Opinion
Docket No. 48945.
Decided August 7, 1981.
Lopatin, Miller, Bindes, Freedman, Bluestone, Erlich Rosen (by Steven G. Silverman), for plaintiff.
Frank Stefani (by Sidney L. Frank and Ellen M. Tallerico), for defendants.
Before: D.E. HOLBROOK, JR., P.J., and BRONSON and D.F. WALSH, JJ.
Plaintiff appeals from the entry of summary judgment in favor of defendant bar owners.
On June 20, 1977, plaintiff initiated a suit arising out of an automobile accident between plaintiff and defendant Kortas. In an amended complaint filed on February 22, 1978, plaintiff alleged a violation of Michigan's dramshop act, MCL 436.22; MSA 18.993, and included as defendants Charles and Josephine Borg and Hillman Von Zidkow, the partners operating the Dare Bar. Subsequently, numerous interrogatories and depositions were taken.
In September, 1979, defendants Von Zidkow and the Borgs moved for summary judgment pursuant to GCR 1963, 117.2(3), on the ground that plaintiff was unable to prove Kortas' visible intoxication at the time of the sale of the liquor, an essential element of plaintiff's dramshop claim. After a hearing on November 2, 1979, the circuit court granted defendant bar owners' motion.
We hold that summary judgment was granted prematurely. As a general rule, a motion for summary judgment based upon GCR 1963, 117.2(3), should not be granted until discovery is completed. Goldman v Loubella Extendables, 91 Mich. App. 212, 218; 283 N.W.2d 695 (1979), lv den 407 Mich. 901 (1979). While the appellee correctly notes that Goldman "involved complex issues of motive and intent", we do not believe that this is a critical distinction between it and the instant case. The question is not the complexity of the issues involved but whether further discovery stands a fair chance of uncovering factual support for the litigant's position. In our opinion, further discovery in this case might provide sufficient facts to make out a jury question.
Based solely on the record as it currently stands, there exists a substantial possibility that Robert Kortas, the driver of the automobile who struck plaintiff's car, was visibly intoxicated at the time of the sales of alcoholic beverages by defendant. Kortas admits to having drunk five or six beers over a two-hour period while in the bar. Douglas Thompson, a witness to the accident, stated in his deposition that just following the collision Kortas seemed to be drunk. We do not know whether Kortas continued to drink after he left defendants' bar. This fact, in and of itself, shows the need for further discovery. If Kortas denied drinking anything after he left the bar and Thompson stated that he seemed drunk some two to two and one-half hours after he left the bar, the jury reasonably could infer that he was visibly intoxicated at the time of the sale of intoxicants by the bar.
Moreover, we disagree with the appellee's contention that neither the police officers who came to the scene of the accident nor the toxicologist who tested Kortas' blood alcohol level would be able to give relevant and material testimony tending to indicate that Kortas was visibly intoxicated at the time of the sales of alcohol. The police officers' testimony, like that of Thompson's, would be highly relevant on this question if Kortas appeared intoxicated to them and he denied drinking anything after leaving the bar. Since the degree of intoxication would dissipate over time, if Kortas drank nothing after leaving the tavern and still appeared intoxicated at the time of the accident, it would seem most unlikely that he did not appear visibly intoxicated at the time of the sales.
The toxicologist, depending on his expertise, could testify as to the likely alcohol content in Kortas' blood at the time he left the bar based on his blood alcohol level at the time of the accident. If this projected level were high, plaintiff might be able to obtain a medical expert who would testify on the likelihood that Kortas' intoxication would be visible at the time of the sales. Again, this assumes that Kortas denies drinking anything or, at least, very much after he left the bar. However, until the critical facts concerning Kortas' post-Dare Bar drinking are before us, summary judgment is clearly inappropriate.
The dramshop plaintiff who has not actually accompanied the drinking defendant to the bar normally faces serious obstacles in proving his case. MCL 436.22; MSA 18.993 requires that the allegedly intoxicated person be named a defendant in the dramshop action. Thus, the person named as intoxicated has a vested interest in denying the same. As such, his cooperation cannot be expected. Nor can the cooperation of the named tavern's agents be expected. Obviously, individuals who work for the bar would have an interest in seeing that their employer did not lose the dramshop action. A plaintiff who did not actually frequent the tavern which served the drinks will almost never have any hope of tracking down impartial patrons of the bar who might be able to enlighten him concerning the appearance of the one who injured him at the time the sales were made. Where patrons can be found, they are most often friends of the allegedly intoxicated person who, for this reason, have an interest in the outcome of the proceeding. As such, it is our opinion that a plaintiff in a dramshop action should have the opportunity to engage in the most vigorous and complete discovery before any thought is given to directing a verdict against him.
Reversed and remanded. Costs to plaintiff-appellant.