Craig v. Larson

439 N.W.2d 899, 432 Mich. 346

• Court: Michigan Supreme Court
• Decided: May 9, 1989
• Docket: 81609, (Calendar No. 1)
• Status: Published

Opinions

Cavanagh, J.

i

Late in the evening of April 2, 1983, plaintiff-appellant Harry Craig, then aged twenty, joined defendant Kirk Larson, aged nineteen, in Larson’s car. Appellant brought several cans of beer with him. With Larson driving, the two went to JB’s Firebird Lounge, consuming some of the beer en route. At the lounge, appellant and Larson drank beer served to them by the lounge. Larson testified in his deposition that they alternated paying for the beer. Appellant testified in his deposition that either of them could have paid for the beer. The two young men left the lounge in Larson’s car, with Larson driving. A short time later, appellant was seriously injured when Larson’s car collided with another vehicle.

Appellant brought this action against Larson, seeking damages for negligence, and against appellee Firebird Lanes, Inc., seeking damages under Michigan’s dramshop act¹ MCL 436.22; MSA 18.993. The trial court granted summary judgment to defendant-appellee Firebird Lanes, Inc., holding that appellant could not recover under the dram-shop act against appellee Firebird Lanes, Inc., because appellant actively participated in Larson’s intoxication. The Court of Appeals affirmed.

We granted leave to consider the following issues: (1) whether or not principles of comparative negligence should replace the rule, also known as the noninnocent party doctrine, that a plaintiff may not recover under the dramshop act if the plaintiff actively participated in the intoxication of the tortfeasor, and (2) whether or not the rule should be applied differently where the plaintiff is a minor. We hold that comparative negligence has not replaced the noninnocent party doctrine as a defense in a dramshop action, and we decline to apply the noninnocent party doctrine differently when the plaintiff is a minor._

II

The section of the Liquor Control Act governing dramshop actions at the time this case was filed provides in part:

A wife, husband, child, parent, guardian, or other person injured in person, property, means of support, or otherwise, by a visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of intoxicating liquor to the person, if the sale is proven to be a proximate cause of the injury or death, shall have a right of action in his or her name against the person who by the selling, giving, or furnishing the liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the injury. [1933 (Ex Sess) PA 8, as amended by 1980 PA 351, MCL 436.22(5); MSA 18.993(5).]

Recently, this Court declared, "Under this state’s dramshop act, the intoxicated person himself and those who contributed to his intoxication have no right of action under the act.” Jackson v PKM Corp, 430 Mich 262, 267-268; 422 NW2d 657 (1988) (interpreting the provision quoted above). This interpretation of the act has prevailed for several decades. Malone v Lambrecht, 305 Mich 58, 61-62; 8 NW2d 910 (1943); Kangas v Suchorski, 372 Mich 396, 399; 126 NW2d 803 (1964).² Appellant urges us to reevaluate this interpretation and exercise our authority to reshape the common law by replacing the noninnocent party doctrine with principles of comparative fault.

Citing Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), where this Court abandoned the common-law doctrine of contributory negligence and adopted comparative negligence, appellant argues that the noninnocent party doctrine is of common-law, not legislative, origin, and is therefore subject to change by the judiciary. The dramshop act does not state specifically that a plaintiff who participates in the intoxication of the allegedly intoxicated person may not recover damages under §22. Regarding defenses, the statute says only that "all factual defenses open to the alleged intoxicated person or minor shall be open and available to the principal and surety.”³ Thus, the noninnocent party doctrine is not mandated by an express declaration of the Legislature. However, keeping in mind that the object of statutory construction is "to ascertain and give effect to the intention of the Legislature,” Browder v Int'l Fidelity Ins Co, 413 Mich 603, 611; 321 NW2d 668 (1982), we decline to disturb our long-settled judicial interpretation of the Legislature’s intent.

A

In Rosecrants v Shoemaker, 60 Mich 4; 26 NW 794 (1886), this Court interpreted 1881 PA 259, as amended by 1883 PA 191, a precursor of the provision before us today, as barring recovery by a plaintiff who suffered injuries as the result of an unlawful sale of liquor to her husband if the plaintiff herself caused, encouraged, or requested the sale. The Court reasoned that such a plaintiff "does not stand on the footing of an innocent injured party.” Id. at 7. The Court in Morton v Roth, 189 Mich 198, 202; 155 NW 459 (1915), again held that a person who participates in the intoxication of the intoxicated person "is not an 'other person’ within the meaning of the statute . . . In Malone, the Court reviewed Rosecrants and Morton and recognized that the more recent enactment, 1933 (Ex Sess) PA 8, as amended by 1937 PA 281, failed to change the noninnocent party defense earlier held to be intended by the Legislature.

If the Legislature in enacting our more recent statutes had intended to depart from the long-established construction of the civil-damage provisions of like enactments above noted, it seems certain that it would have expressed such intention in clear and definite terms. Instead the recent enactments follow quite literally the wording of the earlier provisions of like character. [Malone, 305 Mich 61-62.]

The same reasoning applies to the present question. The Legislature amended the Liquor Control Act several times between the time Malone was decided and the events of this case,⁴ modifying the language of § 22 in 1958, 1961, 1972, and 1980.⁵ In none of these efforts to revise the scope of the dramshop cause of action did the Legislature undertake to limit or preclude the noninnocent party doctrine, despite this Court’s reaffirmance that the noninnocent party doctrine was a complete defense to a dramshop action in Malone, McDaniel v Crapo, 326 Mich 555, 558; 40 NW2d 724 (1950), and Kangas, supra.6 Instead, the language defining who may bring a civil damage action remained essentially the same.

In addition, between 1980 and 1986, when the Legislature again amended §22, published opinions continued to apply the noninnocent party doctrine.⁷ Three of these decisions expressly rejected an argument, similar to appellant’s, that comparative negligence has replaced the defense. Goss v Richmond, 146 Mich App 610; 381 NW2d 776 (1985); Barrett v Campbell, 131 Mich App 552; 345 NW2d 614 (1983), lv den 419 Mich 877 (1984); Dahn v Sheets, 104 Mich App 584, 591; 305 NW2d 547 (1981), lv den 412 Mich 928 (1982). Yet the Legislature, in its extensive 1986 amendments of the act, failed to suggest any intention to modify or eliminate the judiciary’s construction. Under these circumstances, we construe the Legislature’s silence over the past decades as an affirmance of this Court’s interpretation. See Longstreth v Gensel, 423 Mich 675, 691; 377 NW2d 804 (1985); Wikman v City of Novi, 413 Mich 617, 638; 322 NW2d 103 (1982); Smith v Detroit, 388 Mich 637, 650-651; 202 NW2d 300 (1972); In re Clayton Estate, 343 Mich 101, 106-107; 72 NW2d 1 (1955).

B

Not only does the Legislature’s acquiescence in this established interpretation counsel against announcing a new rule adopting comparative negligence for noninnocent parties, the language in § 22 itself is inconsistent with such a rule. The statute allows recovery by a "wife, husband, child, parent, guardian, or other person injured ... by a visibly intoxicated person . . . .” MCL 436.22(5); MSA 18.993(5) (emphasis added).⁸ Given this language, the intoxicated person who injures himself cannot recover any damages from the dramshop, even though the dramshop may be partially responsible for his injuries.⁹ In light of the Legislature’s clear intention to preclude partial recovery by the intoxicated person himself, we cannot conclude that the Legislature nevertheless intended partial recovery to be available to a dramshop plaintiff who actively participates in the intoxication of the person who thereafter injures her.¹⁰ It seems unlikely that the Legislature intended that the principles of comparative fault would apply in cases brought by some noninnocent plaintiffs, but not in cases brought by others.

c

The modification in common-law negligence defenses wrought by the 1979 decision in Placek fails to provide a basis for revising our conclusion that the Legislature intended to bar noninnocent parties from recovering damages under the dramshop act. The civil damage action defined in the dram-shop act is not a common-law remedy based on common-law negligence principles. Longstreth, 423 Mich 696. Instead, the remedy of § 22 was created long ago by the Legislature to "fill the void left by the common law’s general rule of nonliability.” Jackson, 430 Mich 267. It was intended to be "a complete and self-contained solution to a problem not adequately addressed at common law and the exclusive remedy for any action arising under 'dramshop related facts.’ ” Millross v Plum Hollow Golf Club, 429 Mich 178, 186; 413 NW2d 17 (1987); Jackson, 430 Mich 274-276.

The noninnocent party doctrine is a defense to this statutory cause of action gleaned from the intent of the Legislature and is not dependent upon the common-law doctrine of contributory negligence.¹¹ In none of its prior decisions did this Court rely on common-law negligence principles or mention contributory negligence when interpreting the Legislature’s intent to bar noninnocent party recovery under the act. Any development in common-law negligence rules, including the Placek decision, cannot be grafted upon § 22 unless the Court first finds that that is the Legislature’s intent.

We are not persuaded that the Legislature intended the principles of the Placek decision to be applied in a dramshop action. We note the Legislature has had no difficulty whatever in explicitly applying the principles of comparative negligence in a number of other instances, including product liability actions, and the areas of contribution and joint and several liability.¹² However, neither the 1980 nor the 1986 amendments of § 22 reflect any legislative intention to adopt comparative negligence in place of the established bar to recovery for the intoxicated person or a plaintiff partially responsible for the intoxication of the person who causes injury. Instead, the Legislature left unchanged the language which precludes all recovery by the intoxicated person himself, demonstrating that the Legislature continued to expect that comparative fault not apply.¹³

D

We agree with appellant that the dramshop act is remedial in nature and should be liberally construed,¹⁴ and that any construction that decreases the defenses available under the act may further the legislative purpose of deterring unlawful liquor sales. However, the legislative history of the act reflects repeated efforts by the Legislature to narrow the liability of dramshop owners. The amendments of 1958, 1961, 1972, and 1986 have consistently limited, not expanded, dramshop liability.¹⁵ Given the Legislature’s attempts over the past decades to carefully and deliberately delineate the scope of dramshop liability, accepting appellant’s invitation to expand dramshop liability would be improvident and would risk disturbing the remedial balance the Legislature has attempted to achieve.

iii

We now examine whether comparative fault principles should nevertheless apply in the specific circumstances of this case involving a minor plaintiff who actively participated in the intoxication of the person alleged to have caused him injury.

No case decided by this Court applying or recognizing the noninnocent party doctrine has addressed whether or not different rules might apply for adult and minor plaintiffs.¹⁶ However, an examination of the statute itself discloses no legislative intent to afford dramshop defendants less defenses against minor plaintiffs than against adult plaintiffs.

Admittedly, the Liquor Control Act imposes greater restrictions and controls where minors are involved. While a vendor is prohibited from selling liquor to "any person in an intoxicated condition,” MCL 436.29(2); MSA 18.1000(2), there is no criminal prohibition against such sales. By contrast, selling, or furnishing, liquor to a minor is a misdemeanor. MCL 436.33; MSA 18.1004. Minors are subject to penalties under the act that adults, even visibly intoxicated adults, are not. For instance, minors who transport or possess liquor in a car commit a misdemeanor. MCL 436.33a; MSA 18.1004(1). Minors who buy, consume, or possess liquor are subject to civil fines. MCL 436.33b; MSA 18.1004(2).

On the basis of the act’s heightened regulation of minors’ access to alcohol, appellant argues that the Legislature does not believe minors are capable of understanding, anticipating, or handling the consequences of alcohol consumption. Accordingly, appellant argues, although adults may be held responsible for their lack of judgment under the noninnocent party doctrine, minors should not be penalized for their allegedly noninnocent behavior, but should be allowed at least partial recovery under the act.

Despite the merits of appellant’s premise,¹⁷ the Legislature in enacting § 22 has rejected it. Section 22 limits dramshop plaintiffs to persons injured "by” the intoxicated person. Both a minor and a visibly intoxicated adult to whom a dramshop makes unlawful sales are barred from bringing an action under § 22 for their own injuries.¹⁸ Under appellant’s view, however, neither the minor who drinks and later injures himself, nor the minor who encourages another to drink and is later injured by that other person, can understand or anticipate the consequences of alcohol consumption. Because appellant’s premise does not accommodate the legislative decision to bar all recovery by the former minor, we cannot accept it as a basis for finding a legislative intent to treat minor plaintiffs differently than adult plaintiffs under the act.

Appellant also argues that special rules apply to children in other tort contexts, likening the proposed comparative negligence defense for minor plaintiffs in dramshop actions to attractive nuisance and modified negligence standards for children. However, as the dramshop action is not based on common-law tort principles, any insights into legislative intent gained by examining developments in unrelated tort actions have little value compared to interpretations of the statute’s language. Similarly, although this Court’s decision in Longstreth established different rules for minor and adult plaintiffs in common-law actions against social hosts, Longstreth involved the judicial crafting of a common-law, not a legislatively created, remedy.

IV

The history and present language of the dram-shop act cause this Court to defer to legislative initiative in the engrafting of the principle of comparative fault upon this statutory remedy.¹⁹ Accordingly, we affirm the judgments of the courts below.

Riley, C.J., and Brickley, Boyle, and Griffin, JJ., concurred with Cavanagh, J.

1 Section 22 of the Michigan Liquor Control Act, 1933 (Ex Sess) PA 8 as amended by 1980 PA 351.

2 Other states have adopted a similar defense. See, generally, anno, Third person’s participating in or encouraging drinking as barring him from recovering under civil damage or similar act, 26 ALR3d 1112.

3 In 1986, this language was amended to read "all defenses of the alleged visibly intoxicated person or the minor shall be available to the licensee.” 1933 (Ex Sess) PA 8, as amended by 1986 PA 176, MCL 436.22(8); MSA 18.993(8).

4 1951 PA 219; 1958 PA 152; 1961 PA 224; 1972 PA 196; 1980 PA 351.

5 1958 PA 152; 1961 PA 224; 1972 PA 196; 1980 PA 351.

6 See also Todd v Biglow, 51 Mich App 346, 351; 214 NW2d 733 (1974), lv den 391 Mich 816 (1974).

7 Arciero v Wicks, 150 Mich App 522; 389 NW2d 116 (1986); Plamondon v Matthews, 148 Mich App 737; 385 NW2d 273 (1985); Goss v Richmond, 146 Mich App 610; 381 NW2d 776 (1985); Barrett v Campbell, 131 Mich App 552; 345 NW2d 614 (1983), lv den 419 Mich 877 (1984); Dahn v Sheets, 104 Mich App 584, 591; 305 NW2d 547 (1981), lv den 412 Mich 928 (1982).

8 The 1986 amendment changing the wording of this phrase did not disturb its effect of barring recovery by the intoxicated person who purchased liquor unlawfully. The new statute allows recovery by "an individual who suffers damage or is personally injured by a minor or visibly intoxicated person . . . .” 1933 (Ex Sess) PA 8, as amended by 1986 PA 176, MCL 436.22(4); MSA 18.993(4).

9 In striking the balance between the rights of persons injured under dramshop-related facts and the extent of the tavern owner’s liability, the Legislature chose to omit intoxicated persons as a class protected by the act. . . . [W]e believe the Legislature’s failure to include the intoxicated party within the class of persons protected is indicative of its belief that the intoxicated party should not be afforded a remedy. To construe the statute otherwise would do violence to the Legislature’s intent and its continuing efforts to keep the act internally balanced. [Jackson, 430 Mich 276.]

10 We do not reach the question whether comparative negligence is aváilable as a defense in a dramshop action where the plaintiff’s fault does not involve participation in bringing about the intoxication of the person who causes her injury. See Lyman v Bavar Co, Inc, 136 Mich App 407, 410; 356 NW2d 28 (1984); Heyler v Dixon, 160 Mich App 130, 153-154; 408 NW2d 121 (1987), lv den 428 Mich 922 (1987).

11 See also Nelson v Araiza, 69 Ill 2d 534, 536-540; 14 Ill Dec 441; 372 NE2d 637 (1977) (stating recovery by a plaintiff guilty of complicity in the inebriate’s intoxication would undermine the purpose of the dramshop act, distinguishing complicity from the common-law negligence concept of contributory negligence.)

12 See MCL 600.2949; MSA 27A.2949, MCL 600.2925b; MSA 27A.2925(2), and MCL 600.6304; MSA 27A.6304.

13 Other jurisdictions with statutory remedies similar to Michigan’s have declined to apply comparative negligence principles in cases brought by noninnocent parties. See Herrly v Muzik, 374 NW2d 275 (Minn, 1985) (en banc); Martin v Heddinger, 373 NW2d 486 (Iowa, 1985); Reeves v Brno, Inc, 138 Ill App 3d 861; 93 Ill Dec 304; 486 NE2d 405 (1985). Compare Baxter v Noce, 107 NM 48; 752 P2d 240 (1988) (replacing complicity defense with comparative negligence "because the action [under New Mexico Stat Ann, § 41-11-1(B)] sounds in negligence . . . .”)

14 See Browder, 413 Mich 616, n 9; LaBlue v Speaker, 358 Mich 558, 568; 100 NW2d 445 (1960) (" 'This Court has always construed this statute liberally, and has not deemed that the true legislative intent was to be ascertained by any strained or narrow construction of the words employed’ ”); Podbielski v Argyle Bowl, Inc, 392 Mich 380, 384-385; 220 NW2d 397 (1974).

But see Holland v Eaton, 373 Mich 34, 39; 127 NW2d 892 (1964) ("Since, however, the Legislature has acted in the area by enactment of a statute in derogation of the common-law rule, the right and remedy created by the statute are exclusive . . . and the statute, though remedial, must be strictly construed”); Millross, 429 Mich 184 (application of strict construction appropriate to the dramshop act; quoted with approval in Jackson, 430 Mich 274, n 11).

15 See Browder, 413 Mich 614-615 (pre-1986 amendments include addition of a two-year statute of limitations, provision of automatic bond continuance, elimination of exemplary damages, addition of proximate causation, a name and retain provision to prevent collusion, and defenses); Roy v Rau Tavern, Inc, 167 Mich App 664, 670; 423 NW2d 54 (1988) (1986 amendments which eliminated recovery for relatives of visibly intoxicated persons were "designed to deal with the numerous cases which were creating a liability crisis for tavern and restaurant owners”). See also note 1, supra, and accompanying text.

16 See, e.g., Jackson, 430 Mich 267-268. The Court of Appeals, however, has reached facts similar to those in this case and ruled that the noninnocent party doctrine applies to a minor plaintiff who contributed to the intoxication of another minor. Dahn v Sheets, supra. The Legislature’s silence in its 1986 act subsequent to Dahn provides some support for the conclusion that the Legislature intended that the noninnocent party doctrine apply equally to minor plaintiffs.

17 See Longstreth, 423 Mich 697 (a minor plaintiff was not considered competent to handle the effects of intoxication); see also Congini v Portersville Valve Co, 504 Pa 157, 160-162; 470 A2d 515 (1983).

18 See Longstreth, 423 Mich 696 (recognizing that concluding an underage plaintiff may recover for injury inflicted upon himself after consuming alcohol furnished by his host gives the plaintiff "a remedy against his hosts which is not presently available under § 22 against licensees”); Rosas v Damore, 171 Mich App 563; 430 NW2d 783 (1988); Hasty v Broughton, 133 Mich App 107, 114; 348 NW2d 299 (1984); Cornack v Sweeney, 127 Mich App 375, 378-380; 339 NW2d 26 (1983). The "name and retain” provision added in 1972 suggests that the Legislature did not envision "the minor or alleged intoxicated person” as a plaintiff in an action under the section, but instead sought to insure the minor’s presence as a defendant. By adding the words "minor or” before "visibly intoxicated person” in what is now subsection 4 of § 22, the 1986 amendments of the dramshop action make even more explicit the Legislature’s intent to preclude underage imbibers from recovering damages for their own injuries.

19 For arguments advocating the adoption of comparative negligence in dramshop actions brought by noninnocent parties, see Herrly v Muzik, n 13 supra at 279-280 (Scott, J., dissenting); comment, Dramshop liability: Should the intoxicated person recover for his own injuries?, 48 Ohio St L J 227 (1987). See also Jackson, 430 Mich 281-282 (Archer, J., concurring in part, suggesting that the Liquor Control Act he amended to afford a visibly intoxicated patron recovery apportioned by comparative negligence for the grossly negligent conduct of a tavern owner in selling, giving away, or furnishing intoxicants); Passini v Decker, 39 Conn Supp 20; 467 A2d 442 (1983); note, Longstreth v Gensel, Expanding liability of the social host, 1986 DCL L R 581, 592 (discussing Longstreth’s application of comparative negligence in common-law actions against social hosts, arguing that it is unfair to allow greater recovery against a social host than against a commercial establishment, particularly because the social host does not profit from serving the minor).