• Drunk driving is not seasonal; it remains a major problem 365 days a year. 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 a drunk driver. 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 may be held accountable as well.

    Several years ago, the Washington State Legislature amended the law dealing with the sale of liquor to include a provision that no person shall sell liquor to any person apparently under the influence of liquor as noted in the Alcoholic Beverage Control Act, Revised Code of Washington (RCW) 66.44.200 (1). That law was interpreted by the courts in the initial cases, to mean “obviously” intoxicated and not just “apparently”. Estate of Kelly By and Through Kelly v. Falin 127 Wash.2d 31, 896 P.2d 124(1995) et al.

    The difference in the standard has been significant with the “obviously intoxicated” evidence threshold much higher and making it more difficult for those injured by the acts of intoxicated individuals to hold the entity that over served alcohol accountable for doing. It was also unfair when considering published studies and common sense experience show that many heavy drinkers are able to consume far more than the legal limit while not looking or acting “obviously” intoxicated – yet they are functionally or apparently intoxicated, particularly when having to engage in complex behaviors such as driving a car.

    The Washington Supreme Court reviewed the conflict between the standard in the Alcoholic Beverage Control Act and the prior court cases in the landmark case of Barrett v. Lucky Seven Saloon, 152 Wn.2d 259, 96 P 3d. 386 (2004). 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.” As a result, an establishment serving alcohol can be liable for injuries caused by someone they should not have served because they were “apparently” intoxicated at time they were provided too many drinks. The evidence did not have to establish they were “obviously intoxicated.” for such service to constitute negligence on the server’s part.

    Two more recent cases of interest have elaborated on this area of law. The first is another significant step forward in protecting those injured by drunk drivers and those that over serve them. In the first case Faust v. Albertson, No. 81356-6, 2009 WL 2048332 (Wash. July 16, 2009) , the court dealt with a situation where there was conflicting evidence about the sobriety of an individual drinking at a Moose Lodge. Other patrons at the Lodge went both ways on whether he was apparently intoxicated at the time the bartender continued to serve him alcohol. The bartender equivocated as well.

    Shortly after leaving the lodge, the man drove his car head on into an oncoming car. Testing after the collision determined his blood alcohol was well over the legal limit when he caused the collision. He subsequently died a short time later, yet his blood alcohol was still over the legal limit with additional undigested alcohol in his stomach. After hearing the evidence, the jury found for the injured plaintiff against the deceased driver, the bartender and the Lodge. An appeal of the jury’s decision resulted in the Court of Appeals reversing and indicating that there was not enough direct evidence to show the apparent intoxication of the driver before he left the Lodge and while he was still being served.

    A final appeal was taken to the Washington Supreme Court, and they reversed the Court of Appeals decision, then reinstated the jury verdict finding there was enough evidence to support the jury’s decision. The critical components of the decision looked closely at the evidence presented for the jury’s consideration. The Court found the evidence was enough to support an inference that the patron was apparently intoxicated at the time of service such that the lodge could be held accountable. The Court found the efficient sufficient in light of:

    • combination of direct or circumstantial evidence of the patron’s intoxicated appearance while being served at the Lodge;
    • his “postservice” intoxicated appearance upon leaving the lodge; and
    • high blood alcohol content post collision and in autopsy reports done shortly after the collision.

    This result is consistent with the types of evidence typically used to decide cases, and our judicial systems reliance on the jury to hear the conflicting evidence, assess the reliability and credibility of the witnesses and arrive at the truth.

    The second case is a cautionary tale, and reminder that the rules for Indian Tribes can be very different because of their status as sovereign dependent nations. In Foxworthy v. Puyallup Tribe of Indians Association, 141 Wash App 221 (2007, alcohol was served to a patron at an Indian Casino on tribal land. The person became drunk, left the Casino and injured another motorist in a collision. The injured person then sued the tribe under Washington for serving an apparently intoxicated person.

    The Appeals Court, however, threw out the injured person’s claims for injuries against the tribe finding RCW 66.44.200 did not apply to liquor sales by the tribe. While the Puyallup Tribe had agreed to pay monies to the State based on those liquor sales, the tribe had not agreed to have state laws governing liquor sales apply to them when doing so. This case is a step back for injured persons in their efforts to obtain a fair compensation and justice when injured by a drunk driver

    Dealing with a tribal entity, or making a claim for damages against a bar, tavern, lodge or commercial business for over serving a person who then drunkenly injures someone is a difficult and complex process. Doing so requires the assistance of knowledgeable and highly skilled, experienced plaintiff’s personal injury attorneys in the area of negligence and traumatic personal injuries. The attorneys at Adler Giersch stand ready to assist you in these types of matters through their offices in Seattle, Bellevue, Everett and Kent.


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