Estate of Templeton v. Daffern

• Decision Date: 07 January 2000
• Docket Number: No. 23111-5-II.,23111-5-II.
• Citation: 98 Wash.App. 677,990 P.2d 968
• Parties: ESTATE OF BRUCE TEMPLETON, by and through its personal representative, Gloria TEMPLETON; Gloria Templeton; and the Estate of Travis P. Templeton, by and through its personal representative, Gloria Templeton, Appellant, v. Stan DAFFERN and Jean Daffern, husband and wife; Dan Daffern and "Jane Doe" Daffern, husband and wife, Rick Hanson and "Jane Doe" Hanson, husband and wife; and Mike Vaardahl and "Jane Doe" Vaardahl," husband and wife, Respondents, Jim Collens and Karen Collens, husband and wife; Lisa Scheffler and "John Doe" Scheffler, wife and husband, Defendants.
• Court: Washington Court of Appeals

990 P.2d 968

98 Wash.App. 677

ESTATE OF BRUCE TEMPLETON, by and through its personal representative, Gloria TEMPLETON; Gloria Templeton; and the Estate of Travis P. Templeton, by and through its personal representative, Gloria Templeton, Appellant, v. Stan DAFFERN and Jean Daffern, husband and wife; Dan Daffern and "Jane Doe" Daffern, husband and wife, Rick Hanson and "Jane Doe" Hanson, husband and wife; and Mike Vaardahl and "Jane Doe" Vaardahl," husband and wife, Respondents, Jim Collens and Karen Collens, husband and wife; Lisa Scheffler and "John Doe" Scheffler, wife and husband, Defendants.

No. 23111-5-II.

Court of Appeals of Washington, Division 2.

January 7, 2000.

Reconsideration Denied February 3, 2000.

Harold B. Field, Murray Dunham Murray, Seattle, William John Murphy, Federal Way, Klaus Otto Snyder, Sumner, for Respondents.

Brett Andrews Purtzer, Law Offices of Monte Hester, Tacoma, for Appellant.

Mike Vaardahl, Orting, Pro Se.

MORGAN, J.

We are asked to decide whether a social host who does not furnish alcohol to a minor, but who permits the minor to consume on the host's premises alcohol obtained elsewhere, owes to the minor a common law duty of reasonable care. Answering no, we affirm the trial court's grant of summary judgment to the defendants.

In September 1994, Stan and Jean Daffern owned property improved with a house and nearby cabin. They lived in the house. Their son Dan and his roommate, Mike Vaardahl, lived in the cabin.¹ The house and cabin are served by the same driveway.

Early in the evening of September 9, 1994, Dan and Mike left the cabin to attend separate engagements. It is uncontroverted that there was no alcohol in the cabin at that time.

Starting about 11 p.m. and extending into the wee hours, the cabin was the site of a teenage drinking party. "[A]t any given time," according to the plaintiffs, "there were approximately 10 to 15 cars in the driveway and 20 to 25 people attending the party, most of whom were minors. The music was extremely loud, people were coming and going and cars were driving in and out of the driveway all night."²

Stan and Jean were in the main house during the party. According to them, they did not know the party was taking place. According to the plaintiffs, they must have known the party was taking place. In any event, neither of them took any action to stop or control the party.

Dan and Mike returned to the cabin while the party was in progress.³ Although neither brought any alcohol, each joined in the party and consumed alcohol that others had brought.⁴

Travis Templeton, age 16, was one of those who attended the party. Despite his minority, he consumed an unknown amount of alcohol.⁵ He left the party driving a borrowed car, and shortly thereafter crashed into a tree. Tragically, he was killed.

The plaintiffs filed a negligence complaint against Stan, Jean and Dan Daffern, and also against Vaardahl. The defendants moved for summary judgment, arguing that a social host has no duty under the circumstances present here. Relying on RCW 66.44.270(1), the plaintiffs responded that a social host has a statutory duty not to permit a minor "to consume liquor on his or her premises or on any premises under his or her control." The trial court granted the defendants' motion, and the plaintiffs filed this appeal.

The common law of negligence controls civil liability for alcohol-related activity.⁶ Although Washington once had a Dramshop Act,⁷ it repealed that act in 1955.⁸

The common law of negligence distinguishes between the commercial vendor and the social host. The commercial vendor owes a duty of reasonable care to the minor but not the adult vendee;⁹ to the minor vendee's minor transferee;¹⁰ and to the third person foreseeably injured by a minor vendee,¹¹ a minor vendee's minor transferee,¹² or an over-served adult vendee.¹³ The social host owes a duty of reasonable care to a minor to whom the host furnishes alcohol,¹⁴ but not to third persons injured by the minor¹⁵ or the minor's transferee.¹⁶

To date, the common law of negligence has not provided that a social host can be negligent merely by permitting a minor to consume, on the host's premises, alcohol that the host did not furnish. The plaintiffs, however, urge us to take that step.

At the root of any common law negligence action is the common law duty to exercise reasonable care¹⁷ (or, in alternative terms, the common law duty to exercise at least as much care as a reasonable person would exercise under the same or similar circumstances).¹⁸ This duty is breached when a defendant fails to exercise ordinary care¹⁹ (or, in alternative terms, when a defendant fails to exercise as much care as a reasonable person would exercise under the same or similar circumstances).²⁰ Any such failure is "negligence."²¹

A common law negligence action can involve a statutory duty as well a common law one, but only if the statute specifying such duty meets the four-part test in RESTATEMENT (SECOND) OF TORTS § 286 (1965).²² That test requires that the statute's purposes be (1) to protect a class of persons that includes the person whose interest is invaded; (2) to protect the particular interest invaded; (3) to protect that interest against the kind of harm that resulted; and (4) to protect that interest against the particular hazard from which the harm resulted.²³

Before 1986, a plaintiff could predicate liability on either the breach of a common law duty of reasonable care, or the breach of an applicable statutory duty.²⁴ In other words, a plaintiff could recover by showing a failure to exercise ordinary care, proximate cause and damages;²⁵ or, alternatively, by showing the violation of an applicable statute, proximate cause and damages.²⁶ When a plaintiff sought to predicate liability on the breach of a duty imposed by statute, he or she was relying on "the doctrine of negligence per se."²⁷

In 1986, the legislature enacted RCW 5.40.050. That statute provides:

A breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence; however, any breach of duty as provided by statute, ordinance, or administrative rule relating to electrical fire safety, the use of smoke alarms, or driving while under the influence of intoxicating liquor or any drug, shall be considered negligence per se.

RCW 5.40.050 did not change the Restatement's four-part test for determining whether a statutory duty applies in a negligence case²⁸ —RCW 5.40.050 assumes the existence of a statutory duty, as well as a breach of that duty—but it did change the legal effect of breaching a statutory duty that has been determined to apply. By stating that the breach of a statutory duty is not negligence, but only evidence of negligence,²⁹ it provided, essentially, that a plaintiff must always show the existence and breach of the common law duty of reasonable care, even though the plaintiff can show the existence and breach of an applicable statutory duty as evidence of—i.e., as a factor indicating—a breach of the common law duty. Concomitantly, it abrogated the pre-1986 idea that a plaintiff could recover by showing either the applicability and breach of a statutory duty, or the existence and breach of the common law duty of reasonable care. In short, it made the breach of an applicable statutory duty admissible but not sufficient to prove negligence, and in that way abolished the doctrine of "negligence per se."³⁰

Necessarily, these concepts governed the decision in Hansen v. Friend, the only Washington case that imposes a common law duty of ordinary care on a social host's handling of alcohol.³¹ The actors in Hansen were Keith Hansen, age 15, Robert Friend, age 21, and Robert Petty, age 21. On April 24, 1987, Hansen obtained liquor at his parents' house and took it to Friend's house. Hansen and Friend drank all night and into the next morning. Petty came over during the morning, with two or three half-cases of beer (24-36 bottles), and the three set out to go camping at a lake. On the way, Perry bought another 6-pack of beer (bringing the total to 30-42 bottles of beer). Around 6:30 p.m., they arrived at the lake and made camp. During the evening, they ate and drank beer. By 11:30 p.m., they had apparently finished the beer, for Hansen went to steal more. While away from the camp, he fell in the lake and drowned. When his mother later brought a wrongful death action against Friend and Petty, the trial court granted a summary judgment of dismissal, but the Supreme Court reversed.

Expressly, the Supreme Court found that the defendants had violated a statutory duty. RCW 66.44.270(1) provided in part that "[i]t is unlawful for any person to sell, give, or otherwise supply liquor to any person under the age of twenty-one years."³² The statute met the four-part Restatement test.³³ Therefore, the defendants had a statutory duty not to furnish alcohol to a minor, which they had violated by furnishing alcohol to Hansen.

Necessarily, the Supreme Court also found that the defendants had violated a common law duty to exercise reasonable care. The events at issue occurred in April 1987. By then, RCW 5.40.050 provided, subject to exceptions not pertinent here, that "[a] breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence[.]" A breach of a duty imposed by statute cannot be evidence of negligence unless negligence is an issue in the case, and negligence cannot be an issue in the case unless the defendant owes a common law duty of reasonable care.³⁴ Before the Supreme Court could reverse, then, it had to conclude that the defendants owed a common law duty to exercise reasonable care, and that a jury could find that the defendants had failed to exercise such care in light of all the circumstances. If the...