                             STATE OF MICHIGAN

                             COURT OF APPEALS



JEFFREY S. MINDYKOWSKI and MICHELLE                                  UNPUBLISHED
M. MINDYKOWSKI,                                                      March 10, 2015

                Plaintiffs-Appellees,

v                                                                    No. 315753
                                                                     Alpena Circuit Court
CODY M. OLSEN,                                                       LC No. 12-004633-NO

                Defendant,

and

CWB PROPERTY MANAGEMENT, INC., and
ALPENA HOTELS LLC,

                Defendants-Appellants.


Before: JANSEN, P.J., and METER and BECKERING, JJ.

PER CURIAM.

        In this interlocutory appeal, defendants-appellants CWB Property Management, Inc., and
Alpena Hotels LLC (hereinafter defendants) appeal as on leave granted1 an order of the trial
court denying their motion for summary disposition pursuant to MCR 2.116(C)(10) (no genuine
issue of material fact) in this dramshop and premises liability action. We reverse and remand.

                             I. FACTS AND PROCEDURAL HISTORY

      On May 22, 2011, plaintiff Jeffrey Mindykowksi2 was assaulted and knocked
unconscious by Cody Olsen shortly after 2:00 a.m. in the parking lot of the Alpena Holiday Inn.3


1
    Mindykowski v Olson, 497 Mich 880; 854 NW2d 711 (2014).
2
  Plaintiff Michelle M. Mindykowski is Jeffrey Mindykowski’s wife. Her loss of consortium
claim is derivative of Jeffrey’s personal injury claims. The references herein to “plaintiff” are to
Jeffrey.


                                                -1-
At approximately 7:00 p.m. that evening, Olsen had attended a bachelor party with a friend,
Steve Frank, and then briefly patronized a bar with Frank and another friend, Heather Phillips,
before arriving at Sneakers Bar inside the Alpena Holiday Inn around 12:30 a.m. Olsen
estimated that he had consumed between eight and ten beers before arriving at Sneakers. Olsen
consumed one or two additional beers that he purchased at Sneakers.

        Olsen left the bar at closing time and went outside with his friends to smoke. The
weather was rainy, and a crowd had gathered underneath an awning at the entrance to the hotel.
Amongst the crowd were some of Olsen’s female friends, including Angela Moore and Alisha
Nelson. According to Olsen, he and his friends were making fun of each other, arguing, calling
each other derogatory names, and slapping each other. This encounter was captured on the
hotel’s video surveillance camera. Olsen subsequently walked to the parking lot and his friends
followed. He and his friends continued to engage in similar behavior.

        Plaintiff was also leaving Sneakers at closing time with his wife and his friend John
Krawczak and his wife. According to plaintiff, he and Krawczak went to the hotel parking lot to
retrieve Krawczak’s vehicle while their wives waited underneath the awning. Once the men
were inside the vehicle, an altercation erupted in the parking lot. According to plaintiff, he
exited the vehicle and asked the people that were fighting near the vehicle to move so that
Krawczak could leave his parking space. At that time, Olsen struck plaintiff repeatedly,
rendering him unconscious. A bystander called 911, and plaintiff was taken to the hospital.
Plaintiff suffered personal injuries as a result of the assault.

         Plaintiff filed this action against defendants, alleging dramshop liability for serving a
visibly intoxicated person and premises liability for failing to maintain reasonably safe premises.
Plaintiff also raised a claim of assault and battery against Olsen. Defendants moved for
summary disposition under MCR 2.116(C)(10), asserting that there was no actual evidence that
defendants served alcohol to Olsen while he was visibly intoxicated on defendants’ premises
and, therefore, that plaintiffs could not establish a claim under the dramshop act, MCL 436.1801,
et seq. Defendants did not deny that Olsen was intoxicated, but maintained that there was no
evidence that Olsen was served alcohol while visibly intoxicated. Defendants noted that Olsen
testified that he was not visibly intoxicated and that the Sneakers manager said she observed no
evidence of intoxication. Defendants also asserted that plaintiff could not maintain a premises
liability claim where defendants owed no duty to protect plaintiff from Olsen’s unforeseeable
criminal acts. Their only duty, defendants argued, was to summon police upon learning of any
potential danger to plaintiff.

        In his response to defendants’ motion for summary disposition, plaintiff maintained that
the number of drinks that Olsen consumed over the course of the evening, as well as the
testimony of witnesses, established that Olsen was visibly intoxicated. Specifically, plaintiff
relied on a police report that indicated that Alisha Nelson told officers that Olsen “was extremely
intoxicated and belligerent.” She allegedly told the officers that Olsen “apologized for his


3
  The hotel is operated by defendant CWB Property Management, Inc., and the hotel’s liquor
license is held by defendant Alpena Hotels LLC.


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behavior that night and acknowledged he was an out-of-control drunk that night.”4 Plaintiff
further relied on Olsen’s testimony at his criminal trial that he “could feel the alcohol” and
Frank’s testimony at the trial that Olsen “was intoxicated this night.” Plaintiff also relied on
Michelle Mindykowski’s deposition testimony that she observed that Olsen’s eyes were “glossy .
. . and irritable [sic].” With regard to the premises liability claim, plaintiff maintained that the
evidence showed that Olsen engaged in an altercation with Angela Moore and another altercation
with Alisha Nelson, both of which involved name-calling and slapping. Plaintiff maintained that
defendants should have been aware of the altercations involving Olsen and should have protected
plaintiff by contacting the police.

         In finding a question of fact regarding whether Olsen was served while visibly
intoxicated, the court referred to Nelson’s “non-notarized statement that acknowledged that he
[Olsen] was out-of-control drunk that night,”5 as well as to Frank’s testimony that “he seen him
intoxicated before, and . . . thought he was intoxicated that night.”6 The court took the premises
liability issue under advisement. Subsequently, the trial court denied summary disposition of the
premises liability claim. The court found that two conflicts occurred before Olsen’s assault on
plaintiff and that there was a question of fact regarding whether defendants acted reasonably in
failing to report the earlier incidents.

                                      II. DRAMSHOP CLAIM

        Defendants argue that the trial court erred by denying their motion for summary
disposition because plaintiff failed to present sufficient evidence to create a genuine issue of
material fact with regard to whether Olsen was visibly intoxicated at the time he was served
alcohol by defendants. We review de novo a trial court’s summary disposition ruling. Zaher v
Miotke, 300 Mich App 132, 139; 832 NW2d 266 (2013). Under MCR 2.116(C)(10), we consider
“the pleadings, admissions, and other evidence submitted by the parties in the light most
favorable to the nonmoving party.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d
868 (2008).

        “Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine
issue regarding any material fact and the moving party is entitled to judgment as a matter of
law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). When a court
reviews a motion for summary disposition under subrule (C)(10), it may consider only “the


4
    Olsen denied making the statement.
5
  Defense counsel noted that Nelson’s unnotarized affidavit was not attached to plaintiff’s
summary disposition brief that he received. This Court denied plaintiff’s motion to expand the
record to include Nelson’s finally-attested affidavit. Mindykowski v Olsen, unpublished order of
the Court of Appeals, issued December 10, 2013 (Docket No. 315753).
6
  Given the trial court’s statement at the hearing that it “recall[ed] taking the plea in this case,” it
appears that the trial court was relying on its memory of the criminal proceeding in making its
findings.


                                                  -3-
substantively admissible evidence actually proffered . . . .” Maiden v Rozwood, 461 Mich 109,
121; 597 NW2d 817 (1999).

         In presenting a motion for summary disposition, the moving party has the initial burden
of supporting its position with affidavits, depositions, admissions, or other documentary
evidence. Neubacher v Glove Furniture Rentals, 205 Mich App 418, 420; 522 NW2d 335
(1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed
fact exists. Id. Where the burden of proof on a dispositive issue rests on a nonmoving party, the
nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond
the pleadings to set forth specific facts showing that a genuine issue of material fact exists. See
McCart v J Walter Thompson, 437 Mich 109, 115; 469 NW2d 284 (1991). If the opposing party
fails to present documentary evidence establishing the existence of a material factual dispute, the
motion is properly granted. McCormic v Auto Club Ins Ass’n, 202 Mich App 233, 237; 507
NW2d 741 (1993).

         The dramshop act was enacted by the Legislature “to discourage bars from selling
intoxicating beverages to minors or visibly intoxicated persons and to provide for recovery under
certain circumstances by those injured as a result of the illegal sale of intoxicating liquor.”
Browder v Int’l Fidelity Ins Co, 413 Mich 603, 611-612; 321 NW2d 668 (1982). “The dramshop
act . . . provides a cause of action against tavern owners for the unlawful sale of alcohol to a
‘visibly intoxicated person’, where the sale is a proximate cause of injuries.” McKnight v Carter,
144 Mich App 623, 629; 376 NW2d 170 (1985).

        Specifically, MCL 436.1801(2) provides that “[a] retail licensee shall not . . . sell,
furnish, or give alcoholic liquor to a person who is visibly intoxicated.” MCL 436.1801(3)
provides for a cause of action:

       [A]n 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, if the unlawful 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. . . .

       “[T]o establish ‘visible intoxication’ under MCL 436.1801(3), a plaintiff must present
evidence of actual visible intoxication,” Reed v Breton, 475 Mich 531, 534; 718 NW2d 770
(2006), and for a successful claim must also show “the element of serving alcohol to a visibly
intoxicated person,” id. at 539. The mere service of alcoholic beverages by employees to a
person is insufficient to establish visible intoxication. Heyler v Dixon, 160 Mich App 130, 145;
408 NW2d 121 (1987).

       The Reed case is highly instructive. In Reed, 475 Mich at 534-535, Curtis J. Breton, an
intoxicated driver, crossed the centerline of US-127 at a high rate of speed and collided head on
with a vehicle carrying Adam W. Kuenner and Lance N. Reed. All three men were killed. Id. at
535. The plaintiffs, the personal representatives of the estates of Kuenner and Reed, sued the

                                                -4-
personal representative of Breton’s estate and also sued the two bars that served Breton
alcohol—the defendant, the Beach Bar, as the second-to-last establishment that served him, and
the Eagles Nest. Id. at 534-535. The evidence showed that Breton spent the day consuming
alcohol with his friend, John Marsh. Id. at 534. At 7:30 p.m., they consumed two beers at the
defendant establishment. Id. Their server was trained to identify visibly intoxicated persons,
and Breton did not exhibit any signs such that she would refuse him service. Id. at 534-535.
Specifically, Breton did not exhibit slurred speech or a lack of coordination, act in an aggressive
manner, or engage in erratic behavior. Id. Breton and Marsh left the defendant establishment
and proceeded to the Eagles Nest, where they shared a pitcher of beer. Id. at 535. The men
encountered their supervisor, Summit Township Fire Department Chief Carl Hendges, who did
not believe that either man was intoxicated. Id. Additionally, witness Richard Potts, an
acquaintance of Breton and owner of a convenience store that sold alcoholic beverages, saw
Breton at the bar and noted that Breton’s eyes were not bloodshot or glassy and he did not appear
to be intoxicated. Id. Marsh did not observe any change in Breton’s speech, ability to walk, or
eye redness during the course of the day. Id.

        After the accident, it was discovered that Breton had a blood-alcohol content of 0.215
grams of alcohol per 100 milliliters of blood. Id. The defendant, as the second-to-last
establishment to serve Breton, sought summary disposition, relying on the rebuttable
presumption of nonliability available to all but the last serving establishment under MCL
436.1801(8), and the contention that the plaintiffs failed to demonstrate that Breton was visibly
intoxicated when served. Id. The plaintiffs alleged that factual issues precluded summary
disposition. Id. at 535-536. In support of this contention, the plaintiffs presented the expert
opinion of two toxicologists. Id. at 536. In their reports, the toxicologists estimated the number
of drinks that Breton consumed in light of his age and weight and the alcohol levels in his blood
and urine after the collision. Id. In light of their calculations, the toxicologists opined that
Breton must have been significantly impaired and that manifestations of impairment, including
disorientation and lack of coordination, must have been exhibited by Breton. Id. The trial court
granted summary disposition in favor of the defendant establishment, concluding that the
circumstantial evidence of the experts was insufficient to rebut the presumption of nonliability
with unequivocal evidence. Id. This Court reversed, holding that the experts’ testimony was
sufficient to create a genuine issue of material fact. Id. at 536-537.

       The Michigan Supreme Court reversed this Court’s decision and reinstated the trial
court’s order granting summary disposition to the defendant, id. at 534, 544, holding that
competent and credible proofs to show service to a visibly intoxicated person had not been
presented:

               This standard of “visible intoxication” focuses on the objective
       manifestations of intoxication. While circumstantial evidence may suffice to
       establish this element, it must be actual evidence of the visible intoxication of the
       allegedly intoxicated person. 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. These other indicia—amount consumed,
       blood alcohol content, and so forth—can, if otherwise admissible, reinforce the

                                                -5-
       finding of visible intoxication, but they cannot substitute for showing visible
       intoxication in the first instance. While circumstantial evidence retains its value,
       such (and any other type of) evidence must demonstrate the elements required by
       § 801(3), including “visible intoxication.”

               Plaintiffs here presented no evidence of Breton’s visible intoxication at the
       time he was served at defendant’s establishment in response to defendant’s
       motion for summary disposition. The record reflects that all four eyewitnesses
       saw no signs that Breton was visibly intoxicated. Plaintiffs further relied on two
       expert toxicologists’ expectations that Breton would have exhibited signs of
       intoxication. But reports discussing Breton’s physical statistics and alcohol
       consumption, coupled with predictions of his impairment, offer only speculation
       about how alcohol consumption affected Breton that night. Expert post hoc
       analysis may demonstrate that Breton was actually intoxicated but does not
       establish that others witnessed his visible intoxication. Consequently, no basis for
       a DSA claim against defendant existed. Because plaintiffs failed to establish a
       genuine issue of material fact that Breton was visibly intoxicated even under
       § 801(3), the trial court correctly granted summary disposition for defendant. [Id.
       at 542-543 (emphasis in original; citations omitted).]

        In the present case, viewing the evidence in the appropriate light, we conclude that
plaintiff presented insufficient evidence to create a question of fact regarding whether Olsen was
visibly intoxicated at the time he was served alcohol by defendants. Plaintiff relied heavily on
the time period of consumption (approximately six to seven hours) and evidence that Olsen had
consumed between 12 and 15 drinks. The Reed Court determined that this type of evidence is
sufficient only to reinforce a finding of visible intoxication, but cannot substitute for showing
manifested visible signs of intoxication in the first instance. The only other evidence on which
plaintiff relied was Olsen’s testimony at his criminal trial that he “could feel the alcohol,”
Frank’s testimony at the criminal trial that Olsen was intoxicated, Alisha Nelson’s statements to
the police that Olsen was intoxicated and belligerent that night, and Michelle Mindykowski’s
deposition testimony that Olsen’s eyes while in the parking lot were “glossy and . . . irritable.”
Significantly, however, with the exception of the police report,7 plaintiff did not provide
documentary evidence to support these facts and did not even attach transcript excerpts in his
response to defendants’ motion for summary disposition. MCR 2.116(G)(4).

       Plaintiff failed to provide evidence regarding objective manifestations of visible
intoxication at the time of the service of alcohol sufficient to create a genuine issue of material
fact that Olsen appeared visibly intoxicated to a reasonable observer at the time he was
furnished, served, or sold alcohol. See Reed, 475 Mich at 542-543. Consequently, the trial court




7
  Nelson’s statements in this report were hearsay for purposes of the claims under review, but
even if they had been usable, they did not provide evidence that Olsen was visibly intoxicated
when he was served alcohol at the bar.


                                                -6-
erred by denying defendants’ motion for summary disposition with regard to the dramshop
claim.

                                  II. PREMISES LIABILITY

       Defendants also argue that the trial court erred by denying defendants’ motion for
summary disposition of the premises liability claim because defendants did not have a duty to
protect plaintiff from Olsen’s criminal acts in the absence of specific acts occurring on the
premises that posed a risk of imminent and foreseeable harm to plaintiff.

       “In a premises liability action, a plaintiff must prove the elements of negligence: (1) the
defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the
proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages.” Benton v Dart
Props, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006). Here, it is undisputed that plaintiff
was an invitee of the Holiday Inn.8

        The rules that govern a merchant’s duty to protect invitees from criminal acts of third
parties were set forth in MacDonald v PKT, Inc, 464 Mich 322, 338; 628 NW2d 33 (2001), as
follows:

               [G]enerally merchants “have a duty to use reasonable care to protect their
       identifiable invitees from the foreseeable criminal acts of third parties.” The duty
       is triggered by specific acts occurring on the premises that pose a risk of imminent
       and foreseeable harm to an identifiable invitee. Whether an invitee is readily
       identifiable as being foreseeably endangered is a question for the factfinder if
       reasonable minds could differ on this point. While a merchant is required to take
       reasonable measures in response to an ongoing situation that is taking place on the
       premises, there is no obligation to otherwise anticipate the criminal acts of third
       parties. . . . [A] merchant is not obligated to do anything more than reasonably
       expedite the involvement of the police. We also reaffirm that a merchant is not
       required to provide security guards or otherwise resort to self-help in order to
       deter or quell such occurrences. [Citations omitted.]

An identifiable invitee is one within the risk of harm created by the criminal conduct. Bailey v
Schaaf, 494 Mich 595, 618; 835 NW2d 413 (2013).

        Plaintiff alleged in his first amended complaint that defendants failed “to properly and
timely respond to an escalating threat of assault which was clearly visible by their own video
surveillance cameras.” The “escalating threat of assault” to which plaintiff referred was Olsen’s
interactions with Angela Moore and Alisha Nelson. Plaintiff alleged that Olsen’s testimony from
his criminal trial established that these interactions showed a specific situation on the premises
that would cause a reasonable person to recognize a risk of imminent harm. Plaintiff did not,


8
 An “invitee” is a person invited upon the land upon of another for the possessor’s commercial
purpose or pecuniary gain. Benton, 270 Mich App at 440.


                                               -7-
however, present documentary evidence in support of this allegation in response to defendants’
motion for summary disposition.9 Plaintiff failed to present evidence that created a genuine issue
of material fact that a duty was triggered by specific acts occurring on the premises that posed a
risk of imminent and foreseeable harm. Accordingly, the trial court erred by denying summary
disposition to defendants with regard to the premises liability claim.

       Reversed and remanded for entry of an order granting summary disposition to defendants
with regard to the dramshop and premises liability claims. We do not retain jurisdiction.




                                                            /s/ Kathleen Jansen
                                                            /s/ Patrick M. Meter




9
  Even assuming that the interactions between Olsen and Moore and Olsen and Nelson showed a
specific situation on the premises that would cause a reasonable person to recognize a risk of
imminent harm, there was no evidence that plaintiff was in danger or threatened by Olsen’s
interactions with Moore and Nelson. See MacDonald, 464 Mich at 338 (discussing an
“identifiable invitee”).


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