Larrow v. Miller
| Decision Date | 16 April 1996 |
| Docket Number | Docket No. 168264 |
| Citation | 548 N.W.2d 704,216 Mich.App. 317 |
| Parties | Janinia R. LARROW, Personal Representative of the Estate of Timothy Lee Larrow, Deceased, Janinia R. Larrow, and Arnold A. Larrow, Plaintiffs-Appellants, v. Richard E. MILLER, Thomas L. Hartwick, and David A. Leiby, Defendants-Cross-Defendants-Appellants, and J & C Fowler, Inc., d/b/a Connie's Corral, Defendant-Appellee, and Annette S. Johnson, d/b/a Dundee Bar & Lounge, and Frank K. Breitner, d/b/a Town Tavern, Defendants-Cross-Plaintiffs-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Sinas, Dramis, Brake, Boughton, McIntyre & Reisig, P.C. by Michael E. Larkin, Lansing, for Janinia R. Larrow and Arnold A. Larrow.
Morrison, Morrison & Finley by Gregory W. Finley, Detroit, for J & C Fowler, Inc. Foster, Swift, Collins & Smith, P.C. (by Mark H. Canady and Paul J. Millenbach), Farmington Hills, for Annette S. Johnson.
Kallas & Henk, P.C. by Scott L. Feuer, Bloomfield Hills, for Frank K. Breitner.
Before MURPHY, P.J., and CORRIGAN and HOUK, * JJ.
In this case of first impression involving the dramshop act, M.C.L. § 436.22; M.S.A. § 18.993, plaintiffs appeal as of right the orders granting summary disposition to defendants. We affirm, adopting the circuit court's holding that the noninnocent party doctrine bars recovery in dramshop actions by those who furnish illicit substances to the alleged intoxicated person (AIP).
Although defendants continue to deny certain of plaintiffs' allegations for purposes of appeal, we consider the facts in a light most favorable to the nonmovant plaintiffs on review de novo of motions under M.C.R. § 2.116(C)(10). A motion for summary disposition under M.C.R. § 2.116(C)(10) tests the factual support for a claim. Radtke v. Everett, 442 Mich. 368, 374, 501 N.W.2d 155 (1993).
On November 3, 1989, Richard E. Miller began drinking alcohol in his truck and at a friend's house, and then traveled to the Town Tavern, where he met Timothy Lee Larrow. By the time Miller left the Town Tavern, he had consumed between ten and twenty drinks in four hours. Miller and Larrow next went to the Dundee Bar, where Miller had one or two more drinks. At their next stop, Connie's Corral, Miller had two or three additional drinks. Some witnesses described Miller as "silly," "goofy," "staggering," and "whooping and hollering." Later that night, Larrow supplied and shared two marijuana cigarettes with Miller. Miller squarely acknowledged during his deposition that the marijuana helped to "kick in the buzz" that he had been experiencing from the alcoholic beverages.
In this inebriated condition, at 1:45 a.m. on November 4, 1989, Miller drove his pickup truck into the side of an oncoming train, killing Larrow, the front seat passenger. Blood testing after the accident placed Miller's blood alcohol level at 0.298 percent. 1
Larrow's estate and parents sued Miller, the three taverns, and other persons not parties to this appeal. The taverns moved for summary disposition, arguing that suit was barred by the noninnocent party doctrine. Plaintiffs argued that the doctrine applies only to a plaintiff who supplies alcoholic beverages, and that it does not extend to one who shares illicit drugs. Plaintiffs also argued that if the doctrine applies to illicit drugs, a factual dispute exists about whether the small amount of marijuana Miller ingested contributed to his intoxication. The circuit court granted summary disposition to the taverns on the ground that the noninnocent party doctrine barred recovery.
Several states recognize the "noninnocent party doctrine," a doctrine that bars one who actively participates in the intoxication of a tortfeasor from recovery under the dramshop act. 2 Craig v. Larson, 432 Mich. 346, 439 N.W.2d 899 (1989). The noninnocent party doctrine is not in itself a common-law principle, id. at 355, 439 N.W.2d 899, but rests instead on the judicial gloss that the Legislature could not have intended that one who actively contributes to an AIP's intoxication should be entitled to sue under the dramshop act. See Morton v. Roth, 189 Mich. 198, 202, 155 N.W. 459 (1915). 3
Our Supreme Court first recognized the noninnocent party doctrine in the context of dramshop liability in Brooks v. Cook, 44 Mich. 617, 7 N.W. 216 (1880). In Brooks, the plaintiff became intoxicated at a tavern where someone picked his pocket. He sued the tavern because it had contributed to his loss by selling him the liquor that led to his inebriation. Justice Cooley wrote that the dramshop statute anticipated three persons concerned in a dramshop action: the person selling, giving, or furnishing alcohol, the person receiving alcohol and causing an injury, and the injured person. Id. at 618, 7 N.W. 216. The Supreme Court concluded that had the Legislature intended the intoxicated person to have a cause of action, it would have included that person among those enumerated persons entitled to sue. Id. at 618-619, 7 N.W. 216. Thus, the statute does not confer on the intoxicated person a right of action against the seller of the liquor.
In Rosecrants v. Shoemaker, 60 Mich. 4, 26 N.W. 794 (1886), our Supreme Court expanded the doctrine by ruling that a wife who authorized the sale of intoxicating liquor to her husband and who herself procured it for him could not sue the tavern when her intoxicated spouse was subsequently killed by a train. The Court held, "it is evident that she cannot complain of any evil which she has herself caused, and that, if she encouraged or requested the sale of liquor to her husband, she does not stand on the footing of an innocent injured party." Id. at 7, 26 N.W. 794. The defendants were entitled to have the jury instructed that the plaintiff could not recover damages if she authorized the defendants to furnish liquor to her husband, and that the plaintiff's past habit of purchasing liquor for her husband could be considered as evidence of her authorization. See also McDonald v. Casey, 84 Mich. 505, 47 N.W. 1104 (1891).
The doctrine was well established by the time of Morton v. Roth, supra. In that case, our Supreme Court barred suit by the plaintiff, a twenty-two-year-old acquaintance of the AIP. The plaintiff furnished liquor to the AIP, a minor, at eight saloons. The plaintiff and the AIP then stole a car, went joyriding, and were involved in an accident. The Court refused to overturn a directed verdict for the defendant tavern owner in the plaintiff's suit for damages for injuries sustained in the accident because the plaintiff was "seeking to recoup himself, in a pecuniary way, for consequences for which he was directly and actively responsible." 189 Mich. at 202, 155 N.W. 459.
In this case, defendants reiterate their successful argument below that recovery is barred as a matter of law because the decedent encouraged Miller's drinking, even though he did not actually purchase drinks for Miller. Defendants alternatively argue that the noninnocent party doctrine should be extended to one who contributes to the AIP's intoxication by furnishing illegal drugs. Defendants argue that the noninnocent party doctrine focuses on wrongdoing and illegal conduct, and that one who supplies illegal drugs should be barred from suing, just as one who supplies intoxicating liquor may not recover. We agree with the latter argument, as indicated below.
Larrow's mere presence as a bystander would not support judgment as a matter of law in defendants' favor. Defendants argue that Larrow contributed to Miller's alcoholic intoxication by accompanying him on his drinking spree, thereby giving him either explicit or implied encouragement. We held in Todd v. Biglow, 51 Mich.App. 346, 352, 214 N.W.2d 733 (1974), that although such involvement creates a factual question, it does not support judgment as a matter of law. The noninnocent party doctrine contemplates "active" participation in the AIP's drinking. Mere presence, encouragement, or drinking with the AIP, without actually supplying the AIP with drinks or providing money for the purchase of liquor, will not support summary disposition. Cf. Plamondon v. Matthews, 148 Mich.App. 737, 741, 385 N.W.2d 273 (1985) (); Barrett v. Campbell, 131 Mich.App. 552, 556, 345 N.W.2d 614 (1983) (); Kangas v. Suchorski, 372 Mich. 396, 126 N.W.2d 803 (1964) ().
The circuit court erred in ruling that decedent's mere presence supported summary disposition for defendants as a matter of law. A factual issue remained under Todd about the level of Larrow's participation in Miller's intoxication. Nonetheless, the court correctly granted summary disposition on the basis of defendants' alternative arguments.
No Michigan case has extended the noninnocent party doctrine to those who supply illegal drugs to an AIP. Nevertheless, the rationale underlying the doctrine warrants its extension to such circumstances. Plaintiffs argue that the doctrine should not be extended because "intoxication" means intoxication through alcohol, not illegal drugs. Defendants counter that because the Michigan Vehicle Code, M.C.L. § 257.1 et seq.; M.S.A. § 9.1801 et seq., has defined "intoxication" to include drugs, the legislative definition should control in these...
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...and the subsequent accident and deprived plaintiff of a cause of action. Citing this Court's holding in Larrow v. Miller, 216 Mich.App. 317, 548 N.W.2d 704 (1996), the circuit court held that plaintiff's active participation in defendant's intoxication barred his Plaintiff moved for reconsi......