Dram-Shop Actions
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Chapter 5: Dram-Shop Actions
Constantine N. Kallas, Kallas & Henk PC
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CONTENTS
The Cause of Action
Elements of the Cause of Action
Proper Parties
Defenses
Evidentiary Considerations
Special Considerations
Social Host Liability

I.   Overview

§5.1   The Michigan Liquor Control Code of 1998 (Dramshop Act), MCL 436.1801(3)–(11), permits certain persons to bring a cause of action against the retail licensee that unlawfully served alcoholic beverages to an intoxicated person or a minor, resulting in injury, death, or property damage. The cause of action is entirely statutory and in derogation of common law, which did not permit an action against one selling intoxicants. The act provides the exclusive remedy against retail licensees. MCL 436.1801(10). The act does not cover wholesale licensees. Tennille v Action Distrib Co, 225 Mich App 66, 570 NW2d 130 (1997).

To recover under the Dramshop Act, a plaintiff must show that injury or death was caused by a retail licensee’s unlawful selling, giving, or furnishing of alcohol to a visibly intoxicated person or a minor. MCL 436.1801(3). Visible intoxication is intoxication “apparent to an ordinary observer.” Miller v Ochampaugh, 191 Mich App 48, 477 NW2d 105 (1991); M Civ JI 75.02. Furnishing intoxicants to a minor (a person younger than age 21) is per se unlawful, MCL 436.1701, and visible intoxication need not be shown.

The act provides no remedy for the intoxicated person who suffers injury himself or herself, or his or her family members, or anyone who contributed to the intoxication. Only innocent third parties may recover. Craig v Larson, 432 Mich 346, 439 NW2d 899 (1989); Kangas v Suchorski, 372 Mich 396, 126 NW2d 803 (1964), overruled in part by Millross v Plum Hollow Golf Club, 429 Mich 178, 413 NW2d 17 (1987). The action must be instituted within two years of the injury or death. MCL 436.1801(4). The party seeking to bring a dram-shop action must provide written notice to the licensee within 120 days of retaining an attorney, provided that sufficient facts are known to suggest the possibility of the dram-shop action. MCL 436.1801(4).

The allegedly intoxicated person (AIP) or minor must be named and retained as a defendant in any action under the Dramshop Act. MCL 436.1801(5). A retail licensee has a right to indemnification from the AIP for any amounts awarded against it under a dram-shop theory. MCL 436.1801(6). Comparative negligence principles apply to a dram-shop action, and the retail establishment has all factual and legal defenses that the AIP may raise in defense of the action. MCL 436.1801(7); Lyman v Bavar Co, 136 Mich App 407, 356 NW2d 28 (1984). All provisions of the Revised Judicature Act apply to dram-shop actions except inconsistent provisions, which are superseded by the provisions of the Dramshop Act. MCL 436.1801(11); Miller.

Social host liability is the liability of a person or an entity other than a retail licensee for unlawful provision of alcoholic beverages. There is no social host liability for providing alcohol to an adult. Longstreth v Gensel, 423 Mich 675, 377 NW2d 804 (1985). Elements of social host liability claim are (1) the defendant knowingly furnished alcohol to a person younger than age 21 and (2) the minor’s consumption of the alcohol caused injury or death. MCL 436.1701. An injured third person or the minor can recover under a social host theory. Comparative negligence principles apply. Longstreth.

Forms and Exhibits

Form 5.01 Checklist for Dram-Shop Claims
Form 5.02 Dram-Shop Complaint
Form 5.03 Plaintiff's Interrogatories to Allegedly Intoxicated Person (Dram-Shop Action)
Form 5.04 Plaintiff's Interrogatories to Liquor Licensee (Dram-Shop Action)
Form 5.05 120 Day Notice (Dram-Shop Action)

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