RONALD CLIFTON SR V JOSEPH ANDREW WEGRECKI
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STATE OF MICHIGAN
COURT OF APPEALS
RONALD CLIFTON, SR., Individually, and as
Personal Representative of the Estate of JANET
M. CLIFTON, Deceased,
UNPUBLISHED
September 11, 2001
Plaintiff-Appellee/Cross-Appellant,
v
No. 221225
Wayne Circuit Court
LC No. 98-815485-NI
JOSEPH ANDREW WEGRECKI,
Defendant,
and
CENTRAL DISTRIBUTORS OF BEER, INC.,
Defendant-Appellant/CrossAppellee.
Before: Jansen, P.J., and Collins and Cooper, JJ.
PER CURIAM.
Defendant Central Distributors of Beer, Inc. (Central), appeals by leave granted, and
plaintiff cross-appeals from a circuit court order granting in part and denying in part Central’s
amended motion for summary disposition. We affirm in part and reverse in part.
Central, a wholesale liquor licensee, supplied kegs of beer in a refrigerated truck with
taps for a company picnic held at Hines Park. It is undisputed that the picnic’s sponsors, ACI
Carron and the UAW (collectively, “the company”), did not obtain a one-day license for serving
the beer. Defendant Joseph Wegrecki attended the picnic and allegedly drank beer supplied by
Central and served by someone hired by the company. After leaving the picnic in his
automobile, Wegrecki allegedly ran a red light and struck plaintiff’s decedent’s vehicle.
Plaintiff’s decedent died as a result of her injuries.
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On appeal, Central argues that the trial court erred in denying its amended motion for
summary disposition with respect to plaintiff’s claim under MCL 436.44 of the Michigan Liquor
Control Act, MCL 436.1 et seq.,1 because § 44 did not create a basis for an independent cause of
action against Central. We review a trial court’s grant or denial of a motion for summary
disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201
(1998). When reviewing a motion for summary disposition under MCR 2.116(C)(10), this Court
considers the affidavits, pleadings, depositions, admissions, and documentary evidence submitted
by the parties in the light most favorable to the nonmoving party. Morales v Auto-Owners Ins,
458 Mich 288, 294; 582 NW2d 776 (1998). A motion for summary disposition under MCR
2.116(C)(10) is properly granted if there is no genuine issue of material fact, entitling the moving
party to judgment as a matter of law. Id.
Plaintiff sought to impose civil liability upon Central, on the basis of its alleged violation
of the former MCL 436.19d,2 through § 44, which provided as follows:
Any person engaged in the business of selling or keeping for sale alcoholic
liquor in violation of the provisions of this act, whether as owner, clerk, agent,
servant or employe, shall be equally liable, as principal, both civilly and
criminally, for the violation of the provisions of this act, or any person or principal
shall be liable, both civilly and criminally, for the acts of his clerk, servant, agent
or employe, for the violation of the provisions of this act.
Whether § 44, in and of itself, created a civil cause of action is a question of statutory
interpretation. The primary goal of judicial statutory interpretation is to ascertain and give effect
to the intent of the Legislature. Frankenmuth Mutual Ins Co v Marlette Homes, Inc, 456 Mich
511, 515; 573 NW2d 611 (1998). If the language of a statute is clear and unambiguous, it is
presumed that the Legislature intended the meaning plainly expressed, and the statute must be
enforced as written. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
1
The Liquor Control Act was repealed by 1998 PA 58, effective April 14, 1998. The act was
replaced by the Michigan Liquor Control Code of 1998, MCL 436.1101 et seq.
2
Under MCL 436.19d(1), wholesalers were not permitted “to sell or deliver to the consumer any
quantity of alcoholic liquor at retail.” Plaintiff contends that by selling beer to the company,
which had no retail license, Central violated MCL 436.19d(4), which provided:
A wholesaler may sell or deliver beer and alcoholic liquor to hospitals, military
establishments, governments of federal Indian reservations, and churches
requiring sacramental wines and may sell to the wholesaler’s own employees to a
limit of 2 cases or 24 12-ounce units or its equivalent of malt beverage per week,
or 1 case of 12 1-liter units or its equivalent of wine or mixed spirit drink per
week.
The former MCL 436.2m(i) defined a wholesaler as “a person who sells beer, wine, or mixed
spirit drink only to retailers or other licensees. . . .”
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We find that the language of § 44 is clear and unambiguous, and therefore presume that
the Legislature intended the meaning plainly expressed in the statute. Sun Valley, supra at 236.
Under the plain language of § 44, owners, agents, and employees may be held equally liable, both
civilly and criminally, for violations of the act. Thus, for example, under § 44 an owner may be
held liable for its agent’s or employee’s violation of the act. However, the language of § 44 does
not, as proposed by plaintiff, create a separate cause of action under which an injured person may
seek personal injury damages for a wholesale licensee’s alleged negligence in violating the act by
selling as a retail licensee rather than a wholesale licensee. This conclusion is in accordance with
Malone v Lambrecht, 305 Mich 58, 63; 8 NW2d 910 (1943), where our Supreme Court found
that § 44 “was not intended to and does not enlarge the express provisions found earlier in the act
which provide for and define the extent of civil damage liability.” We conclude, therefore, that
the trial court erred in denying Central’s amended motion for summary disposition of plaintiff’s
claim under § 44.
On cross-appeal, plaintiff first contends that the trial court erred in granting summary
disposition in favor of Central on plaintiff’s claim for violation of the dramshop act, MCL
436.22. We disagree. This Court has held that § 22 applies only to retail licensees. Tennille v
Action Distributing Co, Inc, 225 Mich App 66, 72; 570 NW2d 130 (1997); see also Guitar v
Bieniek, 402 Mich 152, 166; 262 NW2d 9 (1978). Indeed, in Tennille, supra, we found that
“when the Liquor Control Act is read as a whole, its provisions indicate a legislative intent to
exclude wholesalers from dramshop liability.” Id. at 71 (emphasis added; footnote excluded).
Further, we are not persuaded that Central may be liable under the dramshop act because
it maintained “operations tantamount to those [of a retail licensee].” Guitar, supra at 166-167.
We previously noted that our Supreme Court has found the Legislature’s objective in enacting
the dramshop act was to “discourage bars from selling intoxicating beverages to minors or visibly
intoxicated persons.” Tennille, supra at 73, quoting Browder v Int’l Fidelity Ins Co, 413 Mich
603, 611; 321 NW2d 668 (1982). Here, Central did not own or operate the premises where the
alcohol consumption occurred, and no Central representative organized or attended the event
where the beer was served; thus, Central had no way of knowing whether minors or visibly
intoxicated persons were being served. Although Central may have violated § 19d by selling
beer to the company, we conclude that its conduct was not within the realm of conduct that § 22
was intended to control. Accordingly, the trial court properly granted Central’s motion for
summary disposition of plaintiff’s claim under § 22.
Plaintiff next contends that the trial court erred in granting Central’s amended motion for
summary disposition with respect to his claim of common law negligence and negligence per se.
This Court has recognized that while a wholesaler may not be subject to liability under the
dramshop act, it may be subject to liability under theories of common law negligence. See
Tennille, supra at 68. However, under Michigan common law, it is not a tort to furnish
intoxicating beverages to a person over twenty-one years of age. Whittaker v Jet-Way, Inc, 152
Mich App 795, 798; 394 NW2d 111 (1986), citing Longstreth v Gensel, 423 Mich 675, 684, 686;
377 NW2d 804 (1985). The theory behind this rule is that it is the drinking rather than the
furnishing of the alcohol that is the proximate cause of any injury to a third party. Id. Here, it is
undisputed that defendant Wegrecki was over twenty-one when he was served alcohol at the
company picnic. We thus distinguish this case from Tennille, supra, where this Court found that
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the trial court erred in granting summary disposition to the defendant wholesaler on plaintiff’s
common law negligence claims that arose from the defendant’s alleged sale of alcohol to its
nineteen-year-old employee. Tennille, supra at 67-68.
Plaintiff contends, however, that his common law claims are viable because they arise out
of Central’s sale of beer directly to the company, which had no license, in violation of former
MCL 436.19d. The violation of a civil statute may create a rebuttable presumption of
negligence. Longstreth, supra at 692-693; Johnson v Bobbie’s Party Store, 189 Mich App 652,
661; 473 NW2d 796 (1991). Even assuming, however, that defendant did violate § 19d, we are
not persuaded that § 19d was designed to protect against the harm which occurred in this case,
i.e., the accident that killed plaintiff’s decedent. Longstreth, supra. Further, plaintiff failed to
present evidence sufficient to show that the alleged statutory violation was a proximate cause of
the occurrence. Longstreth, supra at 695; Zeni v Anderson, 397 Mich 117, 138-139; 243 NW2d
270 (1976). Here, there was no causal connection between the accident and the fact that the
company did not hold a liquor license at the time that Central sold the company the beer.
Therefore, the trial court did not err in granting Central summary disposition of plaintiff’s
negligence claims.
Affirmed in part, reversed in part, and remanded for entry of an order consistent with this
opinion. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Jeffrey G. Collins
/s/ Jessica R. Cooper
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