Uplinger v. Jeffrey Howe - No. 302829, 2012 Mich. App. LEXIS 525 (Ct. App. Mar. 20, 2012)

Rule:

MCL 750.141a(2) prohibits a person to "knowingly allow" a minor to consume or possess alcohol at a social gathering. Under MCL 750.141a(1)(b), the term "allow" does include "any form of conduct, including a failure to take corrective action, that would cause a reasonable person to believe that permission or approval has been given."

Facts:

Uplinger, who was 19 years old then, was one of the attendees of a party at the Grabman residence held in 2007 after the high school prom. Approximately 75 to 100 guests were at the party, some specifically invited and others who apparently showed up uninvited who had heard of the party by word of mouth. Despite the fact that many (though not all) of the attendees were under the age of 21, alcohol was served at the party. Defendant Howe was 24-years-old at the time and was one of the "word of mouth" invitees, having heard about the party by defendant Jeremy Nise. Nise and Howe arrived at the party together. They had already consumed alcohol before their arrival and continued to drink at the Grabman residence. At some point, Howe and Uplinger got into an argument, which escalated into a physical altercation. Nise and Howe left the party and went to the home of defendants David and Paul Gray. Thereafter, Nise and Howe returned to the party, along with the Gray brothers, armed with various weapons (baseball bats, knives, and a pipe). Howe Uplinger plaintiff with a baseball bat, hitting him in the head. As a result of the attack, Howe was hospitalized at St. Mary's Hospital Brain Trauma ICU in Grand Rapids and thereafter underwent rehabilitation at Mary Free Bed Hospital. Uplinger alleged that he has sustained brain injuries as a result of the attack. Defendant Howe was convicted of assault with intent to do great bodily harm. Uplinger also filed suit gainst the Grabmans, but it was summarily disposed of by the trial court.

Issue:

Did the trial court err in granting summary judgment in favor of the Grabmans?

Answer:

No.

Conclusion:

Ultimately, Uplinger was unable to point to any evidence that the Grabmans had actual knowledge that alcohol was being served at the party. Mrs. Grabman left before the party started and the alcohol arrived (brought by one of Ashcraft's friends). And while Uplinger did call into question Mr. Grabman's claim that he slept through the party as being incredible in light of the number of attendees at the party and the likelihood of resulting noise, Uplinger did not point to a single witness who would testify that Mr. Grabman actually made an appearance at the party and observed the alcohol. Thus, at best, Uplinger can make a showing of willful ignorance by Mr. Grabman rather than actual knowledge. The trial court that MCL 750.141a requires actual knowledge of the consumption or possession of alcohol by the minors on the premises. Had Mr. Grabman actually visited the party in question, observed the drinking, and went back to the house without taking "corrective action," it could certainly be said that he violated the statute. But we do not believe that his remaining in the house and not visiting the party to see if there was drinking constitutes a violation. Nothing in MCL 750.141a imposed an obligation to investigate a suspicion that underage drinking is occurring, no matter how well-founded such a suspicion might be. Indeed, the statute repeatedly uses the word "knowingly," strongly suggesting a requirement of actual knowledge. Moreover, subsection (6) creates a rebuttable presumption where, among other things, the defendant "knew that a minor was consuming or in possession of an alcoholic beverage . . . ." The statute does not state "knew or should have known" or words to that effect. Accordingly, the trial court correctly held that actual knowledge, not merely a very strong suspicion or a showing of "should have known" is required under the statute.