Plaintiff appeals as of right from a circuit court order granting defendant’s motion for summary disposition on the basis that plaintiffs complaint failed to state a cause of action upon which relief can be granted. MCR 2.116(C)(8). The suit arises out of injuries suffered by plaintiff in a 1982 single-vehicle automobile accident while she was allegedly driving home from defendant’s lounge. Plaintiffs complaint alleged that defendant, a bar and restaurant where alcoholic beverages and intoxicating liquors are offered for sale for public consumption, had a duty at common law to plaintiff, a business invitee, to exercise reasonable care and diligence in maintaining a suitable and safe place of business and that defendant breached this duty resulting in the injuries to plaintiff. The trial court in granting summary disposition concluded that the common-law theory *140 advanced by plaintiff "did not and does not exist,” that because plaintiff’s injuries arose out of the alleged sale or furnishing of liquor the exclusive remedy is provided by the dramshop act, MCL 436.22; MSA 18.993, and that plaintiff, as an intoxicated person, does not have a right of recovery under the act.
The trial court is correct that, under the dram-shop act, an intoxicated person has no right of action against a bartender who sold him the liquor which caused his intoxication.
Hasty v Broughton,
Panels of this Court have come down on both sides of this issue. In
Grasser v Fleming,
In recognizing the common-law cause of action, the
Grasser
Court pointed to the Supreme Court’s suggestion in
Manuel v Weitzman,
The common-law duty of a liquor establishment to maintain a safe place of business for its customers is the same duty any business owes to those it invites upon its premises. The dramshop act was not intended to affect that duty. Dramshop acts were passed because under the common law it was not a tort to sell or furnish intoxicating liquor to an ordinary able-bodied man, even though as a result of his becoming intoxicated injury resulted to himself or to others. Their purpose was to fill a void in the law, not to remove the well-recognized duty of a tavern keeper to exercise due care for the welfare and safety of invited patrons.
The Grasser panel opined that it would be inequitable not to allow a consumer a remedy for the intentional, reckless or grossly negligent conduct of a tavern owner where the consumer was in such a helpless state as to have lost his free will.
Subsequently, however, in Gregory v Kurtis, supra, a majority of that panel suggested that the Grasser decision might be explained by the presence of an agreement not to serve liquor to plaintiff’s decedent. The Gregory majority declined to recognize the common-law theory and concluded that the exclusive remedy in the dramshop act barred plaintiff’s claim. Gregory presented facts similar to those in this case. Plaintiff was seriously injured in an automobile accident after leaving a *142 bar owned by defendant. Plaintiff alleged in his complaint that he was visibly intoxicated but defendant continued to serve him and that defendant knew or should have known that he was a compulsive alcoholic. The Court rejected plaintiff’s claim that defendant’s gross negligence resulted in the automobile accident.
Another panel of this Court also relied upon the agreement not to serve alcohol to the decedent in
Grasser
to distinguish the claim of gross negligence in
Lucido v Apollo Lanes & Bar,
However, most recently, a panel of this Court followed
Grasser, supra,
and found that a common-law cause of action for gross negligence was pleaded in
Morris v Markley,
*143 The Morris panel acknowledged the split of authority, but found a common-law cause of action for gross negligence, saying:
In the instant case we are discussing the limited circumstances of when a tavern owner has actual notice of the helpless state of plaintiff such that the sale of alcoholic beverages constitutes gross negligence or wilful, wanton and intentional misconduct. Technically this action arises from defendant’s culpability and not the sale of the liquor. It is the reckless disregard of plaintiffs welfare after defendant has actual notice that creates this tort.
* * *
We do not mean to allow all intoxicated persons the right to assert a claim against a tavern owner. We hold that, in those circumstances where facts are alleged sufficient to constitute both gross negligence and actual notice of plaintiffs condition that would make the serving of alcohol wilful, wanton and intentional and a reckless disregard of plaintiffs helpless condition, the claim should be allowed to have a full trial. This exception is a limited one. Here, as in Grasser, supra, the tavern owner had prior notice of plaintiffs helpless condition. [Morris, supra, pp 14-15.]
We agree with the Morris Court that where the facts alleged are sufficient to constitute both gross negligence 1 and actual notice of the plaintiffs condition, the complaint states a cause of action. We interpret the exclusivity of the dramshop act as a remedy to be confined to the rights of third parties to recover from the tavern owner. The instant case arises not from an intoxicated tortfeasor’s injury to a third party, but from the intoxi *144 cated person’s own injuries allegedly brought on by her own helpless addiction to alcohol coupled with defendant’s alleged actual notice of this addiction. If proven, such reckless disregard of plaintiff’s welfare could result in the factfinder holding defendant culpable for such wilful and wanton misconduct.
However, a complaint of this type fails to state a cause of action in gross negligence where the complaint does not allege that the defendant knew plaintiff was an alcoholic or was already intoxicated to the point of helplessness when the defendant served the plaintiff. Cf.,
Plamondon v Matthews,
By contrast, in the case at bar, plaintiff pled that during the two-year period prior to the date of her accident she patronized defendant’s bar almost every day from 4:00 p.m. until closing at 2:30 a.m. "during which time the plaintiff was regularly served and habitually consumed not less than a total of two fifths of rum per day.” Plaintiff further alleged that during the two-year period she would regularly arrive when the bar opened at 7:00 a.m. on Saturday and noon on Sunday and "habitually consumed excessive intoxicating liquors until she passed out from intoxication, after which she would be awakened by Defendant’s agents, servants or employees in order to resume serving and selling her additional intoxicating liquors.” Defendant’s agents also "would regularly *145 furnish the Plaintiff with any and all alcoholic beverages and intoxicating liquors which were incorrectly and/or mistakenly mixed for other patrons.” As to notice, plaintiff pled that defendant’s agents "knew or should have known that Plaintiff was helplessly addicted to alcohol which deprived Plaintiff of her ability to exercise free will to refrain from the consumption of any intoxicating liquor.”
Plaintiff asserts in her complaint that on the dates in question between the hours of 4:00 p.m. and 2:30 a.m. she consumed "two fifths of rum, ten shot glasses of peppermint schnapps and several shots of tequila, all of which were served, sold or furnished to plaintiff by the agents, servants and employees of Defendant.” Plaintiff’s complaint goes on:
17. As a direct and proximate result of Plaintiff’s consumption of intoxicating liquors at Defendant’s bar between the hours of 4:00 p.m. and 2:30 a.m. on September 24, 1982, and September 25, 1982, Plaintiff became visibly intoxicated rendering her completely unable to safely operate a motor vehicle, which Defendant knew or should have known, after which time Defendant sold the Plaintiff an additional two cases of beer prior to kicking her out at closing time to drive home with a blood alcohol content in excess of .3%.
19. At all times during the Plaintiff’s patronage of Defendant’s bar up to and including September 25, 1982, the Defendant through the actions and omissions of its agents, servants and employees wilfully, wantonly, intentionally and wrecklessly [sic] encouraged the Plaintiff’s consumption of intoxicating liquors through the sale, service and furnishing of intoxicating liquors to Plaintiff by Defendant’s agents, servants and employees which conduct constitutes gross negligence.
*146 20. The Defendant, through the aforesaid grossly negligent conduct of its agents, servants, and employees breached its duties to the Plaintiff by wilfully, wantonly, intentionally and wrecklessly [sic] selling, serving and furnishing intoxicating liquors to the Plaintiff, who Defendant knew or should have known was a compulsive, habitual alcoholic who Defendant encouraged to consume excessive intoxicating liquors while on Defendant’s premises, notwithstanding Plaintiffs inability to refrain from the consumption of intoxicating liquors sold, served or furnished to her by the Defendant.
In a motion for summary disposition based on MCR 2.116(C)(8), the factual allegations are taken as true.
Rathbun v Starr Commonwealth,
The pleadings show that by continuing to serve *147 her, defendant was indifferent to the probability of harm to plaintiff because defendant knew or should have known that she was an alcoholic and visibly intoxicated. As pleaded, defendant’s actions are tantamount to a willingness that the harm occur. Under these facts and circumstances, we must reverse the order of summary disposition and remand for trial.
Reversed and remanded.
Notes
Gross negligence or wilful and wanton misconduct is distinguishable from ordinary negligence by an intent to harm or by an indifierence of a defendant in the presence of the harm, which is tantamount to a willingness that the harm occur.
Dinger v DNR,
We express no opinion as to whether plaintiff may subsequently be subject to a motion under MCR 2.116(C)(10) and remind attorneys and judges of the existence of MCR 2.114 which provides for sanctions where pleadings are not well-grounded in fact.