Hostetler v. Ward, 7310-2-II

CourtCourt of Appeals of Washington
Citation704 P.2d 1193,41 Wn.App. 343
Docket NumberNo. 7310-2-II,7310-2-II
PartiesClyde V. HOSTETLER, as Guardian of Gerald D. Hostetler, an Incompetent, Appellant, v. Joel E. WARD, a single person, Joseph Edmund Ward and Jeanette M. Ward, husband and wife, and County of Pierce, a Public Corporation, Respondents.
Decision Date19 July 1985

Harold E. Winther, Small & Winther, Tacoma, for appellant.

Vernon W. Harkins, Rush, Kleinwachter & Hannula, Tacoma, for defendant Ward.

Karl D. Haugh, Pierce Co. Deputy Pros. Atty., Tacoma, for respondent.

REED, Acting Chief Judge.

Joel E. Ward, a minor, became intoxicated in a public park maintained by Pierce County (County). He then drove his parents' car out of the park and, after travelling a short distance on a public highway, struck a motorcyclist, Gerald D. Hostetler. Hostetler suffered severe injuries that rendered him incompetent. His guardian, Clyde V. Hostetler, sought damages from Ward and the County. He now appeals the trial court's order dismissing his action against the latter defendant. 1 We affirm.

I. Scope of Review

Although the dismissal was granted pursuant to CR 12(b)(6), the trial court considered matters outside the pleadings. Therefore, under CR 12(b), the dismissal is regarded as a summary judgment. When reviewing a summary judgment, the appellate court engages in the same inquiry as the trial court. Hartley v. State, 103 Wash.2d 768, 774, 698 P.2d 77 (1985). Summary judgment is proper only when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Hartley v. State, 103 Wash.2d at 774, 698 P.2d 77.

In determining whether a genuine issue exists as to any material fact, "[t]he court must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party." Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). A "material fact" is one upon which the outcome of the litigation depends in whole or in part. Ohler v. Tacoma General Hospital, 92 Wash.2d 507, 511, 598 P.2d 1358 (1979); Peterick v. State, 22 Wash.App. 163, 180, 589 P.2d 250 (1977), review denied, 90 Wash.2d 1024 (1978). The moving party has the burden of presenting evidence showing there are no factual disputes and that, as a matter of law, judgment is proper. Hartley v. State, 103 Wash.2d at 774, 692 P.2d 77; Graves v. P.J. Taggares Co., 94 Wash.2d 298, 302, 616 P.2d 1223 (1980).

If the moving party satisfies this burden of proof, the opposing party may not resist summary judgment by resting upon the pleadings, but must present evidence that shows the facts are in dispute. Mackey v. Graham, 99 Wash.2d 572, 576, 663 P.2d 490, cert. denied, --- U.S. ----, 104 S.Ct. 241, 78 L.Ed.2d 231 (1983). That evidence must be such as would be admissible at trial, Wilson v. Steinbach, 98 Wash.2d at 438-39, 656 P.2d 1030; Jacobsen v. State, 89 Wash.2d 104, 108, 569 P.2d 1152 (1977), unless the moving party fails to move to exclude the evidence before the trial court's judgment, and thereby waives the deficiency. Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 352, 588 P.2d 1346 (1979). However, if the moving party does not sustain its burden of demonstrating, by offering evidence or otherwise, that it is entitled to judgment as a matter of law, summary judgment should not be granted, even if the nonmoving party did not submit any evidence. Graves v. P.J. Taggares Co., 94 Wash.2d at 302, 616 P.2d 1223; Jacobsen v. State, 89 Wash.2d at 108, 569 P.2d 1152.

In the present case, the County did not submit any affidavits, depositions, or other materials in support of its motion under CR 12(b)(6), nor did it move to exclude any of the evidence plaintiff presented. Therefore, on review, we consider all the facts alleged in the pleadings and affidavit in the light most favorable to plaintiff. CR 56(c). Plaintiff alleged the facts set forth below.

II. Facts on Review

Pierce County owns or controls a park on the shores of Lake Tapps. At 7 p.m. on June 29, 1981, Joel E. Ward, Norman K. Herbert, and James Joseph Shockey, all under age 21, paid a $1 fee to drive Ward's parents' station wagon into the park. They drove to an isolated area in the park known as Evergreen Point, which was out of view of park personnel, where others were drinking alcoholic beverages. There the three youths consumed forty eight 12 oz. cans of beer, divided about equally among the three. At approximately 10 p.m., a county official "gave notice to the youths and others of the park's impending closure and directed their transportation to the public roadway...." Ward and his companions were "considerably handicapped" from drinking the beer. In adherence to the county official's directive, Ward drove out of the park and travelled approximately three to four miles on the public highway before he negligently turned left into the path of an oncoming motorcycle driven by Gerald D. Hostetler. Hostetler suffered the severe injuries previously described, for which his guardian sought to recover damages.

County officials knew the Evergreen Point area was used regularly by many people, including minors, for the consumption of alcoholic beverages. A sign was posted notifying visitors that liquor was banned from the park. When the park's resident caretaker encountered persons drinking liquor, he would advise them it was prohibited. Both Herbert and Shockey, Ward's companions, were aware of the prohibition. In August 1977, a member of the Pierce County Sheriff's Department investigated the area. His report included the following:

The area known as Evergreen Point ... is being utilized by persons for the purpose of consuming alcoholic beverages and drugs out of line of sight by park personnel. This area should be closed off.

According to the deposition of the park's caretaker, people drinking liquor in the Evergreen Point area could not be apprehended easily because they could see approaching law enforcement officers from a long distance. He conceded that, because of the area's remote location, closing the park road to the area would have prevented park visitors from using that area for drinking alcoholic beverages.

III. Plaintiff's Theories for Recovery

Plaintiff alleges that Pierce County is liable for Gerald Hostetler's injuries. First, he alleges the County is liable for maintaining 2 the park as a haven for the consumption of alcoholic beverages by minors. Plaintiff's claim is based upon theories of common law negligence, negligence per se, and statutory nuisance (RCW 7.48). Second, plaintiff argues the County is liable for its negligence in failing to enforce laws controlling the use of alcoholic beverages. Third, he argues the County is liable for the negligence of its employee in directing Ward and the others to drive out of the park onto the public highway when the employee knew or should have known that Ward's ability to drive was handicapped by his consumption of intoxicants.

A. Maintenance of the Park
1. Negligence

We consider first Hostetler's allegation that the County was negligent in its maintenance of the park. He alleges that by this negligence the County allowed, tolerated, or encouraged minors to consume alcoholic beverages in the park. The essential elements of actionable negligence are: (1) the existence of a duty owed to the complaining party; (2) a breach thereof; (3) a resulting injury; and (4) a proximate cause relationship between the claimed breach and the resulting injury. Pedroza v. Bryant, 101 Wash.2d 226, 228, 677 P.2d 166 (1984). Whether a defendant owes a duty to the complaining party is a question of law. Pedroza v. Bryant, 101 Wash.2d at 228, 677 P.2d 166. The defendant's duty may be predicated on violation of a statute or on common-law principles of negligence. Young v. Caravan Corp., 99 Wash.2d 655, 659, 663 P.2d 834 (1983); Bernethy v. Walt Failor's, Inc., 97 Wash.2d 929, 932, 653 P.2d 280 (1982).

a. Common Law Negligence

The common law rule in Washington is that the furnishing of liquor to an able-bodied person generally is not actionable. Wilson v. Steinbach, 98 Wash.2d at 438, 656 P.2d 1030; Halvorson v. Birchfield Boiler, Inc., 76 Wash.2d 759, 762-63, 458 P.2d 897 (1969), Dickinson v. Edwards, 37 Wash.App. 834, 682 P.2d 971, review granted, 102 Wash.2d 1011 (1984); Halligan v. Pupo, 37 Wash.App. 84, 86-88, 678 P.2d 1295 (1984). 3 When stating the reason for this rule, it has been said that "[t]he law ... recognizes no relation of proximate cause between a sale of liquor and a tort committed by a buyer who has drunk the liquor," Halvorson, 76 Wash.2d at 762, 458 P.2d 897, quoting State, Use of Joyce v. Hatfield, 197 Md. 249, 254, 78 A.2d 754, 756 (1951). It follows from this rule that generally one is under no duty to refrain from furnishing liquor to an able-bodied person. See Hartley v. State, 103 Wash.2d at 781, 692 P.2d 77. 4 Although exceptions to this rule have been recognized or suggested, see Wilson v. Steinbach, 98 Wash.2d at 438, 441, 656 P.2d 1030, each of these exceptions involves a direct relationship between the defendant's action or inaction and the consumption of liquor by one who becomes a tortfeasor. The relationship between one who, at most, tolerates the consumption of alcohol on his premises, but does not have immediate control over that consumption, does not impose a duty upon the owner of the premises to regulate the liquor consumption. See Halligan v. Pupo, 37 Wash.App. at 88-89, 678 P.2d 1295. See also Rhea v. Grandview School Dist. JT 116-200, 39 Wash.App. at 563, 694 P.2d 666. We reject plaintiff's contention that the County, by virtue of its ownership and control of the park, had a common law duty to prevent Ward from being intoxicated in the park. Moreover, plaintiff has not alleged that...

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