Lyman v. Bavar Company, Inc. , 136 Mich. App. 407 ( 1984 )

136 Mich. App. 407 (1984) 356 N.W.2d 28

LYMAN
v.
BAVAR COMPANY, INC.

Docket No. 65418.

Michigan Court of Appeals.

Decided August 6, 1984.

Cholette, Perkins & Buchanan (by Grant J. Gruel and Jeffrey H. Beusse), for plaintiff.

Smith, Haughey, Rice & Roegge (by Lance R. Mather), for defendant.

Before: R.M. MAHER, P.J., and R.B. BURNS and J.G. ROSKOPP,^[*] JJ.

J.G. ROSKOPP, J.

In this action, plaintiff sought to recover damages from defendants Brower and Melchert on a negligence theory and from defendant Bavar Company, Inc., pursuant to the dramshop act, MCL 436.22; MSA 18.993. After a jury trial, a verdict for plaintiff was returned in the amount of $375,000 against all three defendants. Plaintiff's recovery against defendants Brower and Melchert was reduced by 10% for plaintiff's comparative negligence. Defendant Bavar Company appeals as of right.

Bavar Company argues that the verdict against it should have been reduced by 10% for plaintiff's comparative negligence. To recover under the dramshop act, a plaintiff must show that there was a causal connection between the unlawful sale of intoxicating liquor and the plaintiff's injuries. Watson v Ristow, 42 Mich. App. 318, 321; 201 NW2d 289 (1972). MCL 436.22(5); MSA 18.993(5) contains the following provision, added to the statute by 1972 PA 196:

"[A]ll factual defenses open to the alleged intoxicated person or minor shall be open and available to the principal and surety."

Bavar Company was the principal on a bond required by MCL 436.22(2); MSA 18.993(2) and therefore was able to assert any factual defense open to Brower and Melchert.

The defense of comparative negligence was adopted in Michigan in Placek v Sterling Heights, 405 Mich. 638; 275 NW2d 511 (1979). Under Placek, a plaintiff's negligence is a partial bar to his recovery; the plaintiff's recovery is reduced to the extent that his or her negligence contributed to the injury. 405 Mich. 650, fn 1. In Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich. 29, 40; 323 NW2d 270 (1982), the Court explained:

"Under Placek, the defendant must pay the full percentage of damages caused by his negligence."

Comparative negligence is therefore a factual defense based on causation. Plaintiff, however, points to Dahn v Sheets, 104 Mich. App. 584, 592593; 305 NW2d 547 (1981), in which the Court said:

"Plaintiffs also argue that in light of Placek * * * a person's participation in bringing about the intoxication which led to his injury should not be a bar to recovery. We disagree. The dramshop act is the legislatively-created exclusive remedy for injuries arising out of unlawful sales of intoxicating beverages by licensed retailers, and the cause of action is not based on negligence. See Rowan v Southland Corp, 90 Mich. App. 61; 282 NW2d 243 (1979). Placek only has applicability to common law tort actions sounding in negligence. If the comparative negligence doctrine is to be applied in dramshop actions, the Legislature must mandate this change."

Dahn is distinguishable from this case. Dahn involved negligent participation of the plaintiff in bringing about the intoxication. Because the dramshop is liable for injuries caused by its illegal sale of intoxicating liquor, the Dahn panel properly rejected the defense of comparative negligence on the facts before it. Cases reaching similar conclusions include Genesee Merchants Bank & Trust Co v Bourrie, 375 Mich. 383, 389; 134 NW2d 713 (1965) (contributory negligence); James v Dixon, 95 Mich. App. 527, 534-535; 291 NW2d 106 (1980), and Barrett v Campbell, 131 Mich. App. 552; 345 NW2d 614 (1983). Here, however, the defense of comparative negligence was not asserted on the theory that plaintiff negligently participated in bringing about the intoxication; instead, defendants' theory was that plaintiff's own negligence, as well as negligence by the intoxicated defendants, contributed to the injuries. To the extent that plaintiff's injuries were caused by his own negligence unrelated to bringing about the intoxication, they were not caused by the illegal sale of intoxicating liquor.

We hold that the defense of comparative negligence is available to a dramshop defendant where it could be asserted by the allegedly intoxicated person or minor and where it does not involve negligence in bringing about the intoxication. Defendant Bavar Company is entitled to have the judgment against it reduced by 10% for plaintiff's comparative negligence.

Other issues raised by defendant Bavar Company require little discussion. We are convinced that any error in admitting evidence that Brower and Melchert had engaged in fights while intoxicated was harmless, because defendants were permitted to introduce equally damaging evidence concerning fighting by plaintiff. A judgment notwithstanding the verdict on defendant's motion is proper only if, viewing the evidence in the light most favorable to plaintiff, the evidence is insufficient as a matter of law to support a verdict for plaintiff. See, for example, Sabraw v Michigan Millers Mutual Ins Co, 87 Mich. App. 568, 571; 274 NW2d 838 (1978), rev'd on other grounds sub nom Smith v Allendale Mutual Ins Co, 410 Mich. 685; 303 NW2d 702 (1981). Ample evidence was presented to sustain the trial court's denial of defendant's motion for judgment notwithstanding the verdict. The record does not support defendant's claim that the verdict was necessarily the product of passion or prejudice.

Affirmed as modified.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.