Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

February 2, 2010

139319-21 139328-33

BARBARA LYNN SALT, Personal Representative of the Es tate of ALYSHA LYNN SALT, Deceased, Plaintiff-Appellee,

v SC: 139319 COA: 277391 Ingham CC: 05-000060-NS ANDREW C. GILLESPIE, GERALDINE LYNN IRVINE, PIXIE, INC., d/b/a BENNIGAN’S, and MASON JAR PUB & GRUB, Defendants, and

QUALITY DAIRY COMPANY, Defendant-Appellant.

_____________ _______________ _____________ JOSEPH BOLANOWSKI, Personal Representative of the Estate of ROBERT M. BOLANOWSKI, Deceased, BRENDA J. BOLANOWSKI, and TE RRANCE D. HALL, Plaintiffs-Appellees,

v SC: 139320 COA: 277392 Ingham CC: 05-000161-NI ANDREW C. GILLESPIE, GERALDINE LYNN IRVINE, f/k/a GERALDINE LYNN GATHMAN, RONALD SHEELE ENTERP RISES, L.L.C., d/b/a MASON JAR PUB & GRUB, and SWEET ONION, INC., d/b/a BENNIGAN’S, Defendants, and

QUALITY DAIRY COMPANY, Defendant-Appellant.

_____________ _______________ _____________ STEPHEN ANCONA, Plaintiff-Appellee,2

v SC: 139321 COA: 277393 Ingham CC: 05-000297-NI ANDREW C. GILLESPIE, GERALDINE LYNN IRVINE, f/k/a GERALDINE LYNN GATHMAN, RONALD SHEELE ENTERP RISES, L.L.C., d/b/a MASON JAR PUB & GRUB, and SWEET ONION, INC., d/b/a BENNIGAN’S, Defendants, and

QUALITY DAIRY COMPANY, Defendant-Appellant.

________________ _______________ __________/ BARBARA LYNN SALT, Personal Representative of the Es tate of ALYSHA LYNN SALT, Deceased, Plaintiff-Appellant,

v SC: 139328; 139331 COA: 277400; 277434 Ingham CC: 05-000060-NS ANDREW C. GILLESPIE, GERALDINE LYNN IRVINE, and QUALIT Y DAIRY COMPANY, Defendants, and

PIXIE, INC., d/b/a BENNIGAN’S, and RONALD SHEELE ENTERP RISES, L.L.C., d/b/a MASON JAR PUB & GRUB, Defendants-Appellees.

_____________ _______________ _____________ JOSEPH BOLANOWSKI, Personal Representative of the Estate of ROBERT M. BOLANOWSKI, Deceased, BRENDA J. BOLANOWSKI, and TE RRANCE D. HALL, Plaintiffs-Appellants,

v SC: 139329; 139332 COA: 277402; 277435 Ingham CC: 05-000161-NI ANDREW C. GILLESPIE, GERALDINE LYNN IRVINE, f/k/a GERALDINE LYNN GATHMAN, and QUALITY DA IRY COMPANY, Defendants, and

SWEET ONION, INC., d/b/a BENNIGAN’S, and RONALD SHEELE ENTERP RISES, L.L.C., d/b/a MASON JAR PUB & GRUB, Defendants-Appellees.

_____________ _______________ _____________3

STEPHEN ANCONA, Plaintiff-Appellant,

v SC: 139330; 139333 COA: 277404; 277436 Ingham CC: 05-000297-NI ANDREW C. GILLESPIE, GERALDINE LYNN IRVINE, f/k/a GERALDINE LYNN GATHMAN, and QUALITY DA IRY COMPANY, Defendants, and

SWEET ONION, INC., d/b/a BENNIGAN’S, and RONALD SHEELE ENTERP RISES, L.L.C., d/b/a MASON JAR PUB & GRUB, Defendants-Appellees.

________________ _______________ __________/

On order of the Court, the applications for leave to appeal the April 21, 2009 judgment of the Court of Appeals are consid ered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal , we REVERSE that part of th e judgment of the Court of Appeals granting summary disposition to Benniga n’s for the reasons stated in the Court of Appeals dissenting opinion. In all other re spects, leave to appeal is DENIED, because we are not persuaded that the remaining questi ons presented should be reviewed by this

Court.

K ELLY

, C.J. ( concurring ).

The opinion in the Court of Appeals by Ju dge Douglas Shapiro, concurring in part and dissenting in part, persuasi vely explained the rationale fo r the trial court’s grant of summary disposition with regard to defendant Bennigan’s. He wrote:

I dissent, however, from the majority ’s acceptance of the trial court’s

conclusion that a fact-fi nder could not reasonably co nclude that Gillespie was served at Bennigan’s when he was visibly intoxicated. To find such a

reasonable conclusion would require a question of material fact (created by

evidence or reasonable inferences derive d therefrom) that: (a) Gillespie was present at Bennigan’s; (b) while there he was visibly intoxicated; and (c) he

was served a drink while in that st ate. Based on the record, I would

conclude that such a reasonable conclusion exists.

The first requirement, i.e., that there be a reasonable question of material fact that Gillespie was pres ent at Bennigan’s that evening, is straightforward. Although the majority attempts to cast doubt on the issue, there is clearly a question of fact. First, Bennigan’s conceded, for purposes of its motion for summary disposition a nd for this appeal, that there is a4

reasonable question of material fact on this issue. Even if this were not the case, Gillespie’s testimony clearly cr eates such a question. Gillespie testified in his deposition th at he specifically reca lled walking in the front door of Bennigan’s after he stopped at the Qua lity Dairy and that he recalled sitting on a stool at the bar in Bennigan’s, rema ining there for as much as two hours, ordering at leas t one drink while there and being told while there that he was being too loud. The majority s eems to equivocate on this issue, noting that his presence at Bennigan’s is inconsistent with the chronology constructed by Bennigan’ s counsel and characterizing his testimony as “vague.” However, th e chronologies put forward by other parties allow for Gillespie’s presence at Bennigan’s and th e majority’s view of the relevant testimony as “vague ” is both incorrect and irrelevant. Gillespie’s recollection of being at Benn igan’s is clear. More important, it

is not for this Court to determine the credibility of a witness. The “vagueness” of testimony, unless it is devoid of foundation, goes to the weight, not the admissibility of the test imony and it is not for this Court to determine what weight to give it. Th at is the most esse ntial role of the finder of fact. For a court to gran t summary disposition because it does not find a particular witness convincing u ndercuts the core role of the factfinder. People v Hardiman , 466 Mich 417, 428; 6 46 NW2d 158 (2002) (“It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences”). In any event, as alrea dy noted, Bennigan’s has conceded, at least at this time, that th ere is a reasonable basis for a jury to find that Gillespie was there that night.

The second requirement, i.e., that there be a reasonable question of material fact that Gillespie was visibl y intoxicated while at Bennigan’s, is also straightforward. As noted by th e majority in its discussion concerning Quality Dairy, a reasonable trier of f act could conclude that Gillespie was visibly intoxicated following his alc ohol consumption at the Mason Jar.

This would include the time at which he is a lleged to have been at Bennigan’s. In addition, the Benniga n’s stop is alleged to have occurred after the consumption of at least some of the Quality Dairy liquor. Finally, Gillespie testified that while at Benni gan’s he was told that he was being too loud and to quiet down. Thus, there is a question of fact whether Gillespie was visibly intoxicated at th e time he claimed to have been at Bennigan’s.

The last requirement, i.e., that there be a reasonable question of material fact that Gillespi e was served alcohol at Be nnigan’s, is also met. First, defendant Bennigan’s conc edes for purposes of its summary disposition motion that Gillespie did order a drink. Second, Gillespie5

testified that he ordered a drink and wh en asked if the bartender served him he answered, “Yeah, he would have gi ven it to me.” He was also asked

whether it was true that “he have no recollection of consuming alcohol at Bennigan’s,” to which he responded that it was not true. He was then asked by counsel for Bennigan’s if it was po ssible that, given that he was loud, the bartender might have refused him service and he answered, “I don’t think so.” When asked the same questio n again, he did c oncede that such a scenario was possible.

If a fact-finder chose to believe Gillespie’s testimony, it could conclude, based on direct evidence th at he was served at Bennigan’s. Moreover, even if a jury doubted so me of Gillespie’s testimony, it could reasonably infer that an in dividual who sits at a ba r and orders a drink will be served. There certainly is no ev idence to sugges t that anyone at Bennigan’s that evening was denied service at the bar. None of the Bennigan’s employees testified to su ch an event and Bennigan’s manager

conceded that such an “out of the ordinary occurrence” would typically be noted in the shift log and that no such notation was made. If a jury accepts Gillespie’s testimony that he ordered a dri nk at Bennigan’s and there is no evidence that anyone was refused a dr ink that evening, it is a reasonable

inference that Gille spie was served.

This is not to say that plain tiffs should or will prevail against Bennigan’s at trial. There are shar p questions of fact, which a jury may very well resolve in favor of Benniga n’s, and there are good reasons to question whether a jury will accept Gille spie’s testimony. However, the role of this Court, and of the trial court in a (C)(10) motion, is clearly

circumscribed.

Under MCR 2.116(C)(10), plainti ffs, as the nonmoving party, are not only entitled to have a ll conflicting evidence viewed in their favor, but

also “reasonable inferences” as well. Knauff v Oscoda Co Drain Comm’r

, 240 Mich App 485, 488; 618 NW2d 1 (2000). I be lieve that the majority has wrongly blurred the line between a “reasonable inference” and “mere speculation or conjecture.” It woul d have been mere conjecture and Bennigan’s would have been entitled to summary disposition if Gillespie had testified simply that it was “po ssible” that he went Bennigan’s and

consumed alcohol there. But that is not his testimony. He testified that he went to Bennigan’s, that he sat at the bar, that he ordered a drink, and that

he remained there for two hours. Moreover, there is no evidence that anyone was refused service that evening at Bennigan ’s. A conclusion that he was served is not mere specu lation or conjecture but instead “a6

reasonable inference” based upon the evidence taken in light most favorable to plaintiff.

The majority seems to suggest that absent someone actually witnessing the service, no reasonable juror could find it occurred. In my view, this negates the principle that reasonable inferences as well asdisputed evidence is to be taken in the light most favorable to the nonmoving party. Ironically, the major ity appears to rely on Gillespie’s testimony that being refused service was something that “could [have] happen[ed],” ignoring his immediately preceding statement that he did not think that was what actually happene d. Relying on a statement that something “could have happ ened” is exactly the ty pe of speculation and conjecture which the majority critici zes, yet it is what it relies upon here.

[ Salt v Gillespie, unpublished opinion per curiam of the Court of Appeals (Shapiro, J., concurring in part and dissentin g in part), issued Apri l 21, 2009 (Docket No. 277391) footnotes omitted.]

M ARKMAN , J. ( concurring in part an d dissenting in part ).

In this dramshop action, plaintiffs sued three businesses — Mason Jar Pub, Quality Dairy, and Be nnigan’s — following a fatal automo bile accident caused by an intoxicated driver, Andrew Gillespie. The tr ial court denied all defendants’ motions for summary disposition. The Court of Appeals then reversed as to Mason Jar Pub and Bennigan’s, but affirmed as to Quality Dairy. This Court now denies leave to appeal regarding Mason Jar Pub and Qua lity Dairy, but reinstates th e action against Bennigan’s.

I concur in the order with reference to Ma son Jar Pub, but dissent with reference to Quality Dairy and Bennigan’s.

When a defendant, as here, files a mo tion for summary disposition under MCR 2.116(C)(10), the trial court must consider the affidavits, pleadings, depositions, admissions, and other evidence su bmitted by the parties in the light most favorable to the party opposing the motion. Maiden v Rozwood , 461 Mich 109, 120 (1999). But “where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judg ment as a matter of law.” Id . Moreover, a party opposing a motion for summary disposition must present more than conjecture and speculation to establish that a genuine issue of material fact exists. Karbel v Comerica Bank , 247 Mich App 90, 97 (2001).

In order to establish a prima facie dram shop action, a plaintiff must show that a business sold alcohol to a patr on; while the patron was visibly intoxicated and that the selling of the alcohol constitu ted a proximate caus e of the plaintiff’s injury. MCL 436.1801(3); Reed v Breton , 475 Mich 531 (2006). To es tablish “visible intoxication”7

under MCL 436.1801(3), a plaintiff must present evidence of “ actual visible

intoxication.” Id. at 534 (emphasis added). Moreove r, pursuant to MC L 436.1801(8), there is a rebuttable presumption that a busi ness, other than that which last sold the alcohol, has not committed any act giving rise to a cause of action. A plaintiff rebuts this presumption by showing not only the evidence required for a prima facie case, but also clear and convincing evidence to rebut the presumption. Id . at 533.

I initially note that Gillespie testified that he did “not re call,” but that he “had been

told” that he had even been at Mason Jar Pub, Quality Dairy and Bennigan’s to purchase or consume alcohol the day of the accident. This is explained perh aps by the facts that Gillespie had taken two mood -enhancing prescription drugs that day before consuming alcohol; he himself had been injured in the fa tal car crash when his head went through the windshield; and he only woke up five days later in the hospital. No other witness positively placed Gillespie at Qu ality Dairy or Bennigan’s on the evening in question. While Gillespie did testify as if speaking fro m personal knowledge at other points in his deposition, I question the value of such te stimony in discerning a genuine issue of

material fact when that same witness had testified he was only repeating what others had told him. Just as a party may not create a factual dispute by submitting an affidavit that contradicts his sworn testimony, Casey v Auto-Owners Ins Co , 273 Mich App 388, 396 (2006), I see no principled basis for determini ng that a genuine issue of material fact exists for ignoring a witness’ testimony that he had no recollec tion of the night in question, and then relying on other of his testimony that he did possess some personal knowledge of the evening in question. See also United States v 1980 Red Ferrari , 827 F2d 477, 480 n3 (CA 9, 1987) (h olding that internally cont radictory depos ition testimony created no issue of material fact).

Quality Dairy was the second-to-last bus iness (after Mason Jar Pub) to sell Gillespie an alcoholic beverage — assuming it did sell him such a beverage. Gillespie testified that he purchased ha lf a pint of Popov vodka at Quality Dairy, but computer records indicate that Quality Da iry did not sell a half pint of Popov vodk a near the time in question. Assuming, however, that Gillespie did purchase an alcoholic beverage from Quality Dairy, plaintiffs still had to establish a genuine issue of mate rial fact that they could prove by clear a nd convincing evidence that G illespie was actually visibly intoxicated at the time Quality Dairy sold him an alcoholic beverage. The only conceivable evidence of this was testimony from a patron of Mason Jar Pub that Gillespie’s eyes were slightly red as he le ft Mason Jar Pub at some indeterminate earlier time, and that as he was leaving, he stumbled slightly as he was sliding sideways to get between two tables on his way ou t. Gillespie himself also sa id his intoxication must have

been obvious because he had been loud and boisterous at Mason Jar Pub, although there

was no other evidence to this effect and, as already noted , Gillespie testified at one point

that he could not even recall being at Mason Jar Pub. In my judgment, th is evidence, even when viewed in a light most favorable to plaintiffs, is insufficient to create a genuine issue of material fact by clear an d convincing evidence that Gillespie wasI, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk February 2, 2010

0126 8

actually visibly intoxicated when he allegedly purchased an alcoholic beverage at Quality Dairy.

Bennigan’s was the last retail establishm ent that served Gille spie an alcoholic beverage before the accident — assuming, agai n, that it did sell him such a beverage. Thus, Bennigan’s is not entitled to the rebutta ble presumption that it did not commit any act giving rise to a cause of action. As the Court of Appeals explained in some detail, the sequence of events on the nigh t of the accident makes it un likely that Gillespie was ever at Bennigan’s that night. Nevertheless, on ce again on the assump tion Gillespie was at Bennigan’s, in order to defeat its motion for summary disposition, plaintiffs had to establish as part of a prima facie case that Gillespie was actually visibly intoxicated when Bennigan’s sold him an alcoholic beverage after he left Mason Jar Pub and Quality Dairy. Here again, the only evidence of ac tual visible intoxication was Gillespie’s own testimony that he had been lo ud and boisterous at Mason Ja r Pub, and the Mason Jar Pub patron’s testimony that Gillespie had slightly red eyes and that he slightly stumbled navigating between tables as he left at some indeterminate time before he went to Quality Dairy and well before he went to Bennigan’s. Gillespie himsel f also testified, despite not recalling being at Bennigan’s, that “the on ly thing I remember from Bennigan’s is someone telling me I was being loud,” and that he purchased a vodka and orange juice while at Bennigan’s, although computer re cords showed that Bennigan’s did not sell a vodka and orange juice to any customer du ring the day of the accident and no else testified about this incident. Gillespie also testified that he did not recall being served a drink at Bennigan’s nor did he recall consumi ng a drink at Bennigan’s. In my judgment, this evidence, even when viewed in the light most favorable to plaintiffs, is insufficient to create a genuine issue of materi al fact that Gillespie was actually visibly intoxicated when he allegedly purchased an alcoho lic beverage at Bennigan’s.

The perpetrator of the horrendous crim e underlying this case was Andrew Gillespie and he is deservedly serving 15 to 30 years’ imprisonment on two counts of second-degree murder. However, in my judgme nt, there is insuffici ent evidence that the servers and sales clerks of Mason Jar Pub, Quality Dairy, and Benni gan’s — even if it can be demonstrated that they all did, in fact, sell alcohol to Gillespie — should reasonably have observed that he was actually visibly intoxicated . Under these circumstances, I do not believe that defenda nts should be required to stand trial for complicity in Gillespie’s crime.

C ORRIGAN , J., joins the statement of M ARKMAN , J.