Callan v. O'Neil

• Decision Date: 08 May 1978
• Docket Number: No. 5512-44388-I,5512-44388-I
• Citation: 20 Wn.App. 32,578 P.2d 890
• Parties: Marjorie I. CALLAN, Individually, Marjorie I. Callan, Administratrix of the Estate of Robert Leo Callan, Appellant, v. Mark O'NEIL et ux., d/b/a Marty's Tavern and Allen Lillehaug, et ux., Respondents, Edward Lynn Lynch, Edward Robert Lynch and Jane Doe Lynch, his wife, Defendants.
• Court: Washington Court of Appeals

Page 32

20 Wn.App. 32

578 P.2d 890

Marjorie I. CALLAN, Individually, Marjorie I. Callan Administratrix of the Estate of Robert Leo Callan, Appellant, v. Mark O'NEIL et ux., d/b/a Marty's Tavern and Allen Lillehaug, et ux., Respondents Edward Lynn Lynch, Edward Robert Lynch and Jane Doe Lynch his wife, Defendants.

No. 5512-44388-I.

Court of Appeals of Washington,Division 1.

May 8, 1978.

As Corrected May 26, 1978.

Edwards, Wetherall & Barbieri, Charles K. Wiggins, Malcolm L. Edwards, Joseph A. Barrecca, Seattle, for appellant.

Merrick, Hofstedt & Lindsey, Thomas V. Harris, Seattle, for O'neil.

Legal Services Center, Jeff Spence, Seattle, for Lillehaug.

WILLIAMS, Judge.

This is an action brought by Marjorie I. Callan, individually and as administratrix of the Estate of Robert Leo Callan, against Mark O'Neil and wife, d/b/a Marty's Tavern, and Allen Lillehaug and wife, to recover damages for the death of Robert Leo Callan. The cause was dismissed by summary judgment, and this appeal by Mrs. Callan followed. We reverse.

The essential facts are that on June 18, 1974, in Seattle, Robert, the 16-year-old son of Mrs. Callan, visited Marty's Tavern in the company of two other youths, both 18 years of age, where they were served beer. When finished with the beer, one of the boys, Edward L. Lynch, Jr., drove away from the tavern in his parents' car with the other two as passengers. An accident occurred, and Robert was killed.

In return for a $47,000 settlement, Mrs. Callan executed a "Release of All Claims" against Edward Lynch, his parents, and their insurance company. ¹ Mrs. Callan then commenced this action against the tavern operator and his employee on the theory that they were negligent as a matter of law because of the statutes, ordinances, and regulations prohibiting the serving of intoxicants to persons under the age of 21.

Two issues are presented: The first is whether the release discharges the tavern people from liability for the harm, and the other is whether serving beer to minors in violation of the law constitutes negligence per se.

The effect of the release of one tortfeasor depends upon the classification of the tortfeasors: i. e., whether they are "joint," " concurrent," or "successive." Litts v. Pierce The rule is that a release of one concurrent tortfeasor does not release other concurrent tortfeasors unless it can be established as a fact

County, 5 Wash.App. 531, 488 P.2d 785 (1971). The severe rule that release of one tortfeasor releases all, regardless of an express reservation in the release that it shall not apply to other tortfeasors, has been limited to those who act in concert in producing the damage (joint tortfeasors). White Pass Co. v. St. John, 71 Wash.2d 156, 427 P.2d 398 (1967); DeNike v. Mowery, 69 Wash.2d 357, 418 P.2d 1010 (1966). Lynch and the tavern people did not act in concert and their relationship is not that of original tortfeasor and successive or subsequent tortfeasor. See DeNike v. Mowery, supra. Rather, it is alleged that their independent acts united in causing a single injury, so Lynch and the tavern people are, if anything, concurrent tortfeasors.

either (1) that the injured party intended to release all tort-feasors or (2) that the release constituted satisfaction of the obligation.

Hawaiian Ins. & Guar. Co. v. Mead, 14 Wash.App. 43, 57, 538 P.2d 865, 873 (1975). ² Because reasonable minds could differ as to whether Mrs. Callan intended to release all tortfeasors, and whether the $47,000 constituted full satisfaction for the injury, the question of the release is one of fact to be decided in the trial court.

It is argued that Christianson v. Fayette R. Plumb, Inc., 7 Wash.App. 309, 499 P.2d 72 (1972), applies. That case is not in point because it involved a covenant not to sue and was decided by adoption of subsection (2) of the Restatement of Torts § 885 (1939), which is: "A covenant not to sue one tortfeasor for a harm does not discharge any other liable for the harm."

The second question concerns the proof of the tavern people's negligence because of their alleged violation of the following statutes:

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, in part.

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.

(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; . . .

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. In addition, several ordinances and a regulation prohibit the sale or furnishing of liquor to minors. King County Code § 12.80.020 (1953); Seattle City Code §§ 12.40.120, .140, .150 and .160 (1967); WAC 314-16-150.

In order to prove actionable negligence, Mrs. Callan must establish (1) the existence of a duty; (2) a breach thereof; and (3) that the breach was a proximate cause of the harm. There is conflicting evidence, requiring a trial, as to the proximate cause of the accident and whether the boys were furnished intoxicating liquor; the question presented, therefore, is the existence of a duty. As a general proposition, everyone has a duty to exercise ordinary care.

However, if legislatures proscribe certain conduct by statute, that establishes the duty, i. e., the standard of care, and a violation of the statute may be negligence per se. Bayne v. Todd Shipyards Corp., 88 Wash.2d 917, 568 P.2d 771 (1977); Bissell v. Seattle Vancouver Motor Freight, Ltd., 25 Wash.2d 68, 168 P.2d 390 (1946). See generally, W. Prosser, The Law of Torts § 36 (4th ed. 1971).

In Hulse v. Driver, 11 Wash.App. 509, 524 P.2d 255 (1974), Division III of this court, relying upon Halvorson v. Birchfield Boiler, Inc., 76 Wash.2d 759, 458 P.2d 897 (1969), decided that the furnishing of an intoxicant to an able-bodied minor at a social event, although a criminal violation, did not automatically create a cause of action against the furnisher for a tort committed by the minor. Hulse is restricted to a purely social setting, and, although persuasive, is not directly in point.

In Halvorson v. Birchfield Boiler, Inc., supra, the Supreme Court decided that an employer who furnishes liquor at an office party to an able-bodied employee who subsequently, in an inebriated condition, injured a third party, is not liable to that third party. The opinion distinguishes between the commercial sale and the social furnishing of intoxicants and recognizes a duty not to furnish liquor to a person who, through drinking, is in such a state of helplessness as to be deprived of his willpower or responsibility for his behavior. Accord, Coulter v. Superior Court, Cal., 577 P.2d 669, 145 Cal.Rptr. 534 (filed April 26, 1978). In a quotation from Rappaport v. Nichols, 31 N.J. 188, 205-06, 156 A.2d 1, 10, 75 A.L.R.2d 821 (1959), cited with approval, the following appears:

It must be borne in mind that the plaintiff's complaint has no relation to service by persons not engaged in the liquor business or to lawful sales and service by liquor licensees, or to sales by reasonably prudent licensees who do not know or have reason to believe that the patron is a minor or is intoxicated when served; the allegations of the complaint are expressly confined to tavern keepers' sales and service which are unlawful and negligent. Liquor licensees, who operate their businesses by way of (Italics ours.)

privilege rather than as of right, have long been under strict obligation not to serve minors and intoxicated persons and if, as is likely, the result we have reached in the conscientious exercise of our traditional judicial function substantially increases their diligence in honoring that obligation then the public interest will indeed be very well served.

Halvorson recognizes that there may be liability on a theory of negligence where a tavern keeper sells liquor to an intoxicated person or a minor. In the first instance, the duty not to serve the intoxicated person is established by the standard of ordinary care; in the second instance, the duty not to serve the minor is established by a standard set by statutes, ordinances, or regulations. Kness v. Truck Trailer Equip. Co., 81 Wash.2d 251, 501 P.2d 285 (1972).

Until recently, the state legislature has been so concerned with the sale of liquor to minors that it designated that act a felony. RCW 66.44.320. The offense was changed to a gross misdemeanor in the Laws of 1973, 1st Ex.Sess., ch. 209, § 19, p. 1621. RCW 66.44.180. Although the age of majority was reduced for most purposes to 18 in 1971, RCW 26.28.010, the prohibition against supplying liquor to persons under 21 has remained. RCW 26.28.080. There is no question but that those persons, those under 21, have been established as a protected class under the Washington State Liquor Act, Title 66, RCW, which is an exercise of police power

for the protection of the welfare, health, peace, morals, and safety of the people of the state,...