Hansen v. Friend

• Decision Date: 20 February 1992
• Docket Number: No. 57658-1,57658-1
• Citation: 824 P.2d 483,118 Wn.2d 476
• Parties: Judith HANSEN, individually and as Personal Representative of the Estate of Keith Hansen, Petitioner, 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, husbands and wives, Respondents.
• Court: Washington Supreme Court

Page 476

118 Wn.2d 476

824 P.2d 483

Judith HANSEN, individually and as Personal Representative of the Estate of Keith Hansen, Petitioner, 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,

husbands and wives, Respondents.

No. 57658-1.

Supreme Court of Washington,

En Banc.

Feb. 20, 1992.

Reconsideration Denied April 7, 1992.

Kargianis, Austin & Osborn, Bruce A. Wolf, Sim Osborn, Seattle, for petitioner.

Murray, Dunham & Murray, Harold B. Field, Ronald L. Unger, Reed & McClure, William Robert Hickman, Pamela A. Okano, Marilee C. Erickson, Seattle, for respondents.

JOHNSON, Justice.

Fifteen-year-old Keith Hansen drowned in an alcohol-related incident. The petitioner, Hansen's mother, seeks review of the Court of Appeals opinion affirming the trial court's summary judgment dismissal of her wrongful death suit. 59 Wash.App. 236, 797 P.2d 521. In her suit, she alleges the respondents, two adult social hosts, negligently furnished liquor to her minor son, causing his intoxication and death. The Court of Appeals held that social hosts could not be held liable as a matter of law. We reverse the Court of Appeals and remand the case to the trial court.

On April 24, 1987, 15-year-old Keith Hansen and 21-year-old Robert Friend drank liquor at Friend's house in Kent, Washington. Hansen supplied the liquor from his parents' house. The two drank through the night and into the morning.

When 21-year-old Robert Petty arrived at Friend's house that morning, both Hansen and Friend were visibly intoxicated. Petty and Friend had planned to leave that day for Lake Jameson in Eastern Washington for an overnight fishing trip. When Petty arrived, he had with him two or three half-cases of beer. Friend asked Petty if Hansen could go on the fishing trip with them, and Petty agreed.

On the way to Lake Jameson, the three stopped at a store where Petty bought another 6-pack of beer. The three arrived at Lake Jameson around 6:30 p.m., set up camp and had dinner. Petty stated in his deposition that he and Friend had some beer at this time, but that Hansen did not. Friend's deposition indicates, however, that Hansen may also have consumed alcohol at this time. Clerk's Papers, at 64-65. Petty went to sleep around 9 p.m., after having two or three beers. By this time, Friend had consumed from two to four beers. Hansen's access to the beer does not appear to have been restricted in any way at the campsite.

Around 11 p.m., Hansen and Friend entered an adjacent campsite. Both were visibly and severely intoxicated. They stumbled back toward their own campsite around 11:30 p.m. Alan Petty, Robert's brother, arrived at the lake about this time. Shortly after Alan Petty's arrival at the campsite, Hansen left once again, stating he was going to another campsite to steal a beer.

Sometime afterward, the campers at the adjacent campsite heard a loud splash. They then heard something or someone splashing in the water, going up and down gasping for air. They ran to Hansen's campsite to get help. Alan Petty and one of the other campers got in a boat and searched the lake, but they found nothing. Hansen's body floated to the surface of Lake Jameson about 2 weeks later.

The petitioner contends Friend and Robert Petty negligently furnished liquor to her minor son. In order to prove actionable negligence, a plaintiff must establish: (1) the existence of a duty owed to the complaining party; (2) a breach of that duty; (3) a resulting injury; and (4) that the claimed breach was the proximate cause of the injury. Pedroza v. Bryant, 101 Wash.2d 226, 228, 677 P.2d 166 (1984). At issue here is whether Friend and Petty owed a duty of care to Hansen.

Whether a defendant owes a duty of care to the complaining party is a question of law. Pedroza, at 228, 677 P.2d 166. The standard of conduct required of a reasonable person may be prescribed by legislative enactment. Young v. Caravan Corp., 99 Wash.2d 655, 659, 663 P.2d 834, 672 P.2d 1267 (1983) (citing W. Prosser, Torts § 36 (4th ed. 1971)). The petitioner argues RCW 66.44.270(1) provides the relevant duty of care in this case. This statute provides, in part, that:

It is 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. ¹

The Legislature has thus established that both commercial hosts and social hosts commit a criminal act if they furnish liquor to a minor. See also RCW 66.44.320 (also prohibiting the sale of liquor to any minor). This court has held that commercial hosts can be held liable in a civil cause of action for breaching their statutory duty not to sell liquor to minors. See Young, at 660, 663 P.2d 834. We are thus faced with the question of whether RCW 66.44.270(1), which makes it a criminal act for "any person" ² to furnish liquor to a minor, also defines the standard of conduct required of a reasonable person in a social host position.

The Washington courts have adopted the 4-part test from the Restatement (Second) of Torts § 286 (1965) for determining when the court may adopt a legislative enactment as a reasonable person's standard of conduct. Young, at 659-60, 663 P.2d 834.

The Restatement indicates:

The court may adopt as the standard of conduct of a reasonable [person] the requirements of a legislative enactment ... whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose interest is invaded, and

(b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and

(d) to protect that interest against the particular hazard from which the harm results.

Restatement (Second) of Torts § 286 (1965).

The first question under this test is whether Hansen was a member of the class protected under the statute. RCW 66.44.270(1) prohibits persons from furnishing liquor to a minor. The statute defines "minor" as any person under the age of 21 years. RCW 66.44.270(1). A rational basis exists for setting the legal drinking age at 21 years. Houser v. State, 85 Wash.2d 803, 808, 540 P.2d 412 (1975), overruled on other grounds in State v. Smith, 93 Wash.2d 329, 336, 610 P.2d 869, cert. denied, 449 U.S. 873, 101 S.Ct. 213, 66 L.Ed.2d 93 (1980). Hansen was 15 years old when the incident occurred and therefore was a member of the protected class.

The second question under the Restatement is whether the statute protects the particular interest which was invaded. The purpose behind the Washington State Liquor Act is to protect "the welfare, health, peace, morals, and safety of the people of the state". RCW 66.08.010. RCW 66.44.270(1) protects a minor's health and safety interest from the minor's own inability to drink responsibly. The Legislature believed that persons under 21 years of age are neither physically nor mentally equipped to handle the consumption of intoxicating liquor. Young, 99 Wash.2d at 660, 663 P.2d 834 (citing Callan v. O'Neil, 20 Wash.App. 32, 39, 578 P.2d 890 (1978)). Hansen's health and safety interest was invaded by the effects of alcohol. The statute was thus designed to protect the particular interest which was invaded.

The third question is whether the statute protects a minor's health and safety interest against the kind of harm which resulted. RCW 66.44.270(1)'s prohibition against giving alcohol to minors protects a minor's interest against physical harm which could result from his or her abuse of alcohol. Hansen suffered physical harm in this case, allegedly as a result of his intoxication. The statute therefore protects against the kind of harm suffered here.

The final question is whether the purpose of the statute is to protect a minor's health and safety interest from the particular hazard from which the harm resulted. The particular hazard the statute regulates is alcohol in the hands of minors. The statute was therefore designed to protect Hansen from the particular hazard at issue.

The statute thus meets the Restatement's 4-part test for adoption as a reasonable person's standard of conduct. The respondents argue, however, that Burkhart v. Harrod, 110 Wash.2d 381, 755 P.2d 759 (1988) should still bar a cause of action in this case. In Burkhart, this court held that social hosts who served liquor to an adult guest could not be sued for injuries resulting from the guest's intoxication.

This court reasoned in Burkhart that the only indication of legislative intent in the area of social host liability was the disinclination to impose such liability due to the fact that the Legislature repealed the dramshop act in 1955. ³ Burkhart, at 387-88, 755 P.2d 759. In this case, however, the Legislature has acted to prohibit both social hosts and commercial hosts from furnishing liquor to minors. The Legislature has enacted criminal penalties on "any person" who gives, sells or otherwise furnishes liquor to minors.

This case involves furnishing liquor to a minor, not an adult, and is thus distinguishable from Burkhart. The Legislature established that persons under 21 years of age are a protected class under the Washington State Liquor Act, RCW Title 66. Young, 99 Wash.2d at 660, 663 P.2d 834 (citing Callan v. O'Neil, supra ). We therefore conclude that RCW 66.44.270(1) imposes a duty of care on social hosts not to serve liquor to minors. A minor may maintain an action against a social host where this duty is breached, and the injuries sustained by the minor are proximately caused by this breach.

If a social host breaches his or her duty not to furnish liquor to a minor, the trier of fact may consider the breach as evidence of negligence, rather than as negligence per se. See RCW 5.40.050. The Legislature has abolished the common law doctrine of negligence per se for...