Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

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-1 27 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 pr oofs regarding the driver’s a lleged visible intoxication under MCL 436.1801(3). MCL 436.1801(8) creates a rebuttable p resumption of non liability for all but the last retail licensee that serves alco hol to a visibly intoxi cated person. This novel presumption operates to require that a plaintiff, when opposing a defendant that invokes this presumption, must s how more than the prima facie case required under MCL 436.1801(3). A plaintiff rebut s 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 plain tiffs satisfactorily rebutted

2the presumption of nonliab ility, 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 ev idence of actual visi ble intoxication. Because the Court of Appeals held that pl aintiffs 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 rev erse 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 rep resentatives of the estate s of Adam W. Kuenner and Lance N. Reed, 1 filed separate dramshop claims against defendant Beach Bar, Inc., alleging that Curtis J. Breton 2 was served alcohol at defendant’s establishment. Plaintiffs contended that Breton was visibly in toxicated when he was served alcohol there, and his subseq uent impaired driv ing resulted in the deaths of plaintiffs’ decedents. Breton had spent the day drinking with his frie nd, John Marsh. Around
7:30 p.m., they consumed tw o beers at the Beach Bar. Lindsay Mizerik, the server

1 The personal representatives of th e estates, James D. Kuenner and Lawrence Reed, are the plain tiffs in these actions. 2 Although not a party to this app eal, Frederick Breton, the personal representative of the estate of the intoxicated driver, Curtis Breton, deceased, was also named as a defendant.

3at defendant’s establishment, had recei ved training in identifying visibly intoxicated persons. She s erved Breton and did not observ e 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 Nest 3 where they split a pitcher of beer. There, they encountered their supervisor, Summit Township Fire Department Chief Carl Hendges, who di d not think either man was intoxicated. Another witness at the Ea gles Nest, Richard Potts, 4 who knew Breton and who himself owned a convenience store that so ld alcoholic beverag es, observed that Breton’s eyes were not bloods hot or glassy and that he did not appear to be intoxicated. Similarly, Mars h 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 M arsh 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 vehi cle 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, In c., is not a party to this appeal. 4 Robert Potts’s wife, who accompanie d him that evenin g, also did not observe any loud or unusual be havior at Breton’s table.

4Defendant, as the second-to-the-last es tablishment to serv e Breton, sought summary disposition und er MCR 2.116(C)(10). Defendant relied on the rebuttable presumption of nonliability av ailable to all but the last serving establishment under § 801(8). Defendant argued that plai ntiffs 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 la st to serve alcohol to Breton and that, regardless, Breton was served alcohol when he was visibl y intoxicated. Plaintiffs also offered the expert opinion re ports of two toxicologists. Both of those reports estimated th e number of drinks that Breton had consumed and recited his age, weight, and th e 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 th at 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, howe ver, that plaintiffs were required to offer more than circumstantia l evidence from exp erts 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 defen dant’s establishment, rather than on assessing his behavior at the time that he was served alcohol there.

5presumption of nonliability with “positiv e, unequivocal, strong and credible” evidence in light of Krisher v Duff , 331 Mich 699; 50 NW 2d 332 (1951). Thus, the court granted summary disposition to defendant. The Court of Appeals granted each pl aintiff's application for leave to appeal, consolidated the a ppeals, 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’ burde n of proof to overcome the presumption protecting the second-to-the-last bar. Plai ntiffs’ 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 intoxicatio n of Marsh sufficed to create a genuine issue of material fact reg arding whether Breton was visibly intoxicated when served at defendant’s estab lishment. The Court of Appe als 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 th e party opposing the motion. Id . at 120. “Where the

6 264 Mich App 363; 6 91 NW2d 779 (2004).

6proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to ju dgment as a matter of law.” Id . Further, we review a question of statutor y 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 abrogate d the general common-law rule that no cause of action existed for the negligent se lling or furnishing of alcohol to an able

bodied person. Millross v Plum Hollow Golf Club , 429 Mich 178, 183-184; 413 NW2d 17 (1987). The act provides a remed y for plaintiffs injured by a visibly intoxicated person, allowing suit to be br ought against a retail establishment that unlawfully sells alcohol to a minor or a visibly intoxicate d person, if the unlawful sale is a proximate cause of the injury. MCL 436.1 801(3) provides: Except as otherwise pr ovided in this section, an individual who suffers damage or who is personally inju red 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 pr oven to be a proximate cause of the damage, injury, or death, or the sp ouse, 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 da mage, injury, or death. In an action pursuant to this section, the plaintiff shall ha ve the right to recover actual damages in a sum of not less than $50.00 in each case in which the court or jury det ermines that intoxication was a proximate cause of the damage, injury, or death.

7Although a plaintiff must establish the elements of § 801(3) with regard to each defendant in a dramsh op claim, the Legislatu re also created a rebuttable presumption. This presum ption affords an additional m easure 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 presum ption 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 ha ve 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 visi ble intoxication at defendant’s bar by “positive, unequivocal, strong and credib le evidence.” The Court of Appeals found, however, that the trial court erred because the statute did not ex pressly provide for such a he ightened burden. 264 Mich App at 374-375. Further, it held that the general rule reg arding rebuttable presump tions found in MRE 301 7

7 MRE 301 provides: In all civil actions and proceedi ngs 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 presum ption, but does not shift to such party the burden of proof in the se nse of the risk of nonpersuasion, (continued . . .)

8_____________ ____________ controlled. The Court thus imposed th e usual standard required to overcome a rebuttable presumption: comp etent 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 visi bly intoxicated person. Under MRE 301, demonstrating a prima facie case itself remains subject to the standard of competent and credible eviden ce. Accordingly, to merg e the test for establishing the prima facie case with the test to rebut the presumption prevents defendant from receiving the protection that the Le gislature granted in § 801(8). 8 Requiring the

(. . . continued) which remains throughout the tria l 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 exte nd that analysis to conclude that the absence of language specifically abroga ting the common law demonstrated that no abrogation occurred. Further, the dissent incorrectly ass erts that the Legislature “strongly indicate[d]” an intent to inco rporate a lower common-law standard to rebut the presumption. Post at 9. The dissent’s position is inconsistent with the Legislature’s purposef ul differentiation between the la st bar to serve a visibly intoxicated patron and a bar th at served the patron earli er. Indeed, applying the dissent’s standard, which w ould 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 le gislative intent to encompass a standard of proof that would render th at presumption meaningless.

9same 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 construi ng § 801(8) as having no meaning, 9
some difference must exist be tween 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 th e drinker was visibly intoxicated), but must also rebut with add itional evidence the presumption available to second-to

the-last (and earlier) establishments under § 801(8). Because the Legislature is held to be aware of this st ate’s law, we assume, with regard to the presumption, that the Legislature considered the hierarchy of evidentiary sta ndards available in our law. In that hierarchy, the most rigorou s 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” st andard is the standard normally associated with civil matters and indeed is the standard utilized to assess the eviden ce under § 801(3). This leaves “proof by clear and convincing evidence” as the enhanced standard to rebut the st atutory presumption under §

9 See Sweatt v Dep’t of Corrections , 468 Mich 172, 183; 661 NW2d 201 (2003).

10801(8). Thus, in these cases a plaintiff, in addition to ma king 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 reb ut and thus overcome the presumption of § 801(8). That standard, while not p recisely articulated by the trial court, was essentially the standard it adopted. 10 Accordingly, we affi rm 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 woul d 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 th ese same elements to make out a claim under § 801(3). Further, the Legislatu re expressly differentiated between the last retail licensee to sell, give, or furnish alcohol to a visi bly intoxicated person and the prior retail licensees to do the same. The Legislat ure 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 disreg ards the plain language of th e statute. Accordingly, we give full effect to the language of the statute by recognizing the different

10 See 2 McCormick, Eviden ce (5th ed, Practitioner T reatise Series), § 340, pp 425, 427 n 24, citing Krisher , supra, as applying the “clear and convincing evidence” standard.

11burden 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 pr oofs presented could not even meet the competent and credib le standard for rebu tting the presumption to show service to a visibly intoxicated person. This standard of “v isible intoxication” focuses on the objective manifestations of intoxication. Miller v Ochampaugh , 191 Mich App 48, 59-60; 477 NW2d 105 (1991). 11 While circumstantial eviden ce 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 ot her drinkers, cannot, as a predicate for

11 See also SJI2d 75.02 (“A person is ‘visibly into xicated’ when his or her intoxication would be apparent to an or dinary observer.”). Indeed, even the dissent describes the importance of the stat utory 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 Mi ch App 534; 459 NW 2d 305 (1990), and adopting the dissenting opinio n of Judge Michael J. Ke lly, 184 Mich App at 540

- 541. Although Judge Kelly stated th at “[e]yewitness testimony of visible intoxication [was] not required to establis h a dramshop claim,” he further stated that “visible intoxicatio n may be proven by circu mstantial evid ence and the inferences drawn therefrom.” Id . Thus, permissible in ferences must have some basis in objectively observable behavior. Moreover, Judge Ke lly’s opinion relied not only on evidence of the amount of alco hol 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.

12expert testimony, alone demonstrate that a person was visibly intoxicated because it does not show what behavi or, if any, the person actually manifested to a reasonable observer. These other indi cia—amount consumed, blood alcohol content, and so forth—can, if otherwise admissible, reinforce the finding of visible intoxication, but they cannot substitute for showing vi sible intoxication in the first instance. While circumstantia l evidence retains its value, such (and any other type of) evidence must demonstrate the elem ents required by § 801(3), including “visible intoxication.” 13 Plaintiffs here presented no evidence of Breton’s vi sible intoxication at the time he was served at defendant’s estab lishment in response to defendant’s motion for summary disposition. The record reflects that al l four eyewitnesses saw no signs that Breton was visibly intoxicated. Plaintiffs fu rther relied on two expert toxicologists’ expectations that Breton would have exhib ited signs of intoxication. But reports discussing Breton’s physical statistics and alco hol consumption, coupled with predictions of his impairment, offer on ly speculati on 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” fo r “visibly intoxicat ed,” the expert (continued . . .)

13_____________ ____________ against defendant existed. Because plainti ffs failed to establish a genuine issue of material fact that Breton was visibly in toxicated even under § 801(3), the trial court correctly granted summ ary disposition for defendant.
IV. CONCLUSION We conclude that the Co urt of Appeals erred by rev ersing the trial court’s grant of summary disposition to defenda nt. Plaintiffs fai led to rebut the presumption of nonliability available to defendant under MCL 436.1801(8). We further hold that expert te stimony regarding Breton’s pr ojected visible intoxication lacked any basis in actually manifested si gns of intoxication and, thus, did not create a genuine issue of material fact und er MCL 436.1801(3). Accordingly, we reverse the judgment of the Court of Appeals and reinsta te 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.

14v 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 ENTE RPRISES, INC, a Michigan corporatio n, 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 vMichigan corporatio n, 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 add ress two questions. The first is what is the proper standard to rebut the stat utory presumption in a dramshop case? MCL 436.1801(8) et seq . The second is what lim itations did the Legislature intend, if any, on the type of evidence n eeded to show that a person was visibly intoxicated when served intoxicants by a dramshop? The majori ty holds that, to rebut the statutory presump tion, a plaintiff must present clear and convincing evidence. It also ho lds that, to establish “visible in toxication” under the statute, a plaintiff must present actually manifested si gns of intoxication. I disagree. The majority has erroneously given unintended m eaning to the statut e with respect to both issues. Hence, I must respectfully dissent.
U NDERLYING F ACTS AND P ROCEDURAL B ACKGROUND 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 cro ssed the center line of US

127 at more than 100 miles per hour. Hi s automobile slammed into a vehicle

2occupied by Adam Kue nner and Lance R eed, killing them and Breton and destroying both vehicles. At the time of the acci dent, Breton’s blood alcohol level was 0.215 grams per 100 milliliters of blood. 1 Plaintiffs, the personal representatives of the estate s of Kuenner and Reed, f iled suit against the Beach Bar for negligently selling intoxicating liquor to Breton in violation of MCL 436.1801(3). Deposition testimony indicated that B reton spent the day of the accident drinking with his friend John Marsh, a fe llow firefighter. They started their binge in the morning at the Fire house Pub, where they each consumed at least two to three beers. They continued it when anot her firefighter joined them after lunch. They purchased a 12-pack of beer and d rank it while they rep aired a collapsed boat dock at a family home. Each consum ed 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 b eer. On leaving the bar, they proceeded to Marsh’s home and drank two beers each. They retur ned to the Beach Bar about a half an hour later and drank two more beers and sp lit 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 th at, until they left the bar, Breton did not appear visibly intoxicated.

1 Legal intoxication is statutorily d efined as 0.08 grams per 100 milliliters of blood. MCL 257.625(1)(b).

3They 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 drov e Marsh home. Concerned, Marsh asked Breton if he wa s “alright to drive.” Breton responded that he was. However, he died about 20 minutes late r 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 ret urn visit. Mizerik testified at deposition that she was trained in di scerning intoxication and that Breton displayed no signs of into xication while he was at the Beach Bar before the accident. Several others wh o saw Breton that evening testified that he did not appear intoxicated. After the close of discovery, defe ndant Beach Bar filed a motion for summary disposition based on MCL 436.1801(8). Defe ndant argued that it was not the last establishment to serve alc oholic beverages to B reton, thus entitling it to a rebuttable presumption against liab ility under MCL 436. 1801(8). Defendant argued that plaintiffs could not overcome the statutory presumption because they had no evidence that Breton was “visibly intoxicat ed” when he wa s served at defendant’s bar. In response, plaintiffs presented ci rcumstantial eviden ce, including the reports of two toxicologists. Reed’s exp ert estimated that B reton consumed 24 to 25 beers in the nine-hour period before the accident. He opined that this

4concentration of alcohol certainly affected Breton’s central nervous system and certainly resulted in visible si gns of intoxication at the time the Beach Bar served
Breton. The trial court granted summary dispositio n against both plai ntiffs. In its opinion, it held that plainti ffs failed to presen t a genuine issue of material fact regarding the last location to serve alcohol to Breton. Hence, the Beach Bar was entitled to the statutory presum ption of nonliability . The court then held that, to overcome the presumpti on, plaintiffs had to present “positive, unequivocal, strong and credible eviden ce” that Breton was vi sibly 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 meri ts. 264 Mich App 363; 691 NW2d 779 (2 004). The panel held that plai ntiffs needed to present only competent and credible eviden ce that it is more probable than not that Breton was visibly intoxicated when served at defendant’s bar. It fo und that plaintiffs’ expert testimony met this standard.
T HE D RAMSHOP A CT At common law, no cause of action wa s available against a dramshop for negligently serving alcohol to a visibl y intoxicated person who thereafter caused injury to another. Our Legislature ch anged the common law when it enacted the dramshop act. The act allows someone injured by an intoxicated person to bring

5suit against, among others, a retail establishm ent that served the person while he or she was visibly intoxicated. Specifica lly, MCL 436.1801(3) indicates in part: Except as otherwise pr ovided in this section, an individual who suffers damage or who is personally inju red 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 pr oven to be a proximate cause of the damage, injury, or death, or the sp ouse, 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 p resumption of nonliability for all retail licensees that are not the last retailer to furnish alco hol to a visibly intoxicated person. The presumption is set fort h in MCL 436.1801(8): There shall be a rebuttable presum ption 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 cas e is what is the proper standard to rebut the statutory presumptio n of nonliability in MCL 43 6.1801(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 bu rden 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 produ ction may shift several times during the trial, but the bur den of persuasion generally remains with the party who

6bears the risk of nonpersuasion. Widmayer v Leonard , 422 Mich 280, 290; 373 NW2d 538 (1985). Presumptions generally affect the bu rden of production. MRE 301 explains: In all civil actions and proceedi ngs 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 presum ption, but does not shift to such party the burden of proof in the se nse of the risk of nonpersuasion, which remains throughout the tria l upon the party on whom it was originally cast. A presumption is best des cribed as a procedural de vice. The function of a rebuttable presumption is sole ly to place the burd en of producing evidence on the party opposing the presump tion. It allows the p arty relying on it to avoid a directed verdict. It also aids that p arty in obtaining a directed verdict if the opposing party fails to introduce evidence rebutting th e presumption. Widmayer,

supra ; Wojciechowski v Gen Motors Corp, 151 Mich App 39 9; 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 p arty must produce credible ev idence to the contrary. Krisher v Duff, 331 Mich 699, 705; 50 NW2d 332 (1951). Krisher states: It has been well settled in th is State that the effect of a rebuttable presumption is to make out a prima facie case at the beginning of a trial. Having established th e original prima facie

7case, the presumption th en 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]
T HE R EBUTTABLE P RESUMPTION IN MCL 436.1801(8) The majority finds that “clear and convi ncing” proof should be required to rebut the presumption in MC L 436.1801(8). It concludes, in effect, that reading the statute as written would render the p resumption meaningle ss or redundant. I disagree. The interpretation offered by the majority contradicts well-established rules of statutory construction because it adds wo rds to the statute th at the Legislature did not put there. The word s that the Court adds are, “The presumption may be overcome only by a show ing of clear and convincing evidence to the contrary.” In interpreting statutory la nguage, courts must det ermine and give effect to the intent of the Legislature. In re MCI Tele com Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). When ascertaining legi slative 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 MC L 436.1801(8) for

2 The Court in Krisher increased the weight given to the statutory presumption that the owner of an automo bile gave permission to drive it to the party causing an injury. Th e Court found that “policy factors operate to make this a stronger presumption th an the ordinary rebuttable presumption.” Krisher, supra at 707. The policy considerations present in Krisher do not apply in the instant case.

8determining how the presumption may be re butted. The Legislature is presumed to know the law. Wold Architects & Engineers v Strat , 474 Mich 22 3, 234; 713 NW2d 750 (2006), citing Bennett v Weitz , 220 Mich App 295, 299; 559 NW2d 354 (1996). Michigan law holds that a rebuttable presump tion normally can be rebutted by credible evidence. Krisher , supra. Hence, the majority creates a new “cl ear and convincing evidence” standard out of thin air in comple te 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 Legislatu re has shown that it is qu ite capable of providing a heightened burden for rebu tting 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 th e presumption may be overcome “only by a showing of clear and convincing evid ence to the contrary.” The lack of the same or a simil ar addition to MCL 436.1801 strongly indicates that the Legislature intended th e courts to apply our general common-law standard to the presum ption in that statute. We shou ld not alter this policy choice by the Legislature. This year, the Cour t held that the abse nce of evidence of specific legislative intent to change th e common law shows th at the Legislature meant to leave the comm on law untouched. See Wold, supra . Nothing in the statutory text at issue indicates that th e Legislature intended any standard other than our common-law st andard to apply.

9I acknowledge that, in rev iewing a statute's language, “every word should be given meaning, and we should avoid a construction that wo uld render any part of the statute surplusa ge 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 cas es, I interpret the re buttable presumption of MCL 436.1801(8) to give it full force a nd effect. My interpret ation is that the presumption existed on defen dant’s behalf but disa ppeared when defendant’s motion for summary dispositio n was heard. This is b ecause plaintiffs produced credible evidence th at defendant served b eer to Breton while he was visibly drunk. Even if the standard w ere “clear and convincing,” the presumption would have disappeared in these cases. However, I am c onvinced 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 chos e 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 interpret ation of the majority, it

3 The majority justifies raising the st andard to be used in rebutting the statutory presumption because otherwise, it reasons, the pres umption would be meaningless. But this justification is misleading. The Court need do nothing to give meaning to the presump tion. It stands on its ow n two feet withou t our help. What the majority is doi ng, 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 att ack 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 cour se, because no good response exists.

10adds no new and high er standard without justification and contrary to the intent of the Legislature.
P ROOF OF A CTUAL V ISUAL I NTOXICATION 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 stat ute refers to the tortfeasor repeatedly as a “visib ly 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 visi bly intoxicated person. The act does not define “visibly intoxicat ed.” It is a well-settled rule of statutory construction in this state that, unless otherwise defined by law, statutory words or phrases are given th eir plain and ordinary mean ing. MCL 8.3a. When appropriate, this Court often refers to dictionary definitions to interpret statutory language. “Visibly” is the ad verbial 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 Legisl ature did not intend that a plaintiff is limited to producing a witne ss 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 viewi ng the intoxicated

11person 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 presum ption that a retail licensee, other than the retail licensee who last sold, gave, or furnished alcoholic liquor to the minor or p erson 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 th e 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 adopte d Judge Michael J. Kelly’ s dissenting opinion that stated, “Eyewitness testimony of visible in toxication is not required to establish a dramshop claim; visible intoxication ma y be proven by ci rcumstantial 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 acknowle dges (at its footnot e 11 on page 12), the standard jury instructions define a “visibly intoxicated” pers on as one whose intoxication “would be apparent to an or dinary observer.” SJI2d 75. 02. Significantly, the jury instructions do not state, as the majority does, that th e 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 major ity now apparently requi res actual eyewitness testimony of signs of intoxi cation in order to sustain a dramshop action. If a plaintiff’s evidence lacks “actually manifes ted 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.

12Judge 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 th at case law existing at the time required that the allegedly in toxicated person must be “v isibly” 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 existi ng 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 th e combination of the circumstantial evidence and the permissible in ferences 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 circumsta ntial evidence existed to render summary disposition improp er. No limitations were read into the type of circumstantial eviden ce that is permissible. In making its determination in Heyler, the Court of Appeals stated that a jury could conclude that someone wa s a “visibly intoxi cated person” from evidence showing that (1) the person ad mitted that he drank one or two beers an

13hour, (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 th e accident that the person “‘smelled highly’” of alcohol. Heyler, supra at 147. In this case, there was similar testimony about how long and approximatel y how much Breton drank. There was similar evidence that B reton 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 th at a person was visibly intoxicated. Dines specifically adopted th e long line of Court of Appeals cases holding that circumstantial ev idence, 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 ev idence on which the expert opinions were based sufficed by itself to rebut th e statutory presump tion and establish plaintiffs’ prima facie case. In Heyler, circumstantial eviden ce was found to be sufficient even though, unlike in these cases, it was not su pported by strong expert testimony. Here, plaintiffs had evidence that Bret on’s consumption of 24 to 25 beers in a nine-hour period had to have affected his central nervous system and resulted in

14visible signs of intoxication. While it is true that all of defendant’s witnesses testified that Breton was not visibly intoxicated, that does not preven t 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 th e meaning this Court has given for the past 15 years to “visib ly intoxicated person” in MCL 436.1801. Plaintiffs presented compelling circumstantial evidence and stro ng expert testimony that Breton was visibly intoxicated when defendant served him beer before the accident.
C ONCLUSION I find that the presumpti on of MCL 436.1801(8) can be rebutted by credible evidence. Credible evidence is the common-law stand ard that courts in Michigan have applied for years to rebuttable presumptions absent policy reasons or legislative language enhanc ing the standard. No polic y reasons exist to enhance the standard applicable to MCL 436.1801 . The majority has raised the standard without either policy reasons or statut ory 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 rebu ttable presumption into the dramshop act, but failed to include a sta ndard for rebuttal high er than the normal standard. The majority ha s reasoned that the Legislat ure must have intended a higher standard, so it has furnished one. However, es pecially given that our

15Legislature has shown itself p erfectly capable of supplying a higher standard itself, the Court should not rewrite th e 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 burde n on an injured p arty to prove that a dramshop served intoxican ts to a drunken pa tron. It has accomplished this by rewriting the statute to require actual si gns of the intoxication, whereas, for decades, other circumstantial evidence has sufficed. The st atute, by its terms, does not require a showing that someone testif y to having actually seen signs that a drunk was intoxicated before the drunk was s erved at a bar. It will now be more difficult for pers ons injured by a drunken driver to recover from a bar that served the drunk while that pers on was visibly intoxicated. The majority points to nothing in the d ramshop act that suggests that it was the Legislature’s intent to hinder, rather th an facilitate, recovery from those serving drunks who injure others. This drastic change in the la w 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.

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