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Volume XXVI, No. 3, January 28, 2014
From the Law Offices of Garan Lucow Miller, P.C.
From the Editor: Sarah Nadeau
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LawFax – Special Edition
COURT OF APPEALS RE-ESTABLISHES PLAINTIFF’S BURDEN OF PROOF AGAINST A DRAM SHOP ESTABLISHMENT
CONTRIBUTOR – PAUL E. TOWER
In the recent unpublished Michigan Court of Appeals decision, Johnson v Smith (Court of Appeals No. 312086), a trial court had denied an establishment’s motion for summary disposition on the basis that there was a question of fact regarding whether the alleged intoxicated person (AIP) was visibly intoxicated. The Court of Appeals reversed the trial court.
MCLA § 436.1801(2) provides that a retail licensee shall not sell, furnish, or give alcoholic liquor to a person who is visibly intoxicated. In Johnson, plaintiff had been drinking with the AIP before becoming a passenger in the AIP’s car. In order to create a question of fact as to visible intoxication, the plaintiff testified that the AIP had five to six drinks in approximately two hours. Plaintiff also referred to her own physical condition, including that she was intoxicated, stumbling at defendant’s establishment, and lost consciousness while the AIP was driving her home. Furthermore, plaintiff relied on the AIP’s statement at the hospital that “we drank too much.” The Court of Appeals held that those proffered pieces of evidence were insufficient to make out a prima facie case of visible intoxication.
The Court of Appeals relied heavily on Reed v. Breton, 475 Mich 531 (2006). The Supreme Court in Reed explained:
This standard of “visible intoxication” focuses on the objective manifestations of intoxication. Miller v. Ochampaugh, 191 Mich App 48, 59-60; 477 NW 2d 105 (1991). While circumstantial evidence may suffice to establish this element, it must be actual evidence of the visible intoxication of the allegedly intoxicated person. Other circumstantial evidence, such as blood alcohol results, time spent drinking, or the condition of other drinkers, cannot, as a predicate for expert testimony, alone demonstrate that a person was visibly intoxicated because it does not show what behavior, if any, the person actually manifested to a reasonable observer. These other indicia — amount consumed, blood alcohol content, and so forth –can, if otherwise admissible, reinforce the finding of visible intoxication, but they cannot substitute for showing visible intoxication in the first instance.
Reed, supra at 542-543. The Court of Appeals in Johnson noted that in Reed, the plaintiffs produced expert opinions of two toxicologists. The Johnson Court noted that the Reed Court ruled the expert post-act analysis may demonstrate the AIP was actually intoxicated, but does not establish that the others witnessed the AIP’s visible intoxication. Reed, supra at 543. As a result, the Johnson Court reinforced the point that a plaintiff has a significant burden of proof to hold a dram shop establishment liable for the actions of the alleged intoxicated person.
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Focus on Garan Lucow Miller’s Lansing, Michigan Office
Garan Lucow Miller has maintained an office in Michigan’s capital for nearly seventeen years. The office is staffed with two attorneys, each with well over fifteen years experience.
Garan Lucow Miller’s Lansing office handles litigation in numerous areas, including first and third party automobile no-fault, premises liability, dog bite, insurance coverage disputes, construction site accidents, municipal liability, products liability, toxic tort disputes as well as defense of all misdemeanor and felony criminal charges.
Garan Lucow Miller’s Lansing office has represented clients in state court, the Western and Eastern United States District Courts, and, working with the Firm’s Appellate Department, at the Sixth Circuit Court of Appeals. Garan Lucow Miller’s Lansing office regularly represents clients in Livingston County, Ingham County, Eaton County, Jackson County, Calhoun County, Shiawassee County, Clinton County, and Gratiot County.
Our Lansing office Attorneys:
Mr. Paul E. Tower Mr. Thomas S. Barger
Paul E. Tower is the managing attorney in the Lansing office and can be reached at ptower@garanlucow.com or (517) 327-0300. Mr. Tower has been practicing as a civil defense trial attorney for twenty years. Mr. Tower’s case load includes litigated claims in the following areas: no-fault first party, no-fault third party, insurance coverage, premises liability, product liability, municipal liability, construction site accidents, defamation, and copyright disputes.
Thomas S. Barger is an associate attorney in the Lansing office and can be reached at tbarger@garanlucow.com or (517) 327-0300. Mr. Barger has over seventeen years experience as a trial attorney. Mr. Barger’s current areas of practice include no-fault first party and third party litigation, premises liability, dog bite defense, insurance coverage disputes, general civil defense and criminal defense of all misdemeanors and felonies.
You can visit the attorneys and staff at the Lansing office at Office Park West, 504 South Creyts Road, Suite A, Lansing, Michigan 48917 or by calling (888) 910-0300. You can also contact the attorneys by their emails: ptower@garanlucow.com and tbarger@garanlucow.com.
Garan Lucow Miller – Lansing Office
504 S. Creyts Road, Suite A
Lansing, MI 48917-8267
517-327-0300 or 888-910-0300