McCAW v. T & L OPERATIONS, INC , 217 Mich. App. 181 ( 1996 )

550 N.W.2d 852 (1996) 217 Mich. App. 181

Daniel T. McCAW and Toni McCaw, Plaintiffs-Appellees,
v.
T & L OPERATIONS, INC., doing business as Dixie Bar, Defendant-Appellant, and
Michael K. Williams, Not Participating.

Docket No. 181804.

Court of Appeals of Michigan.

Submitted March 5, 1996, at Detroit. Decided June 11, 1996, at 9:20 a.m. Released for Publication July 29, 1996.

Raymond L. Krell, P.C. by Derek A. Hurt, Detroit, for plaintiffs.

Kallas & Henk, P.C. by Edward J. Lee, Bloomfield Hills, for T & L Operations, Inc.

Before MacKENZIE, P.J., and MARK J. CAVANAGH and LUDINGTON,^[*] JJ.

MARK J. CAVANAGH, Judge.

Defendant T & L Operations, Inc., appeals as of right a jury verdict for plaintiffs in this dramshop action. We reverse.

Plaintiff Daniel McCaw^[1] is a police officer with the Waterford Township Police Department. During the evening of August 31, 1991, plaintiff was dispatched to investigate a reported stabbing at a house on Hira Street. When plaintiff arrived at the residence, he saw a man lying on the front lawn and realized that the man had been stabbed. A man, later identified as Michael Williams, came out on the porch. Because of Williams' behavior, slurred speech, and bloodshot, glassy eyes, plaintiff realized that he was under the influence of alcohol. Williams told plaintiff that he had called the police. When plaintiff attempted to question Williams about the stabbing, Williams became agitated and began to yell at plaintiff. Williams told plaintiff to leave, but plaintiff refused. Williams then informed plaintiff that he was going to leave. Plaintiff stepped in front of Williams to prevent him from departing. Williams began to attack plaintiff. During the ensuing scuffle, Williams struck plaintiff in the face. As a result of this incident, plaintiff suffers from blurred peripheral vision, tinnitus, and an injury to his jaw.

At trial, Williams testified that on August 31,1991, he was nineteen years old. On that day, he began drinking beer around 3:00 p.m. Around 6:00 p.m., Williams and two friends, Jeff Morgan and Tim Smith, went to the Dixie Bar. At the bar, the three men shared several pitchers of beer and consumed three to five B-52^[2] shots. Williams testified that he was feeling drunk while in the bar. After the men left the bar, Morgan and Smith began to argue. When the men arrived at Williams' house, Williams went inside and fell asleep or passed out. After Williams awoke, Morgan told him that he had stabbed Smith. Williams then called 911. Williams stated that he was not sober during the altercation with plaintiff.

On February 8, 1993, plaintiff filed suit against Williams and the owner and operator of the Dixie Bar, T & L Operations, Inc. (hereafter defendant), to recover for the injuries suffered in the incident. The claim against Williams was based on negligence and alleged that Williams acted in a "wilful, wanton and reckless manner." The claim against defendant was based on multiple violations of the dramshop act, M.C.L. § 436.22; M.S.A. § 18.993. Specifically, plaintiff alleged that defendant served alcohol to Williams when the latter was both underage and visibly intoxicated.

On February 23, 1994, defendant filed a motion for summary disposition alleging that plaintiff's claim was barred by the fireman's rule. The trial court denied the motion, reasoning that because a violation of the dramshop act is a statutory violation, defendant could not rely on the common-law defense of the fireman's rule.

On July 21, 1994, a default was entered against Williams. Williams participated in the subsequent trial only as a witness and is not involved in this appeal.

Soon after, the case was tried before a jury. After the close of plaintiff's proofs, defendant moved for a directed verdict on the basis that the fireman's rule barred plaintiff's claim and because plaintiff failed to show that the dramshop violation was a proximate cause of plaintiff's injuries. The trial court denied the motion as it related to the fireman's rule and allowed plaintiff to recall Williams to establish the element of proximate cause. On August 1, 1994, the jury returned a verdict for plaintiff. Plaintiff was awarded $121,689.89, and plaintiff's wife was awarded $25,000 for her loss of consortium claim. The trial court later granted plaintiff's motion for an award of costs and attorney fees and denied defendant's motion for judgment notwithstanding the verdict.

On appeal, defendant argues that the trial court erred in ruling that the fireman's rule does not apply to cases involving the dramshop act. This is a question of law that we review de novo. Rapistan Corp. v. Michaels, 203 Mich.App. 301, 306, 511 N.W.2d 918 (1994).

The fireman's rule was adopted by the Supreme Court in Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 415 N.W.2d 178 (1987). The fireman's rule provides that a fire fighter or police officer may not recover damages from a private party for negligence in the creation of the reason for the safety officer's presence. Id. at 358, 415 N.W.2d 178. In other words, fire fighters and police officers may not recover damages for injuries arising out of risks inherent in their respective professions. Id. at 351, 415 N.W.2d 178. The Supreme Court adopted the rule on the basis of public policy considerations. The Court explained:

The policy arguments for adopting a fireman's rule stem from the nature of the service provided by fire fighters and police officers, as well as the relationship between these safety officers and the public they are employed to protect.

It is beyond peradventure that the maintenance of organized society requires the presence and protection of fire fighters and police officers. The fact is that situations requiring their presence are as inevitable as anything in life can be. It is apparent that these officers are employed for the benefit of society in general, and for people involved in circumstances requiring their presence in particular. [Id. at 365-366, 415 N.W.2d 178.]

The Supreme Court noted that worker's compensation benefits are available to public safety officers for injuries suffered during the course of their employment. Thus, the cost of injuries to safety officers falls upon the public as a whole rather than on individuals. Id. at 369, 415 N.W.2d 178.

The Supreme Court again addressed the fireman's rule in Woods v. City of Warren, 439 Mich. 186, 482 N.W.2d 696 (1992). In Woods, the plaintiff, a police officer, brought suit against the City of Warren for injuries sustained during a high-speed chase. The plaintiff claimed that the city had failed to maintain its roads in a safe condition as required by M.C.L. § 691.1402; M.S.A. § 3.996(102). The Supreme Court held that the fireman's rule applied because the plaintiff's injury flowed directly from the performance of his police duties. The Court explained that the analytical focus must be on whether the injury stems directly from an officer's police functions. If the circumstances indicate that it does, the fireman's rule applies. If the circumstances indicate otherwise, it likely does not. Woods, supra at 192-193, 482 N.W.2d 696.

In the present case, the trial court held that the fireman's rule, a common-law defense, was inapplicable in a statutory cause of action such as a dramshop action. The trial court based its ruling on this Court's decision in Barrett v. Campbell, 131 Mich.App. 552, 345 N.W.2d 614 (1983). In Barrett, this Court held that the doctrine of comparative negligence does not apply to a statutory dramshop action when the noninnocent-party doctrine^[3] is implicated. Id. at 557, 345 N.W.2d 614.

We conclude that the trial court erred. This Court has also held that the defense of comparative negligence does apply in a dramshop action when the plaintiff's fault does not involve participation in bringing about the intoxication of the person who injured him. See Lyman v. Bavar Co., Inc., 136 Mich.App. 407, 410, 356 N.W.2d 28 (1984). Thus, the pivotal question is not whether the defense is based on the common law, but, rather, whether the purpose behind the dramshop act is directly implicated by the defense.

Moreover, the fireman's rule applies to other statutory causes of action. As previously discussed, the Supreme Court held in Woods, supra, that the fireman's rule could be applied in a case involving the statutorily created highway exception to governmental immunity.

This Court recently addressed the fireman's rule in Mariin v. Fleur, Inc., 208 Mich.App. 631, 528 N.W.2d 218 (1995), lv. gtd 450 Mich. 961, 544 N.W.2d 472 (1996). In Mariin, an off-duty police officer was socializing in a bar. Another patron in the bar attacked the officer, who suffered injuries as a result. This Court held that the fireman's rule did not bar the police officer's dramshop action against the bar because the plaintiff's presence in the bar was not related to his duties as a police officer. The Mariin panel stated in dicta that it might be appropriate to apply the fireman's rule if the police officer had been dispatched to the bar in question while on duty. Id. at 636-637, 528 N.W.2d 218.

While the Mariin panel's comments are not binding in this case, we nevertheless agree that the fireman's rule bars a dramshop action by a police officer when the officer's damages are sustained in the course of his duties. Police officers are not infrequently required to deal with drunk and disorderly persons. An injury suffered by a police officer in such a circumstance flows directly from the performance of his police duties. See Woods, supra at 192-193, 482 N.W.2d 696. Accordingly, the policy considerations behind the Supreme Court's adoption of the fireman's rule are directly implicated. See Kreski, supra at 365-366, 415 N.W.2d 178. In addition, as the Minnesota Supreme Court observed in a similar case:

If police officers are allowed to recover under the statute, bar owners might be inhibited from summoning the police for aid in disturbances and, instead, would resort to self-help measures, creating additional risk to the public. It would not be in the public interest to discourage bar owners from calling upon those who are trained and employed to deal with these situations. [ Hannah v. Jensen, 298 N.W.2d 52, 55 (Minn, 1980).[^[4]]]

Plaintiff points out that the dramshop act provides a right of recovery to a particular class of persons, namely, individuals who suffer injury after alcohol is unlawfully furnished to a minor or to a visibly intoxicated person.^[5] Plaintiff argues that because the Legislature amended the dramshop act two years after the Supreme Court's decision in Kreski without excluding public safety officers from the class of persons entitled to recovery under the act, the fireman's rule should not be applied in dramshop actions. However, the Legislature is presumed to act with knowledge of appellate court statutory interpretations. Gordon Sel-Way, Inc. v. Spence Bros, Inc., 438 Mich. 488, 505-506, 475 N.W.2d 704 (1991). Silence by the Legislature following judicial construction of a statute suggests consent to that construction. See Craig v. Larson, 432 Mich. 346, 353, 439 N.W.2d 899 (1989). Thus, contrary to plaintiff's assertion, the fact that the Legislature did not amend the dramshop act to include police officers and fire fighters after the Supreme Court adopted the fireman's rule indicates that the Legislature did not object to the application of the fireman's rule to dramshop actions.

Because we conclude that plaintiff's claim is barred by the fireman's rule, we reverse the jury verdict for plaintiff. We also reverse the order awarding plaintiff costs and attorney fees. Our resolution of the previous issue renders it unnecessary for us to address defendant's other issues.

Reversed.

NOTES

[*] Thomas L. Ludington, 42nd Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.

[1] Toni McCaw, Daniel McCaw's wife, joins him as plaintiff. Because her loss of consortium claim is derivative and dependent on Mr. McCaw's claim, and to avoid confusion, we will refer only to plaintiff Daniel McCaw.

[2] A B-52 contains Grand Marnier, Kahla, and Baileys Original Irish Cream.

[3] Under the noninnocent-party doctrine, one who actively brings about another's intoxication may not recover for injuries sustained therefrom. Craig v. Larson, 432 Mich. 346, 354, 439 N.W.2d 899 (1989). Defendant argues that the trial court's reasoning was flawed because in Barrett, supra, this Court upheld the noninnocent-party doctrine, another common-law bar to recovery under the dramshop act. However, the noninnocent-party doctrine is not a creature of the common law, nor is it based on common-law negligence principles. Rather, the doctrine is a defense to a dramshop action gleaned from the intent of the Legislature in adopting and amending the dramshop act. Arbelius v. Poletti, 188 Mich.App. 14, 22-23, 469 N.W.2d 436 (1991).

[4] The holding in Hannah was subsequently superseded by the Minnesota Legislature. See Lang v. Glusica, 393 N.W.2d 181, 183, n. 1 (Minn., 1986).

[5] See M.C.L. § 436.22(4); M.S.A. § 18.993(4).