CHAPTER TWO ANATOMY OF A MOTOR VEHICLE CASE: ALCOHOL. September By Michael H. Runyan

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1 CHAPTER TWO ANATOMY OF A MOTOR VEHICLE CASE: ALCOHOL September 2004 By Michael H. Runyan Lane Powell Spears Lubersky LLP 1420 Fifth Avenue, Suite 4100 Seattle, WA (206) runyanm@lanepowell.com MICHAEL H. RUNYAN is a partner in Lane Powell Spears Lubersky LLP where he is cochair of the Litigation Department and General Counsel/Loss Prevention Partner. He is a fellow of the American College of Trial Lawyers, an associate of the American Board of Trial Advocates and one of Washington s Top 100 Super Lawyers. He has been President and a Trustee of the Washington Defense Trial Lawyers and a Director of the Defense Research Institute and received numerous awards from both organizations. He has lectured on trial tactics, ethics, product liability, tort reform, civil procedure and insurance bad faith (and now alcohol). His practice emphasizes defense of product liability/toxic tort cases, professional liability cases, and insurance coverage/bad faith cases. He is a 1975 cum laude graduate of the University of Michigan Law School. 2-1

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3 INTRODUCTION As a result of tougher laws and increased public awareness, the incident of alcohol-related motor vehicle crashes has diminished considerably in the United States and in the State of Washington. The U.S. Department of Transportation announced in August 2004 that alcohol-related fatalities dropped significantly in 2003, the first decline since is the first year that all states, and the District of Columbia and Puerto Rico have adopted a.08 blood alcohol content (BAC). In Washington, all motor vehicle fatalities declined by 8.8% from 658 to 600 between 2003 and Nonetheless, the role of alcohol in motor vehicle crashes continues to be a significant problem. Four out of the ten persons killed in automobile crashes in 2001 were alcohol-related or a death every thirty minutes. Clearly, alcohol and gasoline do not mix. ALCOHOL-RELATED MOTOR VEHICLE CRIMES The Washington legislature has continued to toughen alcohol-related motor vehicle crimes. In 1998, it lowered the blood alcohol level for a DUI from.10 to.08 and stiffened the penalties. RCW The DUI statute can be violated four ways: a breath alcohol concentration of.08 or greater with two hours of driving; a blood alcohol concentration of.08; driving under the influence or affected by alcohol or any drug, or driving under the combined influence or affected by alcohol or any drug. Under the influence of intoxicating liquor is any influence which lessens in any appreciable degree, the ability to handle an automobile. State v. Hanson, 15 Wn. App. 95, 96, 546 P.2d 1242 (1976). If a person is proximately injured or killed as a result of driving under the influence, a driver may be guilty of vehicular assault, RCW , or vehicular homicide, RCW If it cannot be proven an intoxicated driver drove the vehicle, he still may be found guilty of exercising physical control of a motor vehicle while under the influence i.e., the driver is found asleep in the car. RCW Criminal statutes can also be violated by furnishers of alcohol. It is a crime to sell alcohol to persons under the influence of alcohol, RCW or to persons under the age of 21, RCW EFFECT OF CRIMINAL CONVICTION ON CIVIL LIABILITY RCW was amended in 1986 as part of the Washington Tort Reform Act. That act abolished the rule of negligence per se with three exceptions. One exception involves statutes related to driving while under the influence of intoxicating liquor or any drug. Violation of those statutes still constitutes negligence per se. These statutes include , and RCW was construed in the case of Yurkovich v. Rose, 68 Wn. App. 643, 847 P.2d 925, rev. denied, 121 Wn.2d 1029, 856 P.2d 382, (1993). The issue in that case was whether a trial court was justified in finding a defendant negligent as a matter of law where the statute did not involve driving while under the influence. The court held as follows: 2-3

4 We do not interpret RCW as meaning that a trial court cannot under any circumstances find negligence as a matter of law where violations of statutes, ordinances, or administrative rules are involved. The statute eliminates evidence of a violation alone being used to support a finding of negligence per se. It permits a defendant to explain the circumstances and show excuse or justification for the apparent violation. * * * In this case, the violation of the applicable statutes and administrative code provision cannot be denied. RCW permits a defendant shown to have violated the literal requirements of a statute, ordinance or administrative rule, to present evidence of excuse or justification and leaves it to the trier of fact to determine whether the violation should be treated as evidence of negligence. The defendants efforts at showing excuse or justification failed in this case. This left the trial court no choice but to rule that negligence had been established as a matter of law. Id. at Accord, Morse v. Antonellis, 149 Wn.2d 572, 70 P.3d 125 (2003). As noted by the court in Doss v. ITT Rayonier, 60 Wn. App. 125, 129, 803 P.2d 4 (1991) overruled in part on other grounds; Kamla v. Space Needle Corp., 105 Wn. App. 123, 133, 19 P.3d 461 (2001), the practical effect of the amendment to RCW was to eliminate what might be called the strict liability character of statutory violations under the old negligence per se doctrine but to allow the trier of fact to weigh the violation along with other relevant factors in reaching its determination of liability. A trier of fact can find that a statutory violation was not negligence when the violation was due to some cause beyond the defendant s control and ordinary care could not have prevented the violation. Hansen v. Friend, 118 Wn.2d 476, 483, 824 P.2d 483 (1992). It is doubtful that this has much of an application to intoxication since it is unlikely that someone could become intoxicated under circumstances beyond their control. Notwithstanding the amendment to RCW , a violation of statute still can be used in a variety of circumstances. As noted above, it can be used as evidence of a person s negligence. In addition, where a defendant has been convicted of a crime and a guilty verdict has been obtained, a defendant may be collaterally estopped from relitigating the issue. For example, in Kyreacos v. Smith, 89 Wn.2d 425, 572 P.2d 723 (1977), a wrongful death action was brought against a city and one of its detectives based on the detective s shooting of the plaintiff s husband. The detective was convicted of first degree murder for the shooting. The court held that the earlier murder conviction estopped the retrying of the issue of premeditation based on the doctrine of collateral estoppel. See also Seafirst National Bank v. Cannon, 26 Wn. App. 922, 615 P.2d 1316 (1980). However, one of the requirements of collateral estoppel is that a party had a full and fair opportunity to litigate the facts. A party in a civil action who previously pled guilty to a criminal charge pursuant to a plea bargain has not had that opportunity and is not collaterally estopped in the civil action for denying the existence of such facts. Safeco Insurance Co. v. McGrath, 42 Wn. App. 58, 708 P.2d 657 (1985). Generally, the party against whom 2-4

5 collateral estoppel is to be asserted must have been a party in the prior action or in a privity with a party. McDaniels v. Carlson, 108 Wn.2d 299, 738 P.2d 254 (1987). Another way that violation of the statute can impact civil liability is where a defendant pleads guilty to a traffic charge. That plea may be introduced in a subsequent civil trial to show the defendant s admission of negligence, intoxication or impairment. Ryan v. Westgard, 12 Wn. App. 500, 530 P.2d 687 (1975). As previously noted, furnishers of alcohol can violate criminal laws by selling alcohol to intoxicated persons or to minors. RCW ; RCW However, since those crimes do not violate statutes relating to driving while under the influence, their violation no longer will constitute negligence per se. Thus if a social host violates RCW by furnishing liquor to a minor, the trier of fact may consider that violation as evidence of negligence but is not bound to do so as negligence per se. See, Hansen v. Friend, 118 Wn.2d 476, 824 P.2d 483 (1992). COMPARATIVE FAULT In addition to the amendment to RCW , the Tort Reform Act instituted RCW That statute bars recovery by an intoxicated plaintiff if the intoxication was the proximate cause of the plaintiff s injury or death and the plaintiff was more than 50% at fault for the injuries or death. Proof of intoxication is by the same standard as for criminal convictions under RCW In Geschwind v. Flanagan, 121 Wn.2d 833, 854 P.2d 1061 (1993), the issue was whether it was possible for a passenger to have been more at fault for his injuries than the driver, such that the statute would bar recovery for the passenger in his action against the driver. Geschwind was a passenger in a truck which crashed into a telephone pole while he was sleeping, causing him serious injuries. Both the passenger plaintiff and the driver were intoxicated at the time of the accident. At trial, the jury found the passive sleeping passenger to be 70% at fault for his own injuries. The court of appeals reversed. The supreme court reversed, upholding the jury s fault allocation. Following Geschwind, the legislature amended adding subsection 2 which provides that before a passenger s intoxication at fault can bar recovery, proximate cause must be established. It has been postulated that given this amendment, a passenger, who did not physically exert control over a vehicle, can be found at most 50% at fault for a given accident. Berg, Cheryl Robins, Chapter 12(B): Assessing Liability, p The contributing negligence of a passenger with regard to a drinking driver s actions was discussed in the case of Amrine v. Murray, 28 Wn. App. 650, 626 P.2d 24 (1981). In that case, the defendant testified that he was driving with reasonable care and caution although possibly exceeding the speed limit by as much as five miles per hour, that his drinking had not affected his ability to drive, that the plaintiff had nothing to do with causing the accident, and that plaintiff had no reason to object to the manner of his driving except perhaps to the presence of alcohol in the car. The issue on appeal was whether the striking of the defense of contributory negligence was proper. The defendant contended that the plaintiff was contributorily negligent in failing to warn the defendant that his wheel was about to leave the paved surface of the highway, to object to the defendant s drinking in the car, and to object to the defendant s speed 2-5

6 under the circumstances. The court held that a plaintiff passenger was not required to maintain the same degree of attention as the driver and to anticipate negligence on the part of the driver. The court also held that the plaintiff did not have a duty to protest the defendant s drinking or to ask to leave the automobile, since there was nothing in the driver s conduct that demonstrated his being under the influence. The defendant had testified that he drank one shot of whiskey prior to meeting the plaintiff and had not finished his second drink when the accident occurred. There was no testimony that his driving was affected by the alcohol. Finally, the court held that a passenger need not protest against every act of the driver that he deems incautious or imprudent. A passenger is not held to the same responsibility as the driver in keeping speed within proper limits. In Hansen v. Friend, the court construed the duty of a social host who had provided alcohol to a minor. The court held that under RCW , which criminalized the furnishing of alcohol to a minor, a social host owes a duty to exercise ordinary care not to furnish alcohol to minors. A minor who was injured as a proximate result of a social host s breach of that duty has a right of action against the host. Given the amendments to RCW , the social host s furnishing of alcohol to a minor in violation of the statute, is only evidence of negligence. A minor s recovery may be limited by a finding of comparative negligence. Under RCW , a minor can recover nothing if the minor was more than 50% at fault for his injuries. Whether a minor who is of the age of 6 to 16 was contributorily negligent is generally a question of fact. Under the age of 6, a minor cannot be contributorily at fault as a matter of law. INTOXICATED DRIVER A driver who is intoxicated and who negligently causes an automobile accident may be liable for injuries based on common law negligence. Mills v. Estate of Schwartz, infra. However, in order for the court to allow a jury to consider the issue of intoxication, there must be sufficient evidence of intoxication. Madill v. Los Angeles Seattle Motor Express, Inc., 64 Wn.2d 548, 372 P.2d 821 (1964). The fact that a driver consumed alcohol without any evidence that the alcohol affected his driving is not enough, Amrine v. Murray, 28 Wn. App. 650, 626 P.2d 24 (1981). One way to prove impairment from alcohol is the results of a breathalyzer or blood test. Hoffman v. Tracy, 67 Wn.2d 31, 406 P.2d 323 (1965). In Mills v. Estate of Schwartz, 44 Wn.2d 578, 772 P.2d 1363, rev. denied, 107 Wn.2d 1010 (1986), the court was asked to construe the purpose of RCW which prohibits a party from permitting a person under 21 years of age to consume alcohol on premises it controls. The issue was whether defendants were negligent per se in allowing a minor to consume alcohol when the intoxicated minor driver injured a third party in an automobile accident. The case was brought prior to the abolition of negligence per se. The court held that RCW does not protect third persons injured by intoxicated minors. Rather, the statute protects minors from injuries to themselves stemming from their alcohol consumption. Although the court has construed RCW not to apply to third parties injured by an intoxicated minor, it has held that it does apply to minors who are injured by a minor to whom alcohol has been sold in violation of the statutes. Crowe v. Gaston, 134 Wn.2d 509, 951 P.2d 2-6

7 1118 (1998). In Crow, the defendant contended that the plaintiff was not a member of the protected class because only minor purchasers and third persons injured by the minor purchaser are protected by RCW The court disagreed: In this case, we find the injuries to Crow are not so remote as to preclude liability. The policy consideration behind the legislature prohibiting vendors from selling alcohol to minors are best served by holding vendors liable for the foreseeable consequences of an illegal sale of alcohol to minors. Thus we conclude that legal cause is satisfied in this case. Id. at Liquor Establishment. LIABILITY OF A FURNISHER OF ALCOHOL The Washington abolished its Dram-Shop Act in Prior to that time, those injured by an intoxicated person had a civil cause of action against any person who, by providing intoxicating liquors, caused the intoxication. Wilson v. Steinbach, 98 Wn.2d 434, 656 P.2d 1030 (1982). Since that time, Washington has followed the common law rule that the furnishing of liquor to an able-bodied person generally is not actionable. Hostetler v. Ward, 41 Wn. App. 343, 349, 704 P.2d 1193 (1985). The reason given is that the proximate cause of the injury was the drinking of the liquor, not the furnishing of it. Shelby v. Keck, 85 Wn.2d 911, 916, 541 P.2d 365 (1975). The common law rule in Washington has been modified to allow a right of action under two or three exceptions: (1) injuries to third parties caused by furnishing liquor to a person who is obviously intoxicated and (2) injuries sustained or caused by a minor who is provided with liquor. A third exception may exist where the imbiber has a special relationship to the furnisher. The Supreme Court has been reluctant to adopt further exceptions. Rinks v. Bearss, 83 Wn. App. 334, , 921 P.2d 558 (1996). In adopting the first exception, the courts have emphasized that it is based on the notion that the seller either knew or should have known that the furnishing of liquor to a person who is so intoxicated that he has been effectively deprived of his willpower or responsibility for his actions posed a foreseeable threat of serious harm to another. Shelby v. Keck, supra at 916. This exception has been construed narrowly. Accordingly, neither the results of a blood alcohol test nor the appearance of a person a substantial time after the intoxicating liquor was served constituted sufficient evidence of obvious intoxication. Christen v. Lee, 113 Wn.2d 479, , 780 P.2d 1307 (1989). In Shelby v. Keck, supra, the Supreme Court refused to base liability solely on the fact that Keck had a.16 blood alcohol reading and to remove the requirement that the furnisher of alcohol have noticed that the person served was intoxicated or helpless, observing: 2-7

8 In effect, the plaintiff seeks to have this court adopt a theory of strict liability to be applied against one who furnished liquor whenever a patron commits a tort while intoxicated. The rule proposed by plaintiff amounts to a common law Dram-Shop Act (a misnomer since remedies provided under these types of statute were unknown in common law), to replace the statutory provision repealed by our legislature. We find this theory of recovery totally unacceptable. Id. at In Purchase v. Meyer, 108 Wn.2d 220, 737 P.2d 661 (1987), the court rejected both a pharmacologist s affidavit and testimony of an investigating officer about the obviously intoxicated condition of the defendant. The pharamcologist purported to relate the blood alcohol content back to what it was when the defendant was last served and then to make conclusions about what should have been apparent about the obviousness of her intoxication. The investigating officer testified as to how the defendant appeared an hour or two after she was served. The court recognized that [a]lthough the person to whom the 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. Id. at 225. The court also recognized that the relationship between the amount of alcohol consumed and the blood alcohol level depends on body weight and time elapsed since the first drink. Further, a heavy drinker may not appear intoxicated even with a blood alcohol level above.2. A person s makeup may also affect the rate by which alcohol is absorbed into the bloodstream, which determines the outward sign of intoxication. Finally, symptoms of intoxication may vary depending on whether or not a person s BAC is rising or falling. It was for all of these reasons that the court concluded that: It does not follow, therefore, that a person who is apprehended driving with a BAC of.10 (and who may thereafter be guilty of violating the motor vehicle code while 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. Id. at 220. The court rejected any reliance on the blood alcohol level. The sole determinant is the person s appearance at the time that the alcohol is served. Any observation an hour or two later is too late. The Washington cases in which obvious intoxication has been found all involve observations of behavior or signs commonly associated with intoxication: (1) Halligan v. Pupo, 37 Wn. App. 84, 87, 678 P.2d 1295 (1984) (unsteady on feet; totally obnoxious); (2) Dickinson v. Edwards, 105 Wn.2d 457, 716 P.2d 814 (1986) (unsteady on feet, bloodshot eyes, flushed face, smell of alcohol, unable to perform physical test ten minutes after served, an admission by defendant that he had 15 to 20 drinks within 3½ hours); 2-8

9 (3) Cox v. The Keg Restaurants U.S., Inc., 86 Wn. App. 233, 935 P.2d 1377 (1997) (bartender said defendant so drunk he would not serve him; defendant visibly drunk ; defendant was getting a good buzz; defendant appeared intoxicated before the fight); (4) Young v. Caravan Corp., (as amended) 99 Wn.2d 655, 663 P.2d 834, 672 P.2d 1267 (1983) (defendant s speech and ability to write substantially affected; beyond the point of self-control over his consumption of liquor and was greatly affected by it. ); (5) Estate of Kelly v. Falin, 127 Wn.2d 31, 896 P.2d 1245 (1995) (no liability to obviously intoxicated person who was killed; signs of obvious intoxication; boisterous and unruly, spilling beer, disturbing patrons, unable to follow simple commands, slurring speech, growing unintelligible, knocking over glasses, and yelling loudly with friends, being involved in a shoving match with another patron, references to inappropriate personal issues, appearance of being drunk); (6) Fairbanks v. J.B. McLoughlin Co., 131 Wn.2d 96, 929 P.2d 433 (1997) (observation of police officer 20 minutes after served that defendant had alcohol on breath, speech was slurred, staggered as she walked, failed field sobriety test); (7) Fraser v. Beutel, 56 Wn. App. 725, 785 P.2d 470 (1990) (defendant out of control, defendant very unsteady); (8) State v. Lewellyn, 78 Wn. App. 788, 895 P.2d 418 (1995) (results of field sobriety test, observations of driving, speech slow and slurred, tongue coated white, eyes red and bloodshot, very poor balance); (9) State v. Martin, 69 Wn. App. 686, 849 P.2d 1289 (1993) (unkempt and disoriented, uncooperative, glassy eyed and slurred speech); and (10) State v. Franks, 74 Wn.2d 413, 445 P.2d 200 (1968) (staggering and uncontrollable and belligerent). Cases which found that the evidence was insufficient to support a cause of action against the furnisher include Christen v. Lee, 113 Wn.2d 479, 780 P.2d 1307 (1989). That case concerned the liability of a public drinking establishment for a criminal assault committed by one of its patrons. With regard to the allegedly intoxicated patron, the Washington Supreme Court summarized the evidence as follows: Diane Thomas also testified that she thought Visitacion was intoxicated while at the bar based on the amount of alcohol she saw him consume. Nothing in the record, however, indicates that he actually appeared intoxicated to others around him. Id. at The court held that there was insufficient evidence to support a cause of action against the bar for furnishing intoxicating liquor to an obviously intoxicated person. Similarly, in Barrie v. Hosts of America, 94 Wn.2d 640, 618 P.2d 96 (1980), the court held that evidence 2-9

10 failed to establish that the decedent was in an obviously intoxicated condition on the night in question. The testimony of the witnesses was that the decedent walked and talked in a normal fashion. In Estate of Kelly v. Falin, 127 Wn.2d 31, 896 P.2d 1245 (1995), the court was obliged to construe RCW which makes it a crime to sell alcohol to an apparently intoxicated person. The issue was whether or not the statute applied if the allegedly intoxicated person suffered harm himself as a result of that intoxication. In holding that a commercial establishment is not liable for injuries sustained by an obviously intoxicated patron, the court reviewed the history of liability for drunk driving. It noted that the common law rule rejected the notion that intoxicated adults could hold commercial vendors liable for furnishing them alcohol. It noted that a law imposing liability against one who furnishes liquor whenever a patron commits a tort while intoxicated would be the equivalent of a judicially imposed Dram Shot Act which had been abolished by the legislature in Moreover, it pointed out the violation of RCW was evidence of negligence only if the statute was intended to protect both the person bringing the action in the particular interests asserted. In rejecting liability, the court noted as follows: It belies common sense, however, to suggest that RCW , which prescribes selling alcohol to intoxicated adults, was intended to shield the drunk driver from responsibility for his or her own actions. * * * Without a more precise directive from the legislature, it would be utterly fatuous to interpret RCW as protecting the drunk driver. Adults are expected to temper their alcohol consumption or simply refrain from driving while 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. Until the legislature indicates otherwise, this court will not absolve intoxicated adults of their accountability for such accidents. Id. at 41. The same rule does not apply to minors, however. In Schooley v. Pinch s Deli Market, 134 Wn.2d 468, 951 P.2d 749 (1998), the court held that a liquor seller could be liable for injuries to a minor who was given the alcohol illegally sold to another minor. 2. Social Hosts. In Burkhart v. Harrod, 110 Wn.2d 381, 755 P.2d 759 (1988), the surviving spouse of a person killed in a motorcycle accident sought damages for wrongful death from the couple at whose home he had been drinking prior to the accident. The court declined to extend the rule of liability against commercial furnishers of liquor who serve obviously intoxicated customers to social hosts. It held that if social host liability is to be imposed in Washington, it should be done by the legislature which has a greater ability to fully explore the spectrum of competing societal interests. The court recognized that there were strong arguments both for and against social host 2-10

11 liability and decided that the nature of the judicial role prevented it from capably deciding the relative merits of the competing arguments. However, a social host who furnishes liquor to a minor can be liable. Hansen v. Friend, 118 Wn.2d 476, 824 P.2d 483 (1992). The court in that case noted that the legislature had acted to prohibit post-social hosts and commercial hosts from furnishing liquor to minors. A violation of such a statute was not negligence per se, but evidence of negligence. The court noted that two factors would limit the extent of the minor s recovery. One was contributory negligence for violation of a statute, and secondly, RCW , which makes it a complete defense if the intoxicating came in condition is the proximate cause of the injury or death and the person was more than fifty percent (50%) at fault. The question in the Estate of Templeton v. Daffen, 98 Wn. App. 677, 990 P.2d 968 (2000) was whether a social host who does not furnish alcohol to minors but permits the minor to consume alcohol on his premises, is liable for injuries sustained by the minor. The Court of Appeals held that it was not liable. The court mentioned that it was greatly influenced by Supreme Court s recently announced reluctance to expand the class of persons protected by a social host s common law duty of ordinary care. Similarly, in Reynolds v. Hicks, 134 Wn.2d 491, 9051 P.2d 761 (1998), the court refused to extend liability to allow a cause of action for third persons who are injured by an intoxicated minor against the social host. 3. Employer. In Dickinson v. Edwards, 105 Wn.2d 457, 716 P.2d 814 (1986), an injured motorcycle operator sought damages from an employer which had sponsored a social event in which the employee had consumed between 15 and 20 drinks in a 3½ time period. The court held that a plaintiff may recover from a banquet hosting employer if the following prima facie case is proven: 1. The employee consumed alcohol at a party hosted by the employer which was held to further the employer s interest in some way and at which the employee s presence was requested or impliedly or expressly required by the employer. 2. The employee negligently consumed alcohol to the point of intoxication when he knew or should have known he would need to operate a vehicle on some public highway upon leaving the banquet. 3. The employee caused the accident while driving from the banquet. 4. The proximate cause of the accident, the intoxication, occurred at the time the employee negligently consumed the alcohol. 5. Since this banquet was beneficial to the employer who impliedly or expressly required the employee s attendance, the employee negligently consumed this alcohol during the scope of his employment. Id. at 468. The employer therefore was held to be vicariously liable. In Tallariti v. Kildare, 63 Wn. App. 453, 820 P.2d 952, the court was asked to decide whether an employer owed a plaintiff the duty 2-11

12 to prohibit drinking at the job site where the person was injured in an automobile accident involving an intoxicated employee who drank alcohol after hours at the job site. The plaintiff argued that because the party took place on the job site, the general contractor and subcontractor had an obligation to control the employee s activities even if the keg party was a purely social event. The court held that the plaintiff had failed to show that the respondents owed him a duty to control the job site to prevent the type of harm that he suffered. Even if the general industry policy was to prohibit drinking on the job on construction sites, the policy is for the protection of employees. Since the plaintiff was not an employee, the employers were not liable for breaching that duty. 4. Minors. Different rules apply when the person who is furnished alcohol is a minor. For example, in Rinks v. Bearss, 83 Wn. App. 334, 921 P.2d 558 (1996), the court held that a commercial vendor of alcoholic beverages owed a duty of ordinary care to third parties who are foreseeably put at risk by a minor who consumes alcoholic beverages negligently sold by the vendor to another minor. Similarly, in Schooley v. Pinch s Deli Market, 134 Wn.2d 468, 951 P.2d 749 (1998), a minor who was injured by diving into the shallow end of the swimming pool sought damages from a commercial vendor that had sold four cases of beer to a second minor who later shared the beer with the plaintiff shortly before the diving accident occurred. The court held that the statutes prohibiting the commercial sale of alcoholic beverages to minors created a duty of care and that the plaintiff was within the class of persons the statutes were intended to protect. 5. Public Entities. The husband and children of a woman killed in an automobile accident involving a drunk driver sought damages from a county and the state based on their failure to revoke the drunk driver s license as an habitual traffic defender. The Supreme Court held that the county and state s inaction was not a legal cause of the plaintiff s damages. The court noted that it had premised legal causation on the existence of some direct contact or special relationship between the defendant and the injured party. The court held that the failure of the government to revoke the license was too remote and insubstantial to impose liability for the driver s drunk driving. In Hostetler v. Ward, 41 Wn. App. 343, 704 P.2d 1193 (1985), the guardian of a person injured in a collision caused by an intoxicated minor sought damages from a county on the theory that the minor had consumed liquor in a county-owned public park without interference by the park management. The plaintiff alleged the county was liable for maintaining the park as a haven for the consumption of alcoholic beverages by minors, for its negligence in failing to enforce laws controlling the use of alcoholic beverages, and for negligence out of its employees in directing the minor and others to drive out of the park onto the public highway when the employee knew or should have known that the defendant s ability to drive was handicapped by his consumption of intoxicants. The court refused to extend the liability to the county under those circumstances. Similarly, a common carrier was not found liable for the actions of an intoxicated passenger after the passenger disembarked unless the carrier s employees have actual knowledge of the passenger s incapacity and particular risk of harm resulting therefrom. Torres v. Salty Sea Days, Inc., 36 Wn. App. 668, 676 P.2d 512 (1984). In that case, a minor brought an action in part 2-12

13 against the Washington State Ferry System arising out of a cruise she took on a ferry lease from the ferry system. While aboard, she purchased between 15 and 20 drinks and attempted to drive home and was injured in a one-car automobile accident. The suit against the ferry system alleged that it breached its duty of care as a common carrier to protect an intoxicated passenger. The court upheld the dismissal against the ferry system since there were no facts that it was aware of her intoxication or that she planned to drive an automobile after leaving the ferry. It was not disputed that the ferry personnel were not involved in the serving of liquor and that her car was not on the ferry. A school district was not found liable in an action seeking damages for the death of a student who was killed in an automobile accident after drinking beer at a party on a release day before her high school graduation. Rhea v. Grandview School District, 39 Wn. App. 557, 694 P.2d 666 (1985). The court held that an activity undertaken by students off of the school grounds is not within the scope of the school district s authority for purposes of tort liability unless the agents of the district exercise control and supervision over the activity. Knowledge of the pendency of the activity is not sufficient to impose liability. Finally, in Houck v. University of Washington, 60 Wn. App. 189, 803 P.2d 47 (1991), an intoxicated 18-year old university student claimed that the university was negligent when he fell down an elevator shaft and was injured. The university was held to be a common carrier with regard to the operation of the elevator in question. A common carrier owes the highest degree of care towards its passengers commensurate with the practical operation of its conveyance at the time and place in question. The court distinguished its earlier decision in Torres v. Salty Sea Days, supra. The court held that the university s knowledge of the pre-opening of the elevator doors and the student drinking raised a question of fact as to whether the university was negligent in failing to act on that knowledge. The court held, however, that the dormitory rooms in which the students lived were not premised under the control of the university, and thus, the university had no statutory duty to prevent students from drinking alcohol in those rooms. The court also concluded that the university had no common law duty to prevent students of drinking under the facts of the case. 2-13

14 Bibliography Alcohol, Washington Civil Trial and Evidence Manual Voir Dire to Verdict, p. 7-8, WSBA (Fifth Editions Berg, Cheryl Robbins, Chapter 12(B): Assessing Liability. Burgess, F. Ross and Timothy R. Gosslin, Chapter 12, Accidents Caused by Alcohol and Vehicular Crimes, in Washington Motor Vehicle Accident Desk Book, WSBA, (1990). DOT Announces Historic Low Highway Fatality Rate in 2003, U.S. Department of Transportation Office of Public Affairs, Washington, D.C., August 10, Flora, Donovan R., Chapter 14(M): Rules of the Road; Alcohol-Related Accidents. Green, Richard and Dianne Kulberg, Chapter 12, Accidents Caused by Alcohol and Vehicular Crimes, in Washington Motor Vehicle Accident Desk Book; WSBA (Second Edition 2001). Smart, William C. and Paulette Peterson, Chapter 12, Supplement, Accidents Caused by Alcohol and Vehicular Crimes, in Washington Motor Vehicle Accident Desk Book, WSBA (1998). 2-14