Opinion
No. 347354
01-21-2020
JOSEPH A. BORKOWSKI and KARLA BORKOWSKI, Plaintiffs-Appellants, v. JANET ANN NILES, Defendant/Cross-Defendant-Appellee, and AMERICAN LEGION POST #64, Defendant/Cross-Plaintiff-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Genesee Circuit Court
LC No. 15-104011-NI Before: CAMERON, P.J., and SHAPIRO and SWARTZLE, JJ. PER CURIAM.
Plaintiffs, Joseph Borkowski ("Joseph") and Karla Borkowski ("Karla"), appeal the trial court's order granting summary disposition in favor of defendant American Legion Post #64 ("the Legion"). We reverse and remand for proceedings consistent with this opinion.
I. RELEVANT FACTS AND PROCEDURAL BACKGROUND
On the evening of February 21, 2014, Janet Niles consumed alcohol at the Legion. Niles left the Legion at about 11:00 p.m., got into her vehicle and proceeded to drive to her boyfriend's house. On the way there, Niles hit the back of Joseph's vehicle, which was parked on the shoulder of the road. Joseph was injured, and law enforcement and emergency medical services were contacted. Officer Christopher Watts was dispatched to the scene of the accident, and he arrived at 11:10 p.m. After approaching Niles, who was still in her vehicle, Officer Watts noted that Niles was injured. According to Officer Watts, Niles reported that she had been at the Legion, which was three miles away from the accident scene, for six hours and that she had consumed three alcoholic beverages during that time. Niles did not recall seeing Joseph's vehicle parked on the side of the road before the accident occurred. Officer Watts noted that Niles exhibited signs of intoxication. More specifically, Niles's breath smelled of intoxicants; she had bloodshot, watery eyes; and she had slightly slurred speech. Niles was taken to the emergency room by ambulance so that her injuries could be evaluated, and Officer Watts followed so that he could investigate whether Niles was intoxicated. Medical personnel at the emergency room noted that she appeared to be intoxicated. Niles consented to have her blood drawn. Niles's blood, which was drawn at 12:25 a.m. on February 22, 2014, contained .214 grams of alcohol per 100 milliliters of blood.
Joseph filed a negligence claim against Niles and a dramshop claim against the Legion. Karla filed a loss of consortium claim. Niles and the Legion both answered the complaint and denied liability. The Legion filed a cross-claim against Niles, alleging that it would be entitled to "full indemnification" from Niles pursuant to MCL 436.1801(5) in the event that plaintiffs were awarded damages with respect to the dramshop claim. Before the close of discovery, the Legion moved for summary disposition, alleging that plaintiffs could not demonstrate that Niles was visibly intoxicated when she was served alcohol on its premises. Plaintiffs opposed the motion and argued that summary disposition was premature given that discovery was still ongoing. The trial court agreed that summary disposition was premature and held that it would decide the Legion's motion for summary disposition at a later date. After additional discovery was completed, the Legion again moved the trial court for summary disposition and argued that additional discovery supported that plaintiffs could not establish that Niles was visibly intoxicated when she was served alcohol at the Legion on February 21, 2014. Plaintiffs again opposed the motion, arguing that a genuine issue of material fact existed for trial. To support this argument, plaintiffs presented additional evidence that was acquired during discovery, including the expert opinion of a toxicologist who opined that Niles would have exhibited signs of intoxication at the Legion given her blood alcohol content.
Following oral argument, the trial court granted the Legion's motion for summary disposition. Niles and plaintiffs later reached a settlement with respect to the negligence and loss of consortium claim, and Niles and the Legion stipulated to the dismissal of the Legion's cross-complaint. This appeal followed concerning the trial court's decision to grant summary disposition in favor of the Legion.
Although the trial court did not expressly grant summary disposition on Karla's loss of consortium claim, "[a] derivative claim for loss of consortium stands or falls with the primary claims in the complaint." Long v Chelsea Community Hosp, 219 Mich App 578, 589; 557 NW2d 157 (1996). Because the trial court held that Joseph's dramshop claim failed, the court impliedly held that Karla's loss of consortium claim also failed.
II. STANDARDS OF REVIEW
We review de novo a trial court's decision regarding a motion for summary disposition. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). Although the trial court did not identify the subrule under which it granted summary disposition, it is apparent that the motion was granted under MCR 2.116(C)(10) because the trial court's consideration went beyond the parties' pleadings. Kosmalski ex rel Kosmalski v St John's Lutheran Church, 261 Mich App 56, 59; 680 NW2d 50 (2004). In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), this Court considers "affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, in the light most favorable to the party opposing the motion." Smith, 460 Mich at 454 (citation omitted). "A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law." Id. at 454-455.
III. ANALYSIS
Plaintiffs argue that the trial court erred by granting the Legion's motion for summary disposition because plaintiffs presented sufficient evidence to create a genuine issue of material fact to support that Niles was visibly intoxicated when she was served alcohol on the Legion's premises. We agree.
The dramshop act was enacted "to discourage bars from selling intoxicating beverages to . . . visibly intoxicated persons and to provide for recovery under certain circumstances by those injured as a result of the illegal sale of intoxicating liquor." Browder v Int'l Fidelity Ins Co, 413 Mich 603, 611-612; 321 NW2d 668 (1982). In particular, MCL 436.1801(1) provides that "[a] retail licensee shall not . . . sell, furnish, or give alcoholic liquor to an individual who is visibly intoxicated." MCL 436.1801(2) provides:
[A]n individual who suffers damage or who is personally injured by a minor or visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of alcoholic liquor to the minor or visibly intoxicated person, if the unlawful sale is proven to be a proximate cause of the damage, injury, or death, or the spouse, child, parent, or guardian of that individual, has a right of action in his or her name against the person who by selling, giving, or furnishing the alcoholic liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the damage, injury, or death.
It is well settled that "[e]yewitness testimony of visible intoxication is not required to establish a dramshop claim." Dines v Henning, 184 Mich App 534, 540; 459 NW2d 305 (KELLY, J., dissenting). Rather, "[t]he relevant inquiry . . . posed is whether the combination of circumstantial evidence and the permissible inference drawn therefrom . . . permits a finding that [an allegedly intoxicated person ("AIP")] was 'visibly intoxicated' when [s]he was last served alcohol at [the defendant's bar]." Heyler v Dixon, 160 Mich App 130, 146; 408 NW2d 121 (1987). When deciding whether the plaintiff has established a prima facie case under MCL 436.1801(2), this Court may consider the person's behavior before entering, while in, and after leaving the bar. Dines, 184 Mich App at 541 (KELLY, J., dissenting).
Because the dissenting opinion in Dines was adopted by our Supreme Court in Dines v Henning, 437 Mich 920; 466 NW2d 284 (1991), the dissenting opinion constitutes binding precedent. Defrain v State Farm Mut Auto Ins Co, 491 Mich 359, 369-370; 817 NW2d 504 (2012) (explaining that an order issued by the Michigan Supreme Court that adopts the dissenting opinion in the Court of Appeals constitutes binding precedent).
In Reed v Breton, 475 Mich 531; 718 NW2d 770 (2006), our Supreme Court discussed the threshold requirements of a prima facie case under MCL 436.1801. The Reed Court held "to establish 'visible intoxication' under MCL 436.1801[(2)], a plaintiff must present evidence of actual visible intoxication." Reed, 475 Mich at 534. The Reed Court explained:
This standard of "visible intoxication" focuses on the objective manifestations of intoxication. 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 levels, 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. The 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. While circumstantial evidence retains its value, such (and any other type of) evidence must demonstrate the elements required by [MCL 436.1801(2)], including "visible intoxication." [Id. at 542-543 (citation omitted).]
At oral arguments, the Legion argued that "actual" evidence is synonymous with "direct" evidence. We agree.
Niles testified that, on the night of the accident, she had consumed three Black Russian cocktails over the course of six hours while she was at the Legion. The bartender who served Niles testified that Black Russian cocktails contain one to 1-1/2 ounces of alcohol. The bartender believed that Niles was last served around 8:00 p.m., and Niles testified that she had only consumed one drink between the hours of 9:00 and 11:00 p.m. There is no evidence to support that witnesses who were present at the Legion on the night of the accident noticed that Niles appeared to be intoxicated. In fact, Niles's friend averred that she spoke with Niles for 20 minutes before they both left the Legion and that she did not "observe any visible signs of intoxication that would cause [her] to believe that [Niles] was unfit to drive." The bartender who served Niles testified that she watched Niles leave the Legion on the evening of February 21, 2014 and that she did not observe any signs of intoxication.
Based on this evidence, the Legion argues that the evidence presented by plaintiffs only supports that Niles exhibited signs of intoxication after she left the Legion and that, pursuant to Reed, this evidence is insufficient to create a genuine issue of material fact. However, we conclude that the facts in this case are distinguishable from the facts in Reed. The evidence in Reed was that the AIP consumed alcohol at the defendant bar at around 7:30 p.m., where he was not observed to display any signs of visible intoxication. Reed, 475 Mich at 534-535. The AIP then went to a second bar, where he consumed more alcohol. Id. at 535. The AIP left that bar "[s]hortly before 10 p.m." Id. Within 15 minutes of leaving the second bar, the AIP was involved in a motor vehicle accident. Id. An examination after the collision established that the AIP had a blood alcohol content of .215 grams of alcohol per 100 milliliters of blood. Id. Experts opined that the AIP "must have been significantly impaired" at the defendant bar; these opinions were based on the number of drinks the AIP consumed, his age and physical characteristics, and his blood alcohol content at the time of the collision. Id. at 536.
In this case, unlike in Reed, there is no evidence to support that Niles consumed alcohol at a different location after she left the Legion, and the accident in question occurred minutes after Niles left the Legion. She caused the accident by driving her vehicle into the back of Joseph's vehicle even though it was parked on the shoulder of the road with its "flashers" activated. Officer Watts noticed signs of visible intoxication less than 15 minutes after Niles left the Legion. Moreover, a physician's assistant testified that Niles appeared to be intoxicated when he evaluated her in the emergency room, and her blood alcohol content was measured at .214 grams of alcohol per 100 milliliters of blood approximately one hour after she left the Legion. Niles also exhibited belligerent behavior at the hospital after being admitted for observation. Plaintiffs' expert opined that Niles's blood alcohol content would have been even higher when Niles was at the Legion given how bodies metabolize alcohol. Plaintiffs' expert further opined that Niles would have had to have consumed at least 12 to 16 ounces of liquor to reach such a high blood alcohol level. Plaintiffs' expert indicated that it was "very unlikely" that Niles did not exhibit the same visible signs of intoxication when she was at the Legion given that "the signs of alcohol intoxication don't suddenly appear after someone has left an establishment." Thus, unlike in the plaintiff in Reed, plaintiffs in this case do not support their argument that Niles was visibly intoxicated by her blood alcohol content and post hoc expert analysis alone. Rather, based on the evidence outlined above, plaintiffs presented direct and circumstantial evidence to support that Niles was visibly intoxicated during the time she was at the Legion. See Reed, 475 Mich at 542 (holding that there must be "actual evidence of the visible intoxication of the [AIP]").
In sum, we conclude that the direct and circumstantial evidence presented and the reasonable inferences drawn from it, create a material question of fact upon which reasonable minds could differ. See Heyler, 160 Mich App at 146 (holding that a matter is best left to the province of the jury "if the combination of the circumstantial evidence and the permissible inferences drawn therefrom are sufficient to establish a prima facie case"). Consequently, the trial court erred by granting the Legion's motion for summary disposition, and we reverse and remand to the trial court for proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Douglas B. Shapiro
/s/ Brock A. Swartzle