Christopher McDaniel v. B.G.S.00 LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 7, 2018
• Docket: 16-35517
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 7 2018 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

CHRISTOPHER LEE MCDANIEL, No. 16-35517

Plaintiff-Appellant, D.C. No. 3:15-cv-05319-JRC v.

B.G.S.00 LLC, DBA Boomers Sports Bar & MEMORANDUM* Grill, a Washington Limited Liability Company Defaulted 4/10/2012; B.G.S.00 LLC, DBA Gold Rush Tavern, a Washington Limited Liability Company Defaulted 4/10/2012; B.G.S.00 LLC, DBA Gold Rush Restaurant and Lounge, a Washington Limited Liability Company Defaulted 4/10/2012,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington J. Richard Creatura, Magistrate Judge, Presiding

Submitted June 5, 2018** Portland, Oregon

Before: M. SMITH and MURGUIA, Circuit Judges, and HELLERSTEIN,***

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Alvin K. Hellerstein, United States District Judge for the Southern District of New York, sitting by designation. District Judge.

On September 3, 2008, Plaintiff-Appellant Christopher McDaniel was

injured while crossing the street in Vancouver, Washington, after a Ford Taurus

collided with a truck hauling a trailer, and the truck rolled over McDaniel. Police

reports revealed that a witness reported playing several games of pool with the

driver of the Taurus in a nearby bar, the Gold Rush Tavern, before the accident.

McDaniel filed suit in the United States District Court for the District of Oregon

against the owner of the bar, B.G.S.00 LLC (“BGS”), alleging violations of

Washington laws prohibiting over-service of alcohol to visibly intoxicated

customers. In his present appeal, McDaniel argues the district court erred in

granting summary judgment in favor of BGS on the ground that McDaniel failed to

present any admissible evidence to prove that the driver of the Taurus was

apparently under the influence of alcohol at the time he was allegedly over-served

alcohol by a BGS employee. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

Reviewing de novo, see Stanford Ranch, Inc. v. Md. Cas. Co., 89 F.3d 618,

624 (9th Cir. 1996), we conclude that McDaniel failed to produce sufficient

evidence to defeat summary judgment. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 257 (1986). In order to prove that BGS violated Washington’s alcohol

over-service law, McDaniel must prove that an employee of the Gold Rush Tavern

2 served alcohol to the driver of the Taurus, Kenneth Laufman, while Laufman was

“apparently under the influence of liquor.” See Wash. Rev. Code § 66.44.200(1);

Faust v. Albertson, 222 P.3d 1208, 1213 (Wash. 2009). Proving apparent

intoxication requires “direct, observational evidence at the time of the alleged

overservice or by reasonable inference deduced from observation shortly

thereafter.” Faust, 222 P.3d at 1213.

Here, McDaniel has not produced either direct or circumstantial evidence

that Laufman was apparently under the influence of liquor at the time of the

alleged over-service. The sole evidence that Laufman was present in the BGS-

owned establishment, the Gold Rush Tavern, on the morning of the accident was

from the hearsay testimony contained in a police incident report from a man named

Hayes, who identified himself as a janitor at the Gold Rush Tavern. Hayes’s

testimony, even if admissible, established only that Laufman (1) was present in the

bar for 45 minutes to an hour, (2) played pool with Hayes and another man, (3)

stayed in a separate room away from the bar area, and (4) drank a Pepsi. Hayes did

not observe Laufman drinking alcohol, or that Laufman was even near the bar area.

Hayes also did not relay that Laufman had observable signs of intoxication. This

scant evidence of Laufman’s state of intoxication while at the Gold Rush Tavern is

speculative at best and does not create a genuine issue for trial. Anderson, 477 U.S.

at 252 (“The mere existence of a scintilla of evidence in support of the plaintiff’s

3 position will be insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff.”).

We also reject McDaniel’s theory that the fact that Laufman was visibly

intoxicated at the time of the accident, an hour and a half after he left the Gold

Rush Tavern, constituted circumstantial evidence of apparent intoxication at the

time of the alleged over-service. McDaniel points to no case in which a court has

inferred intoxication following such a long period of time between the alleged

over-service and the later-observed signs of intoxication. See Faust, 222 P.3d at

1214 (tortfeasor was visibly drunk at the time she left the lodge); Fairbanks v. J.B.

McLoughlin Co., 929 P.2d 433, 436 (Wash. 1997) (per curiam) (accident occurred

20–50 minutes after tortfeasor left a banquet); Dickinson v. Edwards, 716 P.2d

814, 818 (Wash. 1986) (observations of intoxication occurred 10 minutes after

leaving a banquet). To the contrary, the fact that there is no account in the record

of Laufman’s conduct during this considerable time precludes any inference of

intoxication at the time of the alleged over-service. See Dickenson, 716 P.2d at

818. For these reasons, the district court’s grant of summary judgment for BGS on

McDaniel’s claim under Washington Revised Code § 66.44.200(1) was proper.

We deem McDaniel’s common law negligence claims abandoned, as they

are not addressed anywhere in the opening brief. See Fed. R. App. P. 28(a)(8); All

Pac. Trading, Inc. v. Vessel M/V Hanjin Yosu, 7 F.3d 1427, 1434 (9th Cir. 1993).

4 Because we affirm on the merits, we do not reach BGS’s argument in the

alternative that dismissal was proper because the district court erred in granting

McDaniel’s motion to transfer venue.

AFFIRMED.