Gasoline and Alcohol: Commercial and Social Host Liability
By Richard H. Adler
December 13, 1993
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 drunken driving. 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 a drunk driver. This article summarizes current Washington case and statutory law relating to commercial1 and social host2 liability for serving alcohol that results in bodily injury to the intoxicated individual or an innocent third party. As we approach the holiday season, be mindful if you are hosting a seasonal get-together. Do you know your duties? Also, as a provider treating victims of drunk drivers, it’s important to recognize the special needs of your patients.
A. Washington Alcoholic Beverage Control Act
The Washington Alcoholic Beverage Control (WABC) Act3 forbids the selling of liquor to any person under the influence of alcohol or giving/supplying alcohol to a minor. The Act expressly provides for criminal sanctions; however, the law is silent on the issue of civil claims by parties injured by intoxicated individuals served in violation of the Act.
Washington courts recognize that a lawsuit may be filed against commercial vendors for a WABC violation, since the statute defines a duty of care owed to the public, it is foreseeable that injury may result if the duty is breached, and the intoxicated consumer may take to the streets in a moving vehicle.4 A majority of the state courts have refused to predicate social host liability on violation of a beverage control act, reasoning that the social host derives no profit from furnishing liquor, or that the Washington legislature, not the courts, should impose liability on social hosts. To date, the Washington legislature has not imposed a statutory duty on social hosts to monitor how much alcohol he/she serves to his/her guests. However, the courts have begun to take a new look at this area, as we will discuss later.
When a claim is made under the WABC, the standard of care is established by statute. When suit is brought based upon ordinary principles of negligence, the standard of care is that of a reasonable person in like circumstances. To establish a negligence claim, the victim of injury/plaintiff must overcome the general common law rule that there is no wrongdoing by selling or giving alcohol to able-bodied persons.5 The reason usually given for this rule is that it is the drinking, not the furnishing of the liquor, which is the proximate cause of the injury.6
C. Commercial Vendor: Dram Shop Liability
Courts have carved out exceptions to the general common law rule of no liability when evaluating ordinary negligence claims brought against commercial vendors, such as bars and taverns. According to Washington case law, a commercial vendor of alcohol will be liable under the theory of common law negligence for serving (1) an obviously intoxicated person, (2) persons in a state of helplessness, or (3) persons in a special relationship to the furnisher of intoxicants. Whether a person is “obviously intoxicated” depends on the person’s appearance at the time the alcohol is furnished. Interestingly, the Washington courts have ruled that neither the results of a blood alcohol test, nor the appearance of the person a substantial amount of time after the alcohol was served, is sufficient to prove “obvious intoxication.”
Exceptions to the common law rule applying to commercial vendors have not been extended to social hosts. The courts have justified this distinction by the inability of social hosts to (1) judge the intoxication of their guests, (2) to monitor alcohol consumption, and (3) prevent the inebriated guest from departing despite the host’s protests. However, the court’s position to protect the social host appears to be shifting.
D. Social Host Liability
In a dramatic departure from the court’s previous rulings that social host liability did not exist in this state, the Washington Supreme Court determined in Hansen v. Friend, 118 Wash. 2d. 476 (1992), that social hosts who gratuitously furnish alcohol to a minor can be held liable for injuries proximately resulting from the minor’s intoxication. In this case, on the day preceding his death, a 15 year old consumed alcohol with a 21 year old friend throughout the night. The next day, another 21 year old joined them and the three departed for a camping and fishing trip. Along the way they purchased more beer and continued to drink once they had established camp. Sometime after 11:00 p.m., the minor left the campsite stating that he was going to another campsite to steal a beer. Shortly afterward, campers at the adjacent campsite heard a loud splash and someone struggling in the water, gasping for air. Even though the campers sought to locate the minor, he drowned.
For the first time, the Washington Supreme Court held that a duty exists for social hosts to exercise ordinary care not to furnish liquor to a minor. It is important to note, however, the court also found that a minor’s recovery may be limited or entirely barred by a finding of contributory negligence on the part of the minor.
With the recent case of Hansen, social hosts may now also be found liable if they serve alcohol to a minor who is subsequently injured. It stands to reason that the court will next consider whether an innocent third-party injured by a minor drunk driver may look to a social host to pay damages. In any of these scenarios, it is critical that the victim of a drunk driver be immediately referred to an attorney who is familiar with this area of law, because the gathering of critical evidence and testimony is best accomplished as soon as possible after the incident.
Very truly yours,
ADLER GIERSCH, P.S.
Richard H. Adler
Attorney at Law
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 Social hosts are those who provide alcohol to others for no cost and with no future business expectations. See Halverson v. Birchfield, Inc., 76 Wash. 2d. 759 (1969).
3 RCWA §§ 66.04.010 – 98.100 (Commonly referred to as the Washington State Liquor Act.)
4 Young v. Caravan Corporation, 99 Wash. 2d. 655 (1983). Case involved sale of alcohol to a minor. Also see Purchase v. Meyer, 108 Wash. 2d. 220 (1987). The court allowed an innocent third-party injured by an intoxicated minor to pursue a claim against the commercial vendor who sold alcohol to the minor.
5 Halverson v. Birchfield Boiler Inc., 76 Wash. 2d. 759, 762 (1969).
7 Id., 762-763.
8 William v. Kingston Inn, Inc., 58 Wash. App. 348 (1990).
9 Burkhart v. Harrod, 110 Wash. 2d. 381 (1988).
10 Also see Gerschwind v. Flanagan, 121 Wash. 2d 833 (1993). The court held that it was possible for an intoxicated passenger to be more at fault for his injuries than the intoxicated driver. If the plaintiff is more than 50% at fault, he/she is barred from recovery.