Hansen v. Friend

• Decision Date: 17 September 1990
• Docket Number: No. 24347-1-I,24347-1-I
• Citation: 59 Wn.App. 236,797 P.2d 521
• Court: Washington Court of Appeals
• Parties: Judith HANSEN, individually, and as Personal Representative of the Estate of Keith D. Hansen, Appellant, v. Robert Anthony FRIEND and Jane Doe Friend, husband and wife, Robert M. Petty and Jane Doe Petty, husband and wife, and John and Jane Does 1-10, husband and wife, Respondents, and Alan Michael Petty and Jane Doe Petty, husband and wife, Defendants.

Page 236

59 Wn.App. 236

797 P.2d 521

Judith HANSEN, individually, and as Personal Representative of the Estate of Keith D. Hansen, Appellant, v. Robert Anthony FRIEND and Jane Doe Friend, husband and wife Robert M. Petty and Jane Doe Petty, husband and wife, and John and Jane Does 1-10 husband and wife, Respondents and Alan Michael Petty and Jane Doe Petty, husband and wife Defendants.

No. 24347-1-I.

Court of Appeals of Washington,

Division 1.

Sept. 17, 1990.

Bruce Wolfe, Seattle, for appellant.

Harold B. Field, William R. Hickman, Seattle, for respondents.

BAKER, Judge.

This case requires us to address the civil liability of an adult who provides alcohol to a minor in a social setting. The issue arises in the context of an appeal from a summary judgment which dismissed the action of Judith Hansen brought against Robert A. Friend and Robert M. Petty for the wrongful death of her minor son.

The trial court held as a matter of law that the defendants could not be held liable for furnishing liquor to a minor who became intoxicated and drowned. We reluctantly affirm.

I.

Fifteen-year-old Keith Hansen and 21-year-old Friend spent the evening of April 24, 1987, at Friend's house drinking liquor supplied by Hansen. The next morning, Petty arrived to drive Friend on a prearranged overnight fishing trip to Jameson Lake in Eastern Washington. Hansen was invited by Petty and Friend to accompany them. Petty, who was also 21 years of age, had previously purchased two or three half cases of beer for the trip. Petty purchased an additional 6-pack of beer during the drive to the lake. In his deposition, Petty testified that the beer was his, stating that Friend did not bring any alcohol along nor did he purchase any. At another point, however, he testified that the beer was for both him and Friend.

Although Hansen and Friend did not consume any alcohol on the way to the lake, they were still intoxicated when they arrived. After unpacking the truck, the three ate dinner. Petty testified that both he and Friend drank beer. Petty then went to sleep. For purposes of this motion, Petty admits that he supplied the alcohol and also served Hansen beer upon their arrival at the campsite, until Hansen became severely intoxicated.

Friend observed Hansen drinking beer at the campsite. He knew Hansen was severely intoxicated, and observed him fall. Alan Petty, Robert's brother, who arrived around 11:30 p.m., also saw Hansen stumbling in an obviously intoxicated condition. At approximately 11 p.m., Hansen and Friend visited a neighboring campsite and talked with two other persons, who observed that both Hansen and Friend were severely intoxicated.

The neighboring campers later heard a splash and gasping noises coming from the lake. They called out but there was no answer. They ran to the Petty campsite and reported that it looked like someone had fallen into the water. A boat was rowed out into the lake but by then there was no sign of life. It was later determined that Hansen had drowned that evening.

Hansen's mother sued Friend and Petty, alleging that they had violated RCW 66.44.270 ¹ by furnishing alcohol to a minor, and that this constituted negligence per se. She also alleged common law negligence for the same act of furnishing alcohol to a minor, and negligent supervision. ² The defendants moved for summary judgment, which was granted.

II.

Initially, we must resolve one procedural and one evidentiary matter. The procedural question before us is whether the defendant's motion should be treated as one for summary judgment. Without citation to the rule, Hansen appears to argue that the nature of the defendants' motion below was one under CR 12(b)(6), failure to state a claim upon which relief can be granted, rather than one for summary judgment under CR 56. The defendants assert that the trial court considered matters outside the pleadings, and therefore the motion was converted into a summary judgment motion.

CR 12(b) provides:

If, on a motion asserting ... failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56[.]

Thus, a motion originally brought under CR 12(b)(6) will be treated as a summary judgment motion where supporting affidavits or other evidentiary material is submitted to and not excluded by the trial court. See St. Yves v. Mid State Bank, 111 Wash.2d 374, 377, 757 P.2d 1384 (1988).

We have determined that the defendants' motions were treated below as summary judgment motions under CR 56. Our review of the record indicates that the trial court considered factual matters outside the pleadings without objection. Thus, on appeal, we will regard the matter as one under CR 56. See St. Yves, 111 Wash.2d at 377, 757 P.2d 1384.

The evidentiary question presented concerns the trial court's consideration of an affidavit of a private investigator. Petty contends, and we agree, that the affidavit contains hearsay and should not have been considered by the trial court. We therefore do not consider the affidavit in this appeal. We note, however, that resolution of this issue is not critical to the outcome of the appeal, since the challenged affidavit mostly repeats information already contained in other evidentiary materials submitted.

III.

On appeal, Hansen argues two theories of liability: violation of RCW 66.44.270(1), which prohibits furnishing liquor to a minor, and common law liability for furnishing liquor to minors, regardless of any reliance on the statute. Since under RCW 5.40.050, breach of a duty under a statute is no longer considered negligence per se, but may be considered as evidence of negligence, these two claims really merge into one. ³

In reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Summary judgment is to be granted only if the record demonstrates that there is no genuine issue as to any fact that is material to the cause of action, Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wash.2d 1, 12, 721 P.2d 1 (1986), and that the moving party is entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). The court must consider the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. The motion should be denied if reasonable persons could reach differing conclusions. Wilson, supra.

RCW 66.44.270(1) makes it unlawful:

for any person to sell, 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 or her premises or on any premises under his or her control.

Under RCW 5.40.050, breach of a duty imposed by statute may be considered as evidence of negligence. Thus, the issue, concisely stated, is whether Petty and Friend breached any statutory duty imposed by RCW 66.44.270(1). If they did, the summary judgment should be reversed so that the evidence of that breach can be put before a factfinder charged with determining negligence.

The modern legal history in Washington relating to social host liability began with Halvorson v. Birchfield Boiler, Inc., 76 Wash.2d 759, 458 P.2d 897 (1969). There, the court refused to impose liability on a company that furnished liquor during a Christmas party to an adult employee who later injured the plaintiff in an automobile accident. The decision rested on the common law rule that the furnishing of the intoxicant was not the proximate cause of the injury as a matter of law. Halvorson, 76 Wash.2d at 762-65, 458 P.2d 897. The court recognized, however, that exceptions have been made to the common law rule where alcohol is furnished to a minor or to a person in a state of helplessness or intoxication. Halvorson, 76 Wash.2d at 762-64, 458 P.2d 897.

Halvorson was followed by Hulse v. Driver, 11 Wash.App. 509, 524 P.2d 255 review denied, 84 Wash.2d 1011 (1974) in which minors furnished alcohol to another minor, and allowed him to drive. The result was a head-on collision with plaintiff's vehicle. The Hulse court extended Halvorson to furnishing to minors, holding that no cause of action would lie against one who furnishes alcoholic beverages to a minor in a social context. Hulse, 11 Wash.App. at 514, 524 P.2d 255. The Hulse court stated that the imposition of such liability should be a legislative decision. Hulse, 11 Wash.App. at 513-14, 524 P.2d 255. Nonetheless, Hulse did leave open the possibility that furnishing alcohol to one in a state of helplessness or severe intoxication might lead to a different result. Hulse, 11 Wash.App. at 513, 524 P.2d 255.

Relying on the recognition in Halvorson that liability may lie for furnishing liquor to an intoxicated person or a minor, the court held in Callan v. O'Neil, 20 Wash.App. 32, 578 P.2d 890 (1978) that it was negligence per se for a tavern keeper to furnish liquor to a minor, absent reasonable precautions to determine the age of the customers. Callan, 20 Wash.App. at 38-40, 578 P.2d 890. In imposing that liability, the Callan court held that in enacting the state liquor act, RCW Title 66, the legislature "established [minors] as a protected class". The same statute that is at issue here, RCW 66.44.270, was one of several alleged to have been violated in Callan. Callan, 20 Wash.App. at 36, 578 P.2d 890. The court noted that the legislature had determined that minors are neither "physically nor mentally equipped to handle the consumption of intoxicating liquor". Callan, 20 Wash.App. at 39, 578 P.2d 890.

The next case involving social furnishing of alcohol to a minor was Wilson v. Steinbach, 98 Wash.2d 434, 656 P.2d 1030 (1982). The court clarified Halvorson, stating three exceptions to the common law rule of nonliability: furnishing to "obviously intoxicated persons, persons in a state of helplessness,...