These consolidated wrongful death and dramshop actions arise out of a December 22, 1984, automobile accident in which Alfredo Alonzo and Todd Savoie were killed when the cars they were driving collided. Frances Rodriguez, as personal representative of the estate of Alonzo, brought a wrongful death action against Solar of Michigan, Inc., at whose Christmas party Todd Savoie allegedly consumed alcoholic beverages, and against Peter Savoie, Todd’s father, who held *486 title to the car Todd was driving. 1 Patricia Savoie, as personal representative of the estate of Todd Savoie, was later added as a defendant in that action. Alonzo’s family members brought a dram-shop action against Restaurants by Bosley, doing business as Bosley’s, which was Solar’s caterer. Patricia Savoie, as personal representative of the estate of Todd Savoie, brought a wrongful death action against Solar, and Peter and Patricia Savoie, as the parents of Todd, filed a dramshop action against Bosley’s. Solar and Bosley’s filed cross-claims against each other in regard to these cases. The trial court consolidated the cases for trial, and the jury returned verdicts in favor of plaintiffs Rodriguez, Alonzo and Savoie. Various parties appealed and cross appealed. We reverse and remand for a new trial.
On December 21, 1984, Solar sponsored a Christmas party catered by Bosley’s in Bosley’s banquet room. Nineteen-year-old Todd Savoie, an employee of one of Solar’s subcontractors, attended and obtained alcohol at the party. At approximately 1:30 a.m. on December 22, 1984, Orlie Wilson was driving west on M-57 west of Montrose, Michigan, and observed Todd’s car weaving and coming up fast behind him. Todd’s car went off the road to the right, then came back across almost hitting the rear end of Wilson’s car, and went off the road on the other side, passing Wilson’s car on the left. After Todd’s car passed, it continued to weave on and off the road, back and forth across the center line. Wilson then was passed by Steve Carstensen, who was following Todd, hoping to see a license plate number because Todd had almost run him off the road. Wilson and Carstensen soon arrived at the scene of the accident. Alonzo’s car and Todd’s car had collided in the eastbound lane of M-57. *487 Both drivers died. Todd’s blood alcohol level was 0.21 percent and Alonzo’s was 0.24 percent.
The jury found that Todd Savoie was fifty percent at fault for the accident, Bosley’s was forty percent at fault, and Solar was ten percent at fault. The jury awarded plaintiffs Rodriguez and Alonzo $770,000 and plaintiffs Savoie $250,000, which was reduced by the percentage of Todd’s fault. From the judgment issued after the verdict, the parties appealed and cross appealed, raising numerous issues.
First, defendants Solar and Bosley’s claim that the trial court erred in precluding any reference to Alonzo’s intoxication. The trial court determined that because there was no evidence that Alonzo’s intoxication was a contributing factor in the accident, such evidence was not relevant. Defendants claim that the evidence is relevant to the issues of comparative negligence, proximate cause, the relative degree of fault of the various parties, the amount of damages, and for the impeachment of the testimony of Alonzo’s widow regarding Alonzo’s character, her knowledge of his activities on the night of the accident, and the amount of support he provided. We agree with defendants that this evidence was relevant and admissible.
The decision whether to admit certain evidence rests within the sound discretion of the trial court and will not be set aside absent an abuse of discretion.
Shanz v New Hampshire Ins Co,
Violation of a statute by a plaintiff or a defendant creates a prima facie case from which a jury
*488
may draw an inference of negligence.
Zeni v Anderson,
Here, the evidence of Alonzo’s intoxication should not have been excluded. There was sufficient evidence regarding Alonzo’s alleged negligence on which reasonable minds could differ and from which the jury could have drawn a fair inference of a causal connection. On a separate record, Dr. Spitz testified regarding the effects that a 0.24 percent blood alcohol level would have on someone driving a car, including long reaction times, slow reflexes, impaired judgment, tunnel vision, inability to assess one’s own speed, inability to interpret distance and time, and inability to deal with a sudden emergency. He concluded that Alonzo’s intoxication was a contributing cause of the accident. Further, one of the plaintiffs’ experts, *489 when testifying in regard to Todd Savoie’s intoxication, asserted some of the same effects of alcohol on a person, particularly the impairment of driving ability.
In addition, there were no skid marks at the scene of the accident, and no evidence that Alonzo took any evasive action. Carstensen could see Todd’s taillights swerve and then disappear, but did not see any headlights, although a bridge and a dip in the road may have obstructed his view of Alonzo’s car. Although no one actually witnessed the collision and saw the actions of Alonzo, from the evidence mentioned above we find that his intoxication was relevant to the issues of comparative negligence, proximate cause, and relative degree of fault of the parties and that evidence of his intoxication was admissible for use in impeachment. Therefore, we find that the trial court abused its discretion in excluding this evidence. Accord
Anderson v Harry’s Army Surplus, Inc,
Second, as a consequence of our finding that the trial court erred in excluding evidence of Alonzo’s intoxication, we also would find that the trial court erred in directing a verdict in favor of plaintiffs Rodriguez and Alonzo with respect to the issue of comparative negligence. The evidence outlined above, along with all legitimate inferences drawn from that evidence, is sufficient to establish a prima facie case of comparative negligence when
*490
viewed in a light most favorable to the nonmoving party. See
Hunt v CHAD Enterprises, Inc,
Third, plaintiffs Peter and Patricia Savoie claim that the trial court erred in allowing defendant Bosley’s to assert comparative negligence as a defense to their dramshop claim, because the negligence asserted was that of Todd, the alleged intoxicated person, and not the negligence of the plaintiff parents. We agree.
Historically, the doctrine of comparative negligence has not been recognized as a valid defense in Michigan dramshop actions.
Genesee Merchants Bank & Trust Co v Bourrie,
However, in those cases, it was the plaintiffs own negligence that was asserted as a defense. Here, there is no claim that the plaintiff parents were negligent in causing the injuries in any way. Further, no comparative negligence could be asserted by the intoxicated driver, Todd, against his parents. Thus, even accepting the
Heyler
and
Lyman
position that comparative negligence is a viable defense in dramshop actions in certain situations, it is not available against the plaintiff parents under the facts of this case. We note that in Minnesota, where the dramshop act specifically provides that the comparative negligence statute is applicable in dramshop actions, the courts have refused to apply the intoxicated person’s comparative negligence to innocent plaintiffs who were family members of the intoxicated person.
Bushland v Corner Pocket Billiard Lounge of Moorehead, Inc,
Bosley’s contends that it is unjust that Solar can benefit from the comparative negligence defense in *492 the wrongful death action while Bosley’s cannot benefit from it in the dramshop action. Bosley’s argues that because Solar and Bosley’s have rights of contribution against each other, if Bosley’s could not recover the full measure of damages against Solar for contribution, Bosley’s would pay a larger share of the damages than those allocated to it by the jury. However, if the damages for each of these causes of action were determined separately, instead of being lumped together as was done, the subsequent application of contribution between Bosley’s and Solar would solve any inequities.
The negligence of the intoxicated minor cannot be imputed to innocent plaintiffs in a dramshop action. Consequently, the trial court erred in allowing Bosley’s to present comparative negligence as a defense.
As a result of our resolution-of these issues, we reverse the judgment in this case and remand for a new trial. However, we will address several additional issues in order to provide guidance on retrial.
Fourth, defendant Bosley’s claims that the trial court abused its discretion in excluding from the evidence testimony that a whiskey bottle was found near the accident scene. There was no other evidence tying the bottle to the accident or to either of the cars involved. Consequently, the trial court ruled that this evidence would not be admitted unless a foundation was laid making it relevant.
Because one of the facts at issue in this case was whether Todd had obtained and consumed alcohol from a source other than Bosley’s, the presence of the whiskey bottle at the accident scene had some tendency to make more probable the fact that Todd had obtained alcohol from an additional *493 source, possibly affecting the relative degrees of fault determined by the jury. See MRE 401. Further, the presence of a whiskey bottle at the accident scene where both drivers were intoxicated tends to be relevant. Therefore, we believe that evidence regarding the whiskey bottle is relevant and should be admitted on retrial.
Fifth, defendant Bosley’s contends that the trial court erred in denying its motion for summary disposition that was based on the Alonzo plaintiffs’ failure to name and retain the alleged intoxicated person in their complaint, as required by MCL 436.22(5); MSA 18.993(5), now MCL 436.22(6); MSA 18.993(6), before the expiration of the period of limitation. See MCR 2.116(C)(7). However, Bosley’s waived this defense by failing to timely raise it in its responsive pleadings. See MCR 2.111(F)(2) and (3); MCR 2.116(D)(2). We find no error.
Sixth, defendant Bosley’s also claims that the trial court erred in denying its motion for summary disposition that was based on a claim that Alonzo’s stepchildren and step-grandchildren were not "other persons” entitled to recovery under the dramshop act.
4
However, the words "or other person” in the applicable statute and its predecessors have been given a broad interpretation,
LaBlue
v
Specker,
Seventh, Bosley’s claims that interest should not accrue on the judgment during the period the proceedings were stayed because of its insurer’s insolvency. Bosley’s’ insurer, a member of the Michigan Property and Casualty Guaranty Association, was declared insolvent during the proceedings in this case. The proceedings were stayed for six months, pursuant to MCL 500.7945; MSA 24.17945 5 of the Property and Casualty Guaranty Association Act, MCL 500.7901 et seq.; MSA 24.17901 et seq. 6 After the verdict in favor of plaintiffs, the trial court, over Bosley’s objection, entered the judgment without waiving interest for the period during which the stay was in effect.
The issue whether a stay tolls the accruing of statutory prejudgment interest, MCL 600.6013; MSA 27A.6013, was discussed in Heyler, supra, pp 151-153. The Heyler Court upheld the lower court’s disallowance of interest during a stay of proceedings while awaiting a relevant Supreme Court decision because the delay was not the fault of, nor was it caused by, the defendant. Similarly, *495 in this case the delay was not the fault of Bosley. Thus, interest should be waived for the period during which the stay was in effect.
Eighth, defendant Solar claims that the trial court erred in declining to rule as a matter of law that Solar was not a social host for purposes of liability under MCL 436.33(1); MSA 18.1004(1), see
Longstreth v Gensel,
Generally, social host liability turns on the control over, or active participation in, supplying a minor with alcohol. See
Christensen v Parrish,
Ninth, defendant Patricia Savoie, as personal representative of the estate of Todd Savoie, claims that a release executed between plaintiff Rodriguez, as personal representative of Alonzo’s estate, and Peter Savoie, as owner of the car Todd Savoie was driving at the time of the accident, released the estate of Todd Savoie from liability in addition to releasing Peter Savoie. The language of the release purports to release and hold harmless only Peter Savoie; it makes no reference to the estate.
The scope of a release is governed by the intent of the parties as it is expressed in the release.
Adell v Sommers, Schwartz, Silver & Schwartz, PC,
Tenth, plaintiffs Peter and Patricia Savoie claim that they should have been allowed to offer proofs regarding, and recover damages for, the loss of investment in or services of their son, Todd, in their dramshop action.
Parents’ right to recover for the loss of a minor child’s services continues until the child reaches majority.
Rohm v Stroud,
We decline to address the other issues raised by the parties.
Reversed and remanded for a new trial. We do not retain jurisdiction.
Notes
The suit against Peter Savoie was settled before trial.
However, the trial court did not err in excluding certain of the Alonzo plaintiffs’ pleadings, which were superseded by amendment, referring to Alonzo’s intoxication in regard to their dismissed dram-shop action against Pintown Lanes. We believe the concerns expressed in
Slocum v Ford Motor Co,
Additionally, we note that the type of damages plaintiff parents seek in this case, being loss of companionship, love, society, and so on, are derivative. We recognize that for some derivative claims, such as loss of consortium, the derivative claimant’s recovery is reduced by the amount of the comparative negligence of the principal. See
Danaher v Partridge Creek Country Club,
That statute provides:
All proceedings in any court of law of this state to which the insolvent insurer is a party, or in which the insurer is obligated to defend or has assumed the defense of a party, shall be stayed for 6 months after the date a receiver is appointed, and for any additional time as determined by the court which has jurisdiction over those proceedings, to permit proper defense of all pending causes of action.
This act was designed to protect insureds and persons with claims against insureds from potentially catastrophic loss in the event the insurer becomes insolvent, and also to protect the mpcga by affording it the same rights that the solvent insurer would have had if not in receivership, including the right to appear, defend, and appeal a claim.
Young v Shull,