Manuel v. Weitzman

¶1I.

¶2The Facts and Proceedings

¶3Arthur Manuel was a customer at the Roxy Bar on July 24, 1964. He suffered serious injury to his ankle as a result of an attack by another customer, Patrick Carrigan.

¶4Manuel and his wife, Violet, filed suit against Harry Weitzman, the bar owner, suing on four counts. Counts I and II, under the civil liability provision of the dramshop act (MCLA § 436.22 [Stat Ann 1971 Cum Supp § 18.993]), alleged that Carrigan was served drinks after he was already intoxicated. Immediately before trial, these counts were settled for $5,000.

¶5*161Counts III and IV alleged that defendant violated his common-law duty to maintain safe premises for his business invitees. At the conclusion of plaintiffs’ case, the trial judge granted defendant’s motion for a directed verdict based on two grounds:

1) The sole cause of action against a bar owner for injuries inflicted by an intoxicated customer is provided by the dramshop act. (MCLA § 436.22 [Stat Ann 1971 Cum Supp § 18.993].)

2) No evidence was presented from which the jury could find that defendant breached his duty to maintain his premises in a safe condition for business invitees.

¶6Plaintiffs appealed. The Court of Appeals reversed. (23 Mich App 96.) We granted defendant leave to appeal. 384 Mich 763.

¶7Plaintiffs rely on Gorby v. Yeomans (1966), 4 Mich App 339, which held that bar owners are liable under the common law if they breach their duty to maintain safe premises; and Baker v. Golematis (1969), 17 Mich App 383, and De Villez v. Schifano (1970), 23 Mich App 72, holding that a common-law action for breach of duty can be joined with an action brought under the dramshop act.

¶8Defendant argues that the Court of Appeals’ decision is contrary to the holding of Kangas v. Suchorski (1964), 372 Mich 396.

¶9II.

¶10Dramshop Act Remedy Not Exclusive

¶11In Kangas, plaintiff was injured in an assault by his drinking companion, Exelby. The chief question was whether plaintiff could recover under the dram-shop act from the proprietor, the plaintiff having contributed to Exelby’s intoxicated condition by pur*162chasing* drinks for him. In a concluding* paragraph of the opinion, this Court stated (p 401):

“Plaintiff’s declarations contained a count 2, not based upon the civil damages provision of the act, but asserting common-law liability on defendant’s part for negligence in failing to maintain a suitable place and safe conditions for business invitees. Such cause of action he may not assert, his exclusive remedy being under the civil-damage provisions of the statute. Jones v. Bourrie [1963], 369 Mich 473.”

¶12In Jones v. Bourrie (1963), 369 Mich 473, plaintiff, a guest passenger, had been injured in an auto accident allegedly as a result of his driver’s intoxicated condition. Plaintiff charged the driver was served liquor in defendant’s bar after he was already intoxicated. The complaint was filed after the two-year statute of limitations providing for civil liability under the dramshop act had run but within the three-year statute of limitations for general tort actions. This Court held (pp 476, 477):

“Plaintiff herein, for unknown reasons, permitted the statutory period to run. He cannot now assert an action to exist at common law. Plaintiff’s remedy was under the statute (CL 1948, § 436.22, as amended) and he failed to timely exercise it. To allow now an action, based on a common-law remedy, would be to permit circumvention of the statute and to assert a nonexistent remedy beyond that provided by the legislature.”

¶13Joneswas concerned with the liability of a tavern keeper who served liquor to an already intoxicated person. The facts in that case brought it clearly under the statute. Kangaswas decided on the issue that plaintiff bought drinks for his companion and so was not an innocent person entitled to recover under the act. Kangasrepeated the dictum in <7ones *163and ignored the common-law count. Neither case considered the question of the liability of a tavern keeper for breach of a duty to a patron arising out of the presence of the patron in the tavern keeper’s establishment and not necessarily involving the furnishing of liquor either to the patron or to some other person. The common-law duty of a liquor establishment to maintain a safe place of business for its customers is the same duty any business owes to those it invites upon its premises. The dramshop act was not intended to affect that duty. Dramshop acts were passed because under the common law it was not a tort to sell or furnish intoxicating liquor to an ordinary able-bodied man, even though as a result of his becoming intoxicated injury resulted to himself or to others.1 Their purpose was to fill a void in the law, not to remove the well-recognized duty of a tavern keeper to exercise due care for the welfare and safety of invited patrons.

¶14Such a duty was recognized by this Court in Torma v. Montgomery Ward & Company (1953), 336 Mich 468, 476, wherein it was said:

“As invitor the defendant owed the duty to its customers and patrons, including the plaintiff, of maintaining its premises in a reasonably safe condition and of exercising due care to prevent and to obviate the existence of a situation, known to it or that should have been known, that might result in injury.”

¶15The Minnesota Supreme Court has repeatedly affirmed the common-law duty of bar owners to protect their patrons from reasonably foreseeable assaults of other intoxicated patrons despite the existence of a Minnesota civil liability provision. In *164Windorski v. Doyle (1945), 219 Minn 402, 407 (18 NW2d 142), the Court quoted with approval an earlier statement of the common-law duty:

“ ‘There is no reason on principle why a person owning and controlling such a place, who sells his wares to such a person, knowing his ugly and quarrelsome disposition when intoxicated, should not be bound to exercise at least reasonable care to protect his other guests from his assaults and insults. The proprietor of such a place has the undoubted right to exclude therefrom drunken and disorderly persons, and the right to remove and expel them when they become in that condition and disorderly, and likely to produce discord and brawls. Being clothed with such power and authority, a corresponding duty to do so in the interests of law and order, and for the protection of his other guests, should be imposed as a matter of law.’ ”2 *****8

¶16The decisions in Kangasand Jonesare in error insofar as they purport to hold that the liability provisions of the dramshop act not only preempt any common-law action for negligent sale, but also preempt a common-law action for “negligence in failing to maintain a suitable place and safe conditions for business invitees”. The Court of Appeals’ decisions in Bakerand De Villes, supra, state the correct rule of law. We specifically approve the following statement in De Villes (p 77):

“We hold that the dramshop act affords the exclusive remedy for injuries arising out of an unlawful *165sale, giving away, or furnishing of intoxicants. King v. Partridge (1968), 9 Mich App 540, 543. However, the act does not control and it does not abrogate actions arising out of unlawful or negligent conduct of a tavern owner other than selling, giving away, or furnishing of intoxicants, provided the unlawful or negligent conduct is recognized as a lawful basis for a cause of action in the common law.”

¶17From the above statement by the Court of Appeals, it can readily be seen that the problem posed by these cases is to determine whether (1) the cause of action arises under the dramshop act, or (2) as the result of the breach of a common-law duty, or (3) presents a situation in which both causes of action arise out of the same incident. In this third situation, which confronts us in this case, the question arises as to whether the two causes of action may be joined in a single lawsuit.

¶18III.

¶19Joindeb or Dramshop Act Claim and Common-Law Claim Proper

¶20In Shandor v. Lischer (1957), 349 Mich 556, this Court held that a common-law cause of action of assault and battery can be joined with a statutory cause of action under the dramshop act even though both were based on the same altercation.

¶21In Ruediger v. Klink (1956), 346 Mich 357, plaintiff was injured in an automobile accident. He elected to join in one lawsuit his claims against various bars under the dramshop act and a claim against the intoxicated driver of the automobile for common-law negligence. This Court held that both actions could be brought in a single lawsuit and approved such a procedure.

¶22*166See, also, GCR 1963, 203.

¶23In Tyrrell v. Quigley (1946), 186 Misc 972, 973 (60 NYS2d 821, 822), the Court denied a motion to dismiss a complaint combining law and dramshop statute counts:

“The above statutes [New York dramshop act] do not constitute the sole source upon which might be predicated the instant cause of action. Under the particular facts as here alleged the action is maintainable also at common law. This is true for the reason that the defendant was bound to use reasonable care to protect his patrons from injury at the hands of a vicious individual whom allegedly he knowingly permitted to be in and about his place of business. The applicable rule is referred to in Restatement of the Law of Torts, Vol. 2, § 348 (pp. 953-956), wherein it is expressly pointed out that in the exercise of reasonable care the owner of a public place has a ‘Duty to police the premises’ and to furnish a sufficient number of servants to afford reasonable protection ‘if the place is one or the character of the business is such’ that the owner should anticipate the presence thereon of disorderly persons generally or at any particular time.” (Emphasis supplied.)

¶24The same result was reached in Morrissey v. Sheedy (1966), 26 App Div 2d 683 (272 NYS2d 430).3

¶25Plaintiffs introduced evidence which, if believed by the jury, would show that defendant knew that Carrigan had engaged in a fight in a bar at some time before the attack; that the bartenders on duty did not take sufficient measures to eject him after *167he became obstreperous and disruptive; and that, after Carrigan attacked Manuel, the bartenders did not act immediately to protect him from injury. Plaintiffs’ evidence, if believed by the jury, would allow the jury to conclude that defendant failed to take action to protect Arthur Manuel from injury by Carrigan. The joinder of plaintiffs’ claims in separate counts was proper.

¶26IV.

¶27No Double Recovery

¶28There remains the problem, created by the dram-shop counts settlement, of avoiding a double recovery. On retrial, the judge should instruct the jury that plaintiffs have received a $5,000 settlement and that the jury should take this into consideration in awarding damages if they find for plaintiffs. Larabell v. Schuknecht (1944), 308 Mich 419, 423. Since the dramshop act provides “the right to recover actual and exemplary damages in such sum not less than $50.00 in each case as the court or jury may determine”,4 only that portion of the $5,000 received for actual damages should be considered by the jury. The parties may stipulate what amount of the settlement was for actual damages and what amount was for exemplary damages. In the event the parties are unable to agree, the trial judge should instruct the jury on the meaning of actual and exemplary damages so that the jury can make a proper division of the $5,000 settlement between actual damages which shall be set off against any damages awarded for common-law negligence and the exemplary damages which shall not be so set off.

¶29*168The decision of the Court of Appeals, as modified, is affirmed. The case is remanded for trial. Costs to plaintiffs.