Dickinson v. Edwards
| Decision Date | 27 March 1986 |
| Docket Number | No. 50778-3,50778-3 |
| Citation | 716 P.2d 814,105 Wn.2d 457 |
| Court | Washington Supreme Court |
| Parties | William M. DICKINSON, Petitioner, v. Ersel C. EDWARDS, et ux., et al., Defendants, Kaiser Aluminum & Chemical Corp., a Delaware Corp., et al., Edward H. Pietz and Tod E. McClasky, Oregon partnership, d/b/a Spokane Red Lion Motor Inn; Edward H. Pietz and Jane Doe Pietz, husband and wife; Tod E. McClasky and Jane Doe McClasky, husband and wife, Respondents. En Banc |
Paine, Hamblen, Coffin & Brooke, James Kalamon, Diane Hermanson, Spokane, for petitioner.
Winston & Cashatt, Meriwether Williams, Spokane, for Kaiser Aluminum & Chemical Corp.
Turner, Stoeve, Gagliardi & Goss, Gail Holden, J. Scott Miller, Spokane, for Spokane Red Lion Motor Inn.
This case is an appeal from a summary judgment dismissing an action against Spokane Red Lion Motor Inn (Red Lion Inn) and Kaiser Aluminum & Chemical Corporation (Kaiser), for negligent furnishing and serving of alcoholic beverages to a Kaiser employee attending a banquet at the Red Lion Inn and against Kaiser on the basis of vicarious liability for the negligent action of the Kaiser employee. We reverse the Court of Appeals, Dickinson v. Edwards, 37 Wash.App. 834, 682 P.2d 971 (1984), and remand for trial.
On June 22, 1979, the plaintiff was severely injured when the motorcycle he was driving was struck by a car driven up the wrong way on a freeway off ramp by Ersel C. Edwards. Mr. Edwards was cited for driving while intoxicated. Plaintiff subsequently sued Mr. Edwards, Mr. Edwards' employer, Kaiser, and the Red Lion Inn.
Pretrial discovery revealed that on the evening of the accident, Mr. Edwards had attended a banquet provided by Kaiser to honor its long term employees. The banquet was held at the Red Lion Inn. At the banquet, Kaiser provided not only dinner, but also champagne, wine and mixed drinks. Kaiser paid for the use of the facilities, service and all of the food and beverages. All of the expenses were deducted by Kaiser on its federal income tax return as a business expense. The banquet order stated that the servers were to "keep the glasses filled." It is unclear from the record whether this was a direction from the Kaiser employee who arranged the banquet or whether it originated with a Red Lion Inn employee.
In his deposition, Mr. Edwards stated that he arrived at 6:50 p.m. and by the time dinner was over at 8:30 p.m. he had consumed at least 10 drinks (Black Velvet or Canadian Club on the rocks). Mr. Edwards stated that he continued to drink at a slightly slower pace until he left the banquet at 10:20 p.m. When Mr. Edwards left the banquet he was proceeding toward the Kaiser plant in order to work his night shift. The accident occurred at approximately 10:25 p.m.
The depositions of two Kaiser employees were available to the trial court. Both employees stated that Mr. Edwards did not appear intoxicated when they had spoken with him between 9 and 9:30 p.m. One of the employees, the head of the Kaiser plant, said that the banquet was a voluntary social function for the employees.
Plaintiff submitted the affidavit of the officer who investigated the accident. The officer approached Mr. Edwards at the scene of the accident at approximately 10:30 p.m. He stated that Mr. Edwards was unsteady on his feet, had bloodshot eyes and a flushed face, and smelled of alcohol. Mr. Edwards failed to perform physical tests to the officer's satisfaction. All of these factors lead to the officer's conclusion that Mr. Edwards was "obviously intoxicated". A Breathalyzer test given 1 hour later indicated that Mr. Edwards had a .17 percent blood alcohol reading.
No depositions of the Red Lion Inn staff were submitted by either party. An instruction sheet prepared by a Red Lion Inn employee indicates that all drinks were to be "hosted", that is, served by a Red Lion Inn waitress or waiter and paid for by Kaiser.
Kaiser's and Red Lion Inn's motions for summary judgment were granted. The Court of Appeals affirmed and plaintiff appeals. Only Red Lion Inn and Kaiser are parties to this appeal.
Plaintiff first premises liability on the theory that Kaiser and the Red Lion Inn were negligent in furnishing alcohol to an obviously intoxicated person. In 1969, Washington adopted the general common law rule of nonliability for furnishing intoxicants to able-bodied persons. Halvorson v. Birchfield Boiler, Inc., 76 Wash.2d 759, 458 P.2d 897 (1969). In Halvorson, the court recognized that some exceptions to the general rule might exist and since then an action has been recognized where the liquor is furnished to persons who are obviously intoxicated, helpless, or in a special relationship to the furnisher of the intoxicants. Young v. Caravan Corp., 99 Wash.2d 655, 663 P.2d 834, 672 P.2d 1267 (1983); Wilson v. Steinbach, 98 Wash.2d 434, 656 P.2d 1030 (1982). In recognizing this cause of action, the court's analysis of proximate cause changed from "the drinking of the liquor is the proximate cause of the injury" to "the furnishing of the liquor is the proximate cause of the injury."
Summary judgment is appropriate under this rule if the pleadings, affidavits, and depositions before the trial court demonstrate that there is no genuine factual issue as to whether the drinker was obviously intoxicated when he was last furnished liquor. CR 56(c); Wilson, at 437, 656 P.2d 1030; Shelby v. Keck, 85 Wash.2d 911, 541 P.2d 365 (1975). On review of the dismissal by summary judgment, in this case, we must accept as verities each of the affidavits and deposition testimony and must consider all facts submitted and all reasonable inferences therefrom in the light most favorable to the plaintiff. Young, 99 Wash.2d at 657, 663 P.2d 834. An inference is " '[a] process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted.' " Shelby, 85 Wash.2d at 914-15, 541 P.2d 365 (citing Black's Law Dictionary 917 (4th ed. 1968)). It is not the court's function to resolve existing factual issues nor can the court resolve a genuine issue of credibility such as is raised by reasonable contradictory or impeaching evidence. Barrie v. Hosts of Am., Inc., 94 Wash.2d 640, 618 P.2d 96 (1980); Balise v. Underwood, 62 Wash.2d 195, 381 P.2d 966 (1963); Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944).
In the present case, the trial court found that based on the materials before it, there was not evidence upon which to base a material question of fact as to whether Mr. Edwards was obviously intoxicated, helpless, or unable to exercise free will in choosing to drink at the time that he was served liquor at the banquet. The Court of Appeals, in affirming the trial court, did not consider the statement of the officer who observed Mr. Edwards 10 minutes after he left the banquet, nor did it consider the evidence of the amount of liquor Mr. Edwards consumed at the banquet. Instead, the court considered only the affidavits of the Kaiser employees at the banquet and concluded that no factual issue was present as to Mr. Edwards' obvious intoxication when last served at the banquet.
In ignoring the additional evidence, the Court of Appeals relied on an incorrect interpretation of the rule set forth in Wilson v. Steinbach, supra, and cases cited therein. This court stated that
[t]he settled rule in this state as to actions based on the Halvorson line of cases is that a person's sobriety must be judged by the way she appeared to those around her, not by what a blood alcohol test may subsequently reveal.
Wilson, 98 Wash.2d at 439, 656 P.2d 1030. The line of cases which established this rule was concerned primarily with the use of evidence from which an inference of the obviousness of intoxication at the time of service could not properly have been drawn. The court in Wilson v. Steinbach, supra, Shelby v. Keck, supra, and Barrie v. Hosts of Am., Inc., supra, was concerned with the use of the blood alcohol content to prove that the drinker's intoxication was obvious when last served. The Barrie court concluded that the obviousness of the drinker's intoxication could not be inferred from a .29 percent blood alcohol content when the tortfeasor's whereabouts were unaccounted for during the 2 hours before the accident. Barrie, 94 Wash.2d at 643 n. 1, 618 P.2d 96.
In Shelby v. Keck, supra, the court was concerned that the use of the blood alcohol reading would lead to an application of a theory of strict liability against one who furnished liquor whenever a patron commits a tort while intoxicated. The Shelby court concluded that the blood alcohol content, as evidence of intoxication at the time of the accident, did not raise an inference that the intoxicated tortfeasor was obviously intoxicated when served, when the only other evidence is testimony of those who observed the tortfeasor firsthand and indicated that he was not obviously intoxicated. In Wilson v. Steinbach, supra, the court similarly concluded that the evidence of a .19 percent blood alcohol content did not raise an inference of obvious intoxication when the only firsthand observers before the drinker's death testified she did not appear intoxicated.
These three cases are indicative of the court's concern that blood alcohol content be used only as evidence of intoxication at the time of the accident and not as evidence of the obviousness of intoxication at the time of alcohol service. When the obviousness of intoxication is at issue, firsthand observations and other circumstances from which such obviousness can be inferred are most valuable to the court. Therefore, while the Court of Appeals was correct in not considering the Breathalyzer test results as proper evidence in this case, it erred in failing to consider the statement of the officer and the amount of alcohol furnished by the Red Lion Inn...
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