Date: 07-16-2009

Case Style: Bianca Faust v. Mark Albertson, et al.

Case Number: 81356-6

Judge:

Court: Supreme Court of Washington on appeal from the Superior Court for Whatcom County

Plaintiff's Attorney: Philip Albert Talmadge, Talmadge/Fitzpatrick, Tukwila, Washington; Steven John Chance, Bellingham, Washington; Emmelyn Hart-Biberfeld; Talmadge/Fitzpatrick, Tukwila, Washington

Defendant's Attorney: Russell Charles Love, Thorsrud Cane & Paulich, Seattle, Washington; Paul V. Esposito, Clausen Miller, Chicago, Illinois; William Edward Fitzharris Jr. , Preg O'Donnell & Gillett PLLC, Seattle, Washington

Description: Commercial sellers of alcoholic beverages may be liable for

damages to a third party suffered at the hands of a drunk driver on a theory of

negligent overservice of a person apparently under the influence of alcohol. This case

calls for examination and clarification of the evidence necessary to properly establish a

triable issue of fact regarding negligent overservice under RCW 66.44.200(1).

Facts

Hawkeye Kinkaid died the night his car struck the car driven by Bianca Faust.

Prior to the accident, Kinkaid spent most of the afternoon with his girlfriend, Alexis

Chapman, and went with her to the Bellingham Moose Lodge at 4:30 p.m. Shortly

after Kinkaid left the lodge, he drove his car across the center line of La Bounty Road

where it struck Faust's vehicle. The force of the collision injured Faust and her

passengers and rendered one passenger paraplegic.

While at the lodge, Kinkaid was served alcohol by Chapman. Evidence

submitted at trial indicated that Kinkaid had not been drinking before his arrival at the

lodge. According to statements by Chapman to others, prior to the accident Kinkaid

had been drinking for a prolonged period of time, had become belligerent and

argumentative with her, and had become too "tipsy" to be driving. 2 Verbatim Report

of Proceedings (VRP) at 265. In addition, Chapman later told a friend of Kinkaid's

that he was so drunk that night that she had to cut him off.


Kinkaid was intoxicated at the time of the accident. A toxicology report

showed that Kinkaid's blood alcohol content (BAC) was .14 one hour after the

accident. Tests performed during Kinkaid's autopsy revealed a BAC of .09, still above

the legal limit after loss of blood and replacement of some fluids. Kinkaid's stomach

contained undigested alcohol. According to Faust's forensic consultant, Kinkaid had

likely imbibed 21 12-ounce beers or 30 ounces of 80-proof alcohol and probably

achieved what he estimated was a .32 BAC at the time of the collision.

Faust sued Kinkaid's estate, the lodge, and Chapman, claiming negligence on a

variety of theories. The jury found for Faust, and the trial court entered a judgment of

$14 million. The trial court denied several posttrial motions brought by the

defendants, including a motion for judgment as a matter of law. The lodge and

Chapman appealed and Faust cross-appealed. The Court of Appeals reversed and

vacated the judgment against the lodge and Chapman and denied Faust's cross-appeal.

Faust v. Albertson, 143 Wn. App. 272, 276, 178 P.3d 358 (2008). Faust petitioned for

this court's review, and we granted review to consider a potential conflict between the

Court of Appeals decision and our prior cases involving the standard of civil liability

for alcohol overservice. Faust v. Albertson, 164 Wn.2d 1025, 196 P.3d 136 (2008).


Analysis

A. Standard and Scope of Review

This court accepted review to resolve two questions. First, under RCW

66.44.200(1), must a plaintiff produce direct, point-in-time evidence that the tortfeasor

was "apparently under the influence of liquor" when he was last served? Second, did

the Court of Appeals err when it found no competent evidence creating an issue of

material fact and reversed the trial court's denial of a defense motion for judgment as

a matter of law?

Faust challenges as error the Court of Appeals' reversal of the trial court's

denial of judgment as a matter of law. Judgment as a matter of law under CR 50 is

appropriate only when no competent and substantial evidence exists to support a

verdict. Delgado Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250

(2001). In reviewing a ruling on a motion for a judgment as a matter of law, we

engage in the same inquiry as the trial court. Stiley v. Block, 130 Wn.2d 486, 504, 925

P.2d 194 (1996). One who challenges a judgment as a matter of law "admits the truth

of the opponent's evidence and all inferences which can reasonably be drawn [from

it]." Davis v. Early Constr. Co., 63 Wn.2d 252, 254, 386 P.2d 958 (1963). We

interpret the evidence "against the [original] moving party and in a light most

favorable to the opponent." Id. A judgment as a matter of law requires the court to

conclude, "as a matter of law, that there is no substantial evidence or reasonable

inferences to sustain a verdict for the nonmoving party." Indus. Indem. Co. of the Nw.

v. Kallevig, 114 Wn.2d 907, 915-16, 792 P.2d 520 (1990). However, the court "must

defer to the trier of fact on issues involving conflicting testimony, credibility of the

witnesses, and the persuasiveness of the evidence." State v. Hernandez, 85 Wn. App.

672, 675, 935 P.2d 623 (1997). "Overturning a jury verdict is appropriate only when

[the verdict] is clearly unsupported by substantial evidence." Burnside v. Simpson

Paper Co., 123 Wn.2d 93, 107-08, 864 P.2d 937 (1994).

B. The Necessary Evidence to Establish a Triable Issue of Fact on Alcohol Overservice

RCW 66.44.200(1) prohibits the sale of alcohol to "any person apparently under

the influence of liquor." Businesses that violate the statute by serving drunk drivers

will be civilly liable to third-party victims for damages caused by their patron. Barrett

v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 262-63, 96 P.3d 386 (2004). In Barrett,

this court recognized that the older "obviously intoxicated" common law standard1 had

been replaced by "apparently under the influence." Id. at 274-75. Further, this court

recognized that the two standards differ meaningfully. Id. at 269.

The question presented here boils down to whether the evidentiary burden to establish a triable issue of fact should be lowered concomitantly with the standard of

civil liability. Typically, plaintiffs "may establish any fact by circumstantial

evidence." Tabak v. State, 73 Wn. App. 691, 696, 870 P.2d 1014 (1994). Before

juries, circumstantial and direct evidence are viewed as equivalently valuable. See 6

washington Supreme Court Committee on Jury Instructions, Washington Practice:

Washington Pattern Jury Instructions: Civil § 1.03, at 22 (2005). Nonetheless, the

Court of Appeals held that plaintiffs must provide specific point-in-time observational

evidence of the tortfeasor's appearance close to the time of service in order to send the

question to the trier of fact. Faust, 143 Wn. App. at 281-82. In Barrett, we declared

that our recognition of the statutory standard for civil liability did not "upset [any]

established precedent." 152 Wn.2d at 274; see Faust, 143 Wn. App. at 280 n.3 ("the

required evidence does not appear to have changed"). Thus, cases interpreting the

evidentiary burden plaintiffs must carry to defeat a defense motion for summary

judgment (or judgment as a matter of law) remain good law.2 A review of those cases

reveals a consistent insistence by this court that evidence on the record must

demonstrate that the tortfeasor was "apparently under the influence" by direct,

observational evidence at the time of the alleged overservice or by reasonable

inference deduced from observation shortly thereafter.


This court has held that a combination of postaccident observational evidence,

expert testimony, and BAC were insufficient evidence to survive a summary judgment

motion. Purchase v. Meyer, 108 Wn.2d 220, 223, 737 P.2d 661 (1987). Purchase

involved the alleged overservice of a 19-year-old who, some time after leaving a

restaurant where she and her friends had been drinking, struck a motorcyclist with her

car. Id. at 222. Meyer's BAC was measured at .13 some three and one-half to four

hours after she had left the restaurant. Id. The court held:

Insofar as a cause of action for furnishing intoxicating liquor to an "obviously intoxicated" person is concerned, the results of a blood alcohol test . . . and an expert's opinion based thereon, and the physical appearance of that person at a substantial time after the intoxicating liquor was served, are not by themselves sufficient to get such a cause of action past a motion for summary judgment. Whether a person is "obviously intoxicated" or not is to be judged by that person's appearance at the time the intoxicating liquor is furnished to the person.

Id. at 223. Because a heavy drinker may not appear intoxicated despite a high BAC

and because alcohol may react on the human body differently because of "medically

recognized variables," the court restated the rule that sobriety must be judged at the

time of service. Id. at 225-26. As direct, observational evidence was lacking in the

record, the court concluded that the restaurant's motion for summary judgment should

have been granted. Id. at 227-28.

This court reiterated the proposition that the appearance of intoxication must be

judged at the time of service in Christen v. Lee, 113 Wn.2d 479, 780 P.2d 1307

(1989). In Christen, the court reviewed summary judgment for the defendants when

the only evidence on the record was from a waitress who deduced that the tortfeasor

must have appeared under the influence based on the amount of alcohol he was served.

Id. at 489-90. The court agreed that this evidence was insufficient to defeat a motion

for summary judgment because no evidence existed on the record as to the tortfeasor's

actual appearance. Id.

The Purchase and Christen courts distinguished an earlier case, Dickinson v.

Edwards, 105 Wn.2d 457, 716 P.2d 814 (1986), because postservice observations of

the driver's apparent intoxication in Dickinson occurred within a short time of leaving

a drinking establishment. Purchase, 108 Wn.2d at 227-28; Christen, 113 Wn.2d at

490-91. In Dickinson, a drunk driver traveling the wrong way on a freeway off ramp

collided with a motorcyclist and injured its driver. 105 Wn.2d at 459. The driver

admitted to drinking consistently at a banquet he had left just five minutes before the

accident occurred. Id. at 460. The responding officer noted that the driver "was

unsteady on his feet, had bloodshot eyes and a flushed face, and smelled of alcohol."

Id. This court reversed, holding that the officer's testimony, in addition to the driver's

admissions constituted sufficient evidence to defeat a defense motion for summary

judgment. Id. at 464-65. Because the officer's testimony reflected the driver's

appearance so soon after leaving the banquet, the court reasoned that the testimony

could provide the basis for a reasonable inference about the driver's appearance when

he was served. Id. at 464.

Similarly, this court's per curiam opinion in Fairbanks v. J.B. McLoughlin Co.,

131 Wn.2d 96, 929 P.2d 433 (1997), reflects that observational evidence by a police

officer and the victim of a collision obtained shortly after the alleged overservice can

give rise to a material question of fact. Id. at 103. Thus, Fairbanks and Dickinson

allow juries to draw inferences from firsthand observations of a person's intoxication

and to make any related credibility determinations.

Faust and her amici contend that the plaintiffs' evidentiary burden in negligent

overservice cases necessarily must be lower in light of Barrett. Washington State

Association for Justice Foundation argues that "[s]ubstantial evidence can only be

evaluated under CR 50 through the prism of the substantive legal standard that must

be met." Br. of Amicus Curiae Wash. State Ass'n for Justice Found. at 19-20.

However, our case law already contemplates that because the standard of liability

revolves around appearance, any direct or circumstantial evidence must address actual

rather than assumed appearance. Under this rule, jurors are not permitted to make an

inferential leap of the "driver's BAC was X, so he must have appeared drunk" type.

We reject this construction for the reasons outlined in Purchase. The underlying

physiological science reflecting that not all drinkers will appear drunk at certain levels

of alcohol consumption does not seem to have changed and no argument before this

court challenges that science.3

We see no reason to doubt the underlying logic and reasoning contained within

the Purchase decision, and we do not move away from its established rule. Thus, we

evaluate the evidence presented below under our existing standards to determine

whether judgment as a matter of law was appropriate.

C. The Court of Appeals Erred when it Balanced and Weighed the Evidence on Appeal

Our precedent is clear that jurors are allowed to consider and weigh

circumstantial evidence of the appearance of intoxication when the witness's

observation occurred within a short period of time after the alleged overservice.

Dickinson, 105 Wn.2d at 464-66; Fairbanks, 131 Wn.2d at 103. Here, the record

contains such evidence. That Chapman could recognize that Kinkaid was drunk at the

time he left the bar leaves open the possibility that the jury could infer that she could

tell he was drunk when she last served him. It was error to take this question away

from the jury on appeal.

The facts on the record, when viewed in the light most favorable to Faust, could

lead to permissible inferences that Kinkaid was apparently under the influence when

he was last served. Primarily, the jury would be entitled to weigh Chapman's

corroborated admission that Kinkaid was too drunk to be driving when he left the

lodge. Corroborated admissions of a party may constitute substantial evidence of any

fact in issue even if the admissions are later denied. See Smith v. Leber, 34 Wn.2d

611, 622, 209 P.2d 297 (1949). Chapman's admissions appeared before the jury by

way of Rainy Kinkaid's testimony as well as that of Lisa Johnston. The results of

Kinkaid's BAC test along with the findings derived from his autopsy corroborate that

Kinkaid was drunk well beyond the legal limit at the time of the accident. Also,

Chapman's observations occurred within a window of time that satisfies this court's

holdings in Fairbanks and Dickinson.

As amicus Washington State Association for Justice Foundation points out, this

court has not addressed whether BAC can be considered as corroborative evidence of

apparent intoxication (nor obvious intoxication under the older, common law

standard). RCW 46.61.506(1) provides that BAC is admissible in both criminal and

civil cases. While this court has rejected BAC as evidence sufficient by itself to

establish a triable issue of fact regarding apparent intoxication, Purchase, 108 Wn.2d

at 223; Christen, 113 Wn.2d at 487; see Estate of Kelly v. Falin, 127 Wn.2d 31, 37-38,

896 P.2d 1245 (1995), BAC evidence is relevant as corroborative and supportive of

the credibility of firsthand observations, Cox v. Keg Restaurants U.S., Inc., 86 Wn.

App. 239, 248-50, 935 P.2d 1377, review denied, 133 Wn.2d 1012 (1997).

Moreover, the timing of the accident, when viewed in the light most favorable

to the nonmoving party, leads to a triable issue of fact for the jury, as the trial court

recognized. The collision occurred at 7:45 p.m. Ex. 10. Faust put forward evidence

at trial that Kinkaid left the lodge at approximately 7:30 p.m. 3 VRP at 364; 5 VRP at

669-70; 6 VRP at 908. The defendants put forward evidence that Kinkaid left the

lodge earlier and visited a bowling alley in the intervening time period. See 11 VRP at

1663-65. Faust's attorney challenged the credibility of the witness on cross-

examination. Id. at 1677-79. Credibility determinations lie with the jury, and it was

entitled to weigh these conflicting statements about timing and Kinkaid's whereabouts

on the day of the collision.

Finally, observations by other lodge patrons may support a factual finding that

Kinkaid was not apparently under the influence when he was last served, but because

those observations were challenged by other observational evidence, as well as

impeached as self-interested testimony, the jury was entitled to weigh this evidence

against all else presented at trial. Lodge members did testify to Kinkaid's appearance,

but Faust alleged a "conspiracy of silence" due to the ties of membership in the

fraternal organization and impeached their testimony on the grounds of faulty memory

and inconsistent statements. The Court of Appeals improperly weighed one side of this evidence against the other when it reversed the trial court's denial of the defense

motion for judgment as a matter of law.

* * *

See: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=813566MAJ

Outcome: We hold that evidence sufficient to submit the issue of negligent overservice to

a jury may be either direct or circumstantial and that evidence of BAC and autopsy

reports can corroborate evidence of postservice appearance and support an inference

that a defendant appeared under the influence at the time he was served. Because the

jury was entitled to hear and weigh the credibility of evidence pertaining to Kinkaid's

appearance at the lodge, the Court of Appeals erred in vacating the verdict. We

reverse the Court of Appeals and reinstate the jury verdict.

Plaintiff's Experts:

Defendant's Experts:

Comments: