Pollard v. Village of Ovid

446 N.W.2d 574, 180 Mich. App. 1
CourtMichigan Court of Appeals
DecidedSeptember 5, 1989
DocketDocket 105341
StatusPublished
Cited by3 cases

This text of 446 N.W.2d 574 (Pollard v. Village of Ovid) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pollard v. Village of Ovid, 446 N.W.2d 574, 180 Mich. App. 1 (Mich. Ct. App. 1989).

Opinions

Per Curiam.

This is a civil damage action against social hosts who allegedly unlawfully furnished alcohol to a person under twenty-one years of age. The underage drinker was subsequently involved in an automobile accident and an adult passenger, Randy Pollard, was killed. Plaintiff, the decedent’s personal representative, appeals as of right from the trial court’s order granting the Bancrofts’ motion for summary disposition. We affirm the trial court’s order and hold that plaintiff is precluded from bringing a cause of action against social hosts for furnishing alcohol to a minor when plaintiff’s decedent admittedly participated in the minor’s intoxication.

On July 21, 1981, Randy Pollard, 24, and Donald W. Miller, 20, attended a wedding reception co-hosted by Richard and Retha Bancroft (defendants), parents of the bride.

Prior to the reception, Pollard bought a twelve-pack of beer and put it in the back of Miller’s truck. Miller contributed toward the purchase of the beer. Since Miller was driving, Pollard reached into the back of the truck and handed him a can [3]*3of beer when Miller wanted one. Both Miller and Pollard drank two beers on their way to the reception.

At the wedding reception, glasses of beer were lined up on the bar so that guests could serve themselves. Mr. and Mrs. Adrian Huss, Sr., parents of the groom, arranged and paid for the alcohol and bartenders. While at the reception, Miller drank eight to ten beers. At least some of the time, Pollard went to the bar and took two glasses of beer, one for himself and one for Miller.

After leaving the reception, Miller’s truck crashed into a wall at the entrance to a bridge. Miller was driving at approximately fifty-five miles per hour. The posted speed was twenty-five miles per hour. Pollard was killed in the collision and was pronounced dead at the scene.

Plaintiff filed suit against defendants, among others, alleging that defendants actually and constructively knew that alcohol was being served to underage guests, including Miller, and that defendants directed or condoned the serving of alcohol to Miller and other guests, regardless of age. Defendants filed a motion for summary disposition. The trial court granted the motion, ruling that Klotz v Persenaire, 138 Mich App 638; 360 NW2d 255 (1984), which ruled that an underage imbiber is precluded from recovering damages from social hosts, was controlling.

Subsequent to the trial court’s ruling, our Supreme Court determined in Longstreth v Gensel, 423 Mich 675; 377 NW2d 804 (1985), that an underage imbiber could maintain a negligence action against a social host who provided alcohol in violation of MCL 436.33; MSA 18.1004 (§ 33). Section 33 provides in pertinent part:

A person who knowingly sells or furnishes aleo[4]*4holic liquor to a person who is less than 21 years of age, or who fails to make diligent inquiry as to whether the person is less than 21 years of age, is guilty of a misdemeanor.

The Longstreth Court reasoned that, unlike a dramshop action, the question of social host liability is based on common-law negligence principles. A proven violation of § 33 creates a rebuttable presumption of negligence. Longstreth, 423 Mich 693. Since the underage imbiber in Longstreth was clearly within the class of persons § 33 intended to protect, he was entitled to assert a cause of action for his own injuries. Longstreth, 423 Mich 693, 696.

In this case, plaintiff urges us to remand this matter for trial to determine whether defendants violated § 33. We note that the question whether defendants’ conduct amounted to "furnishing” alcohol to Miller is a question of law to be decided by the court. Bambino v Dunn, 166 Mich App 723, 731; 420 NW2d 866 (1988). However, we need not address the question of defendants’ conduct in this case. We are convinced that plaintiff does not have a cause of action under § 33 because plaintiff’s decedent participated in the intoxication of the underage imbiber.

The Liquor Control Act, MCL 436.1 et seq.; MSA 18.971 et seq., was intended to govern the entire regulation of liquor within the state:

The act does more than merely regulate liquor traffic; it involves the public health, safety, and morals. Therefore, the act was not intended to apply only to licensees. It was intended to govern the entire regulation of liquor within Michigan. [Longstreth, 423 Mich 683.]

The dramshop provision of the act, MCL 436.22; [5]*5MSA 18.993, imposes liability on liquor licensees for injuries caused to third persons as a result of the sale or furnishing of liquor to minors or visibly intoxicated adults. The intoxicated person does not have a cause of action under the dramshop provision.

The noninnocent, injured third party is also excluded from recovery under the dramshop act if he actively participated in the intoxication of the tortfeasor.

[T]he mere act of buying intoxicants for . . . visibly intoxicated persons or minors, which contributes to the intoxication of the person who ultimately injures someone due to his intoxication would render the buyer of the intoxicant a non-innocent party precluded from recovery under the dramshop act. [Arciero v Wicks, 150 Mich App 522, 529; 389 NW2d 116 (1986).]

See also Kangas v Suchorski, 372 Mich 396; 126 NW2d 803 (1964). This rule, known as the noninnocent party doctrine, applies even when the plaintiff is a minor. Craig v Larson, 432 Mich 346; 439 NW2d 899 (1989).

Although the case before us does not involve a licensee, the rules regarding dramshop liability reflect, we believe, the increasing social awareness of the dangers involved in furnishing alcohol to all age groups. The noninnocent party doctrine is consistent with the intent of the Legislature to address those concerns and regulate all aspects of liquor regulation under the Liquor Control Act. Craig, id.

Social hosts may be held liable for furnishing alcohol to minors because § 33 was intended to protect underage imbibers from the dangerous effects of intoxication. Longstreth, 423 Mich 693. Since the underage imbiber is within the class of [6]*6persons which the statute intends to protect, he can assert a cause of action for his own injuries under § 33 even though he is precluded from doing so under the dramshop provision. Longstreth, 423 Mich 696.

At least one panel of this Court has concluded that the social host’s liability under § 33 for furnishing alcohol to underage guests extends to injured third persons. Traxler v Koposky, 148 Mich App 514; 384 NW2d 819 (1986). However, the facts in Traxler do not reveal whether the third party there was an innocent victim. Since the existence of social host liability to an underage inebriant is relatively recent, it is not surprising that we have not previously considered whether the liability extends to both innocent and noninnocent third-party victims. We now rule that social host liability under § 33 does not extend to a noninnocent injured third party.

As the Supreme Court indicated in Longstreth, public policy and legislative intent are relevant considerations in determining the scope of § 33:

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Related

Arbelius v. Poletti
469 N.W.2d 436 (Michigan Court of Appeals, 1991)
Anderson v. Moulder
394 S.E.2d 61 (West Virginia Supreme Court, 1990)
Pollard v. Village of Ovid
446 N.W.2d 574 (Michigan Court of Appeals, 1989)

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Bluebook (online)
446 N.W.2d 574, 180 Mich. App. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pollard-v-village-of-ovid-michctapp-1989.