Estate of Kelly By and Through Kelly v. Falin, s. 61780-5
| Decision Date | 15 June 1995 |
| Docket Number | Nos. 61780-5,62229-9,s. 61780-5 |
| Citation | 896 P.2d 1245,127 Wn.2d 31 |
| Court | Washington Supreme Court |
| Parties | The ESTATE OF Cary R. KELLY By and Through the Personal Representative, Melody F. KELLY, Raymond Kelly, a minor, Melinda Kelly, a minor, and Lawrence P. Tracy, Guardian ad Litem for the minors, Respondents, v. James Robert FALIN and Jane Doe Falin, husband and wife, doing business as Family Tavern, Appellants. Richard WOLFRAM, Appellant, v. LAHAINA LOUIE'S PUB & CAFE, Respondent. |
Meeks, Morgan & Kirkpatrick, P.S., Steven R. Meeks, Olympia, WA, for appellants Falin.
Thomas S. Olmstead, Kevin L. Gibbs, Seattle, WA, for appellant Wolfram.
Edwards, Sieh, Wiggins & Hathaway, P.S., Carl T. Edwards, Seattle, WA, for respondent Kelly.
Burgess, Fitzer, Leighton & Phillips, P.S., F. Ross Burgess, Tacoma, WA, for respondent Lahaina Louie's Pub.
James Schermer, Michael P. Scruggs, Seattle, WA, amici curiae for respondents on behalf of Restaurant Ass'n of the State of Wash. and Washington State Licensed Beverage Ass'n.
Cary Kelly died in a 1-car accident after leaving Family Tavern. His estate brought a wrongful death action against Family Tavern and its owner James Falin, alleging the tavern continued to serve Cary Kelly even after he was obviously intoxicated. At the close of trial, the jury returned a special verdict finding Kelly 50 percent responsible for his injuries and Family Tavern 50 percent responsible. The court entered a judgment in favor of Kelly's estate for $360,500. Family Tavern appealed to the Court of Appeals, and we granted Plaintiff's motion to transfer the appeal to this court.
In an unrelated incident, Richard Wolfram lost control of his car and suffered injuries to his spinal cord on his way home from Lahaina Louie's Pub & Cafe. Wolfram sued Lahaina Louie's for serving him while he was obviously intoxicated. Lahaina Louie's moved for summary judgment, and the Superior Court for King County granted its motion. Wolfram appealed and we granted Lahaina Louie's motion to transfer the appeal to this court.
These cases were consolidated to allow us to address whether a commercial establishment that serves alcohol to an obviously intoxicated patron is liable if the patron suffers harm as a result. In other words, does a commercial establishment owe a duty of care to obviously intoxicated patrons? Currently, commercial purveyors of alcohol owe a duty both to innocent bystanders injured by obviously intoxicated patrons and to minors. These limited categories
of commercial liability exclude adults who suffer injuries arising from their own intoxication. We hold that a commercial establishment is not liable for injuries sustained by an obviously intoxicated patron.
Cary Kelly left Family Tavern unaccompanied on November 4, 1990, after consuming a considerable quantity of alcohol. He drove nine blocks at high speed, careened across a 4-lane highway, and slammed into a tree with such force the car's engine pushed through the firewall and into the passenger compartment. The impact severed Kelly's aorta, and he died instantly. No one else was injured.
Kelly had spent most of the afternoon drinking beer with his good friends Michael Wemmer and Rocky Fuller. They had gathered at West End Tavern at approximately 2 p.m. to watch a football game on the big screen television. After the game ended, they proceeded to the Family Tavern. They arrived apparently around 4:15 p.m., took a table together, played darts and pool, and drank heavily over the next several hours.
The bartender on duty when they first arrived furnished the men with four or five pitchers of beer before finishing her shift around 6 p.m. Wemmer testified that Kelly became clearly intoxicated during the bartender's shift. His behavior was boisterous and unruly; he was spilling beer, disturbing patrons, and unable to follow simple instructions. Although the bartender became exasperated with Kelly after he mistakenly used the pool rag to wipe up spilled beer, she continued to serve him.
It appears that Kelly left the tavern for a short time, and then returned, just before the bartender finished her shift. For the next 2 hours, Kelly steadily drank as he and his friends finished another four or five pitchers of beer. Kelly grew increasingly intoxicated, slurring his speech and growing unintelligible, knocking over glasses and spilling his beer, arguing loudly with his friends and Fuller left the tavern at approximately 7:30 p.m., after fighting with Kelly over who was the better father. Wemmer departed about a half hour later, expecting Kelly to leave shortly thereafter since he knew Kelly did not have money to purchase beer. Kelly headed home just before 8:20 p.m. and quickly lost control of his car. At the time of the crash, Kelly's blood alcohol content was .31, three times the legal limit. To have reached that level of intoxication, the state toxicologist calculated that Kelly must have consumed between 200 and 240 ounces of beer between 2 p.m. and 8 p.m.
with others, and again using the pool rag to wipe his spilled beer. Nevertheless, the bartender continued to serve him.
On the evening of January 27, 1992, Richard Wolfram purchased two alcoholic beverages upon completing his shift at a bar where he was employed. After consuming these, Wolfram left the bar around 11:15 p.m. and with several of his co-workers headed to Lahaina Louie's Pub & Cafe. One of his co-workers, who served drinks at the bar where Wolfram was employed, stated that Wolfram consumed five beers and four or five shots of Jagemeister during an hour and a half at Lahaina Louie's. She described Wolfram as obviously intoxicated, based on his slurred speech, his shoving match with another patron, and his references to inappropriate personal issues.
At 1:45 a.m., the bartender at Lahaina Louie's gave the last call for drinks. According to another co-worker, Wolfram appeared drunk as he ordered one final beer. When the bar closed, Wolfram tried to sneak the beer out under his coat. The security guard caught him, however, and watched as Wolfram drank the beer before leaving.
As Wolfram drove home, his car veered off the pavement and his right front wheel hit gravel on the road's soft shoulder. At this point, Wolfram lost control of the car. It spun into an embankment and rolled over, injuring
Wolfram's spinal cord. At the time of the accident, Wolfram's blood alcohol content was .22. The spinal cord injury left Wolfram a quadriplegic.
Richard Wolfram and the Estate of Cary Kelly argue that Lahaina Louie's and Family Tavern, respectively, negligently served alcohol to obviously intoxicated patrons, and this negligence resulted in the tragic accidents discussed above. The threshold question in an action for negligence is whether a duty of care exists on the part of the defendant to the complaining party. Christen v. Lee, 113 Wash.2d 479, 488, 780 P.2d 1307 (1989). In the present case, Richard Wolfram and the Estate of Cary Kelly 1 insist that commercial vendors have a legal duty to refuse alcohol to obviously intoxicated patrons, and are liable to patrons who injure themselves as a result of their own drunkenness.
In Washington, the Legislature historically has maintained an active role in allocating responsibility for alcohol abuse and drunk driving. In 1905, the Legislature enacted the "Dramshop Act" which exposed purveyors of intoxicating liquor to liability if the "circumstances [were] sufficient to lead a man of ordinary intelligence to believe that such sale would probably result in intoxication." Former RCW 4.24.100. In 1955, the Legislature repealed the "Dramshop Act". In response, this court adopted the common law rule that "[i]t is not a tort to either sell or give intoxicating liquor to ordinary able-bodied men". Halvorson v. Birchfield Boiler, Inc., 76 Wash.2d 759, 762, 458 P.2d 897 (1969) (quoting 30 Am.Jur. Intoxicating Liquors § 520 (1958)).
While the common law rule indicates that commercial vendors will not be held liable for overserving patrons, there are two exceptions. First, commercial vendors have a duty to avoid providing minors with alcohol, and as a result, may be sued for injuries resulting from a minor's intoxication. Purchase v. Meyer, 108 Wash.2d 220, 737 P.2d 661 (1987); Young v. Caravan Corp., 99 Wash.2d 655, 658, 663 P.2d 834, 672 P.2d 1267 (1983).
Second, an injured bystander may bring a negligence action against a commercial vendor for serving an obviously intoxicated adult. Dickinson v. Edwards, 105 Wash.2d 457, 716 P.2d 814 (1986); Christen v. Lee, 113 Wash.2d 479, 505, 780 P.2d 1307 (1989). Such third party actions generally arise in the context of drunk driving accidents. Christen, at 495, 780 P.2d 1307. A tavern or other commercial vendor may be held liable if it serves alcohol to an obviously intoxicated patron who injures or kills a bystander in a drunk driving accident. Dickinson v. Edwards, supra.
It is an open question whether an individual who loses control of a vehicle after becoming intoxicated at a commercial establishment may seek monetary recovery for his or her own injuries. Barrie v. Hosts of Am., Inc., 94 Wash.2d 640, 642-43, 618 P.2d 96 (1980); Williams v. Kingston Inn, Inc., 58 Wash.App. 348, 356 n. 3, 792 P.2d 1282 (1990). The Patrons would have us believe that permitting a cause of action under these circumstances is the logical extension of the exceptions to the common law rule. We disagree. The common law rule rejects the notion that intoxicated adults can hold commercial vendors liable for furnishing them alcohol. Imposing a negligence standard against commercial vendors for an intoxicated patron's self-inflicted injuries would be the final step in dismantling the common law rule.
Moreover, this court has "repeatedly refused" to impose broader exceptions to the common law rule. Christen, 113...
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