In Reed v Breton, 475 Mich 531, 718 NW2d 770 (2006), the Michigan Supreme Court has redefined the Plaintiff’s burden of proof that a Defendant bar has violated the Michigan Dram Shop Act by allegedly selling intoxicating beverages to an alleged intoxicated person.  In Reed, the Supreme Court held as follows:

1. When a Defendant is not the last establishment to serve the allegedly intoxicated person, Plaintiff must present clear and convincing evidence to rebut the statutory presumption of non-liability;

2. To establish “visible intoxication”, a Plaintiff must present evidence of actual visible intoxication. 

In Reed, Defendant/AIP Breton spent the day drinking with a friend, John Marsh.  Around 7:30 p.m. they consumed two beers at the Beach Bar.  Defendant, Beach Bar’s, server had received training in identifying visibly intoxicated persons.  She testified that she had served Breton and did not observe him to exhibit slurred speech, an aggressive manner, a lack of coordination or erratic behavior.  She did not consider refusing him service.
 

Breton and Marsh next went to the Eagle’s Nest (bar) where they split a pitcher of beer.  There they encountered their supervisor, Summit Township Fire Department Chief, Carl Hendges, who did not think either man was intoxicated.  Another witness at the Eagle’s Nest who knew Breton and who himself owned a convenience store that sold alcoholic beverages, observed that Breton’s eyes were not bloodshot or glossy and he did not appear to be intoxicated.  Similarly, Marsh did not notice any change in Breton’s speech and in his ability to walk or redness in his eyes over the course of the day.

Shortly before 10:00 p.m., Breton drove Marsh home.  At approximately 11:10 p.m. Breton crossed the center line of U.S. 127 at a high rate of speed.  His vehicle collided head-on with a vehicle carrying Plaintiff’s two decedents, taking the lives of all three men.  An examination after the collision revealed that Breton’s blood alcohol content was 0.215 grams per 100 ml of blood.  (Note, per Michigan Law, .08 blood alcohol constitutes legal intoxication.)  Defendant, Beach Bar, the second to the last establishment to serve Breton sought summary disposition pursuant to a rebuttable presumption of non-liability available to all but the last certain establishment under MCL 436.1801(8).  Defendants argue that Plaintiffs failed to rebut the presumption given the aforementioned testimony.  Plaintiffs responded that a factual issue remained whether Defendant served Brenton when visibly intoxicated given that Plaintiff had offered the expert opinion report of two toxicologists who opined that given Defendant/AIP Breton’s blood alcohol content after the collision, he must have been significantly impaired.  These experts then listed several manifestations of impairments such as disorientation and lack of coordination and concluded that he must have exhibited some of these symptoms at Defendant, Beach Bar. 

The Trial Court held that Plaintiffs had shown Defendant/AIP Breton’s visible intoxication by the experts deductions from the data regarding how Breton must have appeared.  However, the Trial Court concluded that Plaintiffs were required to offer more than circumstantial evidence from experts and so failed to rebut the presumption of non-liability with “positive, unequivocal, strong and credible” evidence in light of Krisher v Duff, 331 Mich 699, 50 NW2d 332 (1951).  Thus, the Court granted summary disposition to Defendant.

The Court Appeals reversed.  Defendants appealed to the Supreme Court.

The Michigan Supreme Court reversed the Court of Appeals and adopted the decision of the Trial Court.  In Reed, the Michigan Supreme Court held that Plaintiff, in addition to making out a prima facie case by a preponderance of evidence under MCL 436.1801(3) [sale of intoxicating beverages to visibly intoxicated person] must also, when a Defendant is not the last establishment to serve the alleged intoxicated person, present clear and convincing evidence to rebut and thus overcome the presumption of MCL 436.1801(8). 

The Michigan Supreme Court then sought to determine if the Plaintiff’s evidence sufficed to overcome this presumption.  The Court held that it did not because the proofs presented “could not even meet the competent and credible standard for rebutting the presumption to show service to a visibly intoxicated person”.  In so holding, the Michigan Supreme Court explained that while circumstantial evidence may suffice to establish this element [visible intoxication], it must be actual evidence of the visible intoxication of the alleged intoxicated person.  By way of further explanation, the Court stated other circumstantial evidence, such as blood alcohol levels, time spent drinking or the condition of other drinkers, cannot, as a predicate for expert testimony, alone demonstrate that a person was visibly intoxicated because it does not show what behavior, if any, the person actually manifested to a reasonable observer.  Thus, while expert post hoc analysis may demonstrate that Breton was actually intoxicated, it did not establish that others witnessed his visible intoxication.  Accordingly, the Michigan Supreme Court held that Plaintiff had failed to establish a genuine issue of material fact that the Co-Defendant/AIP Breton was visibly intoxicated even under MCL 436.1801(3).  Thus, the Trial Court correctly granted summary disposition for Defendant. 

The Reed holdings are the most significant redefinition of the Dram Shop Act in many areas.  First, for a Defendant who is not the last establishment to serve the alleged intoxicated person, a Plaintiff confronts a heightened standard of proof-CLEAR AND CONVINCING EVIDENCE-which must be presented to rebut the statutory presumption of non-liability.  Second, and equally, if not more important, in any Dram Shop Action, Plaintiff must present evidence of actual visible intoxication where Plaintiff contends that Defendant served the Defendant/AIP when visibly intoxicated.  Thus, “the days appear gone” where a Plaintiff can create a question of fact as to visible intoxication based solely upon the expert opinion of the toxicologist who extrapolates from a blood alcohol content after the accident to an opinion about the Defendant/AIP’s condition when served.  If the expert toxicologist’s opinion is the only evidence Plaintiff can generate relative to the alleged condition of the Defendant/AIP at the time of service, such evidence will be insufficient to create a question of fact as to “visible intoxication”.