ESTATE OF MARTIN R STOTT V DENNIS LEE BROWN JR
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STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF MARTIN R. STOTT, by its Personal
Representative, NATHAN A. STOTT,
UNPUBLISHED
March 22, 2011
Plaintiff-Appellant,
v
DENNIS LEE BROWN, JR., ANGELA BROWN,
DONNA DEVEREAUX, JAMES DEVEREAUX,
and PENNY FOWLER, a/k/a PENNY PEIFFER,
No. 292595
Ingham Circuit Court
LC No. 07-001015-NI
Defendants,
and
OAKWOOD LOUNGE, INC., and MICHAEL P.
FOWLER,
Defendants-Appellees.
Before: SAWYER, P.J., and FITZGERALD and SAAD, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court order that granted summary disposition to
defendants Oakwood Lounge and Michael P. Fowler in this dramshop action. We reverse.
Defendant Dennis Lee Brown, Jr., the allegedly intoxicated person, spent the day of
December 2, 2005, consuming several alcoholic beverages at various establishments. He arrived
at defendant Oakwood Lounge sometime in the early afternoon and consumed more alcohol.
Several witnesses, including waitresses from both the lunch and dinner shifts and patrons,
observed Brown that afternoon. They stated that while observing him he did not slur his speech,
have bloodshot eyes, or have trouble with balance or walking, although he did become loud.
When asked to quiet down by the bartender two or three times, Brown failed to comply. At that
point, the bartender took away Brown’s drink and did not serve him any more alcohol. Brown
became angry when his drink was taken away. Brown was also asked to leave, though he did not
immediately comply.
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That evening, after Brown left the Oakwood Lounge in his car, he hit Martin R. Stott,
who was working as a flagman at a road construction site. Stott died as a result of the accident.
There was testimony that Brown also went to a different bar that night, but it is unclear whether
he went there before or after the accident.
On appeal, a trial court’s decision on a motion for summary disposition is reviewed de
novo. Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). “This Court
must review the record in the same manner as must the trial court to determine whether the
movant was entitled to judgment as a matter of law.” Scalise v Boy Scouts of America, 265 Mich
App 1, 10; 692 NW2d 858 (2005) (citation omitted). A motion for summary disposition under
MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich
109, 120; 597 NW2d 817 (1999). Summary disposition should be granted under MCR
2.116(C)(10) if there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Babula v Roberson, 212 Mich App 45, 48; 536 NW2d 834 (1995).
When deciding such a motion, a court must consider the pleadings, affidavits, depositions,
admissions and other documentary evidence submitted in the light most favorable to the
nonmoving party. Maiden, 461 Mich at 120. The court must grant the nonmoving party the
benefit of reasonable doubt and determine whether a genuine factual dispute exists to warrant a
trial. Porter v Royal Oak, 214 Mich App 478, 484; 542 NW2d 905 (1995).
The Dramshop Act, MCL 436.1801 et seq., governs the tort liability of liquor licensees
resulting from the furnishing of alcohol to a minor or a visibly intoxicated person. MCL
436.1801(3) provides as follows:
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 the rights 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.
In Walling v Allstate Ins Co, 183 Mich App 731, 738-739; 455 NW2d 170 (1985), this
Court described the elements of a dramshop action as follows:
In order to recover under the dramshop act, plaintiffs must prove that (1)
decedent was injured by the wrongful or tortious conduct of an intoxicated
person, (2) the intoxication of that person was the sole or contributing cause of
decedent’s injuries, and (3) defendants sold, gave or furnished to the alleged
intoxicated person the alcoholic beverage which caused or contributed to that
person’s intoxication. McKnight v Carter, 144 Mich App 623, 629; 376 NW2d
170, lv den 424 Mich 859 (1985).
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VISIBLE INTOXICATION
Regarding visible intoxication, “[t]he relevant inquiry . . . is whether the combination of
circumstantial evidence and the permissible inference drawn therefrom . . . permits a finding that
[the allegedly intoxicated person (AIP)] was visibly intoxicated when he was last served
alcohol.” Heyler v Dixon, 160 Mich App 130, 146; 408 NW2d 121 (1987). “A plaintiff fails to
sustain this burden when the evidence is insufficient and leaves the jury to speculation and
conjecture.” Villa v Golich, 42 Mich App 86, 88; 201 NW2d 349 (1972). “The mere fact that
the alleged intoxicated person drank alcoholic beverages is not sufficient to establish that he was
visibly intoxicated,” as he had to have been served while he was visibly intoxicated. Heyler, 160
Mich App at 145; Reed v Breton, 475 Mich 531, 541; 718 NW2d 770 (2006). The Supreme
Court provided the following explanation of the standard in the Dramshop Act:
“[V]isible 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. 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.
While circumstantial evidence retains its value, such (and any other type of)
evidence must demonstrate the elements required by § 801(3), including “visible
intoxication.” [Reed, 475 Mich at 542-543 (citation and footnotes omitted).]
There is no dispute that Brown was served alcohol at the Oakwood Lounge. But there
remains a question whether Brown was visibly intoxicated while he was served alcohol at the
Oakwood Lounge. Witnesses stated that Brown was loud, but that he did not exhibit strange
behavior, did not have blood-shot eyes, slur his speech, or have trouble walking or balancing.
The bartender testified he asked Brown to quiet down and he failed to comply, the bartender took
away his drink and did not serve him any more alcohol. Brown was asked to leave the Oakwood
Lounge and became angry when his drink was taken away.
There is conflicting testimony and while the trial court may not make credibility
determinations when deciding motions for summary disposition, Morris v Allstate Ins Co, 230
Mich App 361, 364; 584 NW2d 340 (1998), a reasonable observer could have viewed Brown’s
actions as visible intoxication and summary disposition was not proper.
Defendant argued that Brown lacked the personal knowledge to testify as to his state of
mind during the evening in question and his testimony should not be used to determine whether
he was visibly intoxicated.
MRE 602 provides in pertinent part:
A witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the
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matter. Evidence to prove personal knowledge may, but need not, consist of the
witness’ own testimony.
During his deposition, Brown said, “I don’t recall a lot of what happened the rest of that
evening, I mean, in all honesty” and that his memory was “blank” for the most part for a period
of time. Brown went on to state that his memory from the time of his second drink at the
Oakwood Lounge until he was sitting at the hospital with a police officer was “[f]ragmented at
best.” When asked what he remembered from that night, Brown responded:
The more I—if I said—believe me, in the two and half years since this has
happened, I’ve spent nights thinking about it. Things come into my mind. I don’t
know if I’m remembering it—I can’t say if I’m remembering it or if it’s what I
think might have happened. I can’t say that hundred percent.
Brown said that his eyes may have been blood-shot and that he could not say for sure if his
speech was slurred. Even if Brown lacked the personal knowledge to testify under MRE 602, the
remaining witnesses provided sufficient facts for a reasonable observer to believe Brown was
visibly intoxicated. Additionally, there is evidence that Brown was served alcoholic beverages
by multiple waitresses and bartenders. An individual waitress may have only observed him for a
short period of time without noticing signs of visible intoxication, but a single observer over the
entire time period may have noticed those signs. Taking all of the witness testimony together, a
reasonable observer could find that Brown was visibly intoxicated while he was still being
served. Summary disposition was not proper because there is a genuine issue of material fact.
LAST BAR PRESUMPTION
The record is not entirely clear whether Brown arrived at a different bar and was served
alcohol before or after the car accident.
MCL 436.1801(8) provides as follows:
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).
The presumption is rebutted by creating a prima facie showing of the elements required under
the Dramshop Act by clear and convincing evidence, a higher standard than the preponderance
of evidence required by MCL 436.1801(3) for the last bar to furnish liquor to an AIP. Reed, 475
Mich at 541.
[I]n a lawsuit against a retail licensee that has the benefit of the
presumption, plaintiffs must not only make out a prima face case under § 801(3)
(among other things, that the drinker was visibly intoxicated), but must also rebut
with additional evidence the presumption available to second-to-the-last (and
earlier) establishments under § 801(8). [Reed, 475 Mich at 540.]
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If it is determined that Oakwood Lounge was not the last bar to serve Brown before the
accident, plaintiff must meet the higher standard of clear and convincing evidence that Brown
was visibly intoxicated when served at defendant Oakwood Lounge to overcome the
presumption of non-liability under MCL 436.1801(8) for bars that were not the last to serve
Brown.
Reversed.
/s/ David H. Sawyer
/s/ E. Thomas Fitzgerald
/s/ Henry William Saad
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