Rizzo v. Kretschmer

• Decision Date: 25 May 1973
• Docket Number: No. 7,7
• Citation: 207 N.W.2d 316,389 Mich. 363
• Parties: Emma RIZZO, Executrix of the Estate of Joseph Rizzo, Deceased, et al., Plaintiffs-Appellants, v. Gerald W. KRETSCHMER d/b/a Gem Bar et al., Defendants-Appellees.
• Court: Michigan Supreme Court

Page 316

207 N.W.2d 316

389 Mich. 363

Emma RIZZO, Executrix of the Estate of Joseph Rizzo Deceased, et al., Plaintiffs-Appellants, v. Gerald W. KRETSCHMER d/b/a Gem Bar et al., Defendants-Appellees.

No. 7.

Supreme Court of Michigan.

May 25, 1973.

Lopatin, Miller, Binders & Freedman, Detroit, of counsel; Michael H. Feiler, Detroit, for plaintiff-appellant.

Robert E. Sullivan, Sullivan, Sullivan, Ranger & Ward, Detroit, for defendant-appellee Gem Bar.

Baun & Barton, by Leonard A. Baun, Harper Woods, for defendant-appellee Joseph Astrolfi d/b/a Agent 007.

Plunkett, Cooney, Rutt & Peacock, Detroit, by John A. Demoss, Sarah Wildgen Sweet, Detroit, of counsel, for defendant-appellee New Way Inn.

Before the Entire Bench.

WILLIAMS, Justice.

There are three issues in this case. The first is what must a defendant, on a motion for summary judgment after original pleadings, interrogatories and depositions but before trial testimony, prove to prevent a case from going to trial. The second is what data at this stage of the proceedings may enter in the proof of whether there was a 'genuine issue as to any material fact' under GCR 1963 117.2(3) and GCR 1963 117.3. The third issue is whether the appropriate data in this case raised a 'genuine issue.'

Both defendants and plaintiffs based their arguments on whether two depositions were adequate to raise a 'genuine issue' under the requirements of the Dramshop Act. ¹ While both the defendants and the plaintiffs and the trial judge viewed the proofs from two depositions as dispositive, as we analyze the case this Court does not need to reach that question as there are complementary data, which in combination with the two depositions more assuredly constitutes adequate proof of a 'genuine issue' permitting the plaintiffs to proceed to their trial proofs. A description of these two depositions follows. The first deposition showed the alleged negligent driver consumed four bottles of beer prior to and in the first defendant's establishment and subsequently drinking about three screwdrivers in the last two defendants' establishments. The second deposition by an officer policing the subsequent accident showed that the alleged negligent driver seemed 'under the influence.' The Dramshop Act requires proof of an illegal sale. ² Neither the aforementioned depositions nor other depositions included eyewitness testimony that the alleged negligent driver was intoxicated before or after service in any of defendants' bars.

I--THE FACTS

The deposition of Contardi, the alleged negligent driver, discloses his activities earlier in the day of the accident in question. He completed work at about 1:30 p.m. He had one bottle of beer at an unknown bar at 2:00 or 2:15 p.m. and arrived at defendant Gem Bar at about 3:30 p.m. He consumed 3 bottles of beer at this tavern between the hours of 3:30 and 7:00 p.m. After visiting his brother employed at a gas station, Contardi proceeded to the Oakwood Blue Jacket's Bar arriving there at about 8:30 p.m. He had 5 cups of coffee at this bar. At 11:30 p.m. he arrived at defendant New Way Inn with a Donald Lawyer where, in the time span of 30 to 45 minutes, he consumed one screwdriver (i.e., approximately 1 ounce of vodka plus orange juice). He then proceeded to defendant Agent 007 Bar arriving between 12:30 and 1:00 a.m. where he drank approximately two more screwdrivers. He testified he felt normal after the drinks. Lawyer's deposition supported Contardi's position. At about 2:15 a.m. Contardi was driven by Lawyer back to his truck which he left at the parking lot of the Oakwood Blue Jacket's Bar, and from there, he left for home alone. Rizzo, plaintiffs' decedent, was struck and killed by Contardi's vehicle while standing outside of his two truck at approximately 2:40 a.m.

The testimony in the depositions of two police officers questioning Contardi after the accident was conflicting as to whether Contardi appeared 'under the influence' and as to whether his speech was slurred.

Defendant bars entered motions for summary judgment after the taking of the depositions. In general they claimed that plaintiffs had failed, as required, to introduce any proof of an illegal sale to the driver Contardi.

Plaintiffs in their answer stated that the proofs would show that 'Contardi had at least four (4) beers prior to his entering the New Way Inn and the 007 Bar; that plaintiffs would 'produce competent medical evidence . . . that Contardi was under the influence of intoxicating beverages after drinking four (4) beers' and that he was served further intoxicants; and that plaintiffs would show 'through the competent opinion of a police officer who investigated the said accident that Contardi was intoxicated at the scene of the accident.'

The trial judge granted motions for summary judgment in favor of defendant bars on the ground 'that the depositions' show lack of proof of an illegal sale thus not raising any 'genuine issue as to any fact' relying on Juckniess v. Supinger, 323 Mich. 566, 572, 36 N.W.2d 148 (1949). ³ The trial judge said:

'The Court has reviewed all pleadings, depositions of known witnesses, and heard argument of counsel for all parties.

'In the present case 'there is no testimony in this record which would justify submitting as an issue of fact to a jury the question as to whether' John G. Contardi 'while in the' New Way Inn or Agent 007 'where intoxicating liquor was sold or furnished to him, was in an intoxicated condition."

The Court of Appeals affirmed in an unreported per curiam opinion concluding:

'There is nothing in the record, viewed most favorably to plaintiff, from which the fact finder could infer that Contardi was intoxicated at the time he was served by any of the defendants.'

We reverse and remanded.

II--THE DRAMSHOP ACT

The Dramshop Act M.C.L.A. § 436.22; M.S.A. § 18.993 at the time of the accident in this case read in part:

'Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means of support or otherwise, by an intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, shall have a right of action in his or her name against the person who shall be such selling or giving of any such liquor have caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to any such injury, . . .'

The statute has been interpreted to mean that plaintiffs must prove, among other things, that there has been an unlawful selling. That is, to sustain his burden, plaintiffs had to introduce evidence from which a trier of fact could find that defendant bars served the driver, Contardi, while he was intoxicated. ⁴ Juckniess v. Supinger, 323 Mich. 566, 572, 36 N.W.2d 148 (1949); Long v. Dudewicz, 355 Mich. 469, 471, 94 N.W.2d 844 (1959); and Davis is v. Terrien, 364 Mich. 82, 83, 110 N.W.2d 754 (1961).

III--REQUIRED PROOF FOR SUMMARY JUDGMENT (ISSUE 1)

PERMISSIBLE DATA (ISSUE 2)

GCR 1963, 117.2(3) and 117.3 state:

'.2 Grounds. The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds:

'(3) that except as to the amount of damages there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law.

'.3 Motion and Proceedings Thereon. A motion based upon sub-rule 117.2(3) shall be supported by affidavits, and the opposing party prior to the day of hearing may serve opposing affidavits. The affidavits submitted by either party shall be governed by the provisions of subrules 116.4, 116.5, and 116.6. Such affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties shall be considered by the court at the hearing. Each party shall be given opportunity to amend his pleadings as provided by Rule 118 unless the evidence then before the court shows amendment would not be justified. Judgment shall be rendered forthwith if the pleadings show that any party is entitled to judgment as a matter of law or if the affidavits or other proof show that there is no genuine issue of fact. If it appears that the opposing party rather than the moving party is entitled to judgment, the court may render summary judgment in his favor without necessity of a motion therefor.'

In the Authors' Comments to this rule, Honigman and Hawkins ⁵ states:

'When summary judgment is claimed for lack of factual merit, the court must be careful not to substitute a summary hearing for a trial. The Trial may be avoided only if the record presented at the hearing shows that, . . .; (2) An essential element of proof of the claim or defense cannot be supplied.

'If a motion asserts a hiatus in essential proof, The court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.

'Motions grounded upon sub-rule 117.2(3) must be supported by affidavits. The purpose of the affidavit is to assert the dispositive fact or facts upon which the moving party claims no genuine dispute exists. Although the Rule does not require opposing affidavits, it is the Obligation of the opposing party to make a showing by opposing affidavits, testimony, depositions, admissions or documentary evidence on file that a genuine issue of disputed fact does exist as to the questioned element of the claim or defense. Durant v. Stahlin, 1965, 375 Mich. 628, 135 N.W.2d 392.

'In motions under sub-rule 117.2(3), the court must look beyond the pleadings to determine whether a question of fact exists. The supporting affidavit, which must be filed with such a motion, Identifies those facts which may appear to be controverted in the pleadings but Which, the mover asserts, cannot be genuinely disputed. The party opposing the motion must then come forward with...