Purchase v. Meyer

Decision Date28 May 1987
Docket NumberNo. 52270-7,52270-7
Citation108 Wn.2d 220,737 P.2d 661
PartiesDavid PURCHASE, Petitioner, v. Mary Margaret MEYER, Petitioner, Murland Meyer and "John Doe" Meyer, her husband, Defendants, and El Torito Restaurant and Cantina, a California corporation, Respondent.
CourtWashington Supreme Court

Albertson & Smith, Dan M. Albertson, Tacoma, for petitioner Meyer.

Lane, Powell, Moss & Miller, Michael H. Runyan, David M. Schoeggl, Seattle, for respondent.

ANDERSEN, Justice.

FACTS OF CASE

This case deals with the liability of a commercial purveyor of intoxicating beverages that sells such beverages to a minor who later injures a third person while under the influence of alcohol.

On September 22, 1983, petitioner Mary Margaret Meyer Meyer said she was not intoxicated when she left El Torito. She also said that a friend who walked with her to her car similarly did not believe she was intoxicated and allowed her to drive home by herself. Neither of Meyer's companions that evening who submitted affidavits on behalf of petitioners say that she appeared intoxicated while she was at the El Torito. Nothing in the record suggests that anyone who saw Meyer at the El Torito believed that she appeared intoxicated.

                spent several hours with a group of friends socializing in the cocktail lounge of the El Torito restaurant in Tacoma.   Although Meyer's friends were approximately 25 years of age or older, Meyer herself was only 19 at the time.   She reported having three margaritas, but said she did not finish her last drink.   She also ate several baskets of tortilla chips.   Meyer and her friends claim that Meyer was not asked for proof that she was 21, the legal drinking age.   El [737 P.2d 663] Torito, on the other hand, claims that it had in force a strictly adhered to policy requiring identification of all youthful-appearing customers
                

Some time after leaving the El Torito, Meyer was involved in an automobile accident with petitioner David Purchase, who was riding a motorcycle. Some 3 1/2 to 4 hours after leaving the El Torito, and even longer after being served her last drink there, Meyer was given an alcohol breath test. Her alcohol breath test reading showed an .13 blood alcohol content (bac). Meyer was not injured in the accident.

Purchase sued Meyer and also joined El Torito as a party defendant claiming that its employees were negligent per se for having served alcohol to Meyer, a minor. Purchase also claimed that El Torito employees had negligently served alcohol to Meyer in that she was "obviously intoxicated" at the time. Meyer cross-claimed against El Torito seeking contribution.

On November 1, 1985, the Superior Court for Pierce County entered an order denying defendant El Torito's motion for summary judgment on the "obvious intoxication" Thus, two issues are presented to this court.

                claim but granting El Torito's motion for summary judgment on the negligence per se claim and dismissing that claim.   We granted the parties' motions for direct discretionary review of the trial court's ruling on both claims
                
ISSUES

ISSUE ONE. Did the trial court err in not granting a summary judgment dismissing the sale of liquor to an "obviously intoxicated" person claim against El Torito?

ISSUE TWO. May a third party injured by a minor driver, who is operating a motor vehicle while under the influence of intoxicating liquor, maintain a negligence per se claim against a commercial purveyor of alcoholic beverages which earlier sold alcoholic beverages to the minor?

DECISION

ISSUE ONE.

CONCLUSION. Insofar as a cause of action for furnishing intoxicating liquor to an "obviously intoxicated" person is concerned, the results of a blood alcohol test (by an alcohol breath testing machine) and an expert's opinion based thereon, and the physical appearance of that person at a substantial time after the intoxicating liquor was served, are not by themselves sufficient to get such a cause of action past a motion for summary judgment. Whether a person is "obviously intoxicated" or not is to be judged by that person's appearance at the time the intoxicating liquor is furnished to the person. On the basis of the record before us, El Torito's motion for summary judgment of dismissal on this liability issue should have been granted by the trial court.

Generally speaking, 1 persons convicted of driving "while under the influence of intoxicating liquor" face criminal penalties including fines, imprisonment and suspension or revocation of their driver's license. 2 They are also civilly liable for damages caused by such driving. 3 In this state, anyone operating a motor vehicle on a public roadway is deemed to have given consent to abide by the implied consent statute which requires that, under certain circumstances, a driver take a breath or other test for blood alcohol content or face yet additional penalties. 4 By the statute in effect at the time of the accident herein, a person was deemed "under the influence of intoxicating liquor" if he or she was apprehended driving a vehicle within this state while having a blood alcohol content of .10 or more by weight. 5 Also by statute, evidence of a driver's bac may be considered in both criminal and civil actions in determining whether the driver was in fact "under the influence of intoxicating liquor" at the time of the accident. 6

For concerned drivers, both the Washington State Liquor Control Board and the Washington Traffic Safety Commission have published and distributed simple charts which drivers can use to determine their own bac. Depending on body weight and the time elapsed since the first drink, some people, for example, can reach a .10 bac after imbibing just 4 ounces of alcohol. 7 While the public policy evinced by the foregoing statutes is designedly tough, these laws are essentially fair in the sense that people who drink intoxicating beverages are themselves aware of how much alcohol they are imbibing and can approximate whether their bac is high enough to make driving illegal.

There is also a strong public policy against selling liquor to intoxicated persons. Since 1933, a section of the Washington State Liquor Act has provided as follows:

No person shall sell any liquor to any person apparently under the influence of liquor.

RCW 66.44.200. This statute is enforced against commercial purveyors of alcoholic beverages by agents of the Washington State Liquor Control Board. Local ordinances to this same effect are also enforced by local police agencies. Commercial purveyors of alcoholic beverages who violate the foregoing statute not only face criminal sanctions, 8 but also risk suspension or revocation of their licenses to sell alcoholic beverages in this state. 9

Insofar as civil liability is concerned, it has long been the common law of this state that a commercial purveyor of alcoholic beverages may be held liable for damages caused by furnishing intoxicating beverages to an "obviously intoxicated" person. 10 Although the person to whom alcoholic beverages are sold knows how much alcohol he or she has had to drink before entering an establishment and making a purchase, the seller ordinarily has no way of knowing that unless and until the purchaser becomes "obviously intoxicated". Furthermore, as one prominent medical commentator in this field has observed,

by the time the blood alcohol level reaches .10%, all persons are impaired to objective tests of vision, problem solving, etc. although the heavy drinker may still not appear intoxicated even with a blood alcohol level above .20%. 11

It does not follow, therefore, that a person who is apprehended driving with a bac of .10 (and who may therefore be found guilty of violating the motor vehicle code by driving while "under the influence" of intoxicating liquor) was also "obviously intoxicated" for purposes of the Washington State Liquor Act when, at some earlier time, an intoxicating beverage was sold to that person.

For the foregoing reasons, and for other medically recognized variables in the way alcohol may react on the human body, 12 the following rule has been adopted in this state:

The settled rule in this state as to actions based on the Halvorson [v. Birchfield Boiler, Inc., 76 Wash.2d 759, 458 P.2d 897 (1969) ] line of cases is that a person's sobriety must be judged by the way she appeared to those around her, not by what a blood alcohol test may subsequently reveal. Barrie v. Hosts of Am., Inc., [94 Wash.2d 640,] 643 n. 1[, 618 P.2d 96 (1980) ]; Shelby v. Keck, 85 Wash.2d 911, 915, 541 P.2d 365 (1975).

Wilson v. Steinbach, 98 Wash.2d 434, 439, 656 P.2d 1030 (1982). 13 Thus, the results of the alcohol breath test taken hours after the minor was served alcoholic beverages at the El Torito restaurant was not competent evidence against El Torito. 14 The pharmacologist's affidavit purporting to relate Meyer's blood alcohol content back to what it was when she was last served at the El Torito, and then from that to determine what he claims was the "obviousness" of her intoxication at the time of the last serving, is based entirely on the inadmissible alcohol breath testing results. It suffers from the same legal infirmities as the test results and is speculative. 15 There is thus no competent evidence in the record to establish that Meyer appeared "obviously intoxicated" to those around her when she was served at the El Torito.

The investigating officer's testimony as to how Meyer appeared to him at the scene of the accident an hour or two later does not cure this defect. It is argued that Dickinson v. Edwards, 105 Wash.2d 457, 716 P.2d 814 (1986) holds to the contrary of the foregoing; it does not. That case was factually unique in that a driver's vehicle hit another vehicle head on just 5 minutes after leaving a drinking establishment, whereupon the driver promptly admitted to having had 15 to 20 drinks. The plurality ...

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