Gregory v. Kurtis

108 Mich. App. 443 (1981) 310 N.W.2d 415 GREGORY v. KURTIS. Docket No. 50522. Michigan Court of Appeals. Decided August 5, 1981. Pianin, Graber & Paull, P.C., for plaintiffs. Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by James R. Kohl and Raymond W. Morganti), for defendant. *445 Before: DANHOF, C.J., and J.H. GILLIS and D.E. HOLBROOK, JR., JJ. DANHOF, C.J. Plaintiffs appeal as of right from a circuit court order granting defendant's motion for partial summary judgment. Plaintiff Leo John Gregory was seriously injured in an automobile accident shortly after leaving defendant's bar. Plaintiffs subsequently filed a complaint which contained the following allegations: "4. That on or about November 18, 1976, LEO JOHN GREGORY was a patron of the Telegraph Inn and was sold intoxicating beverages by employees and/or agents thereof. "5. That on said date, LEO JOHN GREGORY, was served in excess of one/fifth of Kessler's Whiskey by the employees and/or agents of the Telegraph Inn. "6. That plaintiff, LEO JOHN GREGORY, was sold said alcoholic beverage while visibly intoxicated, and thereafter, and continuously, so that plaintiff, LEO JOHN GREGORY, was caused to be in a grossly intoxicated condition. "7. That the defendant had a duty not to serve alcoholic beverages to the plaintiff after plaintiff became visibly intoxicated, but in breach of said duty did continue to serve plaintiff alcoholic beverages causing plaintiff to become grossly intoxicated. "8. That defendant knew or should have known that plaintiff was a compulsive alcoholic and in reckless disregard for the safety and well-being of plaintiffs herein, defendant continued to serve plaintiff alcoholic beverages to the extent that plaintiff, LEO JOHN GREGORY, became grossly intoxicated and was caused to sustain serious injuries." It was further contended that defendant's gross negligence and wrongful acts resulted in the accident, and the complaint included derivative claims *446 by Leo Gregory's wife and two children. Henceforth, all singular references to plaintiff in this opinion are to Leo Gregory only. The action was based upon both the Michigan dramshop act, MCL 436.22; MSA 18.993, and breach of a common-law duty not to serve liquor to a known, compulsive alcoholic. Defendant filed a motion for accelerated and partial summary judgment on the grounds that no common-law cause of action of the type alleged by plaintiff existed in this state, that the dramshop act provided the exclusive remedy, and that the claims of plaintiff and his wife were barred by the two-year statute of limitations in the dramshop act. In opposition to this motion, plaintiff argued that this Court recognized his common-law theory in Grasser v Fleming, 74 Mich App 338; 253 NW2d 757 (1977). However, the trial court ruled that Grasser did not apply, and, accordingly, an order granting partial summary judgment was entered which dismissed the common-law claims. In a previous order, the court had ruled that the statute of limitations barred claims by defendant or his wife under the dramshop act. Plaintiff appeals, arguing that the lower court erred in ruling that the complaint failed to state a common-law cause of action. It is well established that, under the dramshop act, an intoxicated person has no right of action against the bartender who served him liquor which caused intoxication, resulting in injury. The act protects third parties injured by the intoxicated person. Ciemierek v Jim's Garage, 90 Mich App 565, 569; 282 NW2d 396 (1979). However, the existence of a common-law cause of action in favor of the intoxicated person for wrongful service of liquor by a bartender was recognized in Grasser, *447 supra. In that case, a wrongful death action, the decedent's daughter alleged gross negligence and wilful, wanton, and intentional misconduct by defendants for serving liquor to the decedent, who died as a result of injuries suffered in a fall which occurred after he left the bar. Plaintiff contended that defendants knew that the decedent was an alcoholic, unable to refuse liquor and that defendants had agreed, at the request of plaintiff, not to serve alcoholic beverages to the decedent, an elderly man. The defendants' motion for summary judgment based on failure to state a cause of action was denied, and this Court upheld the trial court's decision on appeal. The scope of the common-law cause of action thus recognized is a disputed issue in the presented case. At the outset of its opinion in Grasser, supra, 339-340, the panel stated the issue as follows: "The primary issue is whether there is a common law cause of action for gross negligence or willful, wanton and intentional misconduct by a tavern owner in selling alcohol to an intoxicated person, who is a known compulsive alcoholic, contrary to an agreement not to serve such person by the tavern owner." (Emphasis added.) Elsewhere in the opinion, the Court restated the issue: "Our concern is whether an intoxicated person has a common law cause of action under the pleaded facts." Id., 343. (Emphasis added.) The Court also considered whether the dramshop act constitutes the exclusive remedy against the tavern owner for wrongful service of intoxicants. The conclusion reached was that it did not and the Court held that: *448 "[T]he dramshop act is not an exclusive remedy such that a tavern owner has no liability under the circumstances alleged." Id., 347. (Emphasis added.) Ultimately, the holding in Grasser was stated as follows: "We thus recognize a common law cause of action for serving a known drunk that other jurisdictions have also similarly found independent of the dramshop act. Not surprisingly, there is split of authority. We hold that plaintiff has stated a cause of action for gross negligence and willful, wanton, and intentional misconduct independent of the dramshop act." Id., 350. (Footnote omitted.) In granting defendant's motion for summary judgment in the present case, the trial court determined that the presence of an agreement not to serve liquor in Grasser was a distinguishing factor: "In Grasser we have additional facts where there was not simply an allegation that drinks were served to one who became intoxicated and drinks were continually served to him. There is further allegation that there was a duty imposed upon the bartender even before the man walked into the bar, and the bartender accepted that duty; he agreed not to serve the individual. He discussed it, I believe, with some member of the family. In my mind that * * * creates a duty in the bartender that existed separately from any duty that was imposed under the Dram Shop Act." Upon further argument, the trial court noted: "[T]here was prior notice which imposed a duty on the bartender which I didn't find existed in this case." The trial court's analysis is bolstered by the fact that the agreement not to serve alcohol was emphasized *449 several times in the Grasser opinion and by certain language (emphasized above) in the statements of the issue and holding. However, the broader terminology utilized in the final statement of the holding suggests that the prior agreement was not to be considered as an essential element of the common-law cause of action. Certainly a case could be made for either a broad reading of Grasser or a restriction of the holding to the specific facts involved, depending upon which language from that opinion was selected as determinative. However, because the Michigan Supreme Court has never recognized a common-law action of the type discussed in Grasser, we reexamine the issue of whether such an action should be permitted. Defendant argues that the dramshop act, which is part of the Michigan Liquor Control Act, MCL 436.1 et seq.; MSA 18.971 et seq., provides the exclusive remedy for injuries arising out of unlawful sales, furnishing, or giving away of intoxicants because the Legislature has preempted the field in this area. It is the general rule in Michigan that where a new right is created or a new duty imposed by statute the remedy provided for enforcement of that right by the statute for its violation and nonperformance is exclusive; however, a statutory remedy for enforcement of a common-law right is deemed only cumulative. Pompey v General Motors Corp, 385 Mich 537, 552-553; 189 NW2d 243 (1971), Lafayette Transfer & Storage Co v Michigan Public Utilities Comm, 287 Mich 488; 283 NW 659 (1939). In Manuel v Weitzman, 386 Mich 157, 163; 191 NW2d 474 (1971), the Supreme Court stated: "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 *450 result of his becoming intoxicated injury resulted to himself or to others. Their purpose was to fill a void in the law * * *." (Footnote omitted.) The plaintiff in Manuel had been injured in an assault by another customer at the defendant's bar. He filed a complaint which included a claim that defendant had violated a common-law duty to maintain a safe place for business invitees. The trial court granted defendant's motion for a directed verdict on the ground that the sole cause of action against a bar owner for injuries inflicted by an intoxicated customer is provided by the dramshop act; however, the Supreme Court reversed, finding that the dramshop act was not intended to remove the duty of a tavern keeper to exercise due care for the welfare and safety of invited patrons. In deciding this issue, the Court reached the following conclusion: "We specifically approve the following statement in De Villez [v Schifano, 23 Mich App 72, 77; 178 NW2d 147 (1970)]: "`We hold that the dramshop act affords the exclusive remedy for injuries arising out of an unlawful sale, giving away, or furnishing of intoxicants. * * * 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.'" Id., 164-165. It is our opinion that the common-law theory advanced in the instant case should not be recognized because plaintiff's injuries arose out of an alleged unlawful sale or furnishing of liquor, and, according to Manuel, the exclusive remedy in such a case is provided by the dramshop act. In this *451 holding, we differ from the panel in Grasser, supra. the trial court's order granting partial summary judgment is affirmed. Affirmed. Costs to defendant. J.H. GILLIS, J., concurred. D.E. HOLBROOK, JR., J. (dissenting). It is my opinion that in the instant case plaintiff sufficiently has stated a cause of action for gross negligence and wilful, wanton, and intentional misconduct. Moreover, I would read Grasser v Fleming, 74 Mich App 338; 253 NW2d 757 (1977), in a broad manner and hold that the language therein contained, to the effect that defendant had agreed not to serve plaintiff, was not intended to be dispositive in that case. Further, I believe that the basic holding of Grasser, supra, is stated at page 350 thereof where the Court stated: "We thus recognize a common law cause of action for serving a known drunk that other jurisdictions have also similarly found independent of the dramshop act. Not surprisingly there is a split of authority. We hold that plaintiff has stated a cause of action for gross negligence and wilful, wanton, and intentional misconduct independent of the dramshop act. Accordingly, I would adopt the reasoning of Grasser and reverse and remand for trial.