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Michigan Supreme Court Lansing, Michigan

Opinion
LAWRENCE REED, Personal Representative of the ESTATE OF LANCE NATHAN REED, deceased, Plaintiff-Appellee, v FREDERICK BRETON, Personal Representative of the ESTATE OF CURTIS JASON BRETON, deceased, and HB RESORT ENTERPRISES, INC., a Michigan corporation, a/k/a EAGLES NEST, Defendants, and BEACH BAR, INC., a Michigan corporation, a/k/a BEACH BAR, Defendant-Appellant. _______________________________ JAMES D. KUENNER, Personal Representative of the ESTATE OF ADAM W. KUENNER, deceased, Plaintiff-Appellee, v FREDERICK BRETON, Personal Representative of the ESTATE OF

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED July 19, 2006

No. 127703

No. 127704

CURTIS J. BRETON, deceased, and HB RESORT ENTERPRISES, INC., a Michigan corporation, a/k/a EAGLES NEST, Defendants, and BEACH BAR, INC., a Michigan corporation, a/k/a BEACH BAR, Defendant-Appellant. ________________________________ CORRIGAN, J. A vehicle driven by an intoxicated driver collided with an oncoming vehicle carrying two young men on US-127 near Lansing, killing all three individuals. The issues on appeal in this dramshop action involve (1) the

presumption of nonliability under the dramshop act (DSA), MCL 436.1801(8); and (2) the adequacy of proofs regarding the driver's alleged visible intoxication under MCL 436.1801(3). MCL 436.1801(8) creates a rebuttable presumption of nonliability for all but the last retail licensee that serves alcohol to a visibly intoxicated person. This novel presumption operates to require that a plaintiff, when opposing a defendant that invokes this presumption, must show more than the prima facie case required under MCL 436.1801(3). A plaintiff rebuts this presumption by showing not only the evidence required for a prima facie case, but clear and convincing evidence. Because the Court of Appeals incorrectly held that plaintiffs satisfactorily rebutted

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the presumption of nonliability, we reverse the judgment of the Court of Appeals on this issue. We further hold that to establish "visible intoxication" under MCL 436.1801(3), a plaintiff must present evidence of actual visible intoxication. Because the Court of Appeals held that plaintiffs established their claim without such evidence, relying instead on suppositions drawn from blood alcohol tests, the visible intoxication of another person, and the like, we reverse its judgment and reinstate the trial court's grant of summary disposition for defendant Beach Bar, Inc. I. FACTS AND PROCEDURAL HISTORY Plaintiffs, the personal representatives of the estates of Adam W. Kuenner and Lance N. Reed,1 filed separate dramshop claims against defendant Beach Bar, Inc., alleging that Curtis J. Breton2 was served alcohol at defendant's establishment. Plaintiffs contended that Breton was visibly intoxicated when he was served alcohol there, and his subsequent impaired driving resulted in the deaths of plaintiffs' decedents. Breton had spent the day drinking with his friend, John Marsh. Around 7:30 p.m., they consumed two beers at the Beach Bar. Lindsay Mizerik, the server The personal representatives of the estates, James D. Kuenner and Lawrence Reed, are the plaintiffs in these actions. Although not a party to this appeal, Frederick Breton, the personal representative of the estate of the intoxicated driver, Curtis Breton, deceased, was also named as a defendant.
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at defendant's establishment, had received training in identifying visibly intoxicated persons. She served Breton and did not observe him to exhibit slurred speech, an aggressive manner, a lack of coordination, or erratic behavior. She did not consider refusing him service. Breton and Marsh next went to the Eagles Nest3 where they split a pitcher of beer. There, they encountered their supervisor, Summit Township Fire

Department Chief Carl Hendges, who did not think either man was intoxicated. Another witness at the Eagles Nest, Richard Potts,4 who knew Breton and who himself owned a convenience store that sold alcoholic beverages, observed that Breton's eyes were not bloodshot or glassy and that he did not appear to be intoxicated. Similarly, Marsh did not notice any change in Breton's speech, in his ability to walk, or redness in his eyes over the course of the day. Shortly before 10 p.m., Breton drove Marsh home. At approximately 10:11 p.m., Breton crossed the center line of US-127 at a high rate of speed. His vehicle collided head-on with a vehicle carrying plaintiffs' two decedents, taking the lives of all three men. An examination after the collision revealed that Breton's blood alcohol content was 0.215 grams per 100 milliliters of blood.

Plaintiffs also included HB Resort Enterprises, Inc., which owns the Eagles Nest, as a defendant. HB Resort Enterprises, Inc., is not a party to this appeal. Robert Potts's wife, who accompanied him that evening, also did not observe any loud or unusual behavior at Breton's table.
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Defendant, as the second-to-the-last establishment to serve Breton, sought summary disposition under MCR 2.116(C)(10). Defendant relied on the

rebuttable presumption of nonliability available to all but the last serving establishment under

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