Jackson v. PKM Corp., Docket No. 80107

• Citation: 422 N.W.2d 657,430 Mich. 262
• Decision Date: 26 April 1988
• Docket Number: Docket No. 80107,No. 2,2
• Parties: Deborah Lou JACKSON, Plaintiff-Appellee, v. PKM CORPORATION, d/b/a Grand Duchess Lounge, Defendant-Appellant. Calendar430 Mich. 262, 422 N.W.2d 657
• Court: Supreme Court of Michigan

Page 657

422 N.W.2d 657

Deborah Lou JACKSON, Plaintiff-Appellee, v. PKM CORPORATION, d/b/a Grand Duchess Lounge,

Defendant-Appellant.

Docket No. 80107.

Calendar No. 2.

430 Mich. 262, 422 N.W.2d 657

Supreme Court of Michigan.

Argued Jan. 7, 1988.

Decided April 26, 1988.

Law Offices of Brochert & Ward, David S. Anderson, Bloomfield Hills, for plaintiff-appellee

Valenti, Bolger & Gorcyca by Andrew F. Valenti, Law Offices of David L. Moffitt (David L. Moffitt, of counsel), Birmingham, for defendant-appellant PKM Corp.

Kallas, Lower, Henk & Treado, P.C. by Constantine N. Kallas, Eric D. Smith, Bloomfield, amicus curiae for Bowling Proprietors of Michigan, Michigan Licensed Beverage Ass'n.

Libner, VanLeuven & Kortering, P.C. by John A. Braden, Muskegon, for Michigan Trial Lawyers Ass'n as amicus curiae.

OPINION

RILEY, Chief Justice.

We granted leave to appeal in this case to resolve a split of authority in the Court of Appeals as to whether the exclusive remedy of the dramshop act, M.C.L. Sec. 436.22; M.S.A. Sec. 18.993, precludes an intoxicated party, who is injured as a result of his intoxication, from bringing an action for gross negligence or wilful, wanton, and intentional misconduct against the liquor licensee that furnished him the intoxicating liquor. We hold that plaintiff's gross negligence claim, which arose out of the unlawful sale, giving, or furnishing of intoxicants, is preempted by the exclusive remedy of the dramshop act.

I FACTS

In September, 1982, plaintiff was seriously injured in a single vehicle accident while she was allegedly driving home from defendant's tavern. Plaintiff filed a complaint against the defendant to recover for her injuries. The complaint alleged that for several hours prior to the accident, plaintiff was a patron at defendant's tavern. During that time, she consumed excessive amounts of intoxicating liquors which rendered her visibly intoxicated and completely unable to safely operate a motor vehicle. The complaint further alleged that defendant knew or should have known that plaintiff was a compulsive, habitual alcoholic and that defendant was grossly negligent and acted wilfully, wantonly, intentionally, and recklessly in furnishing intoxicating beverages to her.

Defendant moved for summary disposition pursuant to MCR 2.116(C)(8), maintaining that plaintiff failed to state a valid claim. On October 8, 1985, the trial court granted defendant's motion. While noting a split of authority in the Court of Appeals, the trial court ruled that the dramshop act, M.C.L. Sec. 436.22; M.S.A. Sec. 18.993, provides the exclusive remedy against a licensee for injuries arising out of the unlawful sale or furnishing of intoxicating beverages.

The Court of Appeals reversed the trial court's ruling and held that the dramshop act's exclusive remedy applied only to the rights of innocent third parties wrongfully injured by an intoxicated party and did not operate to bar plaintiff's common-law action to recover for her own injuries. ¹ The Court ruled that where the facts alleged are sufficient to constitute both gross negligence and actual notice of the plaintiff's condition, the complaint states a valid cause of action. ² The Court of Appeals certified that its decision was in conflict with its prior decisions in Gregory v. Kurtis, 108 Mich.App. 443, 310 N.W.2d 415 (1981), and Lucido v. Apollo Lanes & Bar, Inc., 123 Mich.App. 267, 333 N.W.2d 246 (1983), lv. den. 417 Mich. 1087 (1983), pursuant to Administrative Order No. 1984-2.

This Court granted defendant's application for leave to appeal, limited to the issue whether plaintiff's claim for negligent or wilful serving of intoxicants states a cause of action outside M.C.L. Sec. 436.22; M.S.A. Sec. 18.993. ³

II COMMON-LAW LIABILITY OF TAVERN OWNERS

The law of this state is in conflict concerning the liability of tavern owners for injuries suffered by one of their intoxicated patrons as the proximate result of the patron's wrongful intoxication. The general rule at common law was that a tavern owner was not liable for furnishing alcoholic beverages to a customer who became intoxicated and who, as a result of his own intoxication, either injured himself or an innocent third person. ⁴ The rationale generally advanced to sustain this rule was that the consumption of the liquor, not the serving of it, was the proximate cause of the injury. ⁵ Furthermore, with regard to claims by the intoxicated customer, there was the additional defense of contributory negligence. ⁶

A few jurisdictions recognized a very narrow exception to the general rule of nonliability to the intoxicated person in a very limited number of unusual cases where the consumer could be said to have lost his free will, i.e., he was either an alcoholic or intoxicated to the point of helplessness and such condition was either known to the purveyor of the liquor or should have been. ⁷ However, such an exception was never recognized in this jurisdiction, and it is well established that under the common law of this state it was not a tort to sell or furnish intoxicating liquor to an ordinary and able-bodied person, even though such intoxication resulted in injury to the intoxicated person or others. Millross v. Plum Hollow Golf Club, 429 Mich. 178, 183, 413 N.W.2d 17 (1987); Manuel v. Weitzman, 386 Mich. 157, 163, 191 N.W.2d 474 (1971).

Several states, including Michigan, enacted dramshop acts to fill the void left by the common law's general rule of nonliability. ⁸ 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. Kangas v. Suchorski, 372 Mich. 396, 401, 126 N.W.2d 803 (1964); Plamondon v. Matthews, 148 Mich.App. 737, 740, 385 N.W.2d 273 (1985). The inability of the intoxicated person to recover under the act has resulted in such persons attempting to recover damages from the tavern owner under a common-law theory of liability sounding in gross negligence. These efforts raised the question whether the Legislature, in enacting the dramshop act, intended the act to be the exclusive remedy against a tavern owner, thereby preempting other theories of common-law liability.

III SPLIT OF AUTHORITY IN THE COURT OF APPEALS

The present split of authority within the Court of Appeals over whether an intoxicated person may maintain a cause of action outside the dramshop act for gross negligence or wilful, wanton, and intentional misconduct in selling or furnishing intoxicating liquor to an alcoholic or an individual in a helpless condition, when such sale or furnishing causes injury to that person, stems from this Court's decision in Manuel v. Weitzman. In Manuel, the plaintiff sued the defendant tavern owner for injuries he sustained after being assaulted by another customer on the defendant's premises. In addition to bringing two counts under the dramshop act, the plaintiff also alleged that the defendant's liability stemmed from his common-law duty to maintain a safe premises. The trial court dismissed the latter count, ruling that the dramshop act provided the exclusive remedy against a tavern owner for injuries inflicted by an intoxicated customer. Id. 386 Mich. at 161, 191 N.W.2d 474.

The Manuel Court reversed the trial court's ruling. In adopting the following language from DeVillez v. Schifano, 23 Mich.App. 72, 178 N.W.2d 147 (1970), the Manuel Court held:

"We hold that the dramshop act affords the exclusive remedy for injuries arising out of an unlawful sale, giving away, or furnishing of intoxicants. King v Partridge (1968), 9 Mich App 540, 543 . However, the act does not control and it does not abrogate actions arising out of unlawful or negligent conduct of a tavern owner other than selling, giving away, or furnishing of intoxicants, provided the unlawful or negligent conduct is recognized as a lawful basis for a cause of action in the common law." Id. 386 Mich. at 164-165, 191 N.W.2d 474.

The plaintiff's common-law claim based on the defendant's failure to maintain a safe premises was not contingent on or necessarily related to establishing the defendant tavern owner's negligence in furnishing intoxicants to the customer who assaulted the plaintiff. Thus, the Court concluded that the exclusive remedy of the dramshop act did not bar the plaintiff's independent common-law negligence claim.

The Manuel Court's holding that independent common-law claims were not abrogated by the dramshop act led to what we believe was an erroneous decision by the Court of Appeals in Grasser v. Fleming, 74 Mich.App. 338, 253 N.W.2d 757 (1977). In Grasser, the complaint alleged that the defendant tavern owner had actual notice that the plaintiff's decedent was a compulsive alcoholic and had agreed with the plaintiff not to serve the decedent any intoxicating beverages. The alleged agreement was not honored, and the plaintiff's decedent was fatally injured after becoming extremely intoxicated at the defendant's tavern. The plaintiff's complaint alleged a cause of action against the defendant tavern owner for gross negligence and wilful, wanton, and intentional misconduct for serving the decedent alcoholic beverages.

On appeal from a denial of the defendant's motion for summary judgment on the gross negligence claim, the Grasser Court expressed doubt as to whether the holding in Manuel precluded the plaintiff's common-law action for gross negligence. Id. at 345, 253 N.W.2d 757. In concluding that it did not, the Grasser Court noted: 1) Manuel concluded that some independent common-law negligence actions may be maintained outside of the dramshop act's exclusive remedy; 2) although Manuel recognized that it was not a tort at common law to furnish intoxicating liquor to an able-bodied man, the plaintiff in the case before the Court was an elderly and sick man; 3) the narrow exception to the general common-law rule recognized by some jurisdictions where the intoxicated person was in such a...