Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

LAWRENCE REED, Personal 

Representative of the ESTATE OF 

LANCE NATHAN REED, deceased, 

FILED July 19, 2006 

Plaintiff-Appellee, 

v No. 127703 

FREDERICK BRETON, Personal 

Representative of the ESTATE OF 

CURTIS JASON BRETON, deceased, and 

HB RESORT ENTERPRISES, INC., 

a Michigan corporation, a/k/a EAGLES NEST, 

 Defendants, 

and 

BEACH BAR, INC., a Michigan corporation, 

a/k/a BEACH BAR, 

 Defendant-Appellant. 

_______________________________ 

JAMES D. KUENNER, Personal Representative 

of the ESTATE OF ADAM W. KUENNER, 

deceased, 

Plaintiff-Appellee, 

v No. 127704 

FREDERICK BRETON, Personal 

Representative of the ESTATE OF 
________________________________ 

CURTIS J. BRETON, deceased, and 

HB RESORT ENTERPRISES, INC., a Michigan 

corporation, a/k/a EAGLES NEST, 

 Defendants, 

and 

BEACH BAR, INC., a Michigan corporation, 

a/k/a BEACH BAR, 

 Defendant-Appellant. 

CORRIGAN, J. 

A vehicle driven by an intoxicated driver collided with an oncoming 

vehicle carrying two young men on US-127 near Lansing, killing all three 

individuals. The issues on appeal in this dramshop action involve (1) the 

presumption of nonliability under the dramshop act (DSA), MCL 436.1801(8); 

and (2) the adequacy of proofs regarding the driver’s alleged visible intoxication 

under MCL 436.1801(3). 

MCL 436.1801(8) creates a rebuttable presumption of nonliability for all 

but the last retail licensee that serves alcohol to a visibly intoxicated person. This 

novel presumption operates to require that a plaintiff, when opposing a defendant 

that invokes this presumption, must show more than the prima facie case required 

under MCL 436.1801(3). A plaintiff rebuts this presumption by showing not only 

the evidence required for a prima facie case, but clear and convincing evidence. 

Because the Court of Appeals incorrectly held that plaintiffs satisfactorily rebutted 

2 
 

 

the presumption of nonliability, we reverse the judgment of the Court of Appeals 

on this issue. 

We further hold that to establish “visible intoxication” under MCL 

436.1801(3), a plaintiff must present evidence of actual visible intoxication. 

Because the Court of Appeals held that plaintiffs established their claim without 

such evidence, relying instead on suppositions drawn from blood alcohol tests, the 

visible intoxication of another person, and the like, we reverse its judgment and 

reinstate the trial court's grant of summary disposition for defendant Beach Bar, 

Inc. 

I. FACTS AND PROCEDURAL HISTORY 

Plaintiffs, the personal representatives of the estates of Adam W. Kuenner 

and Lance N. Reed,1

 filed separate dramshop claims against defendant Beach Bar, 

Inc., alleging that Curtis J. Breton2

 was served alcohol at defendant’s 

establishment. Plaintiffs contended that Breton was visibly intoxicated when he 

was served alcohol there, and his subsequent impaired driving resulted in the 

deaths of plaintiffs’ decedents. 

Breton had spent the day drinking with his friend, John Marsh. Around 

7:30 p.m., they consumed two beers at the Beach Bar. Lindsay Mizerik, the server 

1

 The personal representatives of the estates, James D. Kuenner and 

Lawrence Reed, are the plaintiffs in these actions. 

2

 Although not a party to this appeal, Frederick Breton, the personal 

representative of the estate of the intoxicated driver, Curtis Breton, deceased, was 

also named as a defendant. 

3 
 

at defendant’s establishment, had received training in identifying visibly 

intoxicated persons. She served Breton and did not observe him to exhibit slurred 

speech, an aggressive manner, a lack of coordination, or erratic behavior. She did 

not consider refusing him service. 

Breton and Marsh next went to the Eagles Nest3

 where they split a pitcher 

of beer. There, they encountered their supervisor, Summit Township Fire 

Department Chief Carl Hendges, who did not think either man was intoxicated. 

Another witness at the Eagles Nest, Richard Potts,4

 who knew Breton and who 

himself owned a convenience store that sold alcoholic beverages, observed that 

Breton’s eyes were not bloodshot or glassy and that he did not appear to be 

intoxicated. Similarly, Marsh did not notice any change in Breton’s speech, in his 

ability to walk, or redness in his eyes over the course of the day. 

Shortly before 10 p.m., Breton drove Marsh home. At approximately 10:11 

p.m., Breton crossed the center line of US-127 at a high rate of speed. His vehicle 

collided head-on with a vehicle carrying plaintiffs’ two decedents, taking the lives 

of all three men. An examination after the collision revealed that Breton’s blood 

alcohol content was 0.215 grams per 100 milliliters of blood. 

3

 Plaintiffs also included HB Resort Enterprises, Inc., which owns the 

Eagles Nest, as a defendant. HB Resort Enterprises, Inc., is not a party to this 

appeal. 

4

 Robert Potts’s wife, who accompanied him that evening, also did not 

observe any loud or unusual behavior at Breton’s table. 

4 
 

Defendant, as the second-to-the-last establishment to serve Breton, sought 

summary disposition under MCR 2.116(C)(10). Defendant relied on the 

rebuttable presumption of nonliability available to all but the last serving 

establishment under § 801(8). Defendant argued that plaintiffs failed to rebut the 

presumption available under § 801(8) because they failed to show that Breton was 

visibly intoxicated. Plaintiffs responded that a factual issue remained regarding 

whether defendant’s establishment was the last to serve alcohol to Breton and that, 

regardless, Breton was served alcohol when he was visibly intoxicated. Plaintiffs 

also offered the expert opinion reports of two toxicologists. 

Both of those reports estimated the number of drinks that Breton had 

consumed and recited his age, weight, and the alcohol levels in his blood and urine 

after the collision. Given this amount of alcohol and Breton’s physical makeup, 

the toxicologists opined that he must have been significantly impaired.5

 They 

listed several manifestations of impairment, such as disorientation and lack of 

coordination, and concluded that he must have exhibited some of these symptoms. 

The trial court held that plaintiffs had shown Breton’s visible intoxication 

by the experts’ deductions from the data regarding how Breton must have 

appeared. The trial court concluded, however, that plaintiffs were required to 

offer more than circumstantial evidence from experts and so failed to rebut the 

5

 Notably, one expert’s opinion focused on Breton’s hypothesized behavior 

as of and after his departure from defendant’s establishment, rather than on 

assessing his behavior at the time that he was served alcohol there. 

5 
 

presumption of nonliability with “positive, unequivocal, strong and credible” 

evidence in light of Krisher v Duff, 331 Mich 699; 50 NW2d 332 (1951). Thus, 

the court granted summary disposition to defendant. 

The Court of Appeals granted each plaintiff's application for leave to 

appeal, consolidated the appeals, reversed the judgment of the trial court, and 

remanded the cases to the trial court.6

 It concluded that the trial court had 

impermissibly heightened plaintiffs’ burden of proof to overcome the presumption 

protecting the second-to-the-last bar. Plaintiffs’ experts’ testimony, predicated on 

Breton’s physical build and the alcohol in his body at the time of the accident, and 

testimony about the level of intoxication of Marsh sufficed to create a genuine 

issue of material fact regarding whether Breton was visibly intoxicated when 

served at defendant’s establishment. The Court of Appeals held that this evidence 

permitted plaintiffs to withstand summary disposition. We granted leave to 

appeal. 474 Mich 886 (2005). 

II. STANDARD OF REVIEW 

We review a grant or denial of summary disposition de novo. Maiden v 

Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When ruling on a motion 

brought under MCR 2.116(C)(10), the trial court must consider the affidavits, 

pleadings, depositions, admissions, and other evidence submitted by the parties in 

the light most favorable to the party opposing the motion. Id. at 120. “Where the 

6

 264 Mich App 363; 691 NW2d 779 (2004). 

6 
 

proffered evidence fails to establish a genuine issue regarding any material fact, 

the moving party is entitled to judgment as a matter of law.” Id. Further, we 

review a question of statutory interpretation de novo. Nastal v Henderson & 

Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). 

III. ANALYSIS 

By creating a remedy against retail liquor licensees for persons injured by 

intoxicated tortfeasors, the DSA abrogated the general common-law rule that no 

cause of action existed for the negligent selling or furnishing of alcohol to an ablebodied person. Millross v Plum Hollow Golf Club, 429 Mich 178, 183-184; 413 

NW2d 17 (1987). The act provides a remedy for plaintiffs injured by a visibly 

intoxicated person, allowing suit to be brought against a retail establishment that 

unlawfully sells alcohol to a minor or a visibly intoxicated person, if the unlawful 

sale is a proximate cause of the injury. MCL 436.1801(3) provides: 

Except as otherwise provided in this section, an 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, shall have 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. In an 

action pursuant to this section, the plaintiff shall have the right to 

recover actual damages in a sum of not less than $50.00 in each case 

in which the court or jury determines that intoxication was a 

proximate cause of the damage, injury, or death. 

7 
 

Although a plaintiff must establish the elements of § 801(3) with regard to 

each defendant in a dramshop claim, the Legislature also created a rebuttable 

presumption. This presumption affords an additional measure of protection for a 

retail licensee that was not the last licensee to serve alcohol to a visibly intoxicated 

person. MCL 436.1801(8) provides: 

There shall be a rebuttable presumption that a retail licensee, 

other than the retail licensee who last sold, gave, or furnished 

alcoholic liquor to the minor or the visibly intoxicated person, has 

not committed any act giving rise to a cause of action under 

subsection (3). 

Thus, all establishments but the last to serve the person have the benefit of 

a rebuttable presumption that no unlawful service occurred. How to give meaning 

to this presumption is the central issue of this case. As indicated, the trial court 

concluded that the presumption imposed a heightened burden on plaintiffs, 

requiring them to establish Breton’s visible intoxication at defendant’s bar by 

“positive, unequivocal, strong and credible evidence.” The Court of Appeals 

found, however, that the trial court erred because the statute did not expressly 

provide for such a heightened burden. 264 Mich App at 374-375. Further, it held 

that the general rule regarding rebuttable presumptions found in MRE 3017 

7

 MRE 301 provides: 

In all civil actions and proceedings not otherwise provided for 

by statute or by these rules, a presumption imposes on the party 

against whom it is directed the burden of going forward with 

evidence to rebut or meet the presumption, but does not shift to such 

party the burden of proof in the sense of the risk of nonpersuasion, 

(continued . . .) 

8 
_________________________ 

controlled. The Court thus imposed the usual standard required to overcome a 

rebuttable presumption: competent and credible evidence. The Court of Appeals 

erred by failing to recognize that this general rule cannot apply to the separate and 

novel presumption of § 801(8). Plaintiffs already bear the burden of establishing a 

prima facie case against any defendant in a dramshop claim, including showing 

the element of serving alcohol to a visibly intoxicated person. Under MRE 301, 

demonstrating a prima facie case itself remains subject to the standard of 

competent and credible evidence. Accordingly, to merge the test for establishing 

the prima facie case with the test to rebut the presumption prevents defendant from 

receiving the protection that the Legislature granted in § 801(8).8 Requiring the 

(. . . continued) 

which remains throughout the trial upon the party on whom it was 

originally cast. 

8

 In Wold Architects & Engineers v Strat, 474 Mich 223, 234; 713 NW2d 

750 (2006), we stated that nothing in the act at issue there showed an intent to 

abrogate the common law. We did not extend that analysis to conclude that the 

absence of language specifically abrogating the common law demonstrated that no 

abrogation occurred. Further, the dissent incorrectly asserts that the Legislature 

“strongly indicate[d]” an intent to incorporate a lower common-law standard to 

rebut the presumption. Post at 9. The dissent’s position is inconsistent with the 

Legislature’s purposeful differentiation between the last bar to serve a visibly 

intoxicated patron and a bar that served the patron earlier. Indeed, applying the 

dissent’s standard, which would allow for rebutting the presumption by the same 

prima facie evidence that satisfies § 801(3), the presumption would have no force 

or effect. We cannot conclude that the legislative enactment of a rebuttable 

presumption favoring those bars that were not the last bar to serve a visibly 

intoxicated person “strongly indicates” a legislative intent to encompass a standard 

of proof that would render that presumption meaningless. 

9 
 

same evidence to make out a dramshop claim and to rebut an additional 

presumption is tantamount to no test at all. 

Because we are precluded from construing § 801(8) as having no meaning,9 

some difference must exist between the proofs required under § 801(8) and those 

required under § 801(3). Thus, in a lawsuit against a retail licensee that has the 

benefit of the presumption, plaintiffs must not only make out a prima face case 

under § 801(3) (among other things, that the drinker was visibly intoxicated), but 

must also rebut with additional evidence the presumption available to second-tothe-last (and earlier) establishments under § 801(8). Because the Legislature is 

held to be aware of this state’s law, we assume, with regard to the presumption, 

that the Legislature considered the hierarchy of evidentiary standards available in 

our law. In that hierarchy, the most rigorous standard of proof is “proof beyond a 

reasonable doubt”; the least rigorous is “proof by a preponderance of the 

evidence”; and between these is “proof by clear and convincing evidence.” In re 

Martin, 450 Mich 204, 225-227; 538 NW2d 399 (1995). The standard of “proof 

beyond a reasonable doubt” is not applied in civil cases but is applied in criminal 

matters. Id. The “proof by a preponderance of the evidence” standard is the 

standard normally associated with civil matters and indeed is the standard utilized 

to assess the evidence under § 801(3). This leaves “proof by clear and convincing 

evidence” as the enhanced standard to rebut the statutory presumption under § 

9 See Sweatt v Dep’t of Corrections, 468 Mich 172, 183; 661 NW2d 201 

(2003). 

10 
 

801(8). Thus, in these cases a plaintiff, in addition to making out a prima facie 

case proven by a preponderance of the evidence under § 801(3), must also, when a 

defendant is not the last establishment to serve the allegedly intoxicated person, 

present clear and convincing evidence to rebut and thus overcome the presumption 

of § 801(8). That standard, while not precisely articulated by the trial court, was 

essentially the standard it adopted.10 Accordingly, we affirm the trial court’s 

ruling and reverse the judgment of the Court of Appeals in this regard. 

As demonstrated by the dissent’s interpretation, a lower threshold for 

rebutting the presumption would require a plaintiff only to show (1) that a retail 

licensee served alcohol to a patron (2) while the patron was visibly intoxicated. 

But a plaintiff must already demonstrate these same elements to make out a claim 

under § 801(3). Further, the Legislature expressly differentiated between the last 

retail licensee to sell, give, or furnish alcohol to a visibly intoxicated person and 

the prior retail licensees to do the same. The Legislature excepted the former class 

of licensees from the protection of the § 801(8) presumption but included the latter 

class of licensees in that protection. Failing to acknowledge the distinction 

between these licensees disregards the plain language of the statute. Accordingly, 

we give full effect to the language of the statute by recognizing the different 

10 See 2 McCormick, Evidence (5th ed, Practitioner Treatise Series), § 340, 

pp 425, 427 n 24, citing Krisher, supra, as applying the “clear and convincing 

evidence” standard. 

11 
 

burden necessitated when the Legislature granted a presumption to some retail 

licensees. 

We next determine if plaintiffs’ evidence sufficed to overcome the 

presumption. It did not, because the proofs presented could not even meet the 

competent and credible standard for rebutting the presumption to show service to a 

visibly intoxicated person. 

This standard of “visible intoxication” focuses on the objective 

manifestations of intoxication. Miller v Ochampaugh, 191 Mich App 48, 59-60; 

477 NW2d 105 (1991).11 While circumstantial evidence may suffice to establish 

this element, it must be actual evidence of the visible intoxication of the allegedly 

intoxicated person.12 Other circumstantial evidence, such as blood alcohol levels, 

time spent drinking, or the condition of other drinkers, cannot, as a predicate for 

11 See also SJI2d 75.02 (“A person is ‘visibly intoxicated’ when his or her 

intoxication would be apparent to an ordinary observer.”). Indeed, even the 

dissent describes the importance of the statutory phrase “visibly intoxicated.” See 

post at 11-15. 

12 See, e.g., Dines v Henning, 437 Mich 920 (1991), reversing the Court of 

Appeals judgment in that matter, 184 Mich App 534; 459 NW2d 305 (1990), and 

adopting the dissenting opinion of Judge Michael J. Kelly, 184 Mich App at 540-

541. Although Judge Kelly stated that “[e]yewitness testimony of visible 

intoxication [was] not required to establish a dramshop claim,” he further stated 

that “visible intoxication may be proven by circumstantial evidence and the 

inferences drawn therefrom.” Id. Thus, permissible inferences must have some 

basis in objectively observable behavior. Moreover, Judge Kelly’s opinion relied 

not only on evidence of the amount of alcohol consumed and expert testimony, but 

on evidence (1) that the visibly intoxicated person drove wildly and maniacally 

both to and from the bar and (2) that that person behaved in a “loud and 

boisterous” manner. Id. at 541. 

12 
 

expert testimony, alone demonstrate that a person was visibly intoxicated because 

it does not show what behavior, if any, the person actually manifested to a 

reasonable observer. These other indicia—amount consumed, blood alcohol 

content, and so forth—can, if otherwise admissible, reinforce the finding of visible 

intoxication, but they cannot substitute for showing visible intoxication in the first 

instance. While circumstantial evidence retains its value, such (and any other type 

of) evidence must demonstrate the elements required by § 801(3), including 

“visible intoxication.”13 

Plaintiffs here presented no evidence of Breton’s visible intoxication at the 

time he was served at defendant’s establishment in response to defendant’s motion 

for summary disposition. The record reflects that all four eyewitnesses saw no 

signs that Breton was visibly intoxicated. Plaintiffs further relied on two expert 

toxicologists’ expectations that Breton would have exhibited signs of intoxication. 

But reports discussing Breton’s physical statistics and alcohol consumption, 

coupled with predictions of his impairment, offer only speculation about how 

alcohol consumption affected Breton that night. Expert post hoc analysis may 

demonstrate that Breton was actually intoxicated but does not establish that others 

witnessed his visible intoxication.14 Consequently, no basis for a DSA claim 

13 In 1972, the Legislature amended the statute (then MCL 436.22) to 

modify “intoxicated person” by adding the term “visibly.” 1972 PA 196; compare 

1961 PA 224. 

14 Indeed, even employing, for the sake of argument, the dissent’s proffered 

definition of “capable of being seen” for “visibly intoxicated,” the expert 

(continued . . .) 

13 
_________________________ 

against defendant existed. Because plaintiffs failed to establish a genuine issue of 

material fact that Breton was visibly intoxicated even under § 801(3), the trial 

court correctly granted summary disposition for defendant. 

IV. CONCLUSION 

We conclude that the Court of Appeals erred by reversing the trial court’s 

grant of summary disposition to defendant. Plaintiffs failed to rebut the 

presumption of nonliability available to defendant under MCL 436.1801(8). We 

further hold that expert testimony regarding Breton’s projected visible intoxication 

lacked any basis in actually manifested signs of intoxication and, thus, did not 

create a genuine issue of material fact under MCL 436.1801(3). Accordingly, we 

reverse the judgment of the Court of Appeals and reinstate the trial court's grant of 

summary disposition for defendant. 

 Maura D. Corrigan 

Clifford W. Taylor 

 Elizabeth A. Weaver 

Robert P. Young, Jr. 

Stephen J. Markman 

(. . . continued) 

testimony still falls short of that standard. Plaintiffs’ experts’ reports
 

demonstrated only their own expectation of Breton’s visible intoxication, not that 

he actually was visibly intoxicated. 

14 
v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

LAWRENCE REED, Personal 

Representative of the ESTATE OF 

LANCE NATHAN REED, deceased, 

Plaintiff-Appellee, 

No. 127703 

FREDERICK BRETON, Personal 

Representative of the ESTATE OF 

CURTIS JASON BRETON, deceased, and 

HB RESORT ENTERPRISES, INC, a 

Michigan corporation, a/k/a EAGLES 

NEST, 

 Defendants, 

and 

BEACH BAR, INC, a Michigan 

corporation, a/k/a BEACH BAR, 

 Defendant-Appellant. 

JAMES D. KUENNER, Personal 

Representative of the ESTATE OF ADAM 

W. KUENNER, deceased, 

Plaintiff-Appellee, 

No. 127704 

FREDERICK BRETON, Personal 

Representative of the ESTATE OF 

CURTIS J. BRETON, deceased, and HB 

RESORT ENTERPRISES, INC, a 

v 
Michigan corporation, a/k/a EAGLES 

NEST, 

 Defendants. 

and 

BEACH BAR, INC, a Michigan 

corporation, a/k/a BEACH BAR, 

 Defendant-Appellant. 

KELLY, J. (dissenting). 

We granted leave in these cases to address two questions. The first is what 

is the proper standard to rebut the statutory presumption in a dramshop case? 

MCL 436.1801(8) et seq. The second is what limitations did the Legislature 

intend, if any, on the type of evidence needed to show that a person was visibly 

intoxicated when served intoxicants by a dramshop? The majority holds that, to 

rebut the statutory presumption, a plaintiff must present clear and convincing 

evidence. It also holds that, to establish “visible intoxication” under the statute, a 

plaintiff must present actually manifested signs of intoxication. I disagree. The 

majority has erroneously given unintended meaning to the statute with respect to 

both issues. Hence, I must respectfully dissent. 

UNDERLYING FACTS AND PROCEDURAL BACKGROUND 

On April 20, 2001, at about 10:00 p.m., Curtis Breton drove his automobile 

while under the influence of more than 20 beers and crossed the center line of US127 at more than 100 miles per hour. His automobile slammed into a vehicle 

2
 
 

occupied by Adam Kuenner and Lance Reed, killing them and Breton and 

destroying both vehicles. At the time of the accident, Breton’s blood alcohol level 

was 0.215 grams per 100 milliliters of blood.1 Plaintiffs, the personal 

representatives of the estates of Kuenner and Reed, filed suit against the Beach 

Bar for negligently selling intoxicating liquor to Breton in violation of MCL 

436.1801(3). 

Deposition testimony indicated that Breton spent the day of the accident 

drinking with his friend John Marsh, a fellow firefighter. They started their binge 

in the morning at the Firehouse Pub, where they each consumed at least two to 

three beers. They continued it when another firefighter joined them after lunch. 

They purchased a 12-pack of beer and drank it while they repaired a collapsed 

boat dock at a family home. Each consumed at least two to three beers during the 

repair project. 

About 4:45 p.m., Breton and Marsh went to the defendant Beach Bar where 

they split two pitchers of beer. On leaving the bar, they proceeded to Marsh’s 

home and drank two beers each. They returned to the Beach Bar about a half an 

hour later and drank two more beers and split a pizza. At approximately 9:00 p.m. 

they left the bar. Marsh testified that he did not feel the effects of the alcohol until 

then. He also testified that, until they left the bar, Breton did not appear visibly 

intoxicated. 

1

 Legal intoxication is statutorily defined as 0.08 grams per 100 milliliters 

of blood. MCL 257.625(1)(b). 

3
 
They left the Beach Bar and went to the Eagle’s Nest bar where they shared 

yet another pitcher of beer. At 9:50 p.m., Breton drove Marsh home. Concerned, 

Marsh asked Breton if he was “alright to drive.” Breton responded that he was. 

However, he died about 20 minutes later when he drove into oncoming traffic on 

the highway, killing himself, Kuenner, and Reed. 

Before the fatal accident, Breton had returned to the Beach Bar where he 

attempted to get a date with Lindsay Mizerik, the waitress who had served him 

earlier in the evening. He did not drink during this return visit. Mizerik testified 

at deposition that she was trained in discerning intoxication and that Breton 

displayed no signs of intoxication while he was at the Beach Bar before the 

accident. Several others who saw Breton that evening testified that he did not 

appear intoxicated. 

After the close of discovery, defendant Beach Bar filed a motion for 

summary disposition based on MCL 436.1801(8). Defendant argued that it was 

not the last establishment to serve alcoholic beverages to Breton, thus entitling it 

to a rebuttable presumption against liability under MCL 436.1801(8). Defendant 

argued that plaintiffs could not overcome the statutory presumption because they 

had no evidence that Breton was “visibly intoxicated” when he was served at 

defendant’s bar. 

In response, plaintiffs presented circumstantial evidence, including the 

reports of two toxicologists. Reed’s expert estimated that Breton consumed 24 to 

25 beers in the nine-hour period before the accident. He opined that this 

4
 
concentration of alcohol certainly affected Breton’s central nervous system and 

certainly resulted in visible signs of intoxication at the time the Beach Bar served 

Breton. 

The trial court granted summary disposition against both plaintiffs. In its 

opinion, it held that plaintiffs failed to present a genuine issue of material fact 

regarding the last location to serve alcohol to Breton. Hence, the Beach Bar was 

entitled to the statutory presumption of nonliability. The court then held that, to 

overcome the presumption, plaintiffs had to present “positive, unequivocal, strong 

and credible evidence” that Breton was visibly intoxicated when he was served at 

defendant’s bar. The court stated that the testimony of the expert witnesses was 

circumstantial, which by its nature is not unequivocal, strong, and credible. 

Plaintiffs appealed, and the Court of Appeals reversed in a published 

opinion per curiam, remanding the cases for trial on the merits. 264 Mich App 

363; 691 NW2d 779 (2004). The panel held that plaintiffs needed to present only 

competent and credible evidence that it is more probable than not that Breton was 

visibly intoxicated when served at defendant’s bar. It found that plaintiffs’ expert 

testimony met this standard. 

THE DRAMSHOP ACT 

At common law, no cause of action was available against a dramshop for 

negligently serving alcohol to a visibly intoxicated person who thereafter caused 

injury to another. Our Legislature changed the common law when it enacted the 

dramshop act. The act allows someone injured by an intoxicated person to bring 

5
 
suit against, among others, a retail establishment that served the person while he or 

she was visibly intoxicated. Specifically, MCL 436.1801(3) indicates in part: 

Except as otherwise provided in this section, an 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, shall have 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. 

The act also provides a presumption of nonliability for all retail licensees 

that are not the last retailer to furnish alcohol to a visibly intoxicated person. The 

presumption is set forth in MCL 436.1801(8): 

There shall be a rebuttable presumption that a retail licensee, 

other than the retail licensee who last sold, gave, or furnished 

alcoholic liquor to the minor or the visibly intoxicated person, has 

not committed any act giving rise to a cause of action under 

subsection (3). 

The first question presented in this case is what is the proper standard to 

rebut the statutory presumption of nonliability in MCL 436.1801(8). Initially, it is 

necessary to review the law of presumptions. In most civil cases, a party must 

satisfy its burden of proof by a preponderance of the evidence. It is generally 

recognized that the burden of proof is composed of two parts: the burden of 

persuasion and the burden of going forward with the evidence, commonly referred 

to as the burden of production. The burden of production may shift several times 

during the trial, but the burden of persuasion generally remains with the party who 

6
 
 

bears the risk of nonpersuasion. Widmayer v Leonard, 422 Mich 280, 290; 373 

NW2d 538 (1985). 

Presumptions generally affect the burden of production. MRE 301 

explains: 

In all civil actions and proceedings not otherwise provided for 

by statute or by these rules, a presumption imposes on the party 

against whom it is directed the burden of going forward with 

evidence to rebut or meet the presumption, but does not shift to such 

party the burden of proof in the sense of the risk of nonpersuasion, 

which remains throughout the trial upon the party on whom it was 

originally cast. 

A presumption is best described as a procedural device. The function of a 

rebuttable presumption is solely to place the burden of producing evidence on the 

party opposing the presumption. It allows the party relying on it to avoid a 

directed verdict. It also aids that party in obtaining a directed verdict if the 

opposing party fails to introduce evidence rebutting the presumption. Widmayer, 

supra; Wojciechowski v Gen Motors Corp, 151 Mich App 399; 390 NW2d 727 

(1986). A presumption disappears when the burden of production is met. 

Widmayer, supra at 286. MRE 301 requires that the judge decide whether a 

presumption has been rebutted. Widmayer, supra at 288. 

It is without contest that, normally, to cause a rebuttable presumption to 

disappear, the challenging party must produce credible evidence to the contrary. 

Krisher v Duff, 331 Mich 699, 705; 50 NW2d 332 (1951). Krisher states: 

It has been well settled in this State that the effect of a 

rebuttable presumption is to make out a prima facie case at the 

beginning of a trial. Having established the original prima facie 

7
 
 

 

case, the presumption then casts the burden of proof on the opposite 

party. Presumptions cannot be weighed against other credible 

evidence, for they have no value as evidence unless no other credible 

evidence whatsoever is introduced in regard to the presumed fact. 

As a rule they disappear if and when credible evidence is introduced 

from which the facts may be found. [Id.]

[2] 

THE REBUTTABLE PRESUMPTION IN MCL 436.1801(8) 

The majority finds that “clear and convincing” proof should be required to 

rebut the presumption in MCL 436.1801(8). It concludes, in effect, that reading 

the statute as written would render the presumption meaningless or redundant. I 

disagree. 

The interpretation offered by the majority contradicts well-established rules 

of statutory construction because it adds words to the statute that the Legislature 

did not put there. The words that the Court adds are, “The presumption may be 

overcome only by a showing of clear and convincing evidence to the contrary.” 

In interpreting statutory language, courts must determine and give effect to 

the intent of the Legislature. In re MCI Telecom Complaint, 460 Mich 396, 411; 

596 NW2d 164 (1999). When ascertaining legislative intent, we look first at the 

words of the statute itself. House Speaker v State Administrative Bd, 441 Mich 

547; 495 NW2d 539 (1993). There is no standard in MCL 436.1801(8) for 

2

 The Court in Krisher increased the weight given to the statutory 

presumption that the owner of an automobile gave permission to drive it to the 

party causing an injury. The Court found that “policy factors operate to make this 

a stronger presumption than the ordinary rebuttable presumption.” Krisher, supra 

at 707. The policy considerations present in Krisher do not apply in the instant 

case. 

8
 
determining how the presumption may be rebutted. The Legislature is presumed 

to know the law. Wold Architects & Engineers v Strat, 474 Mich 223, 234; 713 

NW2d 750 (2006), citing Bennett v Weitz, 220 Mich App 295, 299; 559 NW2d 

354 (1996). Michigan law holds that a rebuttable presumption normally can be 

rebutted by credible evidence. Krisher, supra. 

Hence, the majority creates a new “clear and convincing evidence” standard 

out of thin air in complete disregard of the text of MCL 436.1801 and of 

recognized rules of statutory interpretation. It offers no policy considerations to 

justify this action, as the Court did in Krisher. 

Interestingly, the Legislature has shown that it is quite capable of providing 

a heightened burden for rebutting a presumption when it chooses to do so. For 

example, it inserted into MCL 570.1203(2) a presumption that payment has been 

made to a contractor for improvements. It then added that the presumption may be 

overcome “only by a showing of clear and convincing evidence to the contrary.” 

The lack of the same or a similar addition to MCL 436.1801 strongly 

indicates that the Legislature intended the courts to apply our general common-law 

standard to the presumption in that statute. We should not alter this policy choice 

by the Legislature. This year, the Court held that the absence of evidence of 

specific legislative intent to change the common law shows that the Legislature 

meant to leave the common law untouched. See Wold, supra. Nothing in the 

statutory text at issue indicates that the Legislature intended any standard other 

than our common-law standard to apply. 

9
 
 

I acknowledge that, in reviewing a statute's language, “every word should 

be given meaning, and we should avoid a construction that would render any part 

of the statute surplusage or nugatory.” Wickens v Oakwood Healthcare Sys, 465 

Mich 53, 60; 631 NW2d 686 (2001), citing Altman v Meridian Twp, 439 Mich 

623; 487 NW2d 155 (1992). In these cases, I interpret the rebuttable presumption 

of MCL 436.1801(8) to give it full force and effect. My interpretation is that the 

presumption existed on defendant’s behalf but disappeared when defendant’s 

motion for summary disposition was heard. This is because plaintiffs produced 

credible evidence that defendant served beer to Breton while he was visibly drunk. 

Even if the standard were “clear and convincing,” the presumption would 

have disappeared in these cases. However, I am convinced that the correct 

standard is “credible evidence,” only. There is no valid legal justification to 

change the common-law standard or to manufacture a special enhanced standard 

for this statute. The Legislature chose not to do so, and no public policy reasons 

have been advanced to justify it. My interpretation renders the presumption 

neither surplusage nor nugatory.3

 And, unlike the interpretation of the majority, it 

3

 The majority justifies raising the standard to be used in rebutting the 

statutory presumption because otherwise, it reasons, the presumption would be 

meaningless. But this justification is misleading. The Court need do nothing to 

give meaning to the presumption. It stands on its own two feet without our help. 

What the majority is doing, in the name of preventing the presumption from 

becoming “meaningless,” is giving it strength that the Legislature did not give it. 

It is judicially rewriting the statute. The majority’s attack on my position offers no 

response to the fact that the majority is adding words and meaning to the statute 

that are not there. That is, of course, because no good response exists. 

10
 
adds no new and higher standard without justification and contrary to the intent of 

the Legislature. 

PROOF OF ACTUAL VISUAL INTOXICATION 

The second issue is whether the Legislature intended to restrict the type of 

circumstantial evidence that qualifies as proof that the drunk was visibly 

intoxicated when served by the dramshop. The statute refers to the tortfeasor 

repeatedly as a “visibly intoxicated person.” MCL 436.1801(3), (6), (7), (8), and 

(9). As explained later in this opinion, a retail licensee may be liable under the 

statute when it serves an alcoholic beverage to a visibly intoxicated person. 

The act does not define “visibly intoxicated.” It is a well-settled rule of 

statutory construction in this state that, unless otherwise defined by law, statutory 

words or phrases are given their plain and ordinary meaning. MCL 8.3a. When 

appropriate, this Court often refers to dictionary definitions to interpret statutory 

language. “Visibly” is the adverbial form of “visible.” The principal definition of 

“visible” is “capable of being seen.” Random House Webster’s College 

Dictionary (1997). 

This definition indicates that the Legislature did not intend that a plaintiff is 

limited to producing a witness who actually saw signs that the intoxicated person 

exhibited intoxication. The statute does not require “actually manifested signs of 

intoxication.” Rather, a plaintiff may show that indicators of the intoxication in 

the person were capable of being seen, that someone viewing the intoxicated 

11
 
 

 

 

person could have seen the indicators.4

 Had the Legislature intended to require at 

least some evidence that a witness actually saw signs that the person was 

intoxicated, it could have written: 

There shall be a rebuttable presumption that a retail licensee, 

other than the retail licensee who last sold, gave, or furnished 

alcoholic liquor to the minor or person seen by an eyewitness to be 

visibly intoxicated, has not committed any act giving rise to a cause 

of action under subsection (3). 

My rationale is supported not only by the actual language of the statute, but 

by case law as well. In Dines v Henning,

5

 this Court reversed the Court of 

Appeals judgment and adopted Judge Michael J. Kelly’s dissenting opinion that 

stated, “Eyewitness testimony of visible intoxication is not required to establish a 

dramshop claim; visible intoxication may be proven by circumstantial evidence 

and the inferences drawn therefrom.”6 Dines v Henning, 184 Mich App 534, 540-

541; 459 NW2d 305 (1990) (Kelly, J., dissenting). 

4

 As the majority acknowledges (at its footnote 11 on page 12), the standard 

jury instructions define a “visibly intoxicated” person as one whose intoxication 

“would be apparent to an ordinary observer.” SJI2d 75.02. Significantly, the jury 

instructions do not state, as the majority does, that the intoxication must “actually” 

have been seen by an ordinary observer. 

5

 437 Mich 920 (1991). 

6

 Judge Kelly stated, and this Court adopted, the rule that eyewitness 

testimony is not essential. The majority now apparently requires actual eyewitness 

testimony of signs of intoxication in order to sustain a dramshop action. If a 

plaintiff’s evidence lacks “actually manifested signs of intoxication,” the majority 

removes the case from the jury. This has never been the law. It represents a 

drastic departure from existing law and it defies a reasonable construction of the 

text of the dramshop act. 

12
 
Judge Kelly based his decision on Heyler v Dixon, 160 Mich App 130; 408 

NW2d 121 (1987). In that case, the Court of Appeals pointed out that the 

dramshop act was amended in 1972 to substitute “visibly intoxicated” for 

“intoxicated.” Id. at 145. The Court noted that case law existing at the time 

required that the allegedly intoxicated person must be “visibly” intoxicated at the 

time of the sale. Id., citing Archer v Burton, 91 Mich App 57; 282 NW2d 833 

(1979); McKnight v Carter, 144 Mich App 623; 376 NW2d 170 (1985). 

The Heyler Court then noted that the existing standard jury instructions 

defined a person as visibly intoxicated “when his or her intoxication would be 

apparent to an ordinary observer.” SJI2d 75.02. The Court noted that the Court of 

Appeals has repeatedly held that claims brought under the dramshop act may be 

proven by circumstantial evidence and that, “if the combination of the 

circumstantial evidence and the permissible inferences drawn therefrom are 

sufficient to establish a prima facie case, a directed verdict is improper.” Heyler, 

supra at 146. See Villa v Golich, 42 Mich App 86, 88; 201 NW2d 349 (1972); 

Durbin v K-K-M Corp, 54 Mich App 38, 56-57; 220 NW2d 110 (1974). The 

Court concluded by finding in that case that sufficient circumstantial evidence 

existed to render summary disposition improper. No limitations were read into the 

type of circumstantial evidence that is permissible. 

In making its determination in Heyler, the Court of Appeals stated that a 

jury could conclude that someone was a “visibly intoxicated person” from 

evidence showing that (1) the person admitted that he drank one or two beers an 

13
 
hour, (2) he stayed at the bar either 14 hours or nine hours, (3) he consumed 

somewhere between nine and 28 beers during his stay at the bar, (4) the accident 

occurred within minutes after the person left the bar, and (5) there was testimony 

from officers arriving at the scene of the accident that the person “‘smelled 

highly’” of alcohol. Heyler, supra at 147. In this case, there was similar 

testimony about how long and approximately how much Breton drank. There was 

similar evidence that Breton caused the accident and that he was highly 

intoxicated at the time. 

The majority misreads Dines to conclude that expert testimony predicated 

on circumstantial evidence is insufficient to establish that a person was visibly 

intoxicated. Dines specifically adopted the long line of Court of Appeals cases 

holding that circumstantial evidence, standing alone, is sufficient to establish and 

support a dramshop claim. The majority opinion does not rely on Dines as it 

asserts; in fact, it limits the holding by restricting the circumstantial evidence that 

is admissible to that which was actually seen by a witness. 

In these cases, the circumstantial evidence on which the expert opinions 

were based sufficed by itself to rebut the statutory presumption and establish 

plaintiffs’ prima facie case. In Heyler, circumstantial evidence was found to be 

sufficient even though, unlike in these cases, it was not supported by strong expert 

testimony. 

Here, plaintiffs had evidence that Breton’s consumption of 24 to 25 beers in 

a nine-hour period had to have affected his central nervous system and resulted in 

14
 
visible signs of intoxication. While it is true that all of defendant’s witnesses 

testified that Breton was not visibly intoxicated, that does not prevent the cases 

from going to the jury. It is not uncommon for a jury to disbelieve multiple 

eyewitnesses. See, e.g., McKenzie v Taft Estate, 434 Mich 858 (1990)(dissenting 

statement of Levin, J.). 

The majority has erroneously changed the meaning this Court has given for 

the past 15 years to “visibly intoxicated person” in MCL 436.1801. Plaintiffs 

presented compelling circumstantial evidence and strong expert testimony that 

Breton was visibly intoxicated when defendant served him beer before the 

accident. 

CONCLUSION 

I find that the presumption of MCL 436.1801(8) can be rebutted by credible 

evidence. Credible evidence is the common-law standard that courts in Michigan 

have applied for years to rebuttable presumptions absent policy reasons or 

legislative language enhancing the standard. No policy reasons exist to enhance 

the standard applicable to MCL 436.1801. The majority has raised the standard 

without either policy reasons or statutory authorization to do so. 

What has happened here is that the majority has taken upon itself to be 

helpful to the Legislature. The Legislature wrote a rebuttable presumption into the 

dramshop act, but failed to include a standard for rebuttal higher than the normal 

standard. The majority has reasoned that the Legislature must have intended a 

higher standard, so it has furnished one. However, especially given that our 

15
 
 

Legislature has shown itself perfectly capable of supplying a higher standard itself, 

the Court should not rewrite the statute to its own liking. It is the Legislature’s job 

to do that. My colleagues should willingly concede that the majority of legislators 

may not have been able to agree to give more teeth to the presumption by adding a 

higher rebuttal standard. 

The majority has also increased the burden on an injured party to prove that 

a dramshop served intoxicants to a drunken patron. It has accomplished this by 

rewriting the statute to require actual signs of the intoxication, whereas, for 

decades, other circumstantial evidence has sufficed. The statute, by its terms, does 

not require a showing that someone testify to having actually seen signs that a 

drunk was intoxicated before the drunk was served at a bar. 

It will now be more difficult for persons injured by a drunken driver to 

recover from a bar that served the drunk while that person was visibly intoxicated. 

The majority points to nothing in the dramshop act that suggests that it was the 

Legislature’s intent to hinder, rather than facilitate, recovery from those serving 

drunks who injure others. This drastic change in the law defies both public policy 

and common sense. 

Therefore I would affirm the decision of the Court of Appeals and remand 

the cases for trial. 

 Marilyn Kelly 

Cavanagh, J., did not participate in the decision of these cases. 

16