Millross v. Plum Hollow Golf Club

• Decision Date: 06 October 1987
• Docket Number: Docket No. 77710
• Parties: Virginia M. MILLROSS, Individually and as Next Friend of Michael L. Millross, John E. Millross and Edward B. Millross, Minors and Virginia Millross, Personal Representative of the Estate of James Edgar Millross, Deceased, Plaintiffs-Appellees, v. PLUM HOLLOW GOLF CLUB, a Michigan nonprofit corporation, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 17

413 N.W.2d 17

429 Mich. 178

Virginia M. MILLROSS, Individually and as Next Friend of Michael L. Millross, John E. Millross and Edward B Millross, Minors and Virginia Millross, Personal Representative of the Estate of James Edgar Millross Deceased, Plaintiffs-Appellees, v. PLUM HOLLOW GOLF CLUB, a Michigan nonprofit corporation Defendant-Appellant.

Docket No. 77710.

Supreme Court of Michigan.

Argued Nov. 13, 1986.

Decided Oct. 6, 1987.

Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by Kathleen L. Bogas, Detroit, for plaintiffs-appellees.

Kohl, Secrest, Wardle, Lynch, Clark and Hampton, Roger F. Wardle, Timothy F. Casey, Farmington Hills, for defendant-appellant.

BOYLE, Justice.

The issue presented by this case is whether the exclusive remedy of the dramshop act bars plaintiff's claim against defendant for the negligent supervision of an employee. We hold that plaintiff's negligence claim which arose out of the selling, giving, or furnishing of alcoholic liquor by a liquor licensee is preempted by the exclusive remedy of the dramshop act. We further hold that the plaintiff has failed to assert a valid cause of action on the basis of negligent supervision of an employee and failure to provide alternative transportation. The decision of the Court of Appeals is therefore reversed and remanded for proceedings consistent with this opinion.

I. Facts

The Court of Appeals sets forth the facts:

"At approximately 11:19 p.m. on June 22, 1981, James Edgar Millross was fatally injured when he was struck by an automobile operated by defendant Daniel Tomakowski. A few minutes before the collision, Millross had been traveling north on Lahser Road. Near the intersection of Ten Mile Road and Lahser in Southfield, Millross witnessed an automobile accident. He pulled his vehicle over to the side of the road and went to offer aid to one of the persons involved in the accident, 19-year-old Suzanne Waffle. Tomakowski, who was proceeding north on Lahser toward Ten Mile Road, did not see Miss Waffle's car and collided with her vehicle, thereby injuring Millross.

"Tomakowski was the 'caddie master' at defendant Plum Hollow Golf Club. After putting in a full day's work as caddie master, Tomakowski had attended the Evans Scholarship Foundation dinner at Plum Hollow. Tomakowski's attendance at the dinner was a part of his job responsibilities. Cocktails had been served by Plum Hollow personnel to Tomakowski and the other guests prior to the dinner. The accident with Millross occurred when Tomakowski was on his way home from the dinner." 146 Mich.App. 680, 682-683, 381 N.W.2d 786 (1985).

Plaintiff, Virginia Millross, widow of the deceased, filed her original complaint in Oakland Circuit Court in July, 1981. The complaint was amended several times between 1981 and 1984. Count II alleged that defendant Plum Hollow was liable to plaintiff pursuant to the dramshop act, M.C.L. Sec. 436.22 et seq.; M.S.A. Sec. 18.993 et seq., for injuries sustained as a result of Tomakowski's collision with Millross. Count IV alleged that Plum Hollow was liable for Tomakowski's negligent driving by reason of the doctrine of respondeat superior and by its failure to properly supervise Tomakowski or provide him with an alternate means of transportation home.

The dramshop claim against Plum Hollow in count II was resolved and a consent judgment was entered in the amount of $591,500. Paragraph 10 of count IV alleging liability on the basis of respondeat superior was stricken. None of these actions are on appeal before this Court.

The subject of this appeal is the grant of summary disposition for failure to state a claim upon which relief could be granted in favor of Plum Hollow on the negligence claim alleged in count IV. GCR 1963, 117.2(1), now MCR 2.116(C)(8). The trial court granted defendant summary disposition finding that (1) there is no common-law duty of an employer to provide transportation to and from the employment premises, and (2) plaintiff's negligence claim was based upon the dispensing of an alcoholic beverage and was therefore preempted by the exclusive remedy of the dramshop act.

The Court of Appeals reversed the grant of summary disposition on the basis that plaintiff's claim for improper supervision or failure to provide alternate transportation is a recognized common-law claim which is not precluded by the dramshop act. We granted leave to appeal. 425 Mich. 852 (1986).

II. The Exclusive Remedy of the Dramshop Act

Whether or not a statutory scheme preempts the common law on a subject is a matter of legislative intent. Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977), reh. den. 431 U.S. 925, 97 S.Ct. 2201, 53 L.Ed.2d 240 (1977). In general, where comprehensive legislation prescribes in detail a course of conduct to pursue and the parties and things affected, and designates specific limitations and exceptions, the Legislature will be found to have intended that the statute supersede and replace the common law dealing with the subject matter. 2A Sands, Sutherland Statutory Construction (4th ed), Sec. 50:05, pp 440-441.

At common law, negligence in the sale or furnishing of intoxicating liquor to an ordinary able-bodied person was not a tort even though a result of intoxication was injury to the intoxicated person or others. Manuel v. Weitzman, 386 Mich. 157, 163, 191 N.W.2d 474 (1971). The reason for this rule was that it was the drinking of the liquor, rather than the furnishing of it, which was deemed the proximate cause of the injury. Longstreth v. Gensel, 23 Mich. 675, 684, 377 N.W.2d 804 (1985). Dramshop acts were intended to fill the void that existed at common law. Id.

In Michigan, by statute, a "wife, husband, child, parent, guardian, or other person" injured by "a visibly intoxicated person" by reason of the unlawful sale or furnishing of intoxicants to such person has a cause of action against the tavern owner where the sale of intoxicating liquor is proven to be a proximate cause of the injury. M.C.L. Sec. 436.22(5); M.S.A. Sec. 18.993(5).

This Court has recognized that by enacting the dramshop act the Legislature created a new remedy for a new and particular right. Browder v. Int'l Fidelity Ins. Co., 413 Mich. 603, 612, 321 N.W.2d 668 (1982). The new remedy is not against the intoxicated person who causes an actual injury, but against the bar owner who sells intoxicating liquor to a minor or a visibly intoxicated person and against the principal and sureties on the bond which the licensee is required to procure under the act. Browder, supra.

As a general principle of law, where a statute creates a new right and prescribes a particular remedy, the remedy is exclusive and must be strictly construed. Holland v. Eaton, 373 Mich. 34, 127 N.W.2d 892 (1964), overruled on other grounds 394 Mich. 179, 229 N.W.2d 332 (1975). See also Thurston v. Prentiss, 1 Mich. 193 (1849); In re Quinney's Estate, 287 Mich. 329, 283 N.W. 599 (1939). Application of the foregoing principle is particularly appropriate here because the dramshop act appears as a self-contained measure with the new remedy and liability under it carefully balanced in a fair and reasonable manner. In Browder, supra, 413 Mich. at p. 614, 321 N.W.2d 668, while discussing the exclusive nature of the remedy and period of limitations in the dramshop act, this Court observed the following:

"On the one hand, the injured party is protected by a new and non-common-law remedy against a person not otherwise liable, the bar owner. In addition, the bar owner has to be bonded, and both the bond principal and sureties are liable, the sureties to the extent of the bond. This reasonably assures the plaintiff of recovery against a financially responsible person or persons. On the other hand, the bar owner and those liable on the bond, who themselves did not commit, and may not have been aware of the commission of, the tort, are protected from stale claims which they might find particularly difficult to investigate."

Moreover, the Legislature has demonstrated a clear propensity to consider and reconsider the provisions of the dramshop act to keep it internally balanced. ¹ Therefore, this Court has found that the Legislature intended the dramshop act to be a complete and self-contained solution to a problem not adequately addressed at common law and the exclusive remedy for any action arising under "dramshop-related facts." ² Browder, supra, p. 616, 321 N.W.2d 668. Indeed, the Legislature has amended the act to expressly codify this intent in 1986 P.A. 176, which provides in pertinent part, "This section provides the exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor." M.C.L. Sec. 436.22(1); M.S.A. Sec. 18.993(11).

Plaintiff contends, however, that notwithstanding the exclusive remedy nature of the dramshop act, Michigan courts have long recognized that liquor licensees remain liable for breach of independent common-law duties. We agree. In Manuel v. Weitzman, supra, 386 Mich. at 164-165, 191 N.W.2d 474, quoting De Villez v. Schifano, 23 Mich.App. 72, 77, 178 N.W.2d 147 (1970), this Court stated:

"We hold that the dramshop 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 . However, the act does not control and it does not abrogate actions arising out of unlawful or negligent conduct of a tavern owner other than 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." (Emphasis supplied.)

Manuel sets forth a two-part analysis for determining what claims are proscribed by the exclusive remedy provision.

(1) Does the claim against "the tavern owner" arise out of an unlawful sale, giving away, or furnishing of...