DAVID W MCGUIRE V DEANNA LYNN SANDERS
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STATE OF MICHIGAN
COURT OF APPEALS
DAVID W. MCGUIRE, Individually and as Next
Friend of TY N. MCGUIRE,
FOR PUBLICATION
November 15, 2005
9:10 a.m.
Plaintiff-Appellee,
v
No. 251950
Wayne Circuit Court
LC No. 02-209709
DEANNA LYNN SANDERS,
Defendant/Counter-Defendant,
and
GARTER BELT, INC., d/b/a LEGGS LOUNGE,
Defendant/Counter-Plaintiff,
and
HAMILTON'S HENRY VIII LOUNGE, INC.,
d/b/a HAMILTON PLACEMENT,
Official Reported Version
Defendant-Appellant.
Before: White, P.J., and Jansen and Wilder, JJ.
JANSEN, J.
The circuit court entered an order granting plaintiff 's motion to re-add Hamilton's Henry
VIII Lounge, Inc., doing business as Hamilton Placement (collectively referred to as "Hamilton
Placement"), as a party defendant in this dramshop action. This Court granted the application for
leave to appeal filed by Hamilton Placement, and also granted a stay of proceedings. We affirm
the trial court's order.
Plaintiff David McGuire alleged that on the evening of January 20, 2002, he and
defendant Deanna Sanders (his girlfriend) went to the Leggs Lounge. McGuire further alleged
that Sanders "became highly intoxicated, beyond the point of being visibly intoxicated, and yet
was continued to be served alcoholic beverages." While driving plaintiff to their mutual
residence at approximately 2:25 a.m. on January 21, 2002, Sanders drove into a ditch and the car
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rolled over. Her blood alcohol level was 0.187 grams per 100 milliliters. As a result of the
accident, plaintiff was rendered a paraplegic.
Defendant Garter Belt, Inc., held the liquor license for Leggs Lounge. The Department
of Consumer and Industry Services, now the Department of Labor and Economic Growth, listed
the stockholder of Garter Belt as Betty Hamilton. However, John Hamilton signed the
application for the liquor license. Betty and John Hamilton were the stockholders of Hamilton's
Henry VIII Lounge, Inc. This corporation operated Hamilton's Henry VIII Lounge and had a
liquor license for that establishment. John Hamilton, as president, had also signed for this
license, and had filed a certificate of assumed name with the Department of Consumer and
Industry Services indicating that Hamilton's Henry VIII Lounge, Inc., would use the assumed
name of Hamilton Placement.
Hamilton Placement, originally named as a defendant in this action, asserted that it was a
payroll service that paid various employees of several bars, including Leggs Lounge. Plaintiff
provided an affidavit from Nadrah Switzer, the waitress who had served Sanders; she said that
she worked at Leggs Lounge, but was paid by Hamilton Placement. Pay stubs bore the name of
Hamilton Placement, not Leggs Lounge. Depositions from numerous employees indicated that,
on the basis of the pay stubs, they would assume that Hamilton Placement was their employer or
they were confused about who was their employer. Moreover, plaintiff established that John
Hamilton was involved in four different topless bars, including Leggs Lounge and Hamilton's
Henry VIII Lounge, and that these establishments shared employees and managers. With regard
to Hamilton Placement's role, John Hamilton acknowledged that it was the type of company
hired by other businesses to handle the paperwork for payroll, withholding, social security, etc.
He further acknowledged that if a person has several companies, that person could have all the
companies hire the same company to do the paperwork, so that it is all in one place at one time
and each business does not have to separately handle these matters. John Hamilton noted that
the distinction between Hamilton Placement and a company that might be hired for these
purposes is "there's no fees that way."
When Hamilton Placement first moved for summary disposition, plaintiff asserted that
the intermingling created a situation in which the waitress was an employee of both Leggs
Lounge and Hamilton Placement subject to supervision by both. The lower court held that
plaintiff had not stated a claim against Hamilton Placement, but left open the possibility that
plaintiff might be able to establish a "blending of the corporations" that would allow the claim
against Hamilton Placement to continue.
After further evidence was gathered, a hearing was held to determine if Hamilton
Placement should be re-added as a defendant. At the hearing, the trial court granted the motion
to re-add Hamilton Placement as a party, stating:
[T]he location at which the plaintiff [sic] allegedly consumed alcoholic
beverages when she was visibly intoxicated was an establishment which was
called the Garter Belt, Inc., doing business as Leggs Lounge which is a [liquor]
licensee.
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At this point the Court has been presented with evidence that in the light
most favorable to the plaintiff, would indicate that persons who were arguably the
employees of Henry the VIII Lounge doing business as Hamilton Placement, Inc.,
a [liquor] licensee, served alcoholic beverages to Ms. Sanders at the premises of
Garter Belt, Inc. doing business as Leggs Lounge, a licensee.
* * *
. . . [T]he statute . . . only applies to a licensee or an entity operating a bar
without a license. I do not know at this point whether or not this plaintiff can
establish . . . that the individuals who served the alcoholic beverages were de
facto employees of Garter Belt or whether they were de facto employees of Henry
the VIII Lounge doing business as Hamilton Placement.
I do know at this point that there is sufficient evidence to indicate . . . that
the plaintiff has stated a cause of action . . . relative to whether . . . agents of a
licensee [Hamilton Placement] furnished alcoholic beverages to Ms. Sanders
while she was visibly intoxicated.
In fact, there is . . . a question of fact as to whose agents they were.
The trial court entered an order granting plaintiff 's motion to re-add Hamilton Placement as a
party. Hamilton Placement sought leave to appeal this order, and this Court granted the
application for leave. This Court also granted Hamilton Placement's motion for a stay of
proceedings pending appeal. The claim against Garter Belt was dismissed pursuant to
stipulation, following the acceptance of a case evaluation pursuant to MCR 2.403(M)(1), and
Garter Belt's cross-claim against Sanders was also dismissed.
On appeal, Hamilton Placement argues that the trial court erred in granting plaintiff 's
motion to reinstate this dramshop action against it when the evidence clearly demonstrates
Hamilton Placement never made any sale of alcohol to the alleged intoxicated person, Sanders.
Given the unique facts of this case, the trial court did not err in determining that Hamilton
Placement could be subject to dramshop liability.
Resolution of this issue turns on the interpretation of a statute, which presents a question
of law that is reviewed de novo on appeal. Eggleston v Bio-Medical Applications of Detroit, Inc,
468 Mich 29, 32; 658 NW2d 139 (2003); Polkton Charter Twp v Pellegrom, 265 Mich App 88,
98; 693 NW2d 170 (2005).
Dramshop liability is governed by MCL 436.1801, a provision of the Michigan Liquor
Control Code, MCL 436.1101 et seq. The title of this act states in relevant part that it is intended
"to prescribe liability for retail licensees under certain circumstances . . . ." MCL 436.1801
provides in pertinent part:
(2) . . . A retail licensee shall not directly or indirectly, individually or by
a clerk, agent, or servant sell, furnish, or give alcoholic liquor to a person who is
visibly intoxicated.
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(3) Except as otherwise provided in this section, an 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, shall have 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. . . .
* * *
(8) There shall be a rebuttable presumption that a retail licensee, other
than the retail licensee who last sold, gave, or furnished alcoholic liquor to the
minor or the visibly intoxicated person, has not committed any act giving rise to a
cause of action under subsection (3).
* * *
(10) This section provides the exclusive remedy for money damages
against a licensee arising out of the selling, giving, or furnishing of alcoholic
liquor. [Emphasis added.]
Since both Garter Belt, Inc./Leggs Lounge and Hamilton's Henry VIII Lounge, Inc., are
licensees, subsection 10 provides that the statute governs any liability they might have flowing
from the serving of alcohol to Sanders.
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the
intent of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). The first
criterion in determining intent is the specific language of the statute. Halloran v Bhan, 470 Mich
572, 577; 683 NW2d 129 (2004). If the plain and ordinary meaning of the language is clear and
unambiguous, the Legislature is presumed to have intended the meaning expressed and judicial
construction is normally neither necessary nor permitted. Nastal v Henderson & Assoc
Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005); Toth v AutoAlliance Int'l, Inc, 246
Mich App 732, 737; 635 NW2d 62 (2001).
The pertinent text of the statute is: "shall have a right of action . . . against the person who
by selling, giving, or furnishing the alcoholic liquor has caused or contributed to the intoxication
of the person . . . ." MCL 436.1801(3). We conclude that the statute provides a right of action
against the "person" who makes such a sale resulting in injury, MCL 436.1801(3), which would
be the retail licensee referred to in subsection 2. Pursuant to the plain language of the statute, if
plaintiff were to prevail on the factual issue whether employees of Garter Belt were in fact
employees of Hamilton Placement, a retail licensee, or were in fact employees or agents of both
Hamilton Placement and Garter Belt, we conclude that plaintiff could show that the agent or
servant of retail licensee Hamilton Placement made such a sale, subjecting Hamilton Placement
to liability.
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Hamilton Placement argues that, on the basis of Guitar v Bieniek, 402 Mich 152; 262
NW2d 9 (1978), only "the holder of the liquor license for the bar or tavern where the alleged
illegal sale was made" can be subject to liability. In Guitar, the issue was whether dramshop
liability could be imposed on a social hall under a precursor to the Michigan Liquor Control
Code, the Michigan Liquor Control Act, former MCL 436.1 et seq., and, more specifically,
former MCL 436.22 before amendment by 1972 PA 196, which provided in pertinent part:
[A person injured in his person or property] shall have a right of action in
his or her name against the person who shall by 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 . . . . [Emphasis added.]
In Guitar, the owners of the social hall had rented the premises for a wedding, and secured a keg
of beer for the celebrants at retail cost. Id. at 156. The Court concluded that the quoted language
precluded a finding that the social hall could be held liable. Id. at 167-168. It determined that
the context of the statute indicated that the Legislature intended the reference to "person" to
mean those charged with the duty to refrain from supplying liquor to minors and intoxicated
persons, which the statute identified as "licensed retailers of beer, wine or spirits for
consumption on the premises" and specially designated merchants (a category not at issue here)
because they were the entities that were statutorily precluded from selling to a visibly intoxicated
person. Id. at 165-166. The Court in Guitar, supra at 167, further stated:
It is evident from a reading of the narrow and restrictively drawn civil
liability provisions . . . that the Legislature intended to impose a special legal duty
upon a group of retailers who the Legislature may have believed needed
additional encouragement to subject their immediate pecuniary interests to the
ultimate welfare of their patrons and society as a whole. That encouragement has
been made to consist in part of the resultant vicarious liability.
In the case at hand, the role of [the social hall] does not fit logically within
the manifest legislative purpose. Whereas the class of retailers specifically named
in ยง 22 may be directly proprietorily [sic] motivated to dispense "that additional
drink" which is "one too many", such motivation is totally inapplicable to a social
setting in which the alcohol is supplied as a mere social amenity.
The title of the current Michigan Liquor Control Code provides that the statute is
intended to "prescribe liability for retail licensees . . . . The language of the current statute does
not say "licensed retailers of beer, wine or spirits for consumption on the premises." Rather,
MCL 436.1801 of the Michigan Liquor Control Code refers to a "retail licensee" and imposes a
duty on a retail licensee to refrain from selling liquor to visibly intoxicated persons. The statute
then provides for liability against a "person who by selling, giving, or furnishing . . . alcoholic
liquor has caused or contributed to the intoxication" of a visibly intoxicated person who causes
injury. MCL 436.1801(3). The reasoning of Guitar would indicate that liability can only be
imposed on those charged with refraining from serving to a visibly intoxicated person. Under
the current statute, that would be "retail licensees," not "licensed retailers of beer, wine or spirits
for consumption on the premises." Thus, we find that Guitar does not support a conclusion that
Garter Belt is the only retail licensee subject to liability because it was the retailer for
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consumption on the premises. Instead, Guitar supports the proposition that the "person" referred
to in the current statute is a retail licensee, which could include both Garter Belt and Hamilton
Placement.
As the proprietor, seemingly, Garter Belt would be the entity that "the Legislature may
have believed needed additional encouragement to subject [its] immediate pecuniary interests to
the ultimate welfare of . . . patrons and society as a whole" and "may be directly proprietorily
motivated to dispense 'that additional drink' which is 'one too many.'" Guitar, supra at 167.
However, the intermingling of interests in this particular case could lead to the conclusion that
both entities had a pecuniary interest. Moreover, the waitress who served Sanders could be
viewed as the agent of both entities or retail licensees, and thus both entities could be viewed as
contributing.
As plaintiff points out, further support for our finding that liability can go beyond the
retail licensee on whose premises the liquor was sold on can be found in Ray v Taft, 125 Mich
App 314; 336 NW2d 469 (1983). The issue was different in that the plaintiff had sued the
coreceivers of the bar, not the owner/operator, and argued that the "true defendant" was the bar
and that it had just been served in the wrong name. Under the previous statute, this Court found
"that the person who sells, gives or furnishes the liquor is the true defendant in a dramshop
action," not the place where the liquor is furnished. Id. at 320. MCL 436.1801(3) allows an
action against the person "selling, giving, or furnishing . . . ." We conclude that for purposes of
liability, it does not matter that the liquor was sold at Leggs Lounge; if the liquor was sold by an
agent of Garter Belt who was also an agent of Hamilton Placement, either master could be
regarded as the "true defendant." The determinative question is which retail licensee was the
person considered to be selling, giving, or furnishing the alcohol. Hamilton Placement and
Garter Belt are retail liquor licensees, and there is a possibility of a factual development
supporting that Hamilton Placement exerted some kind of control over the situation at Leggs
Lounge through shared managers or employees.
For these reasons, we hold that Hamilton Placement could be subject to liability because
it was a retail licensee whose alleged agent or employee allegedly caused or contributed to
Sanders's intoxication.
We affirm the trial court's order allowing plaintiff to re-add Hamilton's Henry VIII
Lounge, Inc., doing business as Hamilton Placement, as a party.
Wilder, J., concurred.
/s/ Kathleen Jansen
/s/ Kurtis T. Wilder
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