Reed v. Breton
| Decision Date | 20 January 2005 |
| Docket Number | Docket No. 247974.,Docket No. 247837 |
| Citation | 264 Mich. App. 363,691 N.W.2d 779 |
| Parties | Lawrence REED, Personal Representative of the Estate of Lance Nathan Reed, Plaintiff-Appellant, v. Frederick BRETON, Personal Representative of the Estate of Curtis J. Breton, HB Resort Enterprises, Inc., a/k/a Eagles Nest, and Beach Bar, Inc., a/k/a Beach Bar, Defendants-Appellees. James Kuenner, Personal Representative of the Estate of Adam W. Kuenner, Plaintiff-Appellant, v. Frederick Breton, Personal Representative of the Estate of Curtis Jason Breton, and HB Resort Enterprises, Inc., a/k/a Eagles Nest, Defendants, and Beach Bar, Inc., a/k/a Beach Bar, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Dennis Hurst, Jackson, for Lawrence Reed.
D'Agostini, Sable and Ruggeri, P.L.L.C. (by John M. Ketzler), Sterling Heights, for James D. Kuenner.
Garan Lucow Miller, P.C. (by Megan K. Cavanagh and Kenneth V. Klaus), Detroit, for Beach Bar, Inc.
Before: COOPER, P.J., and FITZGERALD and HOEKSTRA, JJ.
In these consolidated appeals, plaintiffs Lawrence Reed and James D. Kuenner, as personal representatives of the estates of their decedents, appeal by leave granted the trial court's order granting summary disposition in favor of defendant Beach Bar1 pursuant to MCR 2.116(C)(10) in these wrongful death and dramshop actions. We reverse and remand to the trial court for a jury trial, as there exists a question of fact regarding Curtis J. Breton's visible intoxication when he was served in defendant's bar.
At 10:11 p.m. on April 20, 2001, Mr. Breton was traveling northbound on US-127 at approximately one hundred miles an hour. He crossed over the center line into oncoming traffic and collided with a vehicle occupied by plaintiffs' decedents. Both vehicles caught fire on impact and none of the occupants survived. At the time of the accident, Mr. Breton's blood alcohol level was 0.215 percent.
Mr. Breton, a firefighter, ended a twenty-four hour shift at 7:30 a.m. He and his coworker, John Marsh, joined a drop-in hockey game and then ate lunch at a pub with friends. Mr. Marsh testified that the lunch party lasted two hours, that he consumed two beers during this time, and that Mr. Breton consumed an unknown amount of beer at that location. Following lunch, Mr. Marsh and Mr. Breton purchased a twelve pack of beer and went to a family member's home to repair a damaged boat dock. During the hour in which the men worked, each consumed about two or three beers.
At 5:00 p.m., Mr. Breton drove Mr. Marsh to defendant's bar where they met a friend. A waitress, Lindsey Mizerik, served the men two pitchers of beer at that time. Shortly after 6:00 p.m., Mr. Breton drove Mr. Marsh home to arrange for a babysitter and both men consumed two beers each in a ten-minute period. Upon their return to defendant's bar at around 8:00 p.m., each consumed two more bottles of beer and shared a large pizza. At approximately 9:00 p.m., Mr. Breton drove Mr. Marsh to the Eagle's Nest bar where the men ordered their final pitcher of beer. Mr. Breton returned Mr. Marsh to his home at 9:50 p.m. Mr. Breton told Mr. Marsh that he was fine and left. It is disputed whether Mr. Breton made a final stop at defendant's bar before the fatal collision occurred.
During the course of the evening, Mr. Breton encountered various people who testified at deposition that Mr. Breton did not appear to be intoxicated. Ms. Mizerik testified that she remembered Mr. Breton because he continually attempted to secure a date with her. She testified that Mr. Breton never exhibited any erratic behavior and appeared aware of his surroundings. He did not look like he had been drinking all day and she never considered refusing to serve him. Ms. Mizerik believed that Mr. Breton returned to defendant's bar between 10:00 and 11:00 p.m., to ask her once more for a date; however, Mr. Breton neither ordered nor was served any alcohol at that time.
According to Mr. Marsh's testimony, he and Mr. Breton drank roughly the same amount of alcohol. When the pair left defendant's bar for the Eagle's Nest, Mr. Marsh could feel the effects of the alcohol he had consumed and assumed that Mr. Breton felt the same. At the Eagle's Nest, they encountered Fire Chief Mike Hendges. Chief Hendges testified that he spoke with Mr. Breton, and that he perceived the men to be in a good mood, not intoxicated. However, Chief Hendges went to Mr. Marsh's home shortly after the accident and noticed that Mr. Marsh was visibly intoxicated at that time. Mr. Breton also encountered Robert Potts, his former youth hockey coach and the owner of a convenience store that sells liquor. Mr. Potts testified that Mr. Breton exhibited no visible signs of intoxication during their conversation, such as slurred speech, glassy or bloodshot eyes, or an altered demeanor.
Plaintiffs also presented the reports of two expert witness toxicologists. Mr. Reed's expert witness specifically found — based on Mr. Breton's weight, metabolism and blood alcohol level — that Mr. Breton had consumed twenty-four or twenty-five beers in a nine-hour period and still had twelve or thirteen drinks in his system at the time of the accident. This concentration of alcohol would have affected Mr. Breton's central nervous system, leading to visible signs of intoxication, such as excitement, confusion and stupor. Based on this concentration, the toxicologist also determined that Mr. Breton would have been visibly intoxicated when he was served at defendant's bar.
Following the accident, plaintiffs filed suit against the named defendants, alleging negligence for selling intoxicating liquor to a visibly intoxicated person in violation of MCL 436.1801(2).2 At the close of discovery, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(10). As it was not the last establishment to serve Mr. Breton, defendant argued that it was entitled to a rebuttable presumption pursuant to MCL 436.1801(8) against liability. Defendant further argued that plaintiffs failed to overcome this presumption by presenting sufficient evidence that Mr. Breton was visibly intoxicated when served in defendant's bar. The trial court granted defendant's motion against both plaintiffs. The trial court determined that plaintiffs failed to present a genuine issue of material fact regarding the last location to serve alcohol to Mr. Breton. Accordingly, the court found that defendant was entitled to the statutory presumption. The trial court determined that, in order to overcome this presumption, plaintiffs were required to present "positive, unequivocal, strong and credible evidence" that Mr. Breton was visibly intoxicated when he was served at defendant's bar. The court stated that the testimony of the expert witnesses was insufficient to meet this burden and granted summary disposition to defendant. This appeal followed.
Plaintiffs contend that the trial court improperly granted defendant's motion for summary disposition, as there was evidence that defendant may have been the last establishment to serve Mr. Breton. Plaintiffs further contend that, even if defendant was entitled to the statutory presumption of nonliability, the trial court improperly required plaintiffs to meet a heightened burden of coming forward with evidence to rebut that presumption. This Court reviews a trial court's determination regarding a motion for summary disposition de novo.3 A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff's claim.4 "In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence submitted in [the] light most favorable to the nonmoving party to decide whether a genuine issue of material fact exists."5 Summary disposition is appropriate only if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.6
The rebuttable presumption against liability is provided in MCL 436.1801(8) as follows:
There shall be a rebuttable presumption that a retail licensee, other than the retail licensee who last sold, gave, or furnished alcoholic liquor to the minor or the visibly intoxicated person, has not committed any act giving rise to a cause of action under subsection (3).[7]
We first note that it is not at all clear from the depositions submitted that defendant's bar was Mr. Breton's final stop that evening. Ms. Mizerik testified that Mr. Breton returned to defendant's bar sometime between 10:00 and 11:00 p.m. to ask her once more for a date. However, even if Mr. Breton returned to defendant's bar after taking Mr. Marsh home and before the accident, Ms. Mizerik testified that Mr. Breton was not served at that time. Based on this testimony, the trial court properly ruled that defendant was entitled to the statutory presumption of nonliability.
We must, therefore, determine if the circumstantial evidence of Mr. Breton's visible intoxication when served at defendant's bar is sufficient to rebut the statutory presumption of nonliability. It is well settled, where the statutory presumption does not apply, that a plaintiff may establish a dramshop action solely on circumstantial evidence.8
A rebuttable presumption is "[a] presumption that can be overturned upon the showing of sufficient proof."9 According to Black's Law Dictionary, all presumptions, other than conclusive presumptions, are rebuttable.10 The manner of rebutting a presumption has been stated in various ways. It has been said that "[o]nce evidence tending to rebut the presumption is introduced, the force of the presumption is entirely dissipated and the party with the burden of proof must come forward with evidence to avoid directed verdict."11 Pursuant to...
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Reed v. Breton
...found, however, that the trial court erred because the statute did not expressly provide for such a heightened burden. 264 Mich.App. at 374-375, 691 N.W.2d 779. Further, it held that the general rule regarding rebuttable presumptions found in MRE 3017 The Court thus imposed the usual standa......
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Reed v. Breton
...that decision. This Court reversed the circuit court's decision and reinstated the claim against the Beach Bar. Reed v. Breton, 264 Mich.App. 363, 364-365, 691 N.W.2d 779 (2004). Upon further appeal, however, our Supreme Court reversed this Court's decision and affirmed the grant of summary......