Hollerud v. Malamis

Michigan Court of Appeals · Torts

Tortsdramshop liabilitynegligenceassault and batteryloss of supportsummary judgmentdramshop actintoxicated consumer

Facts

Edward Hollerud drank 12 beers at Pinky's Bar, ate dinner, then drank four more beers at the Rainbow Bar. At the Rainbow Bar he participated in an Indian wrestling contest with the bartender and injured fingers on his left hand. Edward sued the bar owners under the dramshop act and for negligence in selling him liquor, and separately alleged assault and battery by the bartender. Karen Hollerud sued under the dramshop act, alleging Edward's injuries deprived her of means of support.

Issue

Whether Edward, the intoxicated consumer, could recover against the tavern owners under the dramshop act, § 29, or a common-law negligence theory for injuries he suffered after being served liquor; whether Karen's dramshop loss-of-support claim was properly dismissed on summary judgment; and whether Edward's assault and battery claim was barred by his apparent consent to the wrestling match.

Rule

Under Michigan precedent, the intoxicated consumer himself has no cause of action under §§ 22 or 29 of the liquor control act for injuries resulting from unlawful sales to him. This court would not, on the pleadings presented, recognize a common-law action by the consumer for ordinary negligence in selling him liquor where the complaint did not allege the kind of intentional, reckless, or grossly negligent conduct found in exceptional cases. A child may pursue a dramshop claim for injury to means of support even if others actually supplied support, and summary judgment is improper unless the movant shows the absence of a genuine issue of material fact. In assault and battery, consent is ineffective if intoxication rendered the plaintiff incapable of expressing a rational will and the defendant knew of that condition.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Grand Rapids, Nolan Pierce spent the evening at Copper Lantern Tavern, where staff continued serving him after he was plainly drunk. When he later stumbled down the tavern’s back steps and fractured his ankle, he sued the tavern under Michigan’s liquor control provisions that prohibit unlawful sales to intoxicated persons.

What is the strongest argument for the tavern on Nolan’s statutory claim?

Explanation. The majority held that, under controlling Michigan precedent, the consumer himself has no rights under the relevant liquor-control provisions for injuries resulting from unlawful sales to him. That bar applies even if the sale was unlawful. The court did not make recovery turn on visibility, sole proximate cause, or comparative fault analysis for the consumer’s statutory claim. (Derived from Hollerud v. Malamis (n.d.).)