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Court summarily dismisses two bars implicated in multiple fatality

Andrew Gillespie apparently got drunk, despite taking anti-anxiety medication that "multiplies" the effect of alcohol, and crossed the centerline on Hagadorn Road in Lansing.  He caused a wreck that killed two and injured four.   He pleaded guilty to second degree murder in the criminal case that arose out of the collision; the civil case implicated three different potential purveyors of alcohol, Bennigan's, Mason Jar Pub and Quality Dairy Company.  The majority of the Court of Appeals panel considering the case reversed the decision of the trial court and dismissed the claims against the first two [tavern] defendants.

In Michigan, you must have a license to sell alcohol.  It is illegal to sell or furnish alcohol to a minor or to a person who is visibly intoxicated.  A couple of years ago, the Engler Majority of the Supreme Court interpreted this licensing and regulation statute to exclude evidence of "visible intoxication" from a toxicologist, unless the evidence was corroborated by an eyewitness.  Whereas previously, a highly trained expert witness could extrapolate backwards from the drunk's blood alcohol level to offer an opinion about the likelihood of "visible" intoxication at the time of sale, the Engler folks wiped out that valuable testimony:  now, victims suffering injury as a result of excessive alcohol consumption must rely for proof on the drunk's companions or the defendant servers.  Needless to say, those are usually not the most cooperative witnesses.

In this recent action, the drunk, Gillespie, confirmed taking anti-anxiety medicine in the morning, and taking an additional dose in his pocket.  His ex-wife confirmed he left the house sober at 4 p.m.  Another witness claimed he smelled of alcohol by 4 or 5 p.m.  In very contradictory testimony, Gillespie recalled drinking two vodka and orange juices at the Mason Jar and claimed he was drunk enough to give away an antique coin, but could not quantify how much he drank.  He thought he was intoxicated by the combination of alcohol and medication for anxiety.

The two bartenders who served him between 4 and 8 p.m. denied that Gillespie was drunk and claimed he drank only two drinks.  Another regular customer who drank at the bar with Gillespie confirmed two drinks while he was present but denied that Gillespie was intoxicated.

A former employee of the establishment claimed that Gillespie entered the bar after 8 pm, downed two vodka and orange juice drinks and left within an hour.  She claimed he was not intoxicated when he came in, but stumbled on his way out.  She was reminded that she had previously told police Gillespie's eyes were bloodshot when she saw him at the Mason Jar.  Another witness suggested that Gillespie actually gave away the antique coin on a different day---sitting in the bar stone sober.

Gillespie also contradicted himself about buying alcohol at the Quality Dairy convenience store across the street.  Initially he denied any recollection of entering the store, but later he provided fairly detailed testimony.  The store records confirmed a sale of vodka at 5:12 and another at 7:43,  both to patrons who had no I.D., but who were clearly "21".  The clerk denied recognizing Gillespie as either purchaser.

Gillespie's next confused account related to sitting at the bar at Bennigans for a couple of hours.  He  thought he was there for two hours and knew he ordered a drink, however, he wasn't sure if he was served, and gave conflicting testimony  about several issues.  He claimed that he was embarrassed when he was told to quiet down by bar employees.  Four Bennigan's employees denied recognizing Gillespie and the manager claimed no one bought vodka and orange juice that night.

Gillespie's then-wife confirmed he arrived back home at about 8:30 and confirmed that he showed signs of visible intoxication.  She called police at 9:36 to transport Gillespie to Community Mental Health, however, he left while she was on the phone. Meanwhile, Gillespie's mother claimed Gillespie left his bike and a Quality Dairy cup that smelled of alcohol in her driveway and drove off in her car after she went to bed "at 8:30 or 9."  A McDonald's employee called police after a shoeless drunk [undisputedly Gillespie] urinated on the building, ran into the side of it with his car, and then drove off about 10:30. 

At the time of the collision, Gillespie's blood alcohol was 0.15--that is, about double the legal level for driving.  His (now) ex-wife corroborated much of his account of that night, including stops at the two bars, giving away the coin, purchasing vodka at Quality Dairy, etc.  All three alcohol providers sought summary disposition, claiming that the Estates of the innocent people killed by Gillespie could not prove that the bars and convenience store were guilty of illegal sales.  The trial court denied the motions,  citing the contradictory facts and the credibility issues involving many of the witnesses.

Ultimately, the majority of the Court of Appeals reversed the lower court and threw out the case against the two bars.  It presumed to resolve the issue against the families on the basis of the above contradictory evidence.  One judge dissented, appropriately noting that no one could sort out the messy Bennigan's testimony "as a matter of law" without improperly deciding credibility and fact issues.  Hopefully the families will appeal to the Supreme Court and get a fair resolution of their claims.  As the dissenting judge noted in the Court of Appeals--it is not clear that the families should win, however, there is a sharp disagreement over the material facts, and under our law, that conflict must be resolved by the jurors.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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