Estate of Kelly v. Falin

896 P.2d 1245, 127 Wash. 2d 31, 1995 Wash. LEXIS 167

• Court: Washington Supreme Court
• Decided: June 15, 1995
• Docket: 61780-5; 62229-9
• Status: Published

Opinions

Durham, C.J.

Cary Kelly died in a one-car accident after leaving Family Tavern. His estate brought a wrongful death action against Family Tavern and its owner, James Falin, alleging the tavern continued to serve Cary Kelly even after he was obviously intoxicated. At the close of trial, the jury returned a special verdict finding Kelly 50 percent responsible for his injuries and Family Tavern 50 percent responsible. The court entered a judgment in favor of Kelly’s estate for $360,500. Family Tavern appealed to the Court of Appeals, and we granted Plaintiff’s motion to transfer the appeal to this court. In an unrelated incident, Richard Wolfram lost control of his car and suffered injuries to his spinal cord on his way home from Lahaina Louie’s Pub & Cafe. Wolfram sued Lahaina Louie’s for serving him while he was obviously intoxicated. Lahaina Louie’s moved for summary judgment, and the Superior Court for King County granted its motion. Wolfram appealed and we granted Lahaina Louie’s motion to transfer the appeal to this court.

These cases were consolidated to allow us to address whether a commercial establishment that serves alcohol to an obviously intoxicated patron is liable if the patron suffers harm as a result. In other words, does a commercial establishment owe a duty of care to obviously intoxicated patrons? Currently, commercial purveyors of alcohol owe a duty both to innocent bystanders injured by obviously intoxicated patrons and to minors. These limited categories of commercial liability exclude adults who suffer injuries arising from their own intoxication. We hold that a commercial establishment is not liable for injuries sustained by an obviously intoxicated patron.

Cary Kelly

Cary Kelly left Family Tavern unaccompanied on November 4, 1990, after consuming a considerable quantity of alcohol. He drove nine blocks at high speed, careened across a four-lane highway, and slammed into a tree with such force that the car’s engine pushed through the firewall and into the passenger compartment. The impact severed Kelly’s aorta, and he died instantly. No one else was injured.

Kelly had spent most of the afternoon drinking beer with his friends Michael Wemmer and Rocky Fuller. They had gathered at West End Tavern at approximately 2 p.m. to watch a football game on the big screen television. After the game ended, they proceeded to the Family Tavern. They arrived apparently around 4:15 p.m., took a table together, played darts and pool, and drank heavily over the next several hours.

The bartender on duty when they first arrived furnished the men with four or five pitchers of beer before finishing her shift at around 6 p.m. Wemmer testified that Kelly became clearly intoxicated during the bartender’s shift. His behavior was boisterous and unruly; he was spilling beer, disturbing patrons, and was unable to follow simple instructions. Although the bartender became exasperated with Kelly after he mistakenly used the pool rag to wipe up spilled beer, she continued to serve him.

It appears that Kelly left the tavern for a short time, and then returned, just before the bartender finished her shift. For the next two hours, Kelly steadily drank as he and his friends finished another four or five pitchers of beer. Kelly grew increasingly intoxicated, slurring his speech and growing unintelligible, knocking over glasses and spilling his beer, arguing loudly with his friends and with others, and again using the pool rag to wipe up his spilled beer. Nevertheless, the bartender continued to serve him.

Fuller left the tavern at approximately 7:30 p.m., after fighting with Kelly over who was the better father. Wemmer departed about a half hour later, expecting Kelly to leave shortly thereafter since he knew Kelly did not have money to purchase beer. Kelly headed home just before 8:20 p.m. and quickly lost control of his car. At the time of the crash, Kelly’s blood alcohol content was .31, three times the legal limit. To have reached that level of intoxication, the state toxicologist calculated that Kelly must have consumed between 200 and 240 ounces of beer between 2 p.m. and 8 p.m.

Richard Wolfram

On the evening of January 27, 1992, Richard Wolfram purchased two alcoholic beverages upon completing his shift at a bar where he was employed. After consuming these, Wolfram left the bar around 11:15 p.m. and, with several of his co-workers, headed to Lahaina Louie’s Pub & Cafe. One of his co-workers, who served drinks at the bar where Wolfram was employed, stated that Wolfram consumed five beers and four or five shots of Jagermeister during an hour-and-a-half at Lahaina Louie’s. She described Wolfram as obviously intoxicated, based on his slurred speech, his shoving match with another patron, and his references to inappropriate personal issues.

At 1:45 a.m., the bartender at Lahaina Louie’s gave the last call for drinks. According to another co-worker, Wolfram appeared drunk as he ordered one final beer. When the bar closed, Wolfram tried to sneak the beer out under his coat. The security guard caught him, however, and watched as Wolfram drank the beer before leaving.

As Wolfram drove home, his car veered off the pavement and his right front wheel hit gravel on the road’s soft shoulder. At this point, Wolfram lost control of the car. It spun into an embankment and rolled over, injuring Wolfram’s spinal cord. At the time of the accident, Wolfram’s blood alcohol content was .22. The spinal cord injury left Wolfram a quadriplegic.

Analysis

Richard Wolfram and the Estate of Cary Kelly argue that Lahaina Louie’s and Family Tavern, respectively, negligently served alcohol to obviously intoxicated patrons, and this negligence resulted in the tragic accidents discussed above. The threshold question in an action for negligence is whether a duty of care exists on the part of the defendant to the complaining party. Christen v. Lee, 113 Wn.2d 479, 488, 780 P.2d 1307 (1989). In the present case, Richard Wolfram and the Estate of Cary Kelly¹ insist that commercial vendors have a legal duty to refuse alcohol to obviously intoxicated patrons, and are liable to patrons who injure themselves as a result of their own drunkenness.

In Washington, the Legislature historically has maintained an active role in allocating responsibility for alcohol abuse and drunk driving. In 1905, the Legislature enacted the "Dramshop Act” which exposed purveyors of intoxicating liquor to liability if the "circumstances [were] sufficient to lead a man of ordinary intelligence to believe that such sale would probably result in intoxication”. Former RCW 4.24.100. In 1955, the Legislature repealed the "Dramshop Act”. In response, this court adopted the common-law rule that "[i]t is not a tort to either sell or give intoxicating liquor to ordinary able-bodied men”. Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 762, 458 P.2d 897 (1969) (quoting 30 Am. Jur. Intoxicating Liquors § 520 (1958)).

While the common-law rule indicates that commercial vendors will not be held liable for overserving patrons, there are two exceptions. First, commercial vendors have a duty to avoid providing minors with alcohol, and as a result, may be sued for injuries resulting from a minor’s intoxication. Purchase v. Meyer, 108 Wn.2d 220, 737 P.2d 661 (1987); Young v. Caravan Corp., 99 Wn.2d 655, 658, 663 P.2d 834, modified, 672 P.2d 1267 (1983).

Second, an injured bystander may bring a negligence action against a commercial vendor for serving an obviously intoxicated adult. Dickinson v. Edwards, 105 Wn.2d 457, 716 P.2d 814 (1986); Christen v. Lee, 113 Wn.2d 479, 505, 780 P.2d 1307 (1989). Such third-party actions generally arise in the context of drunk driving accidents. Christen, at 495. A tavern or other commercial vendor may be held liable if it serves alcohol to an obviously intoxicated patron who injures or kills a bystander in a drunk driving accident. Dickinson v. Edwards, supra.

It is an open question whether an individual who loses control of a vehicle after becoming intoxicated at a commercial establishment may seek monetary recovery for his or her own injuries. Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 642-43, 618 P.2d 96 (1980); Williams v. Kingston Inn, Inc., 58 Wn. App. 348, 356 n.3, 792 P.2d 1282 (1990). The Patrons would have us believe that permitting a cause of action under these circumstances is the logical extension of the exceptions to the common-law rule. We disagree. The common-law rule rejects the notion that intoxicated adults can hold commercial vendors liable for furnishing them alcohol. Imposing a negligence standard against commercial vendors for an intoxicated patron’s self-inflicted injuries would be the final step in dismantling the common-law rule.

Moreover, this court has "repeatedly refused” to impose broader exceptions to the common-law rule. Christen, 113 Wn.2d at 494. For example, in Shelby v. Keck, 85 Wn.2d 911, 914-17, 541 P.2d 365 (1975), we held that a commercial vendor must have notice of a patron’s obvious intoxication for an injured bystander to allege negligence, and rejected a strict liability standard that measured obvious intoxication solely in terms of blood alcohol content. As we explained in Shelby, a strict liability standard "against one who furnishes liquor whenever a patron commits a tort while intoxicated” would be the equivalent of a judicially imposed "Dramshop Act”. Shelby, at 915.

Similarly, a requirement that commercial establishments pay for the self-inflicted injuries of an intoxicated patron abrogates the Legislature’s repeal of the "Dramshop Act”, and therefore is insupportable. Under the "Dramshop Act”, an intoxicated adult could hold a commercial vendor accountable for self-inflicted injuries, but by repealing the "Dramshop Act”, the Legislature rejected imposing liability. We repeatedly have recognized that the "Legislature is the appropriate body to address any such changes in [this area of] the law”. Christen, 113 Wn.2d at 494 (citing Burkhart v. Harrod, 110 Wn.2d 381, 383, 755 P.2d 759 (1988)). We refuse to contravene the Legislature’s explicit rejection of the "Dramshop Act”. To do so would usurp the Legislature’s authority to weigh who should be held accountable for alcohol-related accidents.

The Patrons argue that even if the court rejects liability under the common-law rule, RCW 66.44.200 establishes a duty of care on commercial vendors. As part of the state Alcoholic Beverages Control Act, RCW 66.44.200 provides that "[n]o person shall sell any liquor to any person apparently under the influence of liquor” and imposes criminal penalties for noncompliance under RCW 66.44.180. Violation of a criminal statute is evidence of negligence only if the statute was intended to protect both the person bringing the action and the "particular interest” asserted.² Restatement (Second) of Torts § 286 (1965); Christen, 113 Wn.2d at 502. As a result, for RCW 66.44.200 to provide evidence of negligence, it must protect the drinker, and more specifically, the drunk driver.

This court previously has relied on the state Alcoholic Beverages Control Act to establish negligence in a tort action. In Hansen v. Friend, 118 Wn.2d 476, 824 P.2d 483 (1992), we held that parents whose minor child drowned after becoming intoxicated could use RCW 66.44.270 as evidence that he negligently was served alcohol. The Hansen court found that RCW 66.44.270, which imposes criminal penalties for providing minors with alcohol under RCW 66.44.180, "protects a minor’s health and safety interest from the minor’s own inability to drink responsibly”. Hansen, at 481. Since RCW 66.44.270 was intended to protect minors from the dangers of alcohol, it saddles the provider of alcohol with a duty of care toward minors.

It belies common sense, however, to suggest that RCW 66.44.200, which proscribes selling alcohol to intoxicated adults, was intended to shield the drunk driver from responsibility for his or her own actions. Indeed, RCW 66.44.200 was enacted to "[protect] the welfare, health, peace, morals, and safety of the people of the state”. RCW 66.08.010. The Patrons offer no evidence that the Legislature intended RCW 66.44.200 to protect the drunk driver. Statutes should be construed to effect their purpose, and avoid unlikely "absurd or strained consequences”. Wright v. Engum, 124 Wn.2d 343, 351, 878 P.2d 1198 (1994) (quoting In re Eaton, 110 Wn.2d 892, 901, 757 P.2d 961 (1988)). Without a more precise directive from the Legislature, it would be utterly fatuous to interpret RCW 66.44.200 as protecting the drunk driver. Adults are expected to temper their alcohol consumption or simply refrain from driving when intoxicated. Unlike an innocent bystander hit by a drunk driver or a youth whose sense of immortality leads to reckless abandon, the responsibility for self-inflicted injuries lies with the intoxicated adult. Until the Legislature indicates otherwise, this court will not absolve intoxicated adults of their accountability for such accidents.

The Patrons also argue that a tort action is warranted under RCW 5.40.060, which provides,.in part:

[I]t is a complete defense to an action for damages for personal injury or wrongful death that the person injured or killed was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and that such condition was a proximate cause of the injury or death and the trier of fact finds such person to have been more than fifty percent at fault.

(Italics ours.) RCW 5.40.060(1). As Lahaina Louie’s notes, however, the plain language of the statute limits the rights of intoxicated plaintiffs. Br. of Resp’t (Lahaina Louie’s), at 12. Rather than creating a cause of action for intoxicated plaintiffs, RCW 5.40.060 provides an additional defense for defendants sued by intoxicated plaintiffs.

As already discussed, today’s decision recognizes that while commercial vendors have a duty to minors and innocent bystanders, no duty arises when intoxicated adults harm themselves. The distinction between intoxicated adults and intoxicated minors is simple. The Legislature has determined that, unlike adults, "persons under 21 years of age are neither physically nor mentally equipped to handle the consumption of intoxicating liquor”. Young v. Caravan Corp., 99 Wn.2d 655, 660, 663 P.2d 834, modified, 672 P.2d 1267 (1983). The Legislature rejected this axiom for adults when it repealed the “Dramshop Act”.

The Patrons argue that a distinction between an innocent bystander’s injuries and an intoxicated adult’s self-inflicted injuries is without merit. The Patrons contend that the duty of a commercial tavern should not turn on the identity of the victim under this court’s decision in Wilson v. Steinbach, 98 Wn.2d 434, 439, 656 P.2d 1030 (1982). Br. of Resp’t (Kelly), at 29. In Wilson, we rejected arguments that a social host serving alcohol had a greater duty to intoxicated house guests than to injured bystanders and concluded the identity of the injured party should have no bearing on a social host’s duty of care. Wilson, at 439-40. Nevertheless, the applicability of Wilson to the context of commercial vendors is dubious. As a matter of public policy, we have premised the duty of commercial vendors on the need to protect innocent bystanders from intoxicated patrons, Christen v. Lee, 113 Wn.2d 479, 497, 780 P.2d 1307 (1989) (citing Shelby v. Keck, 85 Wn.2d 911, 914, 541 P.2d 365 (1975); Waldron v. Hammond, 71 Wn.2d 361, 363, 428 P.2d 589 (1967)), and on the need to protect minors. Purchase v. Meyer, 108 Wn.2d 220, 737 P.2d 661 (1987); Young v. Caravan Corp., 99 Wn.2d 655, 663 P.2d 834, modified, 672 P.2d 1267 (1983). These public policy concerns are not present when intoxicated adults injure themselves.³

A rule that allows an intoxicated adult to hold a commercial vendor liable fosters irresponsibility and rewards drunk driving. Rather than deterring drunk driving, excessive drinking, and the callow and imprudent behavior of intoxicated adults, such a rule would actually compensate patrons who drink beyond obvious intoxication. As the Ohio Supreme Court explained in rejecting recovery by an intoxicated patron even though Ohio allows third party recovery:

[A]n adult who is permitted to drink alcohol must be the one who is primarily responsible for his or her own behavior and resulting voluntary actions. Clearly, permitting the intoxicated patron a cause of action in this context would simply send the wrong message to all our citizens, because such a message would essentially state that a patron who has purchased alcoholic beverages from a permit holder may drink such alcohol with unbridled, unfettered impunity and with full knowledge that the permit holder will be ultimately responsible for any harm caused by the patron’s intoxication. In our opinion, such a message should never be countenanced by this court.

Smith v. The 10th Inning, Inc., 49 Ohio St. 3d 289, 291-92, 551 N.Ed.2d 1296 (1990). Given a choice between a rule that fosters individual responsibility and one that forsakes personal accountability, we opt for personal agency over dependency and embrace individual autonomy over paternalism.

[A]s a matter of public policy drunken persons who harm themselves are responsible for their condition, and should not prevail either under a common law or statutory basis.

(Citations omitted.) Ohio Casualty Ins. Co. v. Todd, 813 P.2d 508, 511 (Okla. 1991) (recognizing that a majority of jurisdictions have rejected finding commercial vendors have a duty to intoxicated patrons under common law).

We hold that a commercial vendor owes no duty of care to patrons who suffer injuries as a result of their intoxication. Accordingly, the judgment of the trial court in Estate of Kelly v. Falin⁴ is reversed; the trial court’s entry of summary judgment in Wolfram v. Lahaina Louie’s Pub & Cafe is affirmed.

Dolliver, Smith, and Madsen, JJ., and Andersen, J. Pro Tern., concur.

1 Richard Wolfram and the Estate of Cary Kelly hereafter will be referred to collectively as the Patrons.

2 In 1986, the Legislature adopted RCW 5.40.050, which prohibits a finding of negligence per se based on the violation of a criminal statute. In light of RCW 5.40.050, this court has followed the rule of Restatement (Second) op Torts § 286 (1965), which provides, in part:

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose interest is invaded, and

(b) to protect the particular interest which is invaded ....

Restatement (Second) op Torts § 286 (1965), quoted in Hansen v. Friend, 118 Wn.2d 476, 480-81, 824 P.2d 483 (1992). Accord Christen v. Lee, 113 Wn.2d 479, 502, 780 P.2d 1307 (1989).

3 As the Oklahoma Supreme Court stated when addressing the distinction between allowing an intoxicated passenger to recover from a commercial establishment but barring recovery for the drunk driver: "The difference is obvious and dispositive. One individual got behind the steering wheel of an automobile and drove it in a drunken condition; the other one didn’t.” Ohio Casualty Ins. Co. v. Todd, 813 P.2d 508, 512 (Okla. 1991).

4 Given the outcome of today’s decision, it is unnecessary to decide if the trial court in Estate of Kelly erred in admitting Cary Kelly’s blood alcohol content as evidence of obvious intoxication and improperly excluded evidence of his appearance when inebriated on other occasions. We reject the Estate of Kelly’s assertion that the Family Tavern was precluded from raising the issue of a commercial vendor’s duty on appeal, noting: (1) Family Tavern asserted in its answer to the complaint that the Estate of Kelly failed to raise a legally sufficient claim; (2) in posttrial motions Family Tavern argued it had no legal duty to Mr. Kelly, and the trial court denied the motions on the merits; and (3) as a result of the confusion in this area of the law, the jury instructions did not define to whom commercial vendors owe a duty, making Family Tavern’s failure to object irrelevant. See Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 256-57, 840 P.2d 860 (1992).