Kerry v. Turnage
| Decision Date | 27 January 1987 |
| Docket Number | Docket No. 77719 |
| Citation | 397 N.W.2d 543,154 Mich.App. 275,36 Ed. Law Rep. 882 |
| Parties | Terry L. KERRY, Personal Representative of the Estate of Jeanne A. Schmiedeknecht, Deceased, and Timothy E. Schmiedeknecht, Conservator of the Estates of Ryan Prieur Schmiedeknecht, Renell Lou Schmiedeknecht, Raykal Patches Schmiedeknecht, and Relean Schmiedeknecht, Minors, and Timothy E. Schmiedeknecht, Individually, Plaintiffs-Appellants, v. Frank G. TURNAGE, Personal Representative of the Estate of Gerald L. Steffy, deceased, and Westwood Heights School District, et al., Defendants-Appellees. 154 Mich.App. 275, 397 N.W.2d 543, 36 Ed. Law Rep. 882 |
| Court | Court of Appeal of Michigan — District of US |
[154 MICHAPP 277] Mark C. Wawro and Robin L. Wheaton, Flint, for plaintiffs-appellants.
Keil, Henneke & McKone (by Edward G. Henneke and James Delaney), Flint, for Westwood Heights School Dist.
Before SHEPHERD, P.J., and V.J. BRENNAN and JOBES, * JJ.
Plaintiffs brought a dramshop action, M.C.L. Sec. 436.22; M.S.A. Sec. 18.993, and a common-law negligence action against the defendant school district and others. Plaintiffs alleged that the school district's agent, an athletic booster organization, served alcoholic beverages to a visibly intoxicated person, Gerald L. Steffy, who later killed plaintiffs' decedent, Jeanne A. Schmiedeknecht. The trial court held that plaintiffs failed to state a [154 MICHAPP 278] claim upon which relief could be granted and granted the school district's motion for summary judgment. GCR 1963, 117.2(1). Plaintiffs appeal as of right. We reverse and hold that the principal of a retail licensee may be held vicariously liable under the dramshop provision of the Michigan Liquor Control Act, M.C.L. Sec. 436.22; M.S.A. Sec. 18.993.
Hamady Athletic Boosters Organization (Hamady) is a group of parents and interested persons who contribute money and promote the athletic teams at defendant school district's only high school, Hamady High School. The school and the school district are located in Mt. Morris Township, in Genesee County. Jeanne A. Schmiedeknecht, the decedent, who was estranged from her husband, plaintiff Timothy E. Schmiedeknecht, and Gerald L. Steffy attended a "Las Vegas Night" fundraiser held by Hamady on February 21, 1982. The affair was held in a hall rented by Hamady and located in Mt. Morris Township. Steffy and decedent were at a bar earlier in the evening and arrived at the fundraiser with friends at approximately 7:00 p.m. They left some time between 12:00 and 1:00 a.m., stopping at the same bar again on the way home. Alcoholic beverages were sold at the fundraiser under a special one-day license issued by the Michigan Liquor Control Commission, and gambling took place under a Millionaire Party License issued by the Michigan Lottery Commission. Plaintiffs allege that Steffy was visibly intoxicated throughout the evening. On returning to decedent's home, decedent and Steffy went to the bedroom. An argument ensued and Steffy shot her with a shotgun. He then went to the basement and killed himself with the same gun.
Plaintiffs filed suit against Steffy's estate, the bar, Hamady, and defendant school district. The complaint alleged violations of M.C.L. Sec. 436.22; M.S.A. Sec. [154 MICHAPP 279] 18.993 by the bar, Hamady, and the school district, in that Steffy was served alcoholic beverages, though already visibly intoxicated, and that this was the proximate cause of decedent's death at Steffy's hand. The complaint also alleged that Hamady was the school district's agent. The school district denied any agency relationship.
Defendant school district moved for summary judgment. Considerable confusion ensued as to which court rule the motion was brought under. Ultimately, the court treated the motion as one brought under GCR 1963, 117.2(1), and ruled that plaintiffs had failed to state a claim against the school district based on an agency theory. The court ruled that plaintiffs may not proceed under the dramshop act against one other than the licensee, in this case, Hamady. 1 The court also granted summary judgment in the school district's favor on Count IV of plaintiffs' complaint, finding that the dramshop act was plaintiffs' exclusive remedy for injuries arising from the unlawful sale of alcoholic beverages to Steffy.
Plaintiffs argue that they have stated a claim against defendant school district because the school district may be held vicariously liable for its agent's alleged violation of the dramshop act. The trial court granted the school district's motion for summary judgment based on GCR 1963, 117.2(1). Therefore, for purposes of this appeal, we assume that Hamady is defendant school district's agent.
M.C.L. Sec. 436.22(5); M.S.A. Sec. 18.993(5) 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 [154 MICHAPP 280] furnishing of intoxicating liquor to the person, if the same 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."
The class of persons who may be held liable under the dramshop act is to be determined by reference to those charged with the duty to refrain from supplying liquor to minors and visibly intoxicated persons. Guitar v. Bieniek, 402 Mich. 152, 165, 262 N.W.2d 9 (1978). Subsection (3) of M.C.L. Sec. 436.22; M.S.A. Sec. 18.993 prohibits a retail licensee from supplying liquor to minors or visibly intoxicated persons:
In Guitar v. Bieniek, supra, the issue was whether a private rental hall could be held liable under the act. There, the liquor license and alcoholic beverages were obtained by the lessees but the keg beer, waiter, and facilities were provided by the rental hall. The Supreme Court concluded that the rental hall could not be held liable under the act because it was not within the class of persons charged with the duty to refrain from providing liquor.
Here, defendant school district similarly argues [154 MICHAPP 281] that because it was not a licensee prohibited from supplying liquor to intoxicated persons under M.C.L. Sec. 436.22(3); M.S.A. Sec. 18.993(3), plaintiffs cannot maintain an action against it under the dramshop act. We disagree because, unlike Guitar, plaintiffs' theory is based on vicarious liability. Vicarious liability describes the existence of a relationship, not a cause of action. Because of this relationship, the principal is held responsible for the torts of its agent which are committed in the scope of the agency. Cronk v. Chevrolet Local 659, 32 Mich.App. 394, 401, 189 N.W.2d 16 (1971), lv. den. 385 Mich. 784 (1971). Nothing in the dramshop act appears to prevent the application of vicarious liability.
The existence of an agency relationship is a question of fact. Michigan Nat'l Bank of Detroit v. Kellam, 107 Mich.App. 669, 678, 309 N.W.2d 700 (1981), lv. den. 413 Mich. 870 (1982). Therefore, we reverse the summary judgment based on GCR 1963, 117.2(1), and remand for further proceedings.
We, however, agree with defendant school district that Count IV of plaintiffs' complaint does not state a cause of action against it. It is clear that in this count plaintiffs are attempting to proceed on a common-law theory as an alternative to the dramshop act. No common-law action exists for negligently selling alcohol to a visibly intoxicated person. A dramshop action is the exclusive remedy in such a matter. Browder v. Int'l. Fidelity Ins. Co., 413 Mich. 603, 613, 321 N.W.2d 668 (1982).
Plaintiffs argue that this Court recognized a common-law action for gross negligence or wilful, wanton, or intentional misconduct in Grasser v. Fleming, 74 Mich.App. 338, 253 N.W.2d 757 (1977). In Grasser, the complaint...
To continue reading
Request your trial
- Auto-Owners Ins. Co. v. Seils
-
Harts v. Farmers Ins. Exchange
... ... Pietrzak, the agent, they likewise cannot establish vicarious liability against Farmers, the principal. Kerry v. Turnage, 154 Mich.App. 275, 281, 397 N.W.2d 543 (1986); Lincoln v. Gupta, 142 Mich.App. 615, 622, 370 N.W.2d 312 (1985). And, because Mr. Pietrzak ... ...
-
Urban ex rel. Urban v. American Legion, No. A04-1409.
...intended mischief. I note that under a similar act, Michigan's courts have arrived at the same conclusion. See Kerry v. Turnage, 154 Mich.App. 275, 397 N.W.2d 543, 545, (1986) (holding school district could be held vicariously liable for actions of athletic booster organization, which was d......
-
McLean v. Wolverine Moving & Storage Co.
...N.W.2d 443 (1982). Generally, a principal is held liable for the torts of its agent in the scope of the agency. Kerry v. Turnage, 154 Mich.App. 275, 281, 397 N.W.2d 543 (1986). The existence of an agency relationship is a question of fact. Id. It is our opinion that competent evidence to su......