333 N.W.2d 246 | Mich. Ct. App. | 1983
LUCIDO
v.
APOLLO LANES AND BAR, INC.
Michigan Court of Appeals.
Fred A. York & Associates, P.C. (by John A. Dolan), for plaintiffs.
Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark (by George F. Clark and Michael L. Updike), for Apollo Lanes and Bar, Inc.
Fulkerson, Hudson, Bileti, Pierce & Tennent, P.C. (by Joseph J. Bileti), for Shore Lanes, Inc.
*269 Before: CYNAR, P.J., and N.J. KAUFMAN and MacKENZIE, JJ.
PER CURIAM.
Plaintiffs Joseph Lucido, Jr., and Joseph Lucido filed a complaint against defendants Apollo Lanes and Bar, Inc. (Apollo Lanes), and Shore Lanes, Inc. (Shore Lanes). Plaintiffs alleged that Joseph Lucido, Jr. (plaintiff), then a minor, was served alcoholic beverages at Apollo Lanes on September 28, 1980, no inquiry having been made about his age. Although plaintiff became visibly intoxicated, employees of Apollo Lanes continued to serve him alcohol. Plaintiff left Apollo Lanes and proceeded to Shore Lanes, where he was further served intoxicating beverages without inquiry into his age and while visibly intoxicated. Plaintiff then left Shore Lanes. While traveling home in his automobile, he lost control of the vehicle, left the roadway and struck a house, sustaining severe injuries. Plaintiffs alleged that defendants violated a penal statute by failing to make inquiry into plaintiff's age; engaged in gross, wilful, and wanton conduct by encouraging plaintiff to drink to excess; failed to act in a reasonable manner; and failed to warn concerning the use of intoxicants by a minor. Count II of plaintiffs' complaint sought damages for loss of services and loss of society suffered by Joseph Lucido.
Count I of plaintiffs' complaint was dismissed pursuant to motions for summary judgment based on GCR 1963, 117.2(1), the trial court finding that plaintiffs had failed to state a claim upon which relief could be granted.
On appeal, plaintiffs argue that the trial court erred in granting defendants' motions for summary judgment on the ground that the dramshop act created an exclusive remedy for actions against tavern owners for damages sustained due to an *270 unlawful sale of intoxicants. Plaintiffs also argue that the dramshop act did not preempt a common-law remedy arising from the violation of MCL 436.33; MSA 18.1004, a penal statute. Plaintiffs' third argument states that the trial court erred in dismissing plaintiffs' cause of action alleging gross and wilful conduct by defendants. This Court finds no error in the trial court's dismissal of plaintiffs' claim.
No common-law remedy existed against a bar owner who sold liquor to a minor or a visibly intoxicated person. Browder v International Fidelity Ins Co, 413 Mich 603; 321 NW2d 668 (1982). MCL 436.22; MSA 18.993, a portion of the Michigan Liquor Control Act commonly known as the "dramshop act", created a statutory remedy against tavern owners. Browder, supra. The statute gives a cause of action to a "wife, husband, child, parent, guardian, or other person" injured by "a visibly intoxicated person" by reason of an unlawful sale or furnishing of intoxicants to the person, where the sale is a proximate cause of the injury. MCL 436.22(5); MSA 18.993(5). The intoxicated person has no cause of action against the bar owner for injuries sustained due to an unlawful sale because he is not "an innocent person entitled to recover under the act". Kangas v Suchorski, 372 Mich 396, 401; 126 NW2d 803 (1964).
Many cases decided by the Supreme Court and this Court have discussed whether the dramshop act was intended as an exclusive remedy against tavern owners for the unlawful sale of intoxicants. Most recently, in Browder, the Supreme Court concluded that: "The Legislature obviously intended the cause of action and the period of limitations provided in the dramshop act to be the exclusive cause of action and exclusive period of *271 limitations * * *". Browder, p 612. After a lengthy and thorough analysis, the Court stated:
"In summary, we find that the Legislature intended the dramshop act to be a complete and self-contained solution to a social problem not adequately addressed at common law. The plain and unambiguous language, together with the built-in checks and balances adopted by the Legislature to finely hone the rights and obligations of the parties under the act, lead to only one conclusion: the Legislature intended the statutory action of trespass on the case to be the exclusive remedy and `any action' arising under dramshop-related facts to be instituted within two years." (Footnote omitted.) Browder, pp 615-616.
In Manuel v Weitzman, 386 Mich 157, 164-165; 191 NW2d 474 (1971), the Supreme Court specifically approved the following statement: "We hold that the dramshop act affords the exclusive remedy for injuries arising out of an unlawful sale, giving away, or furnishing of intoxicants" (emphasis omitted), quoting DeVillez v Schifano, 23 Mich App 72, 77; 178 NW2d 147 (1970). Accord, Rowan v Southland Corp, 90 Mich App 61, 68-69; 282 NW2d 243 (1979); Jones v Bourrie, 369 Mich 473; 120 NW2d 236 (1963).
This Court finds the above-cited cases to be controlling. The trial court correctly granted summary judgments on plaintiff Joseph Lucido, Jr.'s, claim. The dramshop act is an exclusive remedy, and plaintiffs may not assert a claim based on a violation of a penal statute.
Plaintiffs argue that a common-law action for violation of MCL 436.33; MSA 18.1004 existed prior to the enactment of the dramshop act and that the dramshop act has not preempted that common-law cause of action.
It is this Court's opinion that the dramshop act *272 was designed to create the type of action which plaintiffs argue can be derived from the penal statute. The dramshop act and the cases interpreting it indicate that the remedy provided therein is exclusive. While MCL 436.33; MSA 18.1004 provides that the sale of liquor to a minor is a misdemeanor, it does not specifically create a cause of action for a minor who is illegally served. It does not appear from anything in the statute that it was the Legislature's intent to create a cause of action on the behalf of a minor.
In Manuel, the Supreme Court ruled that the dramshop act is an exclusive remedy for injuries arising out of the unlawful sale, giving away, or furnishing of intoxicants. The only case which has found an exception to this rule is Grasser v Fleming, 74 Mich App 338; 253 NW2d 757 (1977). In Grasser, a wrongful death action brought by the deceased intoxicated person's executrix was allowed. The defendants in Grasser had been advised by the executrix-daughter that the deceased was an alcoholic and unable to tolerate drink. Defendants had agreed not to serve him. They violated that agreement, and the deceased suffered injuries while intoxicated which caused his death.
Plaintiffs here alleged in their complaint that defendants breached their duty to plaintiff Joseph Lucido, Jr.:
"By gross, wilful and wanton conduct through affirmatively encouraging plaintiff's conduct in drinking in excess."
The trial court properly granted summary judgments for failure to state a claim for gross negligence. The facts of this case do not warrant a finding of an exception to the general rule stated in Manuel.
Affirmed.
