Lyman v. Bavar Co., Inc.

• Decision Date: 19 October 1984
• Docket Number: Docket No. 65418
• Citation: 136 Mich.App. 407,356 N.W.2d 28
• Parties: John R. LYMAN, Plaintiff-Appellee, v. BAVAR COMPANY, INC., a Michigan corporation, Defendant-Appellant, and James Gerard Brower and Gary Willie Melchert, Jr., Defendants. 136 Mich.App. 407, 356 N.W.2d 28
• Court: Court of Appeal of Michigan — District of US

Page 28

356 N.W.2d 28

John R. LYMAN, Plaintiff-Appellee, v. BAVAR COMPANY, INC., a Michigan corporation Defendant-Appellant and James Gerard Brower and Gary Willie Melchert, Jr. Defendants.

Docket No. 65418.

136 Mich.App. 407, 356 N.W.2d 28

Court of Appeals of Michigan.

Submitted Dec. 8, 1983.

Decided Aug. 6, 1984.

Released for Publication Oct. 19, 1984.

[136 MICHAPP 408] Cholette, Perkins & Buchanan by Grant J. Gruel and Jeffrey H. Beusse, Grand Rapids, for plaintiff-appellee.

Smith, Haughey, Rice & Roegge by Lance R. Mather, Grand Rapids, for defendant-appellant.

Before MAHER, P.J., and R.B. BURNS and ROSKOPP ^*, JJ.

ROSKOPP, Judge.

In this action, plaintiff sought to recover damages from defendants Brower and Melchert on a negligence theory and from defendant Bavar Company, Inc., pursuant to the dramshop act, M.C.L. Sec. 436.22; M.S.A. Sec. 18.993. After a jury trial, a verdict for plaintiff was returned in the amount of $375,000 against all three defendants. Plaintiff's recovery against defendants Brower and Melchert was reduced by 10% for plaintiff's comparative negligence. Defendant Bavar Company appeals as of right.

Bavar Company argues that the verdict against it should have been reduced by 10% for plaintiff's comparative negligence. To recover under the dramshop act, a plaintiff must show that there was a causal connection between the unlawful sale of intoxicating liquor and the plaintiff's injuries. Watson v. Ristow, 42 Mich.App. 318, 321, 201 N.W.2d 289 (1972). M.C.L. Sec. 436.22(5); M.S.A. Sec. 18.993(5) contains the following provision, added to the statute by 1972 P.A. 196:

"[A]ll factual defenses open to the alleged intoxicated [136 MICHAPP 409] person or minor shall be open and available to the principal and surety."

Bavar Company was the principal on a bond required by M.C.L. Sec. 436.22(2); M.S.A. Sec. 18.993(2) and therefore was able to assert any factual defense open to Brower and Melchert.

The defense of comparative negligence was adopted in Michigan in Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979). Under Placek, a plaintiff's negligence is a partial bar to his recovery; the plaintiff's recovery is reduced to the extent that his or her negligence contributed to the injury. 405 Mich. 650, fn. 1, 275 N.W.2d 511. In Hardy v. Monsanto Enviro-Chem Systems, Inc., 414 Mich. 29, 40, 323 N.W.2d 270 (1982), the Court explained:

"Under Placek, the defendant must pay the full percentage of damages caused by his negligence."

Comparative negligence is therefore a factual defense based on causation. Plaintiff, however, points to Dahn v. Sheets, 104 Mich.App. 584, 592-593, 305 N.W.2d 547 (1981), in which the Court said:

"Plaintiffs also argue that in light of Placek * * * a person's participation in bringing about the intoxication which led to his injury should not be a bar to recovery. We disagree. The dramshop act is the legislatively-created exclusive remedy for injuries arising out of unlawful sales of intoxicating beverages by licensed retailers, and the cause of action is not based on negligence. See Rowan v Southland Corp, 90 Mich App 61; 282 NW2d 243 (1979). Placek only has applicability to common law tort actions sounding in negligence. If the comparative negligence doctrine is to be applied in dramshop actions, the Legislature must mandate this change."

[136 MICHAPP 410] Dahn is distinguishable from this case. Dahn involved negligent participation of the plaintiff in bringing about the intoxication. Because the dramshop is liable for injuries caused by its illegal sale of intoxicating liquor, the Dahn panel properly rejected the defense of comparative negligence on the facts before it. Cases reaching similar conclusions include Genesee Merchants Bank & Trust Co. v. Bourrie, 375 Mich. 383, 389, 134 N.W.2d 713 (1965) (contributory negligence), James v. Dixon, 95 Mich.App. 527, 534-535, 291 N.W.2d 106 (1980), and Barrett v. Campbell, 131 Mich.App. 552, 345 N.W.2d 614 (1983). Here, however, the defense of comparative negligence was not asserted on the theory that plaintiff negligently participated in bringing about the intoxication; instead, defendants' theory was that plaintiff's own negligence, as well as negligence by the intoxicated defendants, contributed to the injuries. To the extent that plaintiff's injuries were caused by his own negligence unrelated to bringing about the intoxication, they were...