M Civ JI 75.13 Dram Shop - Contributing to Occurrence Not a Defense

There has been evidence that [ plaintiff / plaintiff’s spouse / [ other ] ] was [ description of conduct ]. I instruct you that such conduct is not a defense to a claim under the Dram Shop Act.

Note on Use

This instruction should not be used to describe conduct that is a defense to a dram shop action. See Comment in Section IV of Introduction, Defenses to a Cause of Action Under the Act.

In cases where there is evidence of conduct by the plaintiff, plaintiff’s spouse, or other person that would not be a defense, this instruction should be used to distinguish such conduct. See the Comment below.

Comment

Prior case law held that the licensee cannot raise a defense that the intoxicated person was contributorily negligent in actions that are brought by a relative of the intoxicated person for damages (i.e., loss of support, consortium) caused by the intoxicated person injuring himself or herself. Genesee Merchants Bank & Trust Co v Bourrie, 375 Mich 383; 134 NW2d 713 (1965); James v Dixon, 95 Mich App 527; 291 NW2d 106 (1980). Other wrongdoing by the alleged intoxicated person has also been held not to be a defense. Weatherbee v Byam, 160 Mich 600; 125 NW 686 (1910) (plaintiff’s husband unlawfully fishing when he drowned).

Under the 1986 amendments to the Dram Shop Act, claims for these types of damages have been eliminated for relatives of the alleged intoxicated person. But insofar as relatives of intoxicated minors may still sue for such damages, the licensee does not have a defense that the minor was contributorily negligent.

History

M Civ JI 75.13 was added May 1988 to replace M Civ JI 75.05.