While numerous laws and criminal sanctions have been enacted to deter those who drive while intoxicated, deterrence does not compensate those who suffer bodily harm or property damage because of drunk driver. Drunken driving is not seasonal; it remains a major problem 365 days a year. The law has traditionally looked for accountability from those who drink and drive. More recently, the courts have begun to recognize other parties in the chain of events leading to an injury caused by an intoxicated driver. This article looks at Washington's current law relating to "commercial host liability" 1for serving alcohol that results in bodily injury to the innocent third party.

Negligence

When an injured party brings a claim or lawsuit against another, the evidence proof standard is based upon ordinary principles of negligence. To establish a negligence claim against the commercial server of alcohol to a drunk driver, the victim of injury/plaintiff must oversee the general common law rule that there is no wrongdoing by selling or giving alcohol to able-bodied persons. The basis of this presumption is that it is the drinking, not the furnishing of the liquor, which is the proximate cause of injury.

Just recently however, the Washington State Supreme Court reviewed a case involving the Washington Alcoholic Beverage Control Act (RCW 66.44.200(1)) and the standard of civil liability for commercial hosts in Barrett v. Lucky Seven Saloon, 152 Wn.2d 259, 96 P 3d. 386 (2004). In this case, the at-fault driver left work between 1:00 and 1:30 pm and went to the Lucky Steven, where he bought at least three pitchers of beer and drank at least two of them. He left the tavern at about 4:30pm and, while driving home, fell asleep, crossed the centerline, and collided with Barrett's car, causing Barrett permanent, devastating injuries. When measured approximately two hours after the collision, the at-fault driver's blood alcohol content was .13 percent, exceeding the .10 percent limit applicable at the time. [The legal limit is now .08 percent.] He pleaded guilty to vehicular assault while under the influence of intoxicating liquor. [Bracketed commentary added.]

After his civil trial against Lucky Seven and the at-fault driver, the jury returned a verdict in their favor, Barrett appealed his case arguing that the trial judge committed an error by refusing to instruct the jury in the language of RCW 66.44.200(1) which provides:

"[n]o person shall sell any liquor to any person apparently under the influence of liquor (emphasis added)."

Instead, the trial court gave instructions which recognized liability for Lucky Seven Saloon only if the evidence showed that the customer was "obviously" intoxicated. In short, to hold the Lucky Seven Saloon liable for the drunken acts of the at-fault driver, the jury was obliged to find that he had been "obviously intoxicated" at the time he was served alcohol at the tavern. The Washington Supreme Court reviewed the question of whether RCW 66.44.200(1) forbids the selling of alcohol "to any person apparently under the influence of liquor," and establishes a standard for a seller's civil liability for damages caused to a third party by an intoxicated driver.

In a 6-3 decision the Washington Supreme Court Justices ruled that RCW 66.44.200(1) does set the standard for civil liability for commercial sellers of alcohol and ordered a new trial with a new standard of proof. The court expressly stated the correct standard with which to instruct a jury for commercial host liability is the language of the statute, which establishes a standard of "apparent intoxication" at time of over-service of alcohol and not "obviously intoxicated."

The holding of the court in Barrett v. Lucky Seven Saloon is yet another battle won in the war against drunk drivers and the great harm done by them to innocent persons and families. With this recent decision, commercial vendors of alcohol services may now be fully liable if they continue to serve alcohol to someone who is apparently intoxicated. Hopefully, this decision will encourage and require more discretion by tavern owners and their servers when serving alcohol. In any scenario where a patient is injured from a drunk driver it is critical for them to consult with legal counsel because the gathering of critical evidence, witness statements, and testimony is best accomplished as soon as possible after the incident.

1. Commercial hosts are those who sell alcohol. Wa. Rev. Code Ann. § 66.04.010. Also see Halverson v. Birchfield Broiler, Inc. 76 Wash. 2d. 759 (1969). This case concerns a claim for injuries caused by an employee who had become intoxicated at a company Christmas party. The court held that an employer was a "quasi-commercial host" as there was possibility of monetary gain; as such, the employer may possibly be held liable for gratuitously serving an obviously intoxicated employee more alcohol.

2. Halverson v. Birchfield Broiler, Inc. 76 Wash. 2d. 759 (1969)

3. Id.