Mann v. Shusteric Enterprises, Inc., Docket No. 120651, Calendar No. 8.

Decision Date30 June 2004
Docket NumberDocket No. 120651, Calendar No. 8.
Citation470 Mich. 320,683 N.W.2d 573
PartiesRoger MANN, Plaintiff-Appellee, v. SHUSTERIC ENTERPRISES, INC., doing business as Speedboat Bar & Grill, Defendant-Appellant, and Badger Mutual Insurance Company, Defendant.
CourtMichigan Supreme Court

Martin N. Fealk, P.C. (by Martin N. Fealk), and James D. Brittain, P.C. (by James D. Brittain), Taylor, MI, for the plaintiff.

Cheatham, Estes & Hollman, P.C. (by Lee C. Estes), West Bloomfield, MI, and John P. Jacobs, P.C. (by John P. Jacobs, of counsel), Detroit, MI, for the defendant.

Chasnis, Dogger & Grierson, P.C. (by John A. Chasnis), Saginaw, MI, for Quick-Sav Food Stores, Ltd. and Quick-Tracker Management, Inc.

MARKMAN, J.

We granted leave to appeal in this case to decide whether a plaintiff who suffers injury after slipping and falling in the parking lot of a bar where plaintiff has become visibly intoxicated may, notwithstanding the exclusivity provision of the dramshop act, MCL 436.1801(10),1 pursue a common-law premises liability cause of action against that bar. The Court of Appeals affirmed the jury's $226,000 verdict in favor of plaintiff, holding that the dramshop act did not preclude plaintiff's premises liability cause of action, and that the bar's knowledge of plaintiff's intoxication was relevant regarding whether the bar breached its duty to protect plaintiff against the ice and snow in its parking lot. Although we agree in part with the Court of Appeals and hold that the dramshop act does not preclude such a cause of action, we reject the holding by the Court of Appeals that the bar's knowledge of plaintiff's intoxication has any relevance. Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 520, 629 N.W.2d 384 (2001). Accordingly, we reverse the decision of the Court of Appeals, vacate the jury verdict, and remand this case for further proceedings consistent with this opinion.

I. BACKGROUND

On March 6, 1996, during a blizzard, plaintiff entered defendant's bar and consumed nine alcoholic drinks in approximately three hours. After leaving the bar, plaintiff, who was visibly intoxicated and had a blood alcohol content of 0.25 percent,2 sustained injuries when he slipped and fell on ice and snow that had accumulated in defendant's parking lot during the blizzard. Accordingly, plaintiff filed a premises liability cause of action against defendant, claiming that defendant breached its duty of care by failing to warn plaintiff of the ice and snow in defendant's parking lot and failing to remove such ice and snow within a reasonable time after it had accumulated in defendant's parking lot.

Over defense objection to an instruction on M Civ JI 19.03, the trial court delivered both the "Duty Of Possessor Of Land, Premises, Or Place Of Business To Invitee" instruction3 and the "Duty Of Possessor Of Land, Premises, Or Place Of Business To A Business Invitee Regarding Natural Accumulation Of Ice And Snow" instruction.4 While finding plaintiff fifty percent comparatively negligent, the jury returned a $226,000 verdict in plaintiff's favor. Because plaintiff believed that the jury's failure to award noneconomic damages was against the great weight of the evidence, he filed a motion for additur or for a new trial, which motion the trial court denied.

Defendant appealed, raising the issues of instructional error and error in the calculation of damages. Plaintiff cross-appealed, contending that the trial court erred in denying his motion for additur or for a new trial. In its first opinion, the Court of Appeals reversed the decision of the trial court denying plaintiff's motion for additur or for a new trial.5 However, on defendant's motion for rehearing, the Court of Appeals affirmed the decision of the trial court in all respects.6

Defendant sought leave to appeal in this Court, arguing that a premises liability cause of action that is alleged to be grounded in the consumption of alcohol is a dramshop action in another guise and, thus, because of the exclusivity provision of the dramshop act, plaintiff should be precluded from pursuing any other cause of action, including a premises liability action.

II. STANDARD OF REVIEW

Statutory interpretation is an issue of law that is reviewed de novo. G.C. Timmis & Co. v. Guardian Alarm Co., 468 Mich. 416, 419, 662 N.W.2d 710 (2003).

III. ANALYSIS

Defendant argues that plaintiff's premises liability cause of action is precluded by the exclusivity provision of the dramshop act, MCL 436.1801(10), which provides:

This section [MCL 436.1801] provides the exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor.7

Moreover, because the act also provides that "[t]he alleged visibly intoxicated person shall not have a cause of action pursuant to this section ...," MCL 436.1801(9), defendant argues that plaintiff, as the alleged visibly intoxicated person, has no cause of action at all under the dramshop act.

Plaintiff does not contest that, if his cause of action, in fact, did arise from defendant's unlawful "selling, giving, or furnishing" of alcohol, he would be barred from bringing this cause of action by the dramshop act. However, plaintiff instead asserts that the act does not preclude a premises liability action filed by a visibly intoxicated person against the dramshop that unlawfully served alcohol to that person.

We agree with plaintiff. Here, plaintiff's action arises from injuries he sustained after he slipped and fell in defendant's icy and snow-covered parking lot. That is, plaintiff's action is based on the claim that defendant did not sufficiently protect him as an invitee from a dangerous condition on the premises, specifically defendant's icy and snow-covered parking lot. Accordingly, this is not an action arising from the unlawful "selling, giving, or furnishing" of alcohol. MCL 436.1801(3). Rather, it is an ordinary premises liability action. This is made evident by considering that, had plaintiff not been served any alcohol at all by defendant, but still sustained the same injuries, plaintiff would not be precluded from asserting a premises liability action for such injuries on the basis of his invitee status.8 Because we hold that the dramshop act does not preclude plaintiff's premises liability cause of action, we next consider the relevancy of plaintiff's intoxication and defendant's knowledge of such intoxication. Generally, a premises possessor owes a duty of care to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land. Bertrand v. Alan Ford, Inc., 449 Mich. 606, 609, 537 N.W.2d 185 (1995). This duty generally does not encompass a duty to protect an invitee from "open and obvious" dangers. Lugo, supra at 516, 629 N.W.2d 384. However, if there are "special aspects" of a condition that make even an "open and obvious" danger "unreasonably dangerous," the premises possessor maintains a duty to undertake reasonable precautions to protect invitees from such danger. Id. at 517, 629 N.W.2d 384.9 To determine whether a condition is "open and obvious," or whether there are "special aspects" that render even an "open and obvious" condition "unreasonably dangerous," the fact-finder must utilize an objective standard, i.e., a reasonably prudent person standard. Id. That is, in a premises liability action, the fact-finder must consider the "condition of the premises," not the condition of the plaintiff. Id. at 518 n. 2, 629 N.W.2d 384.10 A visibly intoxicated person is held to the same standard of reasonable conduct as a sober person.

Accordingly, the Court of Appeals erred when it stated:

Defendant's service of alcohol was implicated only as it related to defendant's knowledge of plaintiff's condition as relevant to whether defendant's conduct in failing to inspect or clear the parking lot and failing to warn plaintiff was reasonable. [November 30, 2001, 2001 WL 1545906 at *4.]

Rather, defendant's knowledge that plaintiff was intoxicated does not affect the legal duties it owes to plaintiff. That is, although defendant served plaintiff alcohol and was apparently aware that plaintiff was intoxicated, defendant does not owe plaintiff any heightened duty of care. Rather, in determining whether defendant breached its duty, the fact-finder must decide only whether a reasonably prudent person would have slipped and fallen on the ice and snow in defendant's parking lot, or whether that reasonably prudent person should have been warned by defendant of the dangerous condition.

If plaintiff's extent of intoxication were considered in determining defendant's duty of care to plaintiff, such consideration, in our judgment, would circumvent the dramshop act's prohibition against permitting a visibly intoxicated person from collecting monetary damages arising from defendant's unlawful "selling, giving, or furnishing" of alcohol to such plaintiff. MCL 436.1801(9)(10). The dramshop act protects dramshop owners by prohibiting a visibly intoxicated person from recovering damages that have arisen from the dramshop unlawfully "selling, giving, or furnishing" alcohol to such person. In our judgment, the statutory protection would be nullified if dramshop owners, in premises liability actions, were held to a higher duty of care because they unlawfully sold alcohol to a visibly intoxicated person. Accordingly, a dramshop owner, as with any other property owner, has a duty toward the reasonably prudent invitee; he does not, however, have a heightened duty in the case of the visibly intoxicated invitee. Concomitantly, there is no diminished standard of reasonable conduct on the part of a visibly intoxicated invitee in comparison with any other invitee.

Defendant raises one last argument concerning the jury instructions. The "Note on Use" of M Civ JI 19.05 states that "this instruction [pertaining to...

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