Reed v. Breton
718 N.W.2d 770, 475 Mich. 531 (2006)
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Rule of Law:
Under Michigan's dramshop act, a plaintiff must present clear and convincing evidence to rebut the statutory presumption of nonliability for an establishment that was not the last to serve an intoxicated person. Furthermore, to establish the required element of "visible intoxication," a plaintiff must present evidence of actual, outwardly manifested signs of intoxication, which cannot be proven solely by expert toxicological testimony based on blood alcohol content.
Facts:
- Curtis J. Breton and his friend John Marsh spent a day consuming alcohol at various locations.
- Around 7:30 p.m., Breton and Marsh consumed two beers at the Beach Bar, Inc. The server, Lindsay Mizerik, did not observe Breton exhibiting any signs of intoxication.
- After leaving the Beach Bar, Breton and Marsh went to the Eagles Nest, where they split a pitcher of beer.
- Several eyewitnesses at the Eagles Nest, including their supervisor and an acquaintance, observed Breton and did not believe he was intoxicated.
- Shortly before 10:00 p.m., Breton drove Marsh home.
- At approximately 10:11 p.m., Breton's vehicle crossed the center line of a highway at high speed and collided head-on with a vehicle carrying Adam W Kuenner and Lance N. Reed.
- All three individuals—Breton, Kuenner, and Reed—died as a result of the collision.
- A post-mortem examination of Breton revealed a blood alcohol content of 0.215 grams per 100 milliliters of blood.
Procedural Posture:
- The personal representatives for the estates of Kuenner and Reed (Plaintiffs) filed dramshop actions against Beach Bar, Inc. (Defendant) in a Michigan trial court.
- Defendant moved for summary disposition, asserting the statutory presumption of nonliability under MCL 436.1801(8) as it was not the last establishment to serve alcohol to Breton.
- The trial court granted Defendant's motion for summary disposition, holding that Plaintiffs failed to rebut the presumption with sufficiently strong evidence.
- Plaintiffs appealed to the Michigan Court of Appeals.
- The Court of Appeals reversed the trial court, holding that the lower court applied an improperly high burden of proof and that Plaintiffs' expert evidence created a genuine issue of material fact.
- Defendant (as appellant) was granted leave to appeal to the Michigan Supreme Court.
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Issue:
Under Michigan's dramshop act, can a plaintiff rebut the statutory presumption of nonliability for a non-last-serving establishment and prove 'visible intoxication' solely through expert toxicological evidence based on blood alcohol content, without any direct or circumstantial evidence of actual, outwardly manifested signs of intoxication?
Opinions:
Majority - Corrigan, J.
No. To give meaning to the statutory presumption of nonliability for all but the last establishment to serve an intoxicated person, a plaintiff must rebut that presumption with a heightened standard of proof, which is clear and convincing evidence. Furthermore, the statutory requirement of 'visible intoxication' focuses on objective, outwardly manifested signs of intoxication that a reasonable observer would have witnessed. Expert testimony based on blood alcohol levels, which merely speculates about how a person must have appeared, is insufficient on its own to establish that the person was visibly intoxicated. While such scientific evidence can corroborate eyewitness accounts, it cannot substitute for evidence that the person actually manifested visible signs of intoxication. In this case, all eyewitness testimony indicated Breton did not appear intoxicated, and the plaintiffs' expert reports offered only speculation, failing to create a genuine issue of material fact.
Dissenting - Kelly, J.
Yes. The majority judicially creates a 'clear and convincing' evidence standard where the legislature provided none; the common law standard of producing credible evidence should apply to rebut the presumption. Moreover, the majority incorrectly defines 'visible intoxication' as requiring 'actually manifested signs.' The plain meaning of 'visible' is 'capable of being seen,' not 'actually seen by an eyewitness.' Longstanding precedent allows for visible intoxication to be proven by circumstantial evidence, including expert testimony based on the quantity of alcohol consumed and the resulting blood alcohol content. The plaintiffs' compelling circumstantial and expert evidence that Breton must have exhibited signs of intoxication was sufficient to create a factual question for a jury to decide.
Analysis:
This decision significantly heightens the evidentiary burden for plaintiffs in Michigan dramshop actions, especially against establishments that were not the last to serve alcohol to a tortfeasor. By imposing a 'clear and convincing' standard to rebut the statutory presumption, the court makes it substantially more difficult to hold establishments liable in 'bar crawl' scenarios. Critically, the court's narrow interpretation of 'visible intoxication' as requiring evidence of 'actually manifested signs' shifts the focus heavily onto eyewitness testimony, diminishing the value of post-hoc scientific evidence like toxicology reports as a primary basis for a claim. This precedent is likely to result in more summary dispositions in favor of defendant dramshops where plaintiff-friendly eyewitnesses are unavailable.
