Faust v. Albertson
| Decision Date | 16 July 2009 |
| Docket Number | No. 81356-6.,81356-6. |
| Citation | 222 P.3d 1208,167 Wash.2d 531 |
| Parties | Bianca FAUST, individually and as guardian, of Gary C. Faust, a minor, and Bianca Celestine Mele, Bryan Mele, Beverly Mele, and Albert Mele, Petitioners, v. Mark ALBERTSON, as Personal, Administrator for the Estate of Hawkeye Kinkaid, deceased, Defendant, Bellingham Lodge, Loyal Order of Moose, Inc., Alexis Chapman, Respondents, Moose International, Inc., John Does (1-10) (fictitious names of unknown individuals and/or entities) and ABC Corporations (1-10) (fictitious names of unknown individuals and/or entities), Defendants. |
| Court | Washington Supreme Court |
Philip Albert Talmadge, Emmelyn Hart-Biberfeld, Talmadge/Fitzpatrick, Tukwila, WA, Steven John Chance, Attorney at Law, Bellingham, WA, for Petitioners.
Russell Charles Love, Thorsrud Cane & Paulich, William Edward Fitzharris Jr., Preg O'Donnell & Gillett PLLC, Seattle, WA, Paul V. Esposito, Clausen Miller, Chicago, IL, for Respondents.
Deborra E. Garrett, Zender Thurston PS, Bellingham, WA, Leslie Moore, Irving, TX, for Amicus Curiae Mothers Against Drunk Driving.
George M. Ahrend, Dano Gilbert & Ahrend PLLC, Moses Lake, WA, Bryan Patrick Harnetiaux, Spokane, WA, for Amicus Curiae Washington State Association for Justice Foundation.
¶ 1 Commercial sellers of alcoholic beverages may be liable for damages to a third party suffered at the hands of a drunk driver on a theory of negligent overservice of a person apparently under the influence of alcohol. This case calls for examination and clarification of the evidence necessary to properly establish a triable issue of fact regarding negligent overservice under RCW 66.44.200(1).
¶ 2 Hawkeye Kinkaid died the night his car struck the car driven by Bianca Faust. Prior to the accident, Kinkaid
spent most of the afternoon with his girlfriend, Alexis Chapman, and went with her to the Bellingham Moose Lodge at 4:30 p.m. Shortly after Kinkaid left the lodge, he drove his car across the center line of La Bounty Road where it struck Faust's vehicle. The force of the collision injured Faust and her passengers and rendered one passenger paraplegic.
¶ 3 While at the lodge, Kinkaid was served alcohol by Chapman. Evidence submitted at trial indicated that Kinkaid had not been drinking before his arrival at the lodge. According to statements by Chapman to others, prior to the accident Kinkaid had been drinking for a prolonged period of time, had become belligerent and argumentative with her, and had become too "tipsy" to be driving. 2 Verbatim Report of Proceedings (VRP) at 265. In addition, Chapman later told a friend of Kinkaid's that he was so drunk that night that she had to cut him off.
¶ 4 Kinkaid was intoxicated at the time of the accident. A toxicology report showed that Kinkaid's blood alcohol content (BAC) was .14 one hour after the accident. Tests performed during Kinkaid's autopsy revealed a BAC of .09, still above the legal limit after loss of blood and replacement of some fluids. Kinkaid's stomach contained undigested alcohol. According to Faust's forensic consultant, Kinkaid had likely imbibed 21 12-ounce beers or 30 ounces of 80-proof alcohol and probably achieved what he estimated was a .32 BAC at the time of the collision.
¶ 5 Faust sued Kinkaid's estate, the lodge, and Chapman, claiming negligence on a variety of theories. In 2003, witness Ron Beers had signed a declaration under penalty of perjury. In 2004, Beers was deposed, again under penalty of perjury, and gave conflicting accounts of the events on the night of the accident. By the time of trial, Beers lived outside of Clallam County so the trial court read his deposition testimony to the jury. The trial court stated:
Part of the deposition testimony concerns a written statement given by the witness to the Plaintiffs' investigator which was attached to the deposition. This instruction concerns that written statement. If you give any consideration to the written statement, you may only consider it in deciding what weight and credibility to give Mr. Beers' deposition testimony, and for no other purpose.
¶ 6 At trial, the court allowed Faust's attorney, Steve Chance, to ask defense witness Mac Pope if he had been drinking prior to showing up for court that morning, which Pope denied. Chance asked Pope, "It seems like there's alcohol on your breath?" 9 VRP at 1262. The trial judge later noted that he "was of the distinct impression when [Pope] sat down that he was probably consuming alcohol, and that's up to the jury to judge his credibility." 10 VRP at 1354. In closing, Chance told the jury, "I'm pretty confident that I'm not the only person in this court-room that detected alcohol on Mac Pope's breath at 9:00 in the morning." 12 VRP at 1884-85.
¶ 7 Also at trial, Faust's attorney James DeZao asked John Leibrant, a member of the lodge, about the nature of the organization, including its oath, whether the organization is "sacred," and the members' attire. 4 VRP at 527-28, 531, 535. DeZao also asked a lodge administrator whether the lodge voluntarily turned over a membership list and whether the lodge deleted phone numbers from that list. At closing, Chance argued that "the members of the lodge are required to take an oath that essentially says, one for all, like a family, fierce protector defending the circle, loyal companion, sacred organization," and that the lodge would not turn over a membership list until after a court order. 12 VRP at 1869, 1873-74.
¶ 8 The jury found for Faust, and the trial court entered a judgment of $14 million. The trial court denied several posttrial motions brought by the defendants, including a motion for judgment as a matter of law. The lodge and Chapman appealed and Faust cross-appealed. The Court of Appeals reversed and vacated the judgment against the lodge and Chapman and denied Faust's cross-appeal. Faust v. Albertson, 143 Wash. App. 272, 276, 178 P.3d 358 (2008). Faust petitioned for this court's review, and we granted review to consider a potential
conflict between the Court of Appeals decision and our prior cases involving the standard of civil liability for alcohol overservice and also to consider several evidentiary issues. Faust v. Albertson, 164 Wash.2d 1025, 196 P.3d 136 (2008).
¶ 9 This court accepted review to resolve two questions. First, under RCW 66.44.200(1), must a plaintiff produce direct, point-in-time evidence that the tortfeasor was "apparently under the influence of liquor" when he was last served? Second, did the Court of Appeals err when it found no competent evidence creating an issue of material fact and reversed the trial court's denial of a defense motion for judgment as a matter of law?
¶ 10 Faust challenges as error the Court of Appeals' reversal of the trial court's denial of judgment as a matter of law. Judgment as a matter of law under CR 50 is appropriate only when no competent and substantial evidence exists to support a verdict. Delgado Guijosa v. Wal-Mart Stores, Inc., 144 Wash.2d 907, 915, 32 P.3d 250 (2001). In reviewing a ruling on a motion for a judgment as a matter of law, we engage in the same inquiry as the trial court. Stiley v. Block, 130 Wash.2d 486, 504, 925 P.2d 194 (1996). One who challenges a judgment as a matter of law "admits the truth of the opponent's evidence and all inferences which can reasonably be drawn [from it]." Davis v. Early Constr. Co., 63 Wash.2d 252, 254, 386 P.2d 958 (1963). We interpret the evidence "against the [original] moving party and in a light most favorable to the opponent." Id. A judgment as a matter of law requires the court to conclude, "as a matter of law, that there is no substantial evidence or reasonable inferences to sustain a verdict for the nonmoving party." Indus. Indem. Co. of the Nw. v. Kallevig, 114 Wash.2d 907, 915-16, 792 P.2d 520 (1990). However, the court "must defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence." State v. Hernandez, 85 Wash. App. 672, 675, 935 P.2d 623 (1997). "Overturning a jury verdict is appropriate only when [the verdict] is clearly unsupported by substantial evidence." Burnside v. Simpson Paper Co., 123 Wash.2d 93, 107-08, 864 P.2d 937 (1994).
¶ 11 RCW 66.44.200(1) prohibits the sale of alcohol to "any person apparently under the influence of liquor." Businesses that violate the statute by serving drunk drivers will be civilly liable to third-party victims for damages caused by their patron. Barrett v. Lucky Seven Saloon, Inc., 152 Wash.2d 259, 262-63, 96 P.3d 386 (2004). In Barrett, this court recognized that the older "obviously intoxicated" common law standard1 had been replaced by "apparently under the influence." Id. at 274-75, 96 P.3d 386. Further, this court recognized that the two standards differ meaningfully. Id. at 269, 96 P.3d 386.
¶ 12 The question presented here boils down to whether the evidentiary burden to establish a triable issue of fact should be lowered concomitantly with the standard of civil liability. Typically, plaintiffs "may establish any fact by circumstantial evidence." Tabak v. State, 73 Wash.App. 691, 696, 870 P.2d 1014 (1994). Before juries, circumstantial and direct evidence are viewed as equivalently valuable. See 6 WASHINGTON SUPREME COURT COMMITTEE ON JURY INSTRUCTIONS, WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL § 1.03, at 22 (2005). Nonetheless, the Court of Appeals held that plaintiffs must provide specific point-in-time observational evidence of the tortfeasor's appearance close to the time of service in order to send the question...
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