Schooley v. Pinch's Deli Market, Inc.

• Decision Date: 15 March 1996
• Docket Number: No. 17464-2-II,17464-2-II
• Citation: 80 Wn.App. 862,912 P.2d 1044
• Court: Washington Court of Appeals
• Parties: Lori Lynne SCHOOLEY, Appellant, v. PINCH'S DELI MARKET, INC., a Washington corporation; "Doe Corporation", a Washington corporation d/b/a Pinch's Deli Market, Spanaway; James M. Boyd, Jr., and "Jane Doe" Boyd, husband and wife, d/b/a Pinch's Deli Market; and "John Doe" d/b/a Pinch's Deli Market, Respondents.

Page 862

80 Wn.App. 862

912 P.2d 1044

Lori Lynne SCHOOLEY, Appellant, v. PINCH'S DELI MARKET, INC., a Washington corporation; "Doe Corporation", a Washington corporation d/b/a Pinch's Deli Market, Spanaway; James M. Boyd, Jr., and "Jane Doe" Boyd husband and wife, d/b/a Pinch's Deli Market; and "John Doe" d/b/a Pinch's Deli Market, Respondents.

No. 17464-2-II.

Court of Appeals of Washington Division 2.

March 15, 1996.

Shawn B. Briggs, Briggs & Briggs, Tacoma, for appellant.

Ronald Clayton Gardner, Lee, Smart, Cook, Martin & Patterson, Seattle, for respondent.

MORGAN, Judge.

Pinch's Deli Market, Inc., sold beer to Russell Bowser, a minor, ¹ without asking for proof of age. Bowser furnished part of the beer to Lori Lynne Schooley, another minor. Schooley drank too much and was injured. The question on appeal is whether Pinch's can be held liable to Schooley. Our answer is yes.

On August 25, 1989, Bowser's parents were away, and he had access to their house and swimming pool. He was then 19.

That evening, Bowser and five other teenagers met at the house for a party. Schooley, then 18, was one of the five. She knew the house had a swimming pool, so she wore a swimsuit under her regular clothes.

All present wanted beer. Thus, they drove to Pinch's Deli, where Bowser had purchased beer at least a dozen times before. Bowser said later that Pinch's "had a cheap price on the kind of beer we liked and they didn't check for identification." ²

Bowser and two others went into the store. Schooley and the remaining two waited in the car. Using money contributed by all or most of the six, Bowser purchased ninety-six 12-ounce containers of beer, packed in four full cases. As anticipated, the store clerk did not ask for proof of age.

All six then went back to the house where, according to Schooley, "everybody cracked open a beer." ³ She "drank a few beers, I would say two to three beers." ⁴ Then, for the next hour or two, she joined in a drinking game called "quarters." As the game progressed, "we were pounding them, you know." ⁵

After awhile, Bowser and one of the others grabbed Schooley and carried her toward the swimming pool. Perceiving they were going to throw her in, she asked if she could strip down to her swimsuit. They stopped at the edge of the pool and allowed her to do that. Then, before they could throw her in, she dove headfirst into the water. Sadly, she was at the shallow end of the pool, and the water was only two feet deep. She injured her spinal cord and is now a quadriplegic.

In July 1992, Schooley sued Pinch's for negligently selling alcohol to minors. In June 1993, Pinch's filed a motion for summary judgment, which the trial court granted. Schooley then filed this appeal.

In a negligence action, the elements are duty breach, causation, and damages. ⁶ It is undisputed that Schooley can prove damages. Thus, we analyze duty, breach and causation.

I

The Supreme Court has stated "that an essential element in any negligence action is the existence of a legal duty which the defendant owes to the plaintiff." ⁷ This statement subdivides into the following components: (1) By whom is this duty owed? (2) To whom is it owed? (3) What is its nature (i.e., what is the standard of care)? ⁸ Each of these questions is one of law; ⁹ thus, it is to be answered generally, without reference to the facts or parties in a particular case.

We take the third question first, because it can be dealt with briefly. The duty involved here requires the exercise of ordinary care when selling alcohol to a person who might be underage. ¹⁰ Whether it arises from statute or the common law is not clear, but the duty is the same either way. ¹¹ Ordinary care is care equal to that which a reasonable person would exercise under the same or similar circumstances. ¹²

To answer the first and second questions, we identify and define two classes of people. When a duty arises from contract, it is usually owed by one person or entity to another person or entity. When a duty arises from statute or the common law of torts, it is usually owed by one class of persons to another class of persons. ¹³ Because the duty involved here arises from statute or the common law of torts, it is owed by one class of persons (the obligated class) to another class of persons (the protected class).

The parties agree that the obligated class includes commercial vendors of alcohol. ¹⁴ Thus, the protected class is the main issue. According to Schooley, it includes any minor foreseeably put at risk by a negligent sale of alcohol. According to Pinch's, it includes the minor purchaser of alcohol, but no other minor, even if the latter was foreseeably put at risk by a negligent sale of alcohol. In short, Schooley says the protected class is bounded by the concept of foreseeability, while Pinch's says it is bounded by the concept of privity. ¹⁵

Usually, the protected class is bounded by the concept of foreseeability. ¹⁶ When so bounded, it includes all persons foreseeably put at risk by the defendant's negligent conduct. ¹⁷ In effect, the defendant's conduct creates a "general field of danger," and all persons within the "field" belong to the protected class. ¹⁸

Incidentally, to say that the protected class is generally bounded by foreseeability is not to say that the sequence of events in a particular case must be foreseeable. On the contrary, foreseeability is satisfied if "[t]he hazard that brought about or assisted in bringing about the result [is] among the hazards to be perceived reasonably and with respect to which defendant's conduct was negligent." ¹⁹ In other words, foreseeability means foreseeability from the point of view of a reasonable person who knows what the defendant's conduct will be, but who does not know the specific sequence of events that ultimately will ensue therefrom.

Although the protected class is usually bounded by foreseeability, it will sometimes be defined less inclusively. In Kelly v. Falin, 127 Wash.2d 31, 896 P.2d 1245 (1995), a tavern overserved an obviously inebriated adult patron who, while driving home, crashed and was killed. It seems obvious that the tavern's conduct created a foreseeable risk that the patron, upon leaving, would drive in such a way as to harm himself; thus, the patron would have been within the protected class if that class had been bounded by foreseeability. The Kelly court, however, ruled that the patron was not within the protected class. It said:

Adults are expected to temper their alcohol consumption or simply refrain from driving when intoxicated. Unlike an innocent bystander hit by a drunk driver or a youth whose sense of immortality leads to reckless abandon, the responsibility for self-inflicted injuries lies with the intoxicated adult.[ ²⁰

It further said:

As a matter of public policy, we have premised the duty of commercial vendors on the need to protect innocent bystanders from intoxicated patrons, ... and on the need to protect minors.... These public policy concerns are not present when intoxicated adults injure themselves.

A rule that allows an intoxicated adult to hold a commercial vendor liable fosters irresponsibility and rewards drunk driving. Rather than deterring drunk driving, excessive drinking, and the callow and imprudent behavior of intoxicated adults, such a rule would actually compensate patrons who drink beyond obvious intoxication ....[ ²¹

(Citations omitted). The court concluded "that a commercial vendor owes no duty of care to [adult] patrons who suffer injuries as a result of their intoxication." ²²

As often happens, two social policies were competing in Kelly. One was the policy of compensating all persons foreseeably put at risk by a defendant's failure to exercise ordinary care. The other was the policy of not "compensat[ing] patrons who drink beyond obvious intoxication." ²³ If the court had found the first policy to be dominant, it would have defined the protected class to include overserved adults who injure themselves. It found the second policy to be dominant, however, so it defined the protected class as not including obviously inebriated--even though foreseeable--adult patrons who sue for their own injuries. ²⁴

In light of Kelly, we think the protected class is defined according to social policy. Usually, the dominant policy will be that of compensating all persons foreseeably put at risk by a defendant's failure to exercise ordinary care, and the protected class will be defined to include all persons foreseeably put at risk. Occasionally, however, the dominant policy will be different, and the protected class will be defined to include fewer than all persons foreseeably put at risk. ²⁵

In the present case, at least three social policies weigh in favor of bounding the protected class by foreseeability. One social policy is to protect minors from the negligent conduct of adults; the reason, according to the Supreme Court, is that "persons under 21 years of age are neither physically nor mentally equipped to handle the consumption of intoxicating liquor." ²⁶ Another is to hold the person who engages in negligent conduct, including the commercial vendor of alcohol, accountable for his or her negligence, thus deterring the creation of unreasonable risk to others. ²⁷ A third policy, already discussed above, is to compensate those foreseeably put at risk by a defendant's negligent conduct.

Pinch's seems to advance two policy arguments to the contrary. First, it contends that if we bound the protected class by foreseeability, commercial vendors will be subject to unlimited liability. ²⁸ In our view, however, foreseeability is no less an effective limiter of liability in this case than in most tort cases. Second, Pinch's contends that once a commercial vendor has negligently sold alcohol to a minor, it has "no control" over ensuing events. ²⁹ In our view, however, a commercial vendor has full control at the point of sale and, like any normal...