The decedent and two friends went to a bar and were asked to leave after they became visibly intoxicated.  They left without the decedent’s car keys.   A bar employee found the keys and picked the keys up.    When Decedent and her friends discovered they had forgotten her keys, they returned to the bar, still visibly intoxicated.  The bar employee returned the keys to the decedent, and they left.  Decedent drove away from the bar, lost control of her vehicle, and was killed.

             Decedent’s estate filed suit against the bar and its employee, claiming the employee’s actions in returning the car keys to a person who was visibly drunk was negligence. The trial court dismissed the case and the Court of Appeals agreed.

             The Court of Appeals noted that Michigan’s dramshop act, MCL 436.1801, is the sole and exclusive remedy  for a person who is injured by a visibly intoxicated person arising out of the unlawful sale or furnishing of alcohol.   And, under the dramshop act, the visibly intoxicated person and his or her family are denied recovery.  MCL 436.1801(2),(9).  Thus, the only question in this case was whether that result is altered by the fact that the alleged act of negligence was the defendant-bar employee  giving the decedent her car keys, not the act of furnishing her alcohol.  The Court of Appeals answered in the negative.  Although a retail establishment can still remain liable for actions arising out of negligence other than the sale or furnishing of alcohol, the test is whether the common law recognizes a cause of action for the negligent conduct, if the person were not intoxicated.  Intoxication is taken out of the equation.  For example, if a patron slipped and fell on the bar’s premises, a premises liability action could  be brought.   However, In this case, there is no ordinary common-law action for the furnishing of keys to an unintoxicated patron.  Giving keys to an unintoxicated patron is perfectly legal.  Therefore, the decedent’s estate was denied recovery.

 What this means for bar patrons:

 If you are injured after leaving a bar in an intoxicated condition, you do not have a cause of action against the bar.   This result is not changed by your claim that the bar should not have given you your car keys or other similar actions that caused you to be able to drive.

You can read the entire opinion here.

Authored by Barbara A. Assendelft

Plaintiff was at an annual  family party at Camp Dearborn, a park run by the County of Oakland.  After socialization, the group boarded a hayride. Defendant was the driver of the hayride.  Defendant-driver drove through Camp Dearborn along his normal route while weaving and doing figure eights.   This was part of the attraction of the hayride; the swerving and weaving made it more exciting than typical  hayrides, and the guests were allowed to drink alcohol and throw hay at each other.   In this hayride, plaintiff, who was sitting at the edge of the wagon, fell out and sustained serious injury after the driver swerved  to the right and then whipped the wheel sharply to the left.  She filed suit against the driver of the tractor, alleging that his driving was grossly negligent.   An allegation of gross negligence is necessary to avoid the defense of governmental immunity under MCL 691.1407.  The Court of Appeals dismissed the plaintiff’s case, holding that the evidence did not show that the driver’s conduct was grossly negligent.  The Court of Appeals held that his conduct was not “so reckless as to demonstrate a substantial lack of concern for whether an injury results”, because he drove the wagon how the guests expected, he had no prior accidents while driving a hayride, and there was no evidence that he was aware of other accidents occuring from driving in this manner.   The plaintiff’s case was dismissed.

What This Means For Injured Persons:

Proving gross negligence to avoid governmental immunity is difficult.  You must show almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks.   You must basically convince the court that, if  an objective observer watched the actor, he could reasonably conclude that the actor simply did not care about the safety or welfare of the people in his charge.   This is a hard burden.  In the case of rides or similar type attractions such as the hayride in this case  conducted by a governmental unit, it is important that if you feel the ride is dangerous, you must tell the operator of the ride. It could save your case. 

You can read this opinion here.

Authored by Barbara A. Assendelft