Dickinson v. Edwards

716 P.2d 814, 105 Wash. 2d 457, 1986 Wash. LEXIS 1088

Opinions

Brachtenbach, J.

This case is an appeal from a summary judgment dismissing an action against Spokane Red Lion Motor Inn and Kaiser Aluminum & Chemical Corporation for negligent furnishing and serving of alcoholic beverages to a Kaiser employee attending a banquet at the Red Lion Inn and against Kaiser on the basis of vicarious liability for the negligent action of the Kaiser employee. We reverse the Court of Appeals, Dickinson v. Edwards, 37 Wn. App. 834, 682 P.2d 971 (1984), and remand for trial.

On June 22, 1979, the plaintiff was severely injured when the motorcycle he was driving was struck by a car driven up the wrong way on a freeway off ramp by Ersel C. Edwards. Mr. Edwards was cited for driving while intoxicated. Plaintiff subsequently sued Mr. Edwards, Mr. Edwards' employer, Kaiser, and the Red Lion Inn.

Pretrial discovery revealed that on the evening of the accident, Mr. Edwards had attended a banquet provided by Kaiser to honor its long-term employees. The banquet was held at the Red Lion Inn. At the banquet, Kaiser provided not only dinner, but also champagne, wine and mixed drinks. Kaiser paid for the use of the facilities, service and all of the food and beverages. All of the expenses were deducted by Kaiser on its federal income tax return as a business expense. The banquet order stated that the servers were to "keep the glasses filled." It is unclear from the record whether this was a direction from the Kaiser employee who arranged the banquet or whether it originated with a Red Lion Inn employee.

In his deposition, Mr. Edwards stated that he arrived at 6:50 p.m. and by the time dinner was over at 8:30 p.m. he had consumed at least 10 drinks (Black Velvet or Canadian Club on the rocks). Mr. Edwards stated that he continued to drink at a slightly slower pace until he left the banquet at 10:20 p.m. When Mr. Edwards left the banquet he was proceeding toward the Kaiser plant in order to work his night shift. The accident occurred at approximately 10:25 p.m.

The depositions of two Kaiser employees were available to the trial court. Both employees stated that Mr. Edwards did not appear intoxicated when they had spoken with him between 9 and 9:30 p.m. One of the employees, the head of the Kaiser plant, said that the banquet was a voluntary social function for the employees.

Plaintiff submitted the affidavit of the officer who investigated the accident. The officer approached Mr. Edwards at the scene of the accident at approximately 10:30 p.m. He stated that Mr. Edwards was unsteady on his feet, had bloodshot eyes and a flushed face, and smelled of alcohol. Mr. Edwards failed to perform physical tests to the officer's satisfaction. All of these factors lead to the officer's conclusion that Mr. Edwards was "obviously intoxicated": A Breathalyzer test given 1 hour later indicated that Mr. Edwards had a .17 percent blood alcohol reading.

No depositions of the Red Lion Inn staff were submitted by either party. An instruction sheet prepared by a Red Lion Inn employee indicates that all drinks were to be "hosted", that is, served by a Red Lion Inn waitress or waiter and paid for by Kaiser.

Kaiser's and Red Lion Inn's motions for summary judgment were granted. The Court of Appeals affirmed and plaintiff appeals. Only Red Lion Inn and Kaiser are parties to this appeal.

I

Plaintiff first premises liability on the theory that Kaiser and the Red Lion Inn were negligent in furnishing alcohol to an obviously intoxicated person. In 1969, Washington adopted the general common law rule of nonliability for furnishing intoxicants to able-bodied persons. Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 458 P.2d 897 (1969). In Halvorson, the court recognized that some exceptions to the general rule might exist and since then an action has been recognized where the liquor is furnished to persons who are obviously intoxicated, helpless, or in a special relationship to the furnisher of the intoxicants. Young v. Caravan Corp., 99 Wn.2d 655, 663 P.2d 834, 672 P.2d 1267 (1983); Wilson v. Steinbach, 98 Wn.2d 434, 656 P.2d 1030 (1982). In recognizing this cause of action, the court's analysis of proximate cause changed from "the drinking of the liquor is the proximate cause of the injury" to "the furnishing of the liquor is the proximate cause of the injury."

Summary judgment is appropriate under this rule if the pleadings, affidavits, and depositions before the trial court demonstrate that there is no genuine factual issue as to whether the drinker was obviously intoxicated when he was last furnished liquor. CR 56(c); Wilson, at 437; Shelby v. Keck, 85 Wn.2d 911, 541 P.2d 365 (1975). On review of the dismissal by summary judgment, in this case, we must accept as verities each of the affidavits and deposition testimony and must consider all facts submitted and all reasonable inferences therefrom in the light most favorable to the plaintiff. Young, at 657. An inference is "'[a] process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted.'" Shelby, at 914-15 (citing Black's Law Dictionary 917 (4th ed. 1968)). It is not the court's function to resolve existing factual issues nor can the court resolve a genuine issue of credibility such as is raised by reasonable contradictory or impeaching evidence. Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 618 P.2d 96 (1980); Balise v. Underwood, 62 , 381 P.2d 966 (1963); Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 88 L. Ed. 967, 64 S. Ct. 724 (1944).

In the present case, the trial court found that based on the materials before it, there was not evidence upon which to base a material question of fact as to whether Mr. Edwards was obviously intoxicated, helpless, or unable to exercise free will in choosing to drink at the time that he was served liquor at the banquet. The Court of Appeals, in affirming the trial court, did not consider the statement of the officer who observed Mr. Edwards 10 minutes after he left the banquet, nor did it consider the evidence of the amount of liquor Mr. Edwards consumed at the banquet. Instead, the court considered only the affidavits of the Kaiser employees at the banquet and concluded that no factual issue was present as to Mr. Edwards' obvious intoxication when last served at the banquet.

In ignoring the additional evidence, the Court of Appeals relied on an incorrect interpretation of the rule set forth in Wilson v. Steinbach, supra, and cases cited therein. This court stated that

[t]he settled rule in this state as to actions based on the Halvorson line of cases is that a person's sobriety must be judged by the way she appeared to those around her, not by what a blood alcohol test may subsequently reveal.

Wilson, at 439. The line of cases which established this rule was concerned primarily with the use of evidence from which an inference of the obviousness of intoxication at the time of service could not properly have been drawn. The court in Wilson v. Steinbach, supra, Shelby v. Keck, supra, and Barrie v. Hosts of Am., Inc., supra, was concerned with the use of the blood alcohol content to prove that the drinker's intoxication was obvious when last served. The Barrie court concluded that the obviousness of the drinker's intoxication could not be inferred from a .29 percent blood alcohol content when the tortfeasor's whereabouts were unaccounted for during the 2 hours before the accident. Barrie, at 643 n.1.

In Shelby v. Keck, supra, the court was concerned that the use of the blood alcohol reading would lead to an application of a theory of strict liability against one who furnished liquor whenever a patron commits a tort while intoxicated. The Shelby court concluded that the blood alcohol content, as evidence of intoxication at the time of the accident, did not raise an inference that the intoxicated tortfeasor was obviously intoxicated when served, when the only other evidence is testimony of those who observed the tortfeasor firsthand and indicated that he was not obviously intoxicated. In Wilson v. Steinbach, supra, the court similarly concluded that the evidence of a .19 percent blood alcohol content did not raise an inference of obvious intoxication when the only firsthand observers before the drinker's death testified she did not appear intoxicated.

These three cases are indicative of the court's concern that blood alcohol content be used only as evidence of intoxication at the time of the accident and not as evidence of the obviousness of intoxication at the time of alcohol service. When the obviousness of intoxication is at issue, firsthand observations and other circumstances from which such obviousness can be inferred are most valuable to the court. Therefore, while the Court of Appeals was correct in not considering the Breathalyzer test results as proper evidence in this case, it erred in failing to consider the statement of the officer and the amount of alcohol furnished by the Red Lion Inn waitresses and waiters.

None of the Halvorson-type cases, thus far considered by this court, have involved either statements of firsthand observations made within a very short time after service of alcohol or an admission by the drinker of gross overcon-sumption of alcohol. In Barrie v. Hosts of Am., Inc., supra, we considered the affidavit of plaintiff's attorney which stated that a cocktail waitress had originally told him that the decedent appeared intoxicated. We concluded that although this affidavit may be used to impeach the later contradictory statement of the waitress, it cannot create, by itself, a genuine issue of fact for purposes of summary judgment. Here, we consider the affidavit of the investigating officer which is based, not on hearsay, but on testimonial knowledge. In Young v. Caravan Corp., supra, we considered the affidavit of a cocktail waitress who stated that the decedent was substantially affected by alcohol and was beyond the point of self-control of his consumption of alcohol. These observations which were made before or during service of alcohol were held sufficient to present a factual issue as to whether the decedent was obviously intoxicated.

In the present case, the statement of the investigating officer is clearly from one who observed Mr. Edwards' behavior firsthand. The fact that the observations were made 10 minutes after the banquet is of no consequence on a motion for summary judgment. It is of little use to set a specific time period within which the observations must be made. Instead, the trial court, in ruling on the motion for summary judgment, must consider whether the drinker had consumed any alcohol after and independent of the defendants' furnishing or whether any time remained unaccounted for between the last furnishing by the defendants and the subsequent observations. In either of these cases, the subsequent observations may not raise an inference of obvious intoxication upon which to base a material issue of fact. Otherwise, subjective observations of obvious intoxication made in close time proximity to the period of alcohol consumption may raise an inference of obvious intoxication upon which to base a material question of fact. Elsperman v. Plump, 446 N.E.2d 1027 (Ind. Ct. App. 1983); Couts v. Ghion, 281 Pa. Super. 135, 421 A.2d 1184 (1980); Jardine v. Upper Darby Lodge 1973, 413 Pa. 626, 198 A.2d 550 (1964). To hold differently would unfairly deprive the plaintiff and the court of useful evidence and possibly limit the plaintiff to evidence obtained from those, such as tavern owners, employees and others, who may have an interest in the outcome of the litigation.

In addition, the amount of liquor admittedly consumed by Mr. Edwards raises an inference of obvious intoxication upon which to base a material question of fact. Mr. Edwards admitted to 10 drinks before dinner and slightly fewer than that in the time between dinner and 10:20 p.m. The admitted fact, therefore, is that Mr. Edwards was served between 15 and 20 drinks in a 3Vz-hour period. A logical consequence, i.e., an inference, from this fact, is that Mr. Edwards could have at the very least appeared obviously intoxicated to those who furnished the drinks. Questions with respect to this material issue of fact are the number of employees serving Mr. Edwards; the number of drinks served by any one employee; whether any of these employees or Kaiser supervisory employees observed signs of obvious intoxication; whether Mr. Edwards was a heavy drinker who could consume one mixed drink per 10 to 13 minutes for 3Vz hours and still appear sober; and whether the testimony of the Kaiser employees is credible testimony in light of their relationship to one of the parties of this litigation and in light of the conflicting testimony of the investigating officer and Mr. Edwards himself. Evidence of the amount of alcohol consumed differs from evidence of the blood alcohol content in that the number of drinks served and consumed relates not to the level of intoxication but to the question of whether the intoxication was obvious or should have been obvious to the furnishers. Other courts have held that evidence of the amount of alcohol consumed may raise a substantial issue of fact as to whether a person in the position of the drinker would have displayed some outward manifestation of intoxication in advance of ordering. Elsperman v. Plump, supra; Cimino v. Milford Keg, Inc., 385 Mass. 323, 431 N.E.2d 920 (1982) (6 or more white russians in a 5-hour period); O'Hanley v. Ninety-Nine, Inc., 12 Mass. App. Ct. 64, 421 N.E.2d 1217 (1981) (15 beers or 6 martinis); Couts v. Ghion, supra (10 drinks in 1½ hours); Fishermen's Mktg. Ass'n v. Wilson, 279 Or. 259, 566 P.2d 897 (1977) (8 beers in 2 hours). We hold that the evidence of the amount of alcohol consumed here raises a material issue of fact as to (1) whether a person in the position of Mr. Edwards would have displayed some outward manifestation of intoxication in advance of ordering and (2) whether a person in the position of the furnisher, either Red Lion Inn or Kaiser, knew or should have known in the exercise of reasonable care, that the drinker was intoxicated.

Under this common law negligence theory, in addition to "obvious intoxication", the plaintiff must also prove that the defendants are parties to be held liable under the Halvorson-Young-type cases. The fact that Red Lion Inn employees did not sell liquor to Edwards and that Kaiser did not serve the alcohol is irrelevant to this action which requires "furnishing" in any manner. The relevant inquiry is who had the authority to deny further service of alcohol when intoxication became apparent. Halligan v. Pupo, 37 Wn. App. 84, 88-89, 678 P.2d 1295 (1984). The fact that each alcoholic drink was "hosted" suggests that the Red Lion Inn could have denied service to the individual guests. The fact that Kaiser management was present suggests that Kaiser could have ordered service to be denied. This evidence raises a genuine issue of material fact as to whether the Red Lion Inn and/or Kaiser "furnished" the alcohol.

We do not comment on the potential liability of hosts in a purely social setting.

II

Plaintiff secondly premises liability on the theory that Kaiser was vicariously liable because Mr. Edwards, an employee, was en route to his job after departing a Kaiser sponsored banquet when he negligently caused injury to the plaintiff. Under Washington law "the doctrine of respon-deat superior provides, generally, that the master is liable for the acts of his servant committed within the scope or course of his employment." Nelson v. Broderick & Bascom Rope Co., 53 Wn.2d 239, 241, 332 P.2d 460 (1958). Whether an employee was acting within the scope of his employment is an issue of fact which should be considered under the principles of summary judgment. Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963). Summary judgment is appropriate if, drawing all reasonable inferences from the factual record in favor of the nonmoving party, the affidavits and depositions before the trial court demonstrate that there is no genuine factual issue as to whether the employee was within the scope of employment when the accident occurred. Balise v. Underwood, supra.

The test in Washington for determining whether the employee was, at any given time, in the course of his employment, is

whether the employee was, at the time, engaged in the performance of the duties required of him by his contract of employment, or by specific direction of his employer; or, as sometimes stated, whether he was engaged at the time in the furtherance of the employer's interest.

Elder v. Cisco Constr. Co., 52 Wn.2d 241, 245, 324 P.2d 1082 (1958) (citing Greene v. St. Paul-Mercury Indem. Co., 51 Wn.2d 569, 573, 320 P.2d 311 (1958)). In following this test we have emphasized the importance of the benefit to the employer in the determination of the scope of employment.

Under ordinary circumstances, a workman is not acting in the course of his employment while going to or from work. Aloha Lumber Corp. v. Department of Labor & Indus., 77 Wn.2d 763, 766, 466 P.2d 151 (1970); Superior Asphalt & Concrete Co. v. Department of Labor & Indus., 19 Wn. App. 800, 802, 578 P.2d 59 (1978). There are several exceptions to this general rule, however. Plaintiff relies on Flavorland Indus., Inc. v. Schumacker, 32 Wn. App. 428, 647 P.2d 1062 (1982) and argues that this case falls within the "special errand" exception to the "going and coming" rule. The Court of Appeals distinguished Flavorland on the basis that the facts in this case do not rise to a similar level of employer involvement. The Court of Appeals noted that the car driven by Mr. Edwards was not owned by Kaiser; that he was not reimbursed for travel expenses; his job description did not require him to socialize; he was not required to be present at the banquet; and there was not business conducted by Edwards on behalf of Kaiser at the banquet.

The Court of Appeals analysis leads the way into the quagmire of exceptions based on employer involvement. This court has sought to avoid this path by its emphasis on the benefit to the employer rather than on the control or involvement of the employer. We also choose not to interpret Flavorland, to fall within the "special errand" rule, but for reasons very different from those of the Court of Appeals. Rather than widen the path into the quagmire of exceptions for each new factual setting presented to the court, we set forth a new application of the doctrine of respondeat superior, which may allow a plaintiff to recover from a banquet-hosting employer without damaging the "going and coming" rule.

A plaintiff may recover from a banquet-hosting employer if the following prima facie case is proven:

1. The employee consumed alcohol at a party hosted by the employer which was held to further the employer's interest in some way and at which the employee's presence was requested or impliedly or expressly required by the employer.

2. The employee negligently consumed alcohol to the point of intoxication when he knew or should have known he would need to operate a vehicle on some public highway upon leaving the banquet.

3. The employee caused the accident while driving from the banquet.

4. The proximate cause of the accident, the intoxication, occurred at the time the employee negligently consumed the alcohol.

5. Since this banquet was beneficial to the employer who impliedly or expressly required the employee's attendance, the employee negligently consumed this alcohol during the scope of his employment.

The employer is, therefore, vicariously liable under respondeat superior on the ground that the proximate cause of the accident occurred while the employee was acting within the scope of his employment. This action does not affect the "going and coming" rule since it asserts that the proximate cause of the accident occurred at the banquet, before the employee even attempted to drive away. See Comment, Employer Liability for a Drunken Employee's Actions Following an Office Party: A Cause of Action Under Respondeat Superior, 19 Cal. W. L. Rev. 107, 137 (1982) and Chastain v. Litton Sys., Inc., 694 F.2d 957 (4th Cir. 1982).

The inquiry, then, is whether the employee was within the scope of employment when he was drinking at the banquet. The initial focus would be on whether the banquet was a purely social function or sufficiently related to the employer's business to bring the employee's attendance within the scope of employment. In the present case the deduction of banquet expenses as a business expense is not alone sufficient to present a question for the jury. However, this fact plus the additional evidence that this type of function was undertaken by Kaiser to enhance employee relations presents a jury question as to whether the banquet was sufficiently for the benefit of Kaiser. The evidence that "employees were encouraged and expected to attend" presents the jury question of whether Edwards' presence was requested or impliedly or expressly required by Kaiser. Therefore, a material issue of fact is raised on whether Edwards was within the scope of employment at the banquet.

Second and third inquiries are whether the employee, Edwards, became intoxicated at the banquet when he knew or should have known he had to drive on the public highway and whether this intoxication was the proximate cause of the subsequent accident.

In this cause of action, the destination of the intoxicated employee after the banquet is obviously irrelevant. The proximate cause of the negligence occurs at the banquet and so we are able to avoid the sometimes very imaginative analysis required under the "special errand" rule.

Kaiser argues that the destination of the intoxicated employee is important because when the destination is the Kaiser workplace, the employee is breaking company drinking policy and, therefore, not within the scope of employment. This assertion is without merit. Restatement (Second) of Agency § 230 (1958) states that "[a]n act, although forbidden, or done in a forbidden manner, may be within the scope of employment." This court has held that an employer may be liable for the negligent acts of his employee, although such act may be contrary to instructions. Greene v. St. Paul-Mercury Indem. Co., 51 Wn.2d 569, 573, 320 P.2d 311 (1958).

We reverse and remand for proceedings consistent with the principles set forth above.

Dore and Goodloe, JJ., concur.