Negligence – Bar patron — Wrongful-conduct rule

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Where a plaintiff sued over injuries incurred when he was forcibly removed from a bar, the bar was entitled to summary disposition based on the wrongful-conduct rule.

A judge’s decision to deny the defendant bar’s motion for summary disposition is reversed.

“Here, plaintiff became disruptive and boisterous with one customer to the point that he hit the customer in the groin area and sat on his lap. It was plaintiff’s drunk and disorderly condition that caused the bartender to come to the aid of a server, whom plaintiff had grabbed and tried to pull onto his lap. When the bartender asked plaintiff to leave and told him he would not be served, plaintiff cursed at the bartender, grabbed a towel from the bartender’s pocket, whipped the towel, and then tried to grab the bartender’s arm, following which the bartender asked for help in removing plaintiff from the bar. Therefore, plaintiff’s actions set in motion the foreseeable chain of events that led to his removal from the bar. Indeed, knowing that plaintiff was being abusive toward others, had the bartender not taken steps to have plaintiff removed from the bar, the bar may well have been liable to customers for plaintiff’s continued offensive and criminal conduct. Thus, plaintiff’s actions are clearly a proximate cause of his injuries, as required to implicate the wrongful-conduct rule; unless the wrongful-conduct rule is applied, plaintiff ‘would be able to shift much of the responsibility for [his] illegal acts to other parties.’ … Viewing the evidence in the light most favorable to plaintiff, as we are required to do, plaintiff’s conduct was significantly more culpable than defendant’s, while the wrongful-conduct rule is applicable even if the parties were merely equally culpable. Consequently, because ‘plaintiff has engaged in illegal conduct, it should be the ‘plaintiff’s own criminal responsibility which is determinative.’ ‘

“Importantly, in responding to defendant’s motion for summary disposition, plaintiff did not deny that the wrongful-conduct rule applied to the circumstances of this case, and he did not dispute that his own wrongful conduct warranted application of the rule. Instead, he argued, as he does on appeal, that there is a question of fact whether the culpability exception to the wrongful-conduct rule applies, thereby precluding summary disposition. Therefore, our analysis will focus on the application of this exception.

“Plaintiff has not identified any illegal conduct on the part of defendant that would warrant the application of the culpability exception to the wrongful-conduct rule.

“In sum, plaintiff has failed to show that there is a genuine issue of material fact with respect to the ‘culpability exception’ to the wrongful-conduct rule. Therefore, the trial court erred when it failed to grant defendant’s motion for summary disposition on this ground.

“Defendant also argues that its motion for summary disposition should have been granted because it cannot be held vicariously liable for the conduct of [Justice] Akuezue, who was neither an employee nor an agent of defendant. We agree.

“Plaintiff maintains that Akuezue was defendant’s agent because [Marlowe] Johnson asked Akuezue for help in escorting plaintiff out of the bar. Even assuming that Johnson had authority on behalf of defendant to ask Akuezue to help remove plaintiff from the bar, plaintiff presented no evidence to support a finding that Johnson requested, let alone had any control over, the method or manner in which Akuezue removed plaintiff from the bar. Accordingly, we hold that the submitted evidence was insufficient to establish that Akuezue was an agent of defendant. Thus, Akuezue’s relationship with defendant is akin to that of an independent contractor, … and without any employment or agency relationship, defendant could not be liable on a theory of respondeat superior. Accordingly, the trial court erred by denying defendant’s motion for summary disposition of plaintiff’s claims on this basis.

“We reverse the trial court’s order denying defendant’s motion for summary disposition and remand for entry of an order of summary disposition in favor of defendant.”

O’Laughlin v. Thirteen01 Restaurant Group; MiLW 08-99893, 6 pages; Michigan Court of Appeals unpublished per curiam; Murray, C.J., Gadola, J., Tukel, J.; on appeal from Wayne Circuit Court; Scott L. Feuer for appellant; Thomas Stroble for appellee.