Manuel v. Weitzman

• Decision Date: 09 November 1971
• Docket Number: No. 14,14
• Citation: 386 Mich. 157,191 N.W.2d 474
• Parties: Arthur MANUEL and Violet Manuel, Plaintiffs-Appellees, v. Harry WEITZMAN, d/b/a Roxy Bar, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 474

191 N.W.2d 474

386 Mich. 157

Arthur MANUEL and Violet Manuel, Plaintiffs-Appellees, v. Harry WEITZMAN, d/b/a Roxy Bar, Defendant-Appellant.

No. 14.

Supreme Court of Michigan.

Nov. 9, 1971.

Dietrich & Shrauger, P.C. by James A. Tucker, Detroit, for plaintiffs-appellees

Sugar, Schwartz, Silver, Schwartz & Tyler, Detroit (David M. Tyler, Detroit, of counsel), for defendant and appellant.

Before the Entire Bench.

ADAMS, Justice.

I. THE FACTS AND PROCEEDINGS

Arthur Manuel was a customer at the Roxy Bar on July 24, 1964. He suffered serious injury to his ankle as a result of an attack by another customer, Patrick Carrigan.

Manuel and his wife, Violet, filed suit against Harry Weitzman, the bar owner, suing on four counts. Counts I and II, under the civil liability provision of the dramshop act (M.C.L.A. § 436.22; Stat.Ann.1971 Cum.Supp. § 18.993), alleged that Carrigan was served drinks after he was already intoxicated. Immediately before trial, these counts were settled for $5,000.

Counts III and IV alleged that defendant violated his common law duty to maintain safe premises for his business invitees. At the conclusion of plaintiffs' case, the trial judge granted defendant's motion for a directed verdict based on two grounds:

1) The sole cause of action against a bar owner for injuries inflicted by an intoxicated customer is provided by the dramshop act. (M.C.L.A. § 436.22; Stat.Ann.1971 Cum.Supp. § 18.993)

2) No evidence was presented from which the jury could find that defendant breached his duty to maintain his premises in a safe condition for business invitees.

Plaintiffs appealed. The Court of Appeals reversed. (23 Mich.App. 96, 178 N.W.2d 121). We granted defendant leave to appeal. 384 Mich. 763.

Plaintiffs rely on Gorby v. Yeomans (1966), 4 Mich.App. 339, 144 N.W.2d 837, which held that bar owners are liable under the common law if they breach their duty to maintain safe premises; and Baker v. Golematis (1969), 17 Mich.App. 383, 169 N.W.2d 521, and De Villez v. Schifano (1970), 23 Mich.App. 72, 178 N.W.2d 147, holding that a common law action for breach of duty can be joined with an action brought under the dramshop act.

Defendant argues that the Court of Appeals' decision is contrary to the holding of Kangas v. Suchorski (1964), 372 Mich. 396, 126 N.W.2d 803.

II. DRAMSHOP ACT REMEDY NOT EXCLUSIVE

In Kangas, plaintiff was injured in an assault by his drinking companion, Exelby. The chief question was whether plaintiff could recover under the dramshop act from the proprietor, the plaintiff having contributed to Exelby's intoxicated condition by purchasing drinks for him. In a concluding paragraph of the opinion, this Court stated (p. 401, 126 N.W.2d p. 805):

'Plaintiff's declarations contained a Count II, not based upon the civil damages provision of the act, but asserting common law liability on defendant's part for negligence in failing to maintain a suitable place and safe conditions for business invitees. Such cause of action he may not assert, his exclusive remedy being under the civil damage provisions of the statute. Jones v. Bourrie, 369 Mich. 473, 120 N.W.2d 236.'

In Jones v. Bourrie (1963), 369 Mich. 473, 120 N.W.2d 236, plaintiff, a guest passenger, had been injured in an auto accident allegedly as a result of his driver's intoxicated condition. Plaintiff charged the driver was served liquor in defendant's bar after he was already intoxicated. The complaint was filed after the two-year statute of limitations providing for civil liability under the dramshop act had run but within the three-year statute of limitations for general tort actions. This Court held (pp. 476--477, 120 N.W.2d p. 238):

'Plaintiff herein, for unknown reasons, permitted the statutory period to run. He cannot now assert an action to exist at common law. Plaintiff's remedy was under the statute (C.L.1948, § 436.22 as amended) and he failed to timely exercise it. To allow now an action, based on a common law remedy, would be to permit circumvention of the statute and to assert a nonexistent remedy beyond that provided by the legislature.'

Jones was concerned with the liability of a tavern keeper who served liquor to an already intoxicated person. The facts in that case brought it clearly under the statute. Kangas was decided on the issue that plaintiff bought drinks for his companion and so was not an innocent person entitled to recover under the act. Kangas repeated the dictum in Jones and ignored the common law count. Neither case considered the question of the liability of a tavern keeper for breach of a duty to a patron arising out of the presence of the patron in the tavern keeper's establishment and not necessarily involving the furnishing of liquor either to the patron or to some other person. The common law duty of a liquor establishment to maintain a safe place of business for its customers is the same duty any business owes to those it invites upon its premises. The dramshop act was not intended to affect that duty. Dramshop acts were passed because under the common law it was not a tort to sell or furnish intoxicating liquor to an ordinary able-bodied man, even though as a result of his becoming intoxicated injury resulted to himself or to others. ¹ Their purpose was to fill a void in the law, not to remove the well-recognized duty of a tavern keeper to exercise due care for the welfare and safety of invited patrons.

Such a duty was recognized by this Court in Torma v. Montgomery Ward & Co. (1953), 336 Mich. 468, 476, 58 N.W.2d 149, 153, wherein it was said:

'As invitor the defendant owed the duty to its customers and patrons, including the plaintiff, of maintaining its premises in a reasonably safe condition and of exercising due care to prevent and to obviate the existence of a situation, known to it or that should have been known, that might result in injury.'

The Minnesota Supreme Court has repeatedly affirmed the common law duty of bar owners to protect their patrons from reasonably foreseeable assaults of other intoxicated patrons despite the existence of a Minnesota civil liability provision. In Windorski v. Doyle (1945), 219 Minn. 402, 407, 18 N.W.2d 142, 145, the court quoted with approval an earlier statement of the common law duty:

"There is no reason on principle why a person owning and controlling such a place, who sells his wares to such a person, knowing his ugly and quarrelsome disposition when intoxicated, should not be bound to exercise at least reasonable care to protect his other guests from his assaults and insults. The proprietor of such a place has the undoubted right to exclude therefrom drunken and disorderly persons, and the right to remove and expel them when they become in that condition and disorderly, and likely to produce discord and brawls. Being clothed with such power and authority, a The decisions in Kangas and Jones are in error insofar as they purport to hold that the liability provisions of the dramshop act not only preempt any common law action for negligent sale, but also preempt a common law action for 'negligence in failing to maintain a suitable place and safe conditions for business invitees.' The Court of Appeals' decisions in Baker and De Villez, supra, state the correct rule of law. We specifically approve the following statement in De Villez (p. 77, 178 N.W.2d p. 150):

corresponding duty to do so in the interests of law and order, and for the protection of his other guests, should be imposed as a matter of law." ²

'We hold that the dramship 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, 157 N.W.2d 417. However, the act does not control and it does not abrogate actions arising out of unlawful or negligent conduct of a tavern owner other then 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.'

From the above statement by the Court of Appeals, it can readily be seen that the problem posed by these cases it to determine whether (1) the cause of action arises under the dramshop act, or (2) as the result of the breach of a common law duty, or (3) presents a situation in which both causes of action arise out of the same incident. In this third situation, which confronts us in this case, the question arises as to whether the two causes of action may be joined in a single lawsuit.

III. JOINDER OF DRAMSHOP ACT CLAIM AND COMMON LAW CLAIM PROPER

In Shandor v. Lischer (1957), 349 Mich. 556, 84 N.W.2d 810, this Court held that a common law cause of action of assault and battery can be joined with a statutory cause of action under the dramshop act even though both were based on the same altercation.

In Ruediger v. Klink (1956), 346 Mich. 357, 78 N.W.2d 248, plaintiff was injured in an automobile accident. He elected to join in one lawsuit his claims against various bars under the dramshop act and a claim against the intoxicated driver of the automobile for common law negligence. This Court held that both actions could be brought in a single lawsuit and approved such a procedure.

See, also, GCR 203.

In Tyrrell v. Quigley (1946), 186 Misc. 972, 60 N.Y.S.2d 821, 822, the court denied a motion to dismiss a complaint combining law and dramshop statute counts:

'The above statutes (New York dramshop act) do not constitute the sole source upon which might be predicated the instant cause of action. Under the particular facts as here alleged the action is maintainable also at common law. This is true for the reason that the defendant was bound to use reasonable care to protect his patrons from injury The same result was reached in Morrisey v. Sheedy (1966), 26 App.Div.2d 683, 272 N.Y.S.2d 430. ³

at the hands of a vicious individual whom allegedly he knowingly permitted to be in and about his place of business. The...