies) in any common law jurisdiction (excepting only the one case referred to, see footnote 22) must be left to final courts of review. We again mention that our Supreme Court has held that the section of our statute which prescribed a standard of care, § 29 (our counterpart 23 of the statutory standard relied on in Rappaport), does not confer a remedy on the intoxicated consumer himself.

A common law cause of action arising independently of a statutory duty or prohibition has been recognized in a few unusual cases where the consumer could be said to have lost his free will, E.g., where he was addicted to alcohol or intoxicated to the point of helplessness and such addiction or incapacity was known to the vendor or should have been. 24 The sale in such a case has been viewed as merging with the consumption, thus becoming the cause of injury on the rationale that a person in such a state could not consent or be guilty of contributory negligence.

We see no need to decide whether there is a common law cause of action in this State, independent of the statute, for serving intoxicating beverages to one known to be addicted to alcohol or who is already intoxicated to the point of helplessness. Nothing in Edward Hollerud's complaint alerted either the trial judge or the defendants to the possibility that Hollerud's common law theory was based on the claim that the defendants' acts or omissions amounted to more than ordinary negligence, that he claimed he was the victim of the kind of intentional, reckless or grossly negligent conduct for which recovery was allowed in the exceptional cases. 25 GCR 1963, 111.1 requires that a pleading 'inform the adverse party of the nature of the cause he is called upon to defend.' To deficiencies in the complaint go beyond...

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