Shelby v. Keck

• Decision Date: 09 October 1975
• Docket Number: No. 43065,43065
• Citation: 541 P.2d 365,85 Wn.2d 911
• Parties: Verna Mae SHELBY, Individually and as Administratrix of the Estate of Billie Eugene Shelby, Appellant, v. Gary E. KECK, a single man, and Myhre's Inc., a Washington Corporation, Respondent.
• Court: Washington Supreme Court

Page 911

85 Wn.2d 911

541 P.2d 365

Verna Mae SHELBY, Individually and as Administratrix of the Estate of Billie Eugene Shelby, Appellant, v. Gary E. KECK, a single man, and Myhre's Inc., a Washington Corporation, Respondent.

No. 43065.

Supreme Court of Washington, En Banc.

Oct. 9, 1975.

Wolfstone, Panchot & Bloch, J. Byron Holcomb, Seattle, for appellant.

Merrick, Hofstedt & Lindsey, H. J. Merrick, Thomas V. Harris, Seattle, Schultheis, Maddock & Fox, Richard E. Schultheis, Port Orchard, for respondent.

HUNTER, Associate Justice.

The plaintiff (appellant), Verna Shelby, individually and as administrator for her husband's estate, appeals from an order of the Superior Court for Kitsap County directing a verdict in favor of the defendant (respondent), Myhre's Incorporated, at the close of her case. The action arose out of an accidental shooting on the defendant's premises which claimed the life of the plaintiff's husband.

At approximately 6 p.m. on December 1, 1972, Gary E. Keck entered Myhre's restaurant and cocktail lounge, and joined Steve Patterson, who was seated in the rear of the establishment. Keck was wearing a shoulder holster containing a revolver concealed under a leather jacket, yet neither the defendant's employees nor any other patron was aware of this. Patterson and Keck proceeded to consume two drinks during the next two hours. According to all of the witnesses, Keck's behavior was normal and at no time did he become boisterous, out of line, or cause a disturbance indicating that he was intoxicated. At one point, Patterson did notice the holster and instructed Keck to keep it hidden. However, the defendant's employees were not informed as to the presence of the weapon.

At 7:30 p.m., the decedent, Billie Eugene Shelby, entered the lounge in the company of another couple. Within 15 minutes, a shot rang out, striking Shelby and inflicting what proved to be a fatal wound. The police arrived almost immediately and placed Keck under arrest. An investigation disclosed that the homicide was accidental, having resulted from Keck attempting to unload the weapon under the table. Furthermore, the investigation disclosed that Keck had a .16 blood alcohol by weight reading.

The decedent's wife brought suit against Keck and Myhre's. Prior to trial, the plaintiff entered into a Covenant not to execute in favor of Keck, which provided that she would not seek damages in excess of $25,000, this sum having been paid by Keck's insurance company. A motion was made by Myhre's on the day of the trial to dismiss Keck as a party defendant on the grounds that he had no interest in the action, either actual or potential. Keck's attorney joined in this motion and it was granted.

With reference to Myhre's, the plaintiff alleged in her complaint that the defendant was negligent by serving liquor to a man who they knew, or should have known, was carrying a loaded weapon. This was based on the fact that Keck had been removed from the establishment 3 weeks earlier for carrying a gun. A second ground asserted by the plaintiff was that Myhre's was negligent in permitting Keck to become intoxicated and therefore is responsible for his tortious act.

At the close of the plaintiff's case, defense counsel moved for a directed verdict. The trial court ruled that the plaintiff had failed, as a matter of law, to establish a prima facie case against Myhre's, and thereupon dismissed the plaintiff's case with prejudice.

The rules applicable for reviewing an order, directing a verdict in favor of a party and thereby removing the issue from the trier of fact, have been firmly established: (1) the evidence must be considered in a light most favorable to the nonmoving party; (2) there is no element of discretion involved; and (3) the motion shall be granted in only those instances where it can be held as a matter of law that there is no competent evidence, nor reasonable inferences arising therefrom, which would sustain a jury verdict in favor of the nonmoving party. Browning v. Ward, 70 Wash.2d 45, 422 P.2d 12 (1966); Trudeau v. Haubrick, 65 Wash.2d 286, 396 P.2d 805 (1964); Frasch v. Leedom, 62 Wash.2d 410, 383 P.2d 307 (1963); Jones v. Leon, 3 Wash.App. 916, 478 P.2d 778 (1970). In evaluating the evidence introduced, and all reasonable inferences arising therefrom, the trial court must determine whether the nonmoving party has presented Substantial evidence establishing a prima facie case in support of its claim. Hemmen v. Clark's Restaurant Enterprises, 72 Wash.2d 690, 434 P.2d 729 (1967); Martin v. Huston, 11 Wash.App. 294, 522 P.2d 192 (1974).

The plaintiff's principal theory of recovery was that the defendant violated its duty to exercise reasonable care to protect its patrons. In Waldron v. Hammond, 71 Wash.2d 361, 363, 428 P.2d 589, 591 (1967), we stated:

This court, in common with courts of other jurisdictions, has accepted and adhered to the rule that the keeper of an establishment wherein intoxicating liquors are dispensed, while not an insurer of the safety of his patrons, owes the duty to his patrons to exercise reasonable care and vigilance to protect them from Reasonably foreseeable injury, mistreatment or annoyance at the hands of other patrons.

(Italics ours.) Considering the facts established at trial in a light most favorable to the plaintiff, we find the following. Gary Keck had been asked to leave the defendant's establishment three weeks earlier due to the presence of a weapon on his person, and on the night in question Mr. Keck was in the lounge for several hours prior to the shooting. Based on this evidence, the plaintiff contends that a jury would have been entitled to find that the defendant's employees failed to exercise reasonable care by not inquiring as to the presence of a weapon. Secondly, the plaintiff argues that she was entitled to an inference that the defendant's employees knew Keck was intoxicated due to the length of time Keck had been on the premises. We disagree.

The plaintiff's argument ignores the fact that her witnesses also testified that when Keck was asked to leave 3 weeks earlier he did so quietly, and that he had since returned to Myhre's, before the night in question, without a reoccurrence of a similar nature. Secondly, Steve Patterson testified that the gun was well concealed and that even he, seated next to Keck, never actually saw the weapon. Furthermore, the record shows that Keck had only ordered two drinks while in the tavern, and that at no time was he boisterous, nor did his physical mannerisms give any indication that he was intoxicated. To the contrary, the plaintiff's witnesses, without exception, testified that Keck appeared quiet and in full control of his faculties.

An inference in law is '(a) process of reasoning by which a fact or proposition sought to be established is deduced as a Logical consequence from other facts, or a state of facts, already proved or admitted.' (Italics ours.) Black's Law Dictionary 917 (4th ed. 1968). It is our considered opinion that one cannot legically or reasonably infer that Keck was intoxicated merely from the fact that he was in the establishment for several hours. Even if Keck had consumed more than two drinks, his state of sobriety must be judged by the way he appeared to those about him, not by what a blood alcohol test later revealed. The record discloses nothing which would have put a reasonable man on notice that Keck was intoxicated and posed a threat to other patrons. Moreover, the rule enunciated in Waldron v. Hammond, supra, holds the keeper of an establishment responsible for injury in only those instances where the threat of harm was Reasonably foreseeable. Without further evidence which would alert a reasonable man in the defendant's position that Keck was likely to be armed and thereby posed a threat to the safety of his other patrons, the mere fact that he had once been instructed to leave the lounge due to the presence of a weapon is insufficient to require the defendant to conduct a 'search' whenever Keck subsequently frequented the establishment. The record is completely void of any such evidence, and we therefore hold that the trial court did not err in directing a verdict in favor of the defendant, since the plaintiff failed to introduce sufficient evidence to establish a prima facie case in support of her claim.

A second theory of recovery put forth by the plaintiff is that the defendant should be held responsible for the tortious conduct of one who was served liquor while intoxicated. The plaintiff bases her argument on the fact that the police investigation revealed that Keck had a .16 blood alcohol reading. In effect, the plaintiff seeks to have this court adopt a theory of strict liability to be applied against one who furnishes liquor whenever a patron commits a tort while intoxicated. The rule proposed by the plaintiff amounts to a common law 'Dramshop Act' (a misnomer since remedies provided under these types of statutes were unknown at common law), to replace the statutory provision repealed by our legislature. Laws of 1955, ch. 372, § 1, repealing RCW 4.24.100. We find this theory of recovery totally unacceptable.

At common law a vendor of intoxicating liquors was not answerable to a third person for injury or damage sustained by the latter as a result of the intoxication of the purchaser of the liquor. See, Right of action at common law for damage sustained by plaintiff in consequence of sale or gift of intoxicating liquor or habit-forming drugs to another, Annot., 75 A.L.R.2d 833 (1961); Fleckner v. Dionne, 94 Cal.App.2d 246, 210 P.2d 530 (1949). The reason given was that the proximate cause of the injury was the drinking of the liquor, not the furnishing of it. 45 Am.Jur.2d, Intoxicating Liquors, § 553 (1969); Halvorson v....