Appeals Court overturns lower court; grants summary disposition to bar: circumstantial evidence of serving intoxicated woman is not adequate
The guardian of Tamara Johnson, a legally incapacitated person, sued a drunk driver and "Bert's Market Place" to recover for Tamara's injuries and damages. After reviewing the facts, the trial judge denied the bar's request for summary disposition, holding that Johnson's guardian had presented enough circumstantial evidence of the bar patron/driver's "visible intoxication" to create a question of fact for jurors.
The bar appealed, got assigned a favorable panel that included the insurer's best friend, Henry Saad, and reversed the lower court. The appellate judges deemed Johnson's case to be controlled by an earlier case where the Republican majority on Michigan's Supreme Court ruled that expert toxicology testimony is so "speculative" that it cannot support a holding that a person was visibly intoxicated when served by the Defendant.In the 2006 case of Reed v. Breton, the Republican judges conferred on dramshop insurers an enormous favor when they ruled that no matter how much a drunk drank, no matter how quickly, no matter the drunk's size, age, gender or drinking experience or blood alcohol, a toxicologist could not extrapolate from these facts whether the person was showing signs of intoxication when last served by the bar. As a result, in the face of testimony that a college freshman of normal size with no drinking experience sat down in a bar and drank a dozen shots within 45 minutes, resulting in a blood alcohol of .3 or more, for example,--all served by the same waiter--a victim of the drunk's subsequent behavior could not prove "visible" intoxication by these facts. No matter how scientific the facts of visible intoxication are, they remain "speculative" and the victim must find a drunk from the next bar stool who will attest to visible manifestation of alcohol consumption (because the bar's server certainly won't!).
Even though the law PRESUMES that a drunk whose blood alcohol is .08 is incapable of driving because of impaired senses and judgment--and will incarcerate and punish severely on that basis, a scientist cannot use the same blood alcohol measurement--no matter how high--to prove that the drunk's intoxication became "visible" at some point if the purpose is to compensate a victim of an illegal sale of alcohol.