Barrie v. Hosts of America, Inc., 46860-5

• Citation: 618 P.2d 96,94 Wn.2d 640
• Decision Date: 23 October 1980
• Docket Number: No. 46860-5,46860-5
• Parties: Richard J. BARRIE, as Personal Representative of the Estate of Robert D. Barrie, Deceased, Appellant, v. HOSTS OF AMERICA, INC., Respondent.
• Court: United States State Supreme Court of Washington

Page 640

94 Wn.2d 640

618 P.2d 96

Richard J. BARRIE, as Personal Representative of the Estate

of Robert D. Barrie, Deceased, Appellant, v. HOSTS OF AMERICA, INC., Respondent.

No. 46860-5.

Supreme Court of Washington, En Banc.

Oct. 23, 1980.

Caw & Rubstello, Greg A. Rubstello, Othello, for appellant.

Layman, Mullin & Etter, Ronald K. Mullin, Spokane, for respondent.

STAFFORD, Justice.

Appellant, the estate of decedent Robert D. Barrie, appeals from a summary judgment dismissing its negligence action against respondent Hosts of America, Inc. The Court of Appeals certified the cause to this Court. We affirm the trial court.

On January 30, 1976 at approximately 7:30 p. m., the decedent Robert Barrie arrived at the cocktail lounge of the Hallmark Inn, a motel in Moses Lake, Washington. Respondent is the owner of the Hallmark Inn. The decedent consumed a number of alcoholic drinks and was last observed in the lounge at 10:30 p. m. At approximately 12:30 a. m., the next morning, the decedent was killed in a one-car accident, on Interstate 90.

The decedent's personal representative brought the present wrongful death action on a theory of common law negligence. RCW 4.20.010, .020 and .060. The complaint alleged respondent served liquor to the decedent while he was in an obviously intoxicated condition, thereby causing the ensuing death. The trial court granted respondent's motion for summary judgment after concluding no genuine issue of material fact existed and that respondent was entitled to judgment as a matter of law. CR 56(c).

Appellant contends the affidavits submitted in support of and in opposition to the summary judgment motion raise a genuine issue of material fact. Appellant also argues that, as a matter of law, a commercial liquor vendor may be held liable to the estate of a vendee who is fatally injured as the result of consumption of liquor in the vendor's establishment while in an obviously intoxicated condition. We do not reach the merits of appellant's second contention because we hold appellant has failed to establish, by competent evidence, that the decedent was in an obviously intoxicated condition while in respondent's lounge.

Pursuant to CR 56(c), a summary judgment of dismissal may be granted only if the pleadings, affidavits, depositions and admissions on file demonstrate there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Balise v. Underwood, 62 Wash.2d 195, 199, 381 P.2d 966 (1963). In ruling on the motion, the court's function is to determine whether a genuine issue of material fact exists, it is not to resolve an existing factual issue. Thoma v. C. J. Montag & Sons, Inc., 54 Wash.2d 20, 337 P.2d 1052 (1959). A material fact is one upon which the outcome of the litigation depends, in whole or in part. Morris v. McNicol, 83 Wash.2d 491, 494, 519 P.2d 7 (1974). All reasonable inferences from the evidence must be resolved against the movant and considered in the light most favorable to the non-moving party. Barber v. Bankers Life & Cas. Co., 81 Wash.2d 140, 500 P.2d 88 (1972). The motion should be granted only if, from all the evidence, reasonable men could reach but one conclusion. Morris v. McNicol, supra.

In the instant case, the trial court considered the following documents in ruling on the summary judgment motion: the affidavits of the Adams County Alcoholism Program Director and appellant's and respondent's attorneys, as well as the depositions of the lounge bartender, bar manager and cocktail waitress. A careful review of these documents demonstrates appellant has failed to establish that the decedent was in an obviously intoxicated condition at the lounge on January 30, 1976. ¹ The deposition of the lounge bartender indicates he had no specific recollection of the decedent or his level of intoxication on the night of January 30. The deposition of the cocktail waitress states the decedent did not appear intoxicated on January 30, and that he walked and talked in a normal fashion that night. The deposition of the bar manager, Ellen "Kelly" Hill, indicates that the decedent did not manifest any signs of intoxication on the night in question.

Appellant contends, however, that the affidavit of its attorney, Mr. Rubstello, creates an issue as to the decedent's physical condition on January 30. The affidavit states that in a telephone conversation with Ellen "Kelly" Hill prior to the taking of her deposition, she told Mr. Rubstello that the decedent drank more than usual on January 30, and that he was intoxicated and "smashed."

Pursuant to CR 56(e), supporting and opposing affidavits shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence. As we noted in Meadows v. Grant's Auto. Brokers, Inc., 71 Wash.2d 874, 880, 431 P.2d 216 (1967), an attorney is not disqualified from making an affidavit based upon his or her personal knowledge of the facts set forth therein. "(S)uch an affidavit is entitled to the same consideration as that of any other affidavit based upon testimonial knowledge."

Respondent contends Rubstello's affidavit, standing alone, cannot create a genuine issue as to whether the deceased was in an obviously intoxicated condition while in the lounge. We agree. If admissible, Hill's...