No. 7 March Term 1973, Docket No. 54,200.
Decided May 25, 1973.
Appeal from Court of Appeals, Division 1, V.J. Brennan, P.J., and McGregor and Bronson, JJ., affirming Wayne, Thomas J. Foley, J. Submitted March 7, 1973. (No. 7 March Term 1973, Docket No. 54,200.) Decided May 25, 1973.
Complaint by Emma Rizzo, executrix of the estate of Joseph Rizzo, deceased, and others against Gerald W. Kretschmer, Joseph Astrolfi and Edward J. Plonka under the dramshop act for damages for the death of plaintiffs' decedent. Summary judgments for defendants. Plaintiffs appealed to the Court of Appeals. Affirmed. Plaintiffs appeal. Reversed and remanded for further proceedings.
Lopatin, Miller, Binders Freedman (Michael H. Feiler, of counsel), for plaintiffs.
Sullivan, Sullivan, Ranger Ward, for defendant Kretschmer.
Baun Barton, for defendant Astrolfi.
Plunkett, Cooney, Rutt Peacock (by John A. Demoss and Sarah Wildgen Sweet), for defendant Plonka.
There are three issues in this case. The first is what must a defendant, on a motion for summary judgment after original pleadings, interrogatories and depositions but before trial testimony, prove to prevent a case from going to trial. The second is what data at this stage of the proceedings may enter in the proof of whether there was a "genuine issue as to any material fact" under GCR 1963, 117.2(3) and GCR 1963, 117.3. The third issue is whether the appropriate data in this case raised a "genuine issue."
Both defendants and plaintiffs based their arguments on whether two depositions were adequate to raise a "genuine issue" under the requirements of the dramshop act. While both the defendants and the plaintiffs and the trial judge viewed the proofs from two depositions as dispositive, as we analyze the case this Court does not need to reach that question as there are complementary data, which in combination with the two depositions more assuredly constitutes adequate proof of a "genuine issue" permitting the plaintiffs to proceed to their trial proofs. A description of these two depositions follows. The first deposition showed the alleged negligent driver consumed four bottles of beer prior to and in the first defendant's establishment and subsequently drinking about three screwdrivers in the last two defendants' establishments. The second deposition by an officer policing the subsequent accident showed that the alleged negligent driver seemed "under the influence". The dramshop act requires proof of an illegal sale. Neither the aforementioned depositions nor other depositions included eyewitness testimony that the alleged negligent driver was intoxicated before or after service in any of defendants' bars.
MCLA 436.22; MSA 18.993.
I — THE FACTS
The deposition of Contardi, the alleged negligent driver, discloses his activities earlier in the day of the accident in question. He completed work at about 1:30 p.m. He had one bottle of beer at an unknown bar at 2:00 or 2:15 p.m. and arrived at defendant Gem Bar at about 3:30 p.m. He consumed three bottles of beer at this tavern between the hours of 3:30 and 7:00 p.m. After visiting his brother employed at a gas station, Contardi proceeded to the Oakwood Blue Jacket's Bar arriving there at about 8:30 p.m. He had five cups of coffee at this bar. At 11:30 p.m. he arrived at defendant New Way Inn with a Donald Lawyer where, in the time span of 30 to 45 minutes, he consumed one screwdriver (i.e., approximately 1 ounce of vodka plus orange juice). He then proceeded to defendant Agent 007 Bar arriving between 12:30 and 1:00 a.m. where he drank approximately two more screwdrivers. He testified he felt normal after the drinks. Lawyer's deposition supported Contardi's position. At about 2:15 a.m. Contardi was driven by Lawyer back to his truck which he had left at the parking lot of the Oakwood Blue Jacket's Bar, and from there, he left for home alone. Rizzo, plaintiffs' decedent, was struck and killed by Contardi's vehicle while standing outside of his tow truck at approximately 2:40 a.m.
The testimony in the depositions of two police officers questioning Contardi after the accident was conflicting as to whether Contardi appeared "under the influence" and as to whether his speech was slurred.
Defendant bars entered motions for summary judgment after the taking of the depositions. In general they claimed that plaintiffs had failed, as required, to introduce any proof of an illegal sale to the driver Contardi.
Plaintiffs in their answer stated that the proofs would show that "Contardi had at least four (4) beers prior to his entering the New Way Inn and the 007 Bar"; that plaintiffs would "produce competent medical evidence * * * that Contardi was under the influence of intoxicating beverages after drinking four (4) beers" and that he was served further intoxicants; and that plaintiffs would show "through the competent opinion of a police officer who investigated the said accident that Contardi was intoxicated at the scene of the accident."
The trial judge granted motions for summary judgment in favor of defendant bars on the ground "that the depositions" show lack of proof of an illegal sale thus not raising any "genuine issue as to any fact" relying on Juckniess v Supinger, 323 Mich. 566, 572 (1949). The trial judge said:
GCR 1963, 117.3, set out in full in Part III, states in pertinent part:
"Such affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties shall be considered by the court at the hearing. * * * Judgment shall be rendered forthwith if the pleadings show that any party is entitled to judgment as a matter of law or if the affidavits or other proof show that there is no genuine issue of fact."
The trial judge in reviewing "testimony in this record" failed to take into account other data supporting plaintiffs' position that a genuine issue of fact did exist. The issue is not whether there is sufficient evidence to go to the jury, but whether there is sufficient evidence to go to trial. Further, the trial judge's reliance on Juckniess is misplaced for that case dealt with the sufficiency of the evidence to support the verdict.
"The Court has reviewed all pleadings, depositions of known witnesses, and heard argument of counsel for all parties.
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"In the present case `there is no testimony in this record which would justify submitting as an issue of fact to a jury the question as to whether' John G. Contardi `while in the' New Way Inn or Agent 007 `where intoxicating liquor was sold or furnished to him, was in an intoxicated condition.'"
The Court of Appeals affirmed in an unreported per curiam opinion concluding:
"There is nothing in the record, viewed most favorably to plaintiff, from which the fact finder could infer that Contardi was intoxicated at the time he was served by any of the defendants."
We reverse and remand.
II — THE DRAMSHOP ACT
The dramshop act MCLA 436.22; MSA 18.993 at the time of the accident in this case read in part:
"Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means of support or otherwise, by an intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, shall have a right of action in his or her name against the person who shall by such selling, or giving of any such liquor have caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to any such injury, * * * "
The statute has been interpreted to mean that plaintiffs must prove, among other things, that there has been an unlawful selling. That is, to sustain his burden, plaintiffs had to introduce evidence from which a trier of fact could find that defendant bars served the driver, Contardi, while he was intoxicated. Juckniess v Supinger, 323 Mich. 566, 572 (1949); Long v Dudewicz, 355 Mich. 469, 471 (1959); and Davis v Terrien, 364 Mich. 82, 83 (1961).
An action based upon the dramshop act places the burden on the plaintiff to prove that 1) the person was intoxicated, 2) the defendant served such an intoxicated person, and 3) such intoxication caused the accident. Villa v Golich, 42 Mich. App. 86, 88 (1972), allows a second alternative to 2) as follows: "or served a person until he became intoxicated". The second alternative is not usually recognized in the other cases. Rizzo does not require consideration of this question and hence this Court will not do so.
III — REQUIRED PROOF FOR SUMMARY JUDGMENT (ISSUE 1). PERMISSIBLE DATA (ISSUE 2)
GCR 1963, 117.2(3) and 117.3 state:
".2 Grounds. The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because of any 1 of the following grounds:
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"(3) that except as to the amount of damages there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law.
".3 Motion and Proceedings Thereon. A motion based upon sub-rule 117.2(3) shall be supported by affidavits, and the opposing party prior to the day of hearing may serve opposing affidavits. The affidavits submitted by either party shall be governed by the provisions of subrules 116.4, 116.5, and 116.6. Such affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties shall be considered by the court at the hearing. Each party shall be given opportunity to amend his pleadings as provided by Rule 118 unless the evidence then before the court shows amendment would not be justified. Judgment shall be rendered forthwith if the pleadings show that any party is entitled to judgment as a matter of law or if the affidavits or other proof show that there is no genuine issue of fact. If it appears that the opposing party rather than the moving party is entitled to judgment, the court may render summary judgment in his favor without necessity of a motion therefor."
1 Honigman Hawkins, Michigan Court Rules Annotated (2d ed), p 362 and 1972 Supp, pp 81, 83.
"When summary judgment is claimed for lack of factual merit, the court must be careful not to substitute a summary hearing for a trial. The trial may be avoided only if the record presented at the hearing shows that, * * *; or (2) an essential element of proof of the claim or defense cannot be supplied.
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"If a motion asserts a hiatus in essential proof, the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.
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"Motions grounded upon sub-rule 117.2(3) must be supported by affidavits. The purpose of the affidavit is to assert the dispositive fact or facts upon which the moving party claims no genuine dispute exists. Although the Rule does not require opposing affidavits, it is the obligation of the opposing party to make a showing by opposing affidavits, testimony, depositions, admissions or documentary evidence on file that a genuine issue of disputed fact does exist as to the questioned element of the claim or defense. Durant v. Stahlin, 1965, 375 Mich. 628, 135 N.W.2d 392.
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"In motions under sub-rule 117.2(3), the court must look beyond the pleadings to determine whether a question of fact exists. The supporting affidavit, which must be filed with such a motion, identifies those facts which may appear to be controverted in the pleadings but which, the mover asserts, cannot be genuinely disputed. The party opposing the motion must then come forward with a showing that there is evidence to make an issue on which a dispute truly exists. If no such showing is forthcoming, summary judgment is granted. See Durant v. Stahlin, 1965, 375 Mich. 628, 135 N.W.2d 392; Podvin v. St. Joseph Hospital, 1963, 369 Mich. 65, 119 N.W.2d 108.
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"[T]he test more carefully stated would be whether the kind of record which might be developed, within the limits indicated by the pleadings and the affidavits or other material supporting and opposing the motion for summary judgment, interpreted to give the benefit of any reasonable doubt to the opposing party, would leave an issue upon which reasonable minds might differ or upon which a directed verdict would be proper." (Emphasis added.)
As to the first issue then, what do defendants' motions for summary judgment require to avoid trial? Obviously, the court rule requires there be trial unless "there is no genuine issue as to any material fact". As Justice SOURIS stated in Durant v Stahlin, 375 Mich. 628, 646 (1965) in spelling out the summary judgment procedure when a motion is made under 117.2(3):
"[T]he hearing of such motions, * * *, should be in the nature of an inquiry in advance of trial for the limited purpose of determining whether there is a genuine issue as to any material fact."
The courts are liberal in finding that a "genuine issue" does indeed exist. As Honigman Hawkins correctly comments, (1) the court will "give the benefit of any reasonable doubt to the opposing party" and (2) "the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome." (Emphasis added.)
For example, the point made by Justice SOURIS in his opinion in Durant v Stahlin, 375 Mich. 628, 650-651 (1965) is very illuminating. He says:
There was no opinion of the Court in this case. There were two three vote concurring opinions with two Justices not participating.
"By insisting that summary judgment is not available whenever a presented issue of material fact turns upon the credibility of an affiant or witness whose deposition has been taken, we intend thereby to limit severely the circumstances in which summary judgments properly may be entered. The alternative would require our abandonment of what has been called the `truth-testing process of cross-examination' and would encourage unwarranted invasion by judges of the jury's exclusive province. United States v. United Marketing Association (CCA 8, 1961), 291 F.2d 851, 853, 854." (Emphasis added.)
As to the second issue, what data may be considered in deciding a motion for summary judgment after interrogatories and depositions but before trial testimony, reference to GCR 1963, 117.3 is particularly appropriate. To reiterate, the rule in part states:
"Such affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties shall be considered by the court at the hearing * * *."
Also appropriate is commentary from Honigman Hawkins, supra, as to what data plaintiffs in opposing the motion for summary judgment may have considered. It states:
"Although the Rule does not require opposing affidavits, it is the obligation of the opposing party to make a showing by opposing affidavits, testimony, depositions, admissions or documentary evidence on file that a genuine issue of disputed fact does exist as to the questioned element of the claim or defense."
As we previously pointed out, the trial judge incorrectly failed to consider all of plaintiffs' answer to defendants' motions for summary judgment. The defendants in their motions for summary judgment also appear to have been under the mistaken impression that the trial judge was limited to the depositions as far as deciding the motion.
See footnote 3.
Defendants' motions all stated in part:
"That the depositions taken from all parties presently available clearly indicate that no such allegations can be sustained."
The original pleadings had properly alleged a cause of action and the defendants obviously could not have profitably attacked them. As indicated by the tenor of their motions for summary judgment the defendants sought to attack the depositions alone as failing to raise a "genuine issue as to a material fact".
The rule, however, is broader than depositions alone. It reads "affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed". In their answer plaintiffs promised to "produce competent medical evidence * * * that Contardi was under the influence of intoxicating beverages after drinking four (4) beers." This could be considered included under then appropriate "pleadings" or even as a substitute for an affidavit as affidavits are not required from the opposing party. In any event, the trial judge should have taken this data into consideration in reaching his conclusion, as we shall below in reaching our determination.
IV — SUFFICIENT PROOFS FOR A GENUINE ISSUE OF FACT (ISSUE 3)
1. Does proof of the amount of liquor consumed by itself raise a "genuine issue of fact" as to the lawfulness of the sale?
To reiterate, plaintiffs had proof as to the amount of intoxicants Contardi consumed but no witness testifying Contardi was intoxicated when served or after service. By Contardi's own deposition, he admitted having at least four bottles of beer before visiting the first of the two remaining defendant bars and drinking about three screwdrivers in them.
In Schratt v Fila, 371 Mich. 238, 248 (1963) this Court had before it the question of whether the proofs were sufficient to send to the jury the question of an unlawful sale to three men. There was testimony as to the amount of alcohol consumed before going to the defendant bar (seven-eight bottles, each between mid-afternoon and 11 p.m.). The men testified that they were not drunk. They admitted drinking while in defendant bar. The Court found that this testimony "was ample to go to the jury on whether the 3 men were intoxicated upon entering Janes Bar, and whether purchases were made therein."
Schratt is supported by Higdon v Kelley, 339 Mich. 209, 215 (1954), where this Court said:
"We do not believe that expert testimony is necessary to show that 10 to 12 glasses of beer in an afternoon are sufficient to cause intoxication."
See also Mason v Lovins, 24 Mich. App. 101, 109, n 6 (1970).
We realize that certain language in Wyatt v Chosay, 330 Mich. 661 (1951) appears to be in conflict with the Schratt case. In Wyatt, we affirmed the decision for defendants stating:
"The fact that liquor was consumed is not sufficient to establish intoxication at the time of, or immediately prior to, the accident." 330 Mich. 661, 670.
Wyatt, however, is not controlling. In the first place, Wyatt can be distinguished from the case at bar on the facts. In the second place the quoted sentence can be correct only in the sense that proof of consumption of an undefined amount of liquor under unspecified circumstances does not for all purposes establish intoxication.
The outstanding difference between Wyatt and the instant case is that there was not a single witness who testified to his drunkenness while five testified to his sobriety, whereas here plaintiff promises an expert witness to testify that the amount consumed would produce drunkenness.
The quoted sentence may correctly state a theoretical concept that the mere proof of consumption alone as an isolated fact does not establish intoxication, but that is not the dispositive issue in this case any more than it was in Wyatt. The dispositive fact is the consumption of a particular amount of liquor under particular circumstances. As we have said the quoted sentence is in no way controlling.
There are other Michigan cases which have dealt with the amount of intoxicants consumed. However, none of these cases relates to the exact point at issue, what it takes to raise a "genuine issue" of fact on a motion for summary judgment after interrogatories and depositions. See, for example, Juckniess v Supinger, 323 Mich. 566 (1949); Grinstead v Anscer, 353 Mich. 542 (1958); Long v Dudewicz, 355 Mich. 469 (1959); and Davis v Terrien, 364 Mich. 82 (1961).
On the authority of Schratt, it appears that proof of a particular amount consumed may be sufficient to raise a "genuine issue" of fact as to whether there was an unlawful sale. In the instant case the number of bottles of beer consumed is less than in Schratt, but at least by the time of service in the last bar there were screwdrivers served in addition. This might very well, particularly in light of the rule that plaintiff is entitled to the benefit of any reasonable doubt, raise the necessary "genuine issue" at this stage in the proceedings. However, we do not have to rest our opinion on such a rule here because the plaintiffs promise competent medical testimony that four beers is intoxicating.
2. Does the plaintiffs' answer promising medical testimony to prove that Contardi was intoxicated after four beers raise a genuine issue of fact?
The offer to "produce competent medical evidence * * * that Contardi was under the influence of intoxicating beverages after drinking four (4) beers" along with Contardi's admission in his deposition of drinking that amount certainly creates an issue of fact as to Contardi's intoxicated condition prior to the subsequent service of screwdrivers by defendants according to further testimony in his deposition.
As stated above, it is true that this offer to produce medical evidence cannot be totally characterized as an affidavit, deposition, admission, or documentary evidence under GCR 1963, 117.3. This, however, is data in the form of the permitted category of a "pleading" (i.e., plaintiffs' answer to defendants' motions for summary judgment) or in lieu of an affidavit which is not required of an opposing party. It is supportive of plaintiffs' claim and should have been considered by the trial judge in ruling on the motions.
3. Can the state of intoxication 1/2 hour after leaving the last bar raise an inference that Contardi was intoxicated while at the last bar or bars thus raising a genuine fact issue?
Plaintiff relies heavily on the testimony taken through the deposition of Officer Sabon who aided Officer Young in the questioning of Contardi after the accident. Officer Sabon testified:
"He had been drinking. Whether he was under the influence, this is open for debate to a point.
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"I would think he was under the influence to a point.
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"His speech being slurred, his eyes blurry. His clothes were disarranged." See deposition of Officer Sabon, pp 6, 9.
Testimony which ran counter to Officer Sabon's was that given by Officer Young. In his deposition, he stated in response to questions:
"Q. Did he have any tendency to slur his speech?
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"Q. Would that indicate, then, that it was your opinion that Mr. Contardi was not under the influence of alcohol?
"A. Yes." See deposition of Officer Young, pp 8, 10.
The evidence presented by plaintiffs in these depositions would help the jury to make necessary determinations of fact by permissible inferences from the submitted evidence. See Butrick v Snyder, 236 Mich. 300, 305 (1926); Fletcher v Flynn, 368 Mich. 328, 334 (1962); Villa v Golich, 42 Mich. App. 86, 89 (1972).
This evidence alone might be sufficient to raise the "genuine issue as to any material fact" necessary to defeat a motion for summary judgment. Certainly this evidence in combination with the evidence as to the amount of alcohol consumed plus promised competent medical testimony that such amount was intoxicating does raise such a "genuine issue".
Therefore, plaintiffs' several proofs at this stage of the proceedings did raise a "genuine issue" of fact as to whether or not Contardi was intoxicated when served. Plaintiffs have presented admissible evidence from which this question could be resolved in their favor.
In conclusion it is important to note what the office of a motion for summary judgment at this point in the proceedings is and is not. It is not as is the case of a motion for summary judgment before interrogatories and depositions a test as to whether a cause of action has been stated. Presumably the case has proceeded beyond that point, although obviously if the original pleadings did not state a cause of action, the pleadings would have to be amended or the case dismissed.
At this point the test is whether the data properly produced after the original pleadings is sufficient to permit the plaintiff to go to trial and proceed with his proofs. It is no more than that. It is not a judgment that the plaintiff necessarily has a case sufficient to go to a jury. In the instant case, for example, the plaintiffs might not in fact be able to produce a competent medical expert at all or one who would indeed testify that four bottles of beer would make Contardi intoxicated.
To recapitulate, the office of a motion for summary judgment by a defendant after interrogatories and depositions is to test whether plaintiff's appropriate data raises a "genuine issue as to any material fact" on which defendant challenges him. If plaintiff's data does raise such a "genuine issue" he may proceed to trial and his proofs, win or lose. If plaintiff's data fails to raise such a "genuine issue" defendant is entitled to a summary judgment.
Among the decisions which indicate circumstances under which it is error to enter a summary judgment, where there are questions of fact to be determined, are the following: Bilicki v W T Grant Co, 382 Mich. 319, 326 (1969) and cases cited therein; Gerard v Small, 382 Mich. 327 (1969); Miller v Miller, 373 Mich. 519 (1964); Kaunitz v Wheeler, 344 Mich. 181, 186 (1955) and cases cited therein; and Klug v Berkley Homes, Inc, 334 Mich. 618 (1952).
Costs to the plaintiffs.
T.M. KAVANAGH, C.J., and T.G. KAVANAGH, SWAINSON, and LEVIN, JJ., concurred with WILLIAMS, J.
The basic issue which confronts this Court concerns the propriety of the grant of summary judgment which, as an instrument of the trial court, rarely has been sustained of late. Naturally, such exercises of judicial discretion should be undertaken with great care and deliberation. Litigants have a right to present and be judged on well-founded issues. However, by adopting the language of Justice WILLIAMS we will eliminate any practical utility which summary judgments may possess.
This cause of action is predicated solely upon the dramshop act. Its statutory definitions and precedential interpretations require the plaintiff to prove, in part, that the defendant bar served an individual while intoxicated. There is nothing in the record before this Court which can support an allegation that Contardi was intoxicated when served by any of the defendant establishments. Contardi's activities were traced over a 12- or 13-hour period. There are no witnesses at all as to any intoxication during this period.
Emphasis has been placed on plaintiff's promise "to produce medical evidence * * * that Contardi was under the influence of intoxicating beverages after drinking (4) beers" in five hours. This so-called "medical evidence" can be presumed to be pure theory since Contardi was not examined by the police investigating the accident. No breath analysis was made. No blood was taken. No coordination test was given. Contardi was not even arrested for driving while intoxicated.
To afford consideration to plaintiff's promise to produce, the trial judge would also be forced to give such a verbal, transitory offer the status of an affidavit. It would have to be considered as part of the "pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties" to be considered at a court hearing (GCR 1963, 117.3). To stretch the rules to fit a single desired result this Court would force Michigan courts to apply the distortion here wrought to all future cases.
T.E. BRENNAN, J., concurred with M.S. COLEMAN, J.