Barrett v. Lucky Seven Saloon, Inc.

• Decision Date: 26 August 2004
• Docket Number: No. 72984-I.,72984-I.
• Citation: 152 Wash.2d 259,96 P.3d 386
• Court: Washington Supreme Court
• Parties: Jeffrey A. BARRETT and John R. Barrett, Jr., his guardian, Petitioners, v. LUCKY SEVEN SALOON, INC., Respondent.

96 P.3d 386

152 Wash.2d 259

Jeffrey A. BARRETT and John R. Barrett, Jr., his guardian, Petitioners, v. LUCKY SEVEN SALOON, INC., Respondent.

No. 72984-I.

Supreme Court of Washington, En Banc.

Argued May 15, 2003.

Decided August 26, 2004.

Helga Kahr, Joseph Chalverus, Seattle, for Petitioners.

Nicholas Phillip Scarpelli, Kenneth Scott Kagan, Carney Badley Spellman, Seattle, for Respondent.

Bryan Patrick Harnetiaux, Debra Leigh Williams Stephens, Spokane, for Amicus Curiae (Washington State Trial Lawyers Assoc.).

OWENS, J.

Petitioner Jeffrey Barrett was profoundly and permanently injured in an automobile accident caused by an intoxicated driver, Ned Maher. Jeffrey Barrett and John Barrett (Barrett) sued the Lucky Seven Saloon (the Lucky Seven), claiming that it had negligently overserved alcohol to Maher. The jury returned a defense verdict, and Barrett appealed. Barrett assigned error to the trial court's rejection of his proposed jury instructions on RCW 66.44.200(1), which provides that "[n]o person shall sell any liquor to any person apparently under the influence of liquor."¹ He also assigned error to the pretrial determination that, in lieu of the statutory "apparently under the influence" standard, the "obviously intoxicated" standard would be applied, thus requiring Barrett to show that the Lucky Seven had sold alcohol to Maher when he was "obviously intoxicated," not simply when he was "apparently under the influence."

The Lucky Seven argued to the Court of Appeals that the alleged instructional errors had not been properly preserved because, while Jeffrey Barrett had excepted to the court's refusal to instruct the jury on the statutory standard, he had not also lodged a separate objection to the court's converse decision to instruct the jury on the "obviously intoxicated" standard. The Court of Appeals ignored the Lucky Seven's procedural argument, and the Lucky Seven, in answering Barrett's petition for review, did not renew the argument as an alternative basis for affirming the Court of Appeals opinion. This court granted Barrett's petition for review on the sole issue of "whether RCW 66.44.200(1) establishes a standard of civil liability for damages caused by intoxicated drivers." Order (Mar. 4, 2003) at 2.

Deciding this issue in the affirmative, we reverse the Court of Appeals and remand the matter for a new trial.

FACTS

On October 11, 1995, Maher left work between 1:00 and 1:30 P.M. and went to the Lucky Seven, where he bought at least three pitchers of beer and drank at least two of them. Maher left the tavern at about 4:30 P.M. and, while driving home, fell asleep, crossed the centerline, and collided with Barrett's car, causing Barrett permanent, devastating injuries. When measured approximately two hours after the collision, Maher's blood alcohol content was .13 percent, exceeding the .10 percent limit applicable at the time. Maher pleaded guilty to vehicular assault while under the influence of intoxicating liquor.

Barrett filed a complaint against the Lucky Seven,² alleging that "the Lucky Seven Saloon sold and served additional and excessive quantities of alcohol to Ned Maher even though he was obviously intoxicated." Clerk's Papers (CP) at 187 (emphasis added); see also CP at 4. More specifically, Barrett asserted in his complaint that, "in violation of RCW 66.44.200," the Lucky Seven had served Maher when he "was obviously intoxicated, under the influence of liquor and apparently under the influence of alcohol." CP at 188 (emphasis added).

On March 2, 2000, the Lucky Seven moved the court for an order forbidding Barrett to argue to the jury that RCW 66.44.200(1) expressed a standard of civil liability for sellers of alcohol.³ With that motion pending, Barrett filed his proposed jury instructions on March 10, 2000. In proposed instructions 23-26, Barrett set forth his theory of the case regarding the duty of the Lucky Seven:

A Washington law provides: "No person shall sell any liquor to any person apparently under the influence of liquor."

The violation, if you find any, of a statute constitutes evidence of negligence.

An administrat[ive] regulation of the State of Washington provides: "No retail licensee (tavern) shall give or otherwise supply liquor to any person apparently under the influence of liquor."

The violation, if you find any, of an administrative regulation constitutes evidence of negligence."

CP at 130-33, Pls.' Proposed Jury Instructions 23-26. Barrett's instructions rely exclusively on the "apparently under the influence" standard found in RCW 66.44.200(1) and WAC 314-16-150(1).

On March 15, 2000, the trial court heard argument on the Lucky Seven's motion in limine. Counsel for the Lucky Seven introduced its one-paragraph motion with a single sentence: "This has to do with the difference between apparent standard and an obvious standard and I don't want them to argue apparent to the jury." Report of Proceedings (RP) (Mar. 15, 2000) at 65. Barrett's counsel, while conceding that the phrase "obviously intoxicated" had appeared in some Washington cases, countered that the legislature had "enunciated a different standard" and that Barrett "should be able to bring in the evidence of apparent, of that standard": "If the tavern violated the Washington State Alcohol Beverages Control Act by furnishing a person who is apparently under the influence of liquor, that's evidence of negligence, it is relevant, it should be allowed." Id. at 65-66. Consistent with Barrett's previously filed jury instructions, Barrett's counsel sought the right to argue to the jury that, by statute and administrative regulation, the Lucky Seven was not permitted to serve Maher if he was "apparently under the influence of liquor." However, the trial court granted the Lucky Seven's motion, precluding mention of the stricter "apparently under the influence" statutory standard.

On April 5, 2000, the last day testimony was taken in the trial, Barrett proposed 18 supplemental jury instructions. See CP at 754-72, Pls.' Suppl. Proposed Jury Instructions 39-56. Despite the Lucky Seven's successful motion in limine, Barrett nevertheless attempted to introduce the statutory "apparently under the influence" standard by pairing a proposed instruction on that standard with one on the standard permitted under the pretrial ruling: "No person shall sell any liquor to any person apparently under the influence of liquor," and "No person shall sell any liquor to any person obviously intoxicated." CP at 769-70, Pls.' Suppl. Proposed Jury Instructions 53-54. The first instruction is a verbatim statement of RCW 66.44.200(1),⁴ while the second uses the statute as its matrix, substituting "obviously intoxicated" for "apparently under the influence of liquor." Consistent with supplemental proposed instructions 53 and 54, Barrett also proposed an instruction defining "apparent" and another distinguishing the words "apparent" and "obvious": "Unlike the determination of something obvious, determination of something apparent requires at least some reflection and thought." CP at 771-72, Pls.' Suppl. Proposed Jury Instructions 55-56.

At the close of the evidence, the trial court rejected Barrett's renewed attempts to inject the statutory language into the jury instructions. The court chose to instruct the jury that "[t]he plaintiff claims that the defendant was negligent in serving alcohol to a patron who was obviously intoxicated." CP at 157, Jury Instruction 8 (emphasis added). Jury instruction 11 stated that "[a] commercial establishment has a duty not to serve alcohol to obviously intoxicated persons," and jury instruction 12 went on to explain that, should the jury find that the Lucky Seven had served Maher when he was "obviously intoxicated," it must find the tavern negligent. CP at 160-61 (emphasis added). Jury instruction 13 defined "obviously" as "easily discovered, seen or understood." CP at 162. Barrett objected to the trial court's failure to give several of his converse instructions on the "apparently under the influence" standard. Among those were instructions quoting RCW 66.44.200(1), as well as instructions defining the word "apparent" and distinguishing the words "apparent" and "obvious." See CP at 130-31, Pls.' Proposed Jury Instructions 23-24; CP at 769, 771-72, Pls.' Suppl. Proposed Jury Instructions 53, 55-56. Apprised of Barrett's "position" and "the grounds therefor," Stuart v. Consolidated Foods Corp., 6 Wash.App. 841, 846, 496 P.2d 527 (1972), the trial judge rejected Barrett's proposed instructions concerning RCW 66.44.200(1), remarking that he and counsel had "been through this on the record before." RP (Apr. 6, 2000) at 22-23.

The jury returned a defense verdict, and Barrett appealed. The Court of Appeals affirmed. Although Barrett identified 22 issues in his petition for review, we granted review of but a single issue: "whether RCW 66.44.200(1) establishes a standard of civil liability for damages caused by intoxicated drivers." Order (Mar. 4, 2003) at 2.

ISSUE

Does RCW 66.44.200(1), which forbids the selling of alcohol "to any person apparently under the influence of liquor," establish a standard for a seller's civil liability for damages caused to a third party by an intoxicated driver?

ANALYSIS

Standard of Review. This court reviews de novo the alleged errors of law in a trial court's instructions to the jury. Hue v. Farmboy Spray Co., 127 Wash.2d 67, 92, 896 P.2d 682 (1995). Instructions are inadequate if they prevent a party from arguing its theory of the case, mislead the jury, or misstate the applicable law. Bell v. State, 147 Wash.2d 166, 176, 52 P.3d 503 (2002). Failure to permit instructions on a party's theory of the case, where there is evidence supporting the theory, is reversible error. State v. Williams, 132 Wash.2d 248, 259-60, 937 P.2d 1052 (1997) (citing State v. Griffin, 100 Wash.2d 417, 420, 670 P.2d 265 (1983)). As with a trial court's instruction misstating the...