Baughn v. Malone, 9351-7-I

• Decision Date: 10 January 1983
• Docket Number: No. 9351-7-I,9351-7-I
• Citation: 656 P.2d 1118,33 Wn.App. 592
• Parties: Richard BAUGHN, Appellant, v. John Michael MALONE, a single person, Defendant, Kenneth Hemmings and Darlene Hemmings, husband and wife, d/b/a Firwood Tavern; George Haller and Annabelle Haller, husband and wife, d/b/a Firwood Tavern; and Mark Harper and "Jane Doe" Harper, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 592

33 Wn.App. 592

656 P.2d 1118

Richard BAUGHN, Appellant, v. John Michael MALONE, a single person, Defendant Kenneth Hemmings and Darlene Hemmings, husband and wife d/b/a Firwood Tavern; George Haller and Annabelle Haller husband and wife, d/b/a Firwood Tavern; and Mark Harper and "Jane Doe" Harper, husband and wife, Respondents.

No. 9351-7-I.

Court of Appeals of Washington,

Division 1.

Jan. 10, 1983.

Rehearing Denied Feb. 4, 1983.

John C. Kouklis, Tacoma, for appellant.

F. Ross Burgess, Danial Hannula, Tacoma, for respondents.

SCHOLFIELD, Judge.

Richard Baughn appeals a judgment rendered on a jury verdict for defendants Kenneth Hemmings and George Haller, the owners of Firwood Tavern, and Mark Harper, the security guard for the tavern (hereinafter referred to as defendants). Baughn assigns as error certain jury instructions given and refused, the trial judge's finding that Baughn was contributorily negligent as a matter of law, and the trial judge's failure to grant Baughn's motion for a mistrial. We reverse and remand for a retrial.

Baughn suffered serious physical injuries on November 29, 1975, when an automobile in which he was a passenger was driven off the road by the driver, John Michael Malone. At the time of the accident, Baughn was 23 years of age, and Malone was 19. The evidence was virtually conclusive that Malone was under the influence of alcohol at the time of the accident.

There was substantial evidence of the following facts. From 10 p.m. or 10:30 p.m. until midnight or 12:30 a.m. Baughn, Malone, and their friend, James Hamilton, were in the Firwood Tavern drinking beer. None of the young men were requested to produce identification when they entered the tavern. Hamilton and Baughn bought beer for Malone, knowing he was under 21 years of age. At least once during the evening, Malone rested his head and arms on the table, and a tavern employee requested that he refrain from doing so. All three were drunk when they left the tavern. Baughn left the tavern before his friends, seated himself in the front passenger seat of Malone's Volkswagen and went to sleep. Shortly thereafter, Malone came out and took the driver's seat and Hamilton sat in the rear seat. While Baughn slept, Malone drove away from the tavern. The car had traveled less than a mile from the tavern when it missed a curve and went over a bank at an estimated 40 to 45 m.p.h.

Baughn alleged violation of the following statutes by the defendants:

Every person who:

* * *

(4) Shall sell or give, or permit to be sold or given to any person under the age of twenty-one years any intoxicating liquor, ...

* * *

Shall be guilty of a gross misdemeanor.

RCW 26.28.080(4), in part.

No person shall sell any liquor to any person apparently under the influence of liquor.

RCW 66.44.200.

Except in the case of liquor given or permitted to be given to a person under the age of twenty-one years by his parent or guardian for beverage or medicinal purposes, or administered to him by his physician or dentist for medicinal purposes, no person shall give, or otherwise supply liquor to any person under the age of twenty-one years, or permit any person under that age to consume liquor on his premises or on any premises under his control.

RCW 66.44.270, in part.

Any person who invites a minor into a public place where liquor is sold and treats, gives or purchases liquor for such minor, or permits a minor to treat, give or purchase liquor for him; or holds out such minor to be over the age of twenty-one years to the owner of the liquor establishment shall be guilty of a misdemeanor.

RCW 66.44.300.

(1) It shall be a misdemeanor,

(a) To serve or allow to remain on the premises of any tavern any person under the age of twenty-one years;

(b) For any person under the age of twenty-one years to enter or remain on the premises of any tavern;

Former RCW 66.44.310, in part.

Every person who shall sell any intoxicating liquor to any minor shall be guilty of a violation of Title 66 RCW.

RCW 66.44.320.

Baughn contends that the jury was improperly instructed on the issue of the defendants' liability. The principal instruction on this issue was Instruction 12, which read as follows:

An establishment which serves alcoholic beverages has no duty to guarantee the safety of its patrons. The establishment does, however, owe a duty to exercise reasonable care not to serve intoxicating beverages to an individual whom it knows, or in the exercise of reasonable care should have known, was so intoxicated as to no longer be held responsible for his conduct, and that furnishing such alcoholic beverages to an individual in that condition posed a foreseeable risk of harm to others.

Such an establishment also has a duty to exercise reasonable care to prevent individuals who are under the age of twenty-one from obtaining alcohol on its premises.

It is for you the jury to determine what care a reasonably careful establishment operator would take under such circumstances as you find existed in this case.

Failure to exercise that care would be negligence on the part of the establishment owner.

Baughn's exception to Instruction 12 stressed its failure to instruct the jury that furnishing intoxicating liquor to a minor or violation of any of the statutory duties is negligence per se. The instruction speaks of preventing a person under the age of 21 from obtaining alcohol on the premises, but does not address the violation of law that is involved if a person under the age of 21 is allowed to remain on the premises.

We agree that Instruction 12 did not correctly state the law and that the error was prejudicial, requiring a new trial on the issue of the defendant tavernkeepers' liability.

The instruction does not advise the jury that violation of one or more of the applicable statutes is negligence per se. It was error to instruct that a tavernkeeper could be found liable only if he failed to exercise reasonable care to avoid serving intoxicating beverages to an intoxicated person and to prevent individuals under 21 years of age from obtaining alcohol while on defendant's premises.

Callan v. O'Neil, 20 Wash.App. 32, 578 P.2d 890 (1978), holds that persons under 21 years of age have been established as a protected class by the Legislature and that violation of a statute designed to serve that protective objective is negligence per se.

Callan also holds that a tavern owner is entitled to show that he took reasonable precautions to determine whether his customers were all over 21 years of age and that the violation of a statute is not negligence when due to some cause beyond the violator's control and which reasonable prudence could not have guarded against.

A plaintiff establishes a prima facie case of negligence per se when he proves the violation by defendant of an applicable statute. The defendant may then show that the violation was due to some cause beyond his control, thus justifying the violation. Justification can be compared to an affirmative defense or plea of avoidance. The law places the burden of proof in such cases on the party relying upon it.

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