Order                                                          Michigan Supreme Court
                                                                     Lansing, Michigan

  February 2, 2010                                                          Marilyn Kelly,
                                                                                Chief Justice

  139319-21                                                           Michael F. Cavanagh
  139328-33                                                           Elizabeth A. Weaver
                                                                       Maura D. Corrigan
                                                                      Robert P. Young, Jr.
                                                                      Stephen J. Markman
                                                                      Diane M. Hathaway,
  BARBARA LYNN SALT, Personal                                                        Justices
  Representative of the Estate of ALYSHA LYNN
  SALT, Deceased,
               Plaintiff-Appellee,
  v                                             SC: 139319
                                                COA: 277391
                                                Ingham CC: 05-000060-NS
  ANDREW C. GILLESPIE, GERALDINE LYNN
  IRVINE, PIXIE, INC., d/b/a BENNIGAN’S, and
  MASON JAR PUB & GRUB,
             Defendants,
  and
  QUALITY DAIRY COMPANY,
               Defendant-Appellant.
  _________________________________________
  JOSEPH BOLANOWSKI, Personal
  Representative of the Estate of ROBERT M.
  BOLANOWSKI, Deceased, BRENDA J.
  BOLANOWSKI, and TERRANCE D. HALL,
               Plaintiffs-Appellees,
  v                                             SC: 139320
                                                COA: 277392
                                                Ingham CC: 05-000161-NI
  ANDREW C. GILLESPIE, GERALDINE LYNN
  IRVINE, f/k/a GERALDINE LYNN GATHMAN,
  RONALD SHEELE ENTERPRISES, L.L.C., d/b/a
  MASON JAR PUB & GRUB, and SWEET
  ONION, INC., d/b/a BENNIGAN’S,
               Defendants,
  and
  QUALITY DAIRY COMPANY,
             Defendant-Appellant.
  _________________________________________
  STEPHEN ANCONA,
             Plaintiff-Appellee,
                                                                        2

v                                             SC: 139321
                                              COA: 277393
                                              Ingham CC: 05-000297-NI
ANDREW C. GILLESPIE, GERALDINE LYNN
IRVINE, f/k/a GERALDINE LYNN GATHMAN,
RONALD SHEELE ENTERPRISES, L.L.C., d/b/a
MASON JAR PUB & GRUB, and SWEET
ONION, INC., d/b/a BENNIGAN’S,
             Defendants,
and
QUALITY DAIRY COMPANY,
             Defendant-Appellant.
_________________________________________/
BARBARA LYNN SALT, Personal
Representative of the Estate of ALYSHA LYNN
SALT, Deceased,
             Plaintiff-Appellant,
v                                             SC: 139328; 139331
                                              COA: 277400; 277434
                                              Ingham CC: 05-000060-NS
ANDREW C. GILLESPIE, GERALDINE LYNN
IRVINE, and QUALITY DAIRY COMPANY,
            Defendants,
and
PIXIE, INC., d/b/a BENNIGAN’S, and
RONALD SHEELE ENTERPRISES, L.L.C., d/b/a
MASON JAR PUB & GRUB,
             Defendants-Appellees.
_________________________________________
JOSEPH BOLANOWSKI, Personal
Representative of the Estate of ROBERT M.
BOLANOWSKI, Deceased, BRENDA J.
BOLANOWSKI, and TERRANCE D. HALL,
             Plaintiffs-Appellants,
v                                             SC: 139329; 139332
                                              COA: 277402; 277435
                                              Ingham CC: 05-000161-NI
ANDREW C. GILLESPIE, GERALDINE LYNN
IRVINE, f/k/a GERALDINE LYNN GATHMAN,
and QUALITY DAIRY COMPANY,
             Defendants,
and
SWEET ONION, INC., d/b/a BENNIGAN’S, and
RONALD SHEELE ENTERPRISES, L.L.C., d/b/a
MASON JAR PUB & GRUB,
           Defendants-Appellees.
_________________________________________
                                                                                         3

STEPHEN ANCONA,
         Plaintiff-Appellant,
v                                                      SC: 139330; 139333
                                                       COA: 277404; 277436
                                                       Ingham CC: 05-000297-NI
ANDREW C. GILLESPIE, GERALDINE LYNN
IRVINE, f/k/a GERALDINE LYNN GATHMAN,
and QUALITY DAIRY COMPANY,
             Defendants,
and
SWEET ONION, INC., d/b/a BENNIGAN’S, and
RONALD SHEELE ENTERPRISES, L.L.C., d/b/a
MASON JAR PUB & GRUB,
           Defendants-Appellees.
_________________________________________/

       On order of the Court, the applications for leave to appeal the April 21, 2009
judgment of the Court of Appeals are considered and, pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we REVERSE that part of the judgment of the Court of
Appeals granting summary disposition to Bennigan’s for the reasons stated in the Court
of Appeals dissenting opinion. In all other respects, leave to appeal is DENIED, because
we are not persuaded that the remaining questions presented should be reviewed by this
Court.

      KELLY, C.J. (concurring).

      The opinion in the Court of Appeals by Judge Douglas Shapiro, concurring in part
and dissenting in part, persuasively explained the rationale for the trial court’s grant of
summary disposition with regard to defendant Bennigan’s. He wrote:

             I dissent, however, from the majority’s acceptance of the trial court’s
      conclusion that a fact-finder could not reasonably conclude that Gillespie
      was served at Bennigan’s when he was visibly intoxicated. To find such a
      reasonable conclusion would require a question of material fact (created by
      evidence or reasonable inferences derived therefrom) that: (a) Gillespie was
      present at Bennigan’s; (b) while there he was visibly intoxicated; and (c) he
      was served a drink while in that state. Based on the record, I would
      conclude that such a reasonable conclusion exists.

              The first requirement, i.e., that there be a reasonable question of
      material fact that Gillespie was present at Bennigan’s that evening, is
      straightforward. Although the majority attempts to cast doubt on the issue,
      there is clearly a question of fact. First, Bennigan’s conceded, for purposes
      of its motion for summary disposition and for this appeal, that there is a
                                                                                  4

reasonable question of material fact on this issue. Even if this were not the
case, Gillespie’s testimony clearly creates such a question. Gillespie
testified in his deposition that he specifically recalled walking in the front
door of Bennigan’s after he stopped at the Quality Dairy and that he
recalled sitting on a stool at the bar in Bennigan’s, remaining there for as
much as two hours, ordering at least one drink while there and being told
while there that he was being too loud. The majority seems to equivocate
on this issue, noting that his presence at Bennigan’s is inconsistent with the
chronology constructed by Bennigan’s counsel and characterizing his
testimony as “vague.” However, the chronologies put forward by other
parties allow for Gillespie’s presence at Bennigan’s and the majority’s view
of the relevant testimony as “vague” is both incorrect and irrelevant.
Gillespie’s recollection of being at Bennigan’s is clear. More important, it
is not for this Court to determine the credibility of a witness. The
“vagueness” of testimony, unless it is devoid of foundation, goes to the
weight, not the admissibility of the testimony and it is not for this Court to
determine what weight to give it. That is the most essential role of the
finder of fact. For a court to grant summary disposition because it does not
find a particular witness convincing undercuts the core role of the fact-
finder. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002) (“It
is for the trier of fact, not the appellate court, to determine what inferences
may be fairly drawn from the evidence and to determine the weight to be
accorded those inferences”). In any event, as already noted, Bennigan’s has
conceded, at least at this time, that there is a reasonable basis for a jury to
find that Gillespie was there that night.

        The second requirement, i.e., that there be a reasonable question of
material fact that Gillespie was visibly intoxicated while at Bennigan’s, is
also straightforward. As noted by the majority in its discussion concerning
Quality Dairy, a reasonable trier of fact could conclude that Gillespie was
visibly intoxicated following his alcohol consumption at the Mason Jar.
This would include the time at which he is alleged to have been at
Bennigan’s. In addition, the Bennigan’s stop is alleged to have occurred
after the consumption of at least some of the Quality Dairy liquor. Finally,
Gillespie testified that while at Bennigan’s he was told that he was being
too loud and to quiet down. Thus, there is a question of fact whether
Gillespie was visibly intoxicated at the time he claimed to have been at
Bennigan’s.

       The last requirement, i.e., that there be a reasonable question of
material fact that Gillespie was served alcohol at Bennigan’s, is also met.
First, defendant Bennigan’s concedes for purposes of its summary
disposition motion that Gillespie did order a drink. Second, Gillespie
                                                                                5

testified that he ordered a drink and when asked if the bartender served him
he answered, “Yeah, he would have given it to me.” He was also asked
whether it was true that “he have no recollection of consuming alcohol at
Bennigan’s,” to which he responded that it was not true. He was then asked
by counsel for Bennigan’s if it was possible that, given that he was loud,
the bartender might have refused him service and he answered, “I don’t
think so.” When asked the same question again, he did concede that such a
scenario was possible.

       If a fact-finder chose to believe Gillespie’s testimony, it could
conclude, based on direct evidence that he was served at Bennigan’s.
Moreover, even if a jury doubted some of Gillespie’s testimony, it could
reasonably infer that an individual who sits at a bar and orders a drink will
be served. There certainly is no evidence to suggest that anyone at
Bennigan’s that evening was denied service at the bar. None of the
Bennigan’s employees testified to such an event and Bennigan’s manager
conceded that such an “out of the ordinary occurrence” would typically be
noted in the shift log and that no such notation was made. If a jury accepts
Gillespie’s testimony that he ordered a drink at Bennigan’s and there is no
evidence that anyone was refused a drink that evening, it is a reasonable
inference that Gillespie was served.

       This is not to say that plaintiffs should or will prevail against
Bennigan’s at trial. There are sharp questions of fact, which a jury may
very well resolve in favor of Bennigan’s, and there are good reasons to
question whether a jury will accept Gillespie’s testimony. However, the
role of this Court, and of the trial court in a (C)(10) motion, is clearly
circumscribed.

       Under MCR 2.116(C)(10), plaintiffs, as the nonmoving party, are
not only entitled to have all conflicting evidence viewed in their favor, but
also “reasonable inferences” as well. Knauff v Oscoda Co Drain Comm’r,
240 Mich App 485, 488; 618 NW2d 1 (2000). I believe that the majority
has wrongly blurred the line between a “reasonable inference” and “mere
speculation or conjecture.” It would have been mere conjecture and
Bennigan’s would have been entitled to summary disposition if Gillespie
had testified simply that it was “possible” that he went Bennigan’s and
consumed alcohol there. But that is not his testimony. He testified that he
went to Bennigan’s, that he sat at the bar, that he ordered a drink, and that
he remained there for two hours. Moreover, there is no evidence that
anyone was refused service that evening at Bennigan’s. A conclusion that
he was served is not mere speculation or conjecture but instead “a
                                                                                         6

      reasonable inference” based upon the evidence taken in light most
      favorable to plaintiff.

             The majority seems to suggest that absent someone actually
      witnessing the service, no reasonable juror could find it occurred. In my
      view, this negates the principle that reasonable inferences as well as
      disputed evidence is to be taken in the light most favorable to the non-
      moving party. Ironically, the majority appears to rely on Gillespie’s
      testimony that being refused service was something that “could [have]
      happen[ed],” ignoring his immediately preceding statement that he did not
      think that was what actually happened. Relying on a statement that
      something “could have happened” is exactly the type of speculation and
      conjecture which the majority criticizes, yet it is what it relies upon here.

      [Salt v Gillespie, unpublished opinion per curiam of the Court of Appeals
(Shapiro, J., concurring in part and dissenting in part), issued April 21, 2009 (Docket No.
277391) footnotes omitted.]

       MARKMAN, J. (concurring in part and dissenting in part).

       In this dramshop action, plaintiffs sued three businesses — Mason Jar Pub,
Quality Dairy, and Bennigan’s — following a fatal automobile accident caused by an
intoxicated driver, Andrew Gillespie. The trial court denied all defendants’ motions for
summary disposition. The Court of Appeals then reversed as to Mason Jar Pub and
Bennigan’s, but affirmed as to Quality Dairy. This Court now denies leave to appeal
regarding Mason Jar Pub and Quality Dairy, but reinstates the action against Bennigan’s.
I concur in the order with reference to Mason Jar Pub, but dissent with reference to
Quality Dairy and Bennigan’s.

       When a defendant, as here, files a motion for summary disposition under MCR
2.116(C)(10), the trial court must consider the affidavits, pleadings, depositions,
admissions, and other evidence submitted by the parties in the light most favorable to the
party opposing the motion. Maiden v Rozwood, 461 Mich 109, 120 (1999). But “where
the proffered evidence fails to establish a genuine issue regarding any material fact, the
moving party is entitled to judgment as a matter of law.” Id. Moreover, a party opposing
a motion for summary disposition must present more than conjecture and speculation to
establish that a genuine issue of material fact exists. Karbel v Comerica Bank, 247 Mich
App 90, 97 (2001).

       In order to establish a prima facie dramshop action, a plaintiff must show that a
business sold alcohol to a patron; while the patron was visibly intoxicated and that the
selling of the alcohol constituted a proximate cause of the plaintiff’s injury. MCL
436.1801(3); Reed v Breton, 475 Mich 531 (2006). To establish “visible intoxication”
                                                                                              7

under MCL 436.1801(3), a plaintiff must present evidence of “actual visible
intoxication.” Id. at 534 (emphasis added). Moreover, pursuant to MCL 436.1801(8),
there is a rebuttable presumption that a business, other than that which last sold the
alcohol, has not committed any act giving rise to a cause of action. A plaintiff rebuts this
presumption by showing not only the evidence required for a prima facie case, but also
clear and convincing evidence to rebut the presumption. Id. at 533.

       I initially note that Gillespie testified that he did “not recall,” but that he “had been
told” that he had even been at Mason Jar Pub, Quality Dairy and Bennigan’s to purchase
or consume alcohol the day of the accident. This is explained perhaps by the facts that
Gillespie had taken two mood-enhancing prescription drugs that day before consuming
alcohol; he himself had been injured in the fatal car crash when his head went through the
windshield; and he only woke up five days later in the hospital. No other witness
positively placed Gillespie at Quality Dairy or Bennigan’s on the evening in question.
While Gillespie did testify as if speaking from personal knowledge at other points in his
deposition, I question the value of such testimony in discerning a genuine issue of
material fact when that same witness had testified he was only repeating what others had
told him. Just as a party may not create a factual dispute by submitting an affidavit that
contradicts his sworn testimony, Casey v Auto-Owners Ins Co, 273 Mich App 388, 396
(2006), I see no principled basis for determining that a genuine issue of material fact
exists for ignoring a witness’ testimony that he had no recollection of the night in
question, and then relying on other of his testimony that he did possess some personal
knowledge of the evening in question. See also United States v 1980 Red Ferrari, 827
F2d 477, 480 n3 (CA 9, 1987) (holding that internally contradictory deposition testimony
created no issue of material fact).

        Quality Dairy was the second-to-last business (after Mason Jar Pub) to sell
Gillespie an alcoholic beverage — assuming it did sell him such a beverage. Gillespie
testified that he purchased half a pint of Popov vodka at Quality Dairy, but computer
records indicate that Quality Dairy did not sell a half pint of Popov vodka near the time in
question. Assuming, however, that Gillespie did purchase an alcoholic beverage from
Quality Dairy, plaintiffs still had to establish a genuine issue of material fact that they
could prove by clear and convincing evidence that Gillespie was actually visibly
intoxicated at the time Quality Dairy sold him an alcoholic beverage. The only
conceivable evidence of this was testimony from a patron of Mason Jar Pub that
Gillespie’s eyes were slightly red as he left Mason Jar Pub at some indeterminate earlier
time, and that as he was leaving, he stumbled slightly as he was sliding sideways to get
between two tables on his way out. Gillespie himself also said his intoxication must have
been obvious because he had been loud and boisterous at Mason Jar Pub, although there
was no other evidence to this effect and, as already noted, Gillespie testified at one point
that he could not even recall being at Mason Jar Pub. In my judgment, this evidence,
even when viewed in a light most favorable to plaintiffs, is insufficient to create a
genuine issue of material fact by clear and convincing evidence that Gillespie was
                                                                                                               8

actually visibly intoxicated when he allegedly purchased an alcoholic beverage at Quality
Dairy.

        Bennigan’s was the last retail establishment that served Gillespie an alcoholic
beverage before the accident — assuming, again, that it did sell him such a beverage.
Thus, Bennigan’s is not entitled to the rebuttable presumption that it did not commit any
act giving rise to a cause of action. As the Court of Appeals explained in some detail, the
sequence of events on the night of the accident makes it unlikely that Gillespie was ever
at Bennigan’s that night. Nevertheless, once again on the assumption Gillespie was at
Bennigan’s, in order to defeat its motion for summary disposition, plaintiffs had to
establish as part of a prima facie case that Gillespie was actually visibly intoxicated when
Bennigan’s sold him an alcoholic beverage after he left Mason Jar Pub and Quality
Dairy. Here again, the only evidence of actual visible intoxication was Gillespie’s own
testimony that he had been loud and boisterous at Mason Jar Pub, and the Mason Jar Pub
patron’s testimony that Gillespie had slightly red eyes and that he slightly stumbled
navigating between tables as he left at some indeterminate time before he went to Quality
Dairy and well before he went to Bennigan’s. Gillespie himself also testified, despite not
recalling being at Bennigan’s, that “the only thing I remember from Bennigan’s is
someone telling me I was being loud,” and that he purchased a vodka and orange juice
while at Bennigan’s, although computer records showed that Bennigan’s did not sell a
vodka and orange juice to any customer during the day of the accident and no else
testified about this incident. Gillespie also testified that he did not recall being served a
drink at Bennigan’s nor did he recall consuming a drink at Bennigan’s. In my judgment,
this evidence, even when viewed in the light most favorable to plaintiffs, is insufficient to
create a genuine issue of material fact that Gillespie was actually visibly intoxicated when
he allegedly purchased an alcoholic beverage at Bennigan’s.

       The perpetrator of the horrendous crime underlying this case was Andrew
Gillespie and he is deservedly serving 15 to 30 years’ imprisonment on two counts of
second-degree murder. However, in my judgment, there is insufficient evidence that the
servers and sales clerks of Mason Jar Pub, Quality Dairy, and Bennigan’s — even if it
can be demonstrated that they all did, in fact, sell alcohol to Gillespie — should
reasonably have observed that he was actually visibly intoxicated. Under these
circumstances, I do not believe that defendants should be required to stand trial for
complicity in Gillespie’s crime.

       CORRIGAN, J., joins the statement of MARKMAN, J.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         February 2, 2010                    _________________________________________
        0126                                                                 Clerk
