In Borkowski v Niles, Unpublished Court of Appeals Case No. 72181 (Decided January 21, 2020) the plaintiff brought a claim under the Dramshop Act as well as a third party negligence claim following an automobile accident involving a drunk driver. Prior to the accident, the at-fault driver had spent several hours at an American Legion Post where she consumed multiple alcoholic beverages. The plaintiff argued that the at-fault driver was visibly intoxicated when served at the American Legion Post thereby making the Post liable under the Dramshop Act for his injuries. The trial court disagreed and granted summary disposition in favor of the Post. The plaintiff appealed.
The Dramshop Act provides that “[a] retail licensee shall not . . . sell, furnish, or give alcoholic liquor to an individual who is visibly intoxicated.” MCL 436.1801(1). The Act further provides “[A]n individual who suffers damage or who is personally injured by a minor or visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of alcoholic liquor to the minor or visibly intoxicated person, if the unlawful sale is proven to be a proximate cause of the damage, injury, or death, or the spouse, child, parent, or guardian of that individual, has a right of action in his or her name against the person who by selling, giving, or furnishing the alcoholic liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the damage, injury, or death.” MCL 436.1801(2). In determining whether someone was visibly intoxicated for purposes of liability under the Dramshop Act “[t]he relevant inquiry . . . posed is whether the combination of circumstantial evidence and the permissible inference drawn therefrom . . . permits a finding that [an allegedly intoxicated person (“AIP”)] was ‘visibly intoxicated’ when [s]he was last served alcohol at [the defendant’s bar].” Heyler v Dixon, 160 Mich App 130, 146; 408 NW2d 121(1987).
The Court of Appeals reversed the trial court’s decision finding that the responding officer “noticed signs of visible intoxication less than 15 minutes after [defendant driver] left the Legion. Moreover, a physician’s assistant testified that [defendant driver] appeared to be intoxicated when he evaluated her in the emergency room, and her [BAC] was measured at .214 grams of alcohol per 100 milliliters of blood approximately one hour after she left the Legion. [Defendant driver] also exhibited belligerent behavior at the hospital after being admitted for observation.” As such, the court determined that the “direct and circumstantial evidence presented and the reasonable inferences drawn from it, create a material question of fact upon which reasonable minds could differ.”
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