At common law, there was no cause of action which existed for selling or furnishing alcohol to an able bodied adult. In fact, there was no cause of action for “liquoring up” an individual who was already intoxicated when that person frequented a bar, tavern or other purveyor of alcohol. Consequently, the Dram Shop Act created a statutory cause of action which had not previously existed and which is the exclusive remedy against a licensed liquor retailer.
The Act provides, in pertinent part, as follows:
“***An individual who suffers damage or who is personally injured by a minor or visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of alcoholic liquor to the minor or visibly intoxicated person, that the sale is proven to be a proximate cause of the damage, injury or death, or the spouse, child, parent, or guardian of that individual, shall have a right of action in his or her name against the person who by selling, giving, or furnishing the alcoholic liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the damage, injury, or death.” MCL 436.1801(3).
In order to establish a dram shop claim, a Plaintiff must plead and prove: (1) that a liquor licensee sold, gave, or furnished alcohol to a person who was visibly intoxicated; (2) that the visibly intoxicated person caused the claimant’s injury and; (3) that the intoxication was a proximate cause of the injury.
Consequently the issue becomes whether or not the Alleged Intoxicated Person, while a patron of the Dramshop Defendant was provided alcohol while visibly intoxicated.
The mere fact that an alleged intoxicated person drank alcoholic beverages at the establishment of a liquor licensee is not sufficient to prove that he was visibly intoxicated for purposes of finding liability under the Dram Shop Act. See McKnight v Carter, 144 Mich App 623 (1985).
Furthermore, although circumstantial evidence can bolster the argument that a person must have been showing signs of intoxication (because of an unusually high BAC determined after the fact) actual evidence of visible intoxication while at the establishment is required as a predicate to the introduction of circumstantial evidence.