Barrett v. Lucky Seven Saloon, Inc. , 152 Wash. 2d 259 ( 2004 )

Owens, J.

Petitioner Jeffrey Barrett was profoundly and permanently injured in an automobile accident caused by an intoxicated driver, Ned Maher. Jeffrey Barrett and John Barrett (Barrett) sued the Lucky Seven Saloon (the Lucky Seven), claiming that it had negligently overserved alcohol to Maher. The jury returned a defense verdict, and Barrett appealed. Barrett assigned error to the trial court’s rejection of his proposed jury instructions on RCW 66.44.200(1), which provides that “[n]o person shall sell any liquor to any person apparently under the influence of liquor”¹ (Emphasis added.) He also assigned error to the pretrial determination that, in lieu of the statutory “apparently under the influence” standard, the “obviously intoxicated” standard would be applied, thus requiring Barrett to show that the Lucky Seven had sold alcohol to Maher when he was “obviously intoxicated,” not simply when he was “apparently under the influence.”

The Lucky Seven argued to the Court of Appeals that the alleged instructional errors had not been properly preserved because, while Jeffrey Barrett had excepted to the court’s refusal to instruct the jury on the statutory standard, he had not also lodged a separate objection to the court’s converse decision to instruct the jury on the “obviously intoxicated” standard. The Court of Appeals ignored the Lucky Seven’s procedural argument, and the Lucky Seven, in answering Barrett’s petition for review, did not renew the argument as an alternative basis for affirming the Court of Appeals opinion. This court granted Barrett’s petition for review on the sole issue of “whether RCW 66.44.200(1) establishes a standard of civil liability for damages caused by intoxicated drivers.” Order (Mar. 4, 2003) at 2.

Deciding this issue in the affirmative, we reverse the Court of Appeals and remand the matter for a new trial.

FACTS

On October 11, 1995, Maher left work between 1:00 and 1:30 p.m. and went to the Lucky Seven, where he bought at least three pitchers of beer and drank at least two of them. Maher left the tavern at about 4:30 p.m. and, while driving home, fell asleep, crossed the center line, and collided with Barrett’s car, causing Barrett permanent, devastating injuries. When measured approximately two hours after the collision, Maher’s blood alcohol content was .13 percent, exceeding the .10 percent limit applicable at the time. Maher pleaded guilty to vehicular assault while under the influence of intoxicating liquor.

Barrett filed a complaint against the Lucky Seven,² alleging that “the Lucky Seven Saloon sold and served additional and excessive quantities of alcohol to Ned Maher even though he was obviously intoxicated.” Clerk’s Papers (CP) at 187 (emphasis added); see also CP at 4. More specifically, Barrett asserted in his complaint that, “in violation of RCW 66.44.200,” the Lucky Seven had served Maher when he “was obviously intoxicated, under the influence of liquor and apparently under the influence of alcohol.” CP at 188 (emphasis added).

On March 2, 2000, the Lucky Seven moved the court for an order forbidding Barrett to argue to the jury that RCW 66.44.200(1) expressed a standard of civil liability for sellers of alcohol.³ With that motion pending, Barrett filed his proposed jury instructions on March 10, 2000. In proposed instructions 23-26, Barrett set forth his theory of the case regarding the duty of the Lucky Seven:

A Washington law provides: “No person shall sell any liquor to any person apparently under the influence of liquor.”

The violation, if you find any, of a statute constitutes evidence of negligence.

An administrat[ive] regulation of the State of Washington provides: “No retail licensee (tavern) shall give or otherwise supply liquor to any person apparently under the influence of liquor.”

The violation, if you find any, of an administrative regulation constitutes evidence of negligence.

CP at 130-33, Pis/ Proposed Jury Instructions 23-26. Barrett’s instructions rely exclusively on the “apparently under the influence” standard found in RCW 66.44.200(1) and WAC 314-16-150(1).

On March 15, 2000, the trial court heard argument on the Lucky Seven’s motion in limine. Counsel for the Lucky Seven introduced its one-paragraph motion with a single sentence: “This has to do with the difference between apparent standard and an obvious standard and I don’t want them to argue apparent to the jury.” Report of Proceedings (RP) (Mar. 15,2000) at 65. Barrett’s counsel, while conceding that the phrase “obviously intoxicated” had appeared in some Washington cases, countered that the legislature had “enunciated a different standard” and that Barrett “should be able to bring in the evidence of apparent, of that standard”: “If the tavern violated the Washington State Alcohol Beverages Control Act by furnishing a person who is apparently under the influence of liquor, that’s evidence of negligence, it is relevant, it should be allowed.” Id. at 65-66. Consistent with Barrett’s previously filed jury instructions, Barrett’s counsel sought the right to argue to the jury that, by statute and administrative regulation, the Lucky Seven was not permitted to serve Maher if he was “apparently under the influence of liquor.” However, the trial court granted the Lucky Seven’s motion, precluding mention of the stricter “apparently under the influence” statutory standard.

On April 5, 2000, the last day testimony was taken in the trial, Barrett proposed 18 supplemental jury instructions. See CP at 754-72, Pis.’ Suppl. Proposed Jury Instructions 39-56. Despite the Lucky Seven’s successful motion in limine, Barrett nevertheless attempted to introduce the statutory “apparently under the influence” standard by pairing a proposed instruction on that standard with one on the standard permitted under the pretrial ruling: “No person shall sell any liquor to any person apparently under the influence of liquor,” and “No person shall sell any liquor to any person obviously intoxicated.” CP at 769-70, Pis.’ Suppl. Proposed Jury Instructions 53-54. The first instruction is a verbatim statement of RCW 66.44.200(1),⁴ while the second uses the statute as its matrix, substituting “obviously intoxicated” for “apparently under the influence of liquor.” Consistent with supplemental proposed instructions 53 and 54, Barrett also proposed an instruction defining “apparent” and another distinguishing the words “apparent” and “obvious”: “Unlike the determination of something obvious, determination of something apparent requires at least some reflection and thought.” CP at 771-72, Pis.’ Suppl. Proposed Jury Instructions 55-56.

At the close of the evidence, the trial court rejected Barrett’s renewed attempts to inject the statutory language into the jury instructions. The court chose to instruct the jury that “[t]he plaintiff claims that the defendant was negligent in serving alcohol to a patron who was obviously intoxicated.” CP at 157, Jury Instruction 8 (emphasis added). Jury instruction 11 stated that “[a] commercial establishment has a duty not to serve alcohol to obviously intoxicated persons,” and jury instruction 12 went on to explain that, should the jury find that the Lucky Seven had served Maher when he was “obviously intoxicated,” it must find the tavern negligent. CP at 160-61 (emphasis added). Jury instruction 13 defined “obviously” as “easily discovered, seen or understood.” CP at 162. Barrett objected to the trial court’s failure to give several of his converse instructions on the “apparently under the influence” standard. Among those were instructions quoting RCW 66.44.200(1), as well as instructions defining the word “apparent” and distinguishing the words “apparent” and “obvious.” See CP at 130-31, Pls.’ Proposed Jury Instructions 23-24; CP at 769, 771-72, Pis.’ Suppl. Proposed Jury Instructions 53, 55-56. Apprised of Barrett’s “position” and “the grounds therefor,” Stuart v. Consol. Foods Corp., 6 Wn. App. 841, 846, 496 P.2d 527 (1972), the trial judge rejected Barrett’s proposed instructions concerning RCW 66.44.200(1), remarking that he and counsel had “been through this on the record before.” RP (Apr. 6, 2000) at 22-23.

The jury returned a defense verdict, and Barrett appealed. The Court of Appeals affirmed. Although Barrett identified 22 issues in his petition for review, we granted review of but a single issue: “whether RCW 66.44.200(1) establishes a standard of civil liability for damages caused by intoxicated drivers.” Order (Mar. 4, 2003) at 2.

ISSUE

Does RCW 66.44.200(1), which forbids the selling of alcohol “to any person apparently under the influence of liquor,” establish a standard for a seller’s civil liability for damages caused to a third party by an intoxicated driver?

ANALYSIS

Standard of Review. This court reviews de novo the alleged errors of law in a trial court’s instructions to the jury. Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). Instructions are inadequate if they prevent a party from arguing its theory of the case, mislead the jury, or misstate the applicable law. Bell v. State, 147 Wn.2d 166, 176, 52 P.3d 503 (2002). Failure to permit instructions on a party’s theory of the case, where there is evidence supporting the theory, is reversible error. State v. Williams, 132 Wn.2d 248, 259-60, 937 P.2d 1052 (1997) (citing State v. Griffin, 100 Wn.2d 417, 420, 670 P.2d 265 (1983)). As with a trial court’s instruction misstating the applicable law, a court’s omission of a proposed statement of the governing law will be “reversible error where it prejudices a party.” Hue, 127 Wn.2d at 92. If a party proposes an instruction setting forth the language of a statute, the instruction will be “appropriate only if the statute is applicable, reasonably clear, and not misleading.” Bell, 147 Wn.2d at 177.

The Two Standards: “Apparently under the Influence” and “Obviously Intoxicated.” The parties agree that the two standards define different degrees of intoxication. Plainly, had the Lucky Seven viewed the phrases as synonymous, it would not have filed a motion in limine requesting that the “obviously intoxicated” standard be used to the exclusion of the statutory standard. Given the distinction that the average person could be expected to draw between the phrases “apparently intoxicated” and “obviously intoxicated,” the Lucky Seven recognized that the latter standard was more favorable, permitting the commercial seller to serve patrons until they were “obviously drunk,” not merely “apparently drunk.” That the two standards differ finds support, not only in the Lucky Seven’s motion and the average person’s likely response to the two phrases, but also in prior Washington case law, as well as in the dictionary definitions of “apparent(ly)” and “obvious(ly).”

In Dickerson v. Chadwell, Inc., 62 Wn. App. 426, 814 P.2d 687 (1991), review denied, 118 Wn.2d 1011 (1992), Division One acknowledged a distinction between the two standards. In Dickerson, a bar patron who was assaulted by another customer sued the bar owner for negligently overserving the other customer. Division One determined that, because RCW 66.44.200 aimed to protect the public from the foreseeable harm of an intoxicated person’s “driver error,” the statutory standard of “apparently under the influence” was inapplicable to the plaintiff’s suit against the bar owner for a customer’s assault. Id. at 435. Addressing the difference between the statutory standard and the “obviously intoxicated” standard, the court turned to dictionary definitions and concluded that, “unlike the determination of something obvious, determination of something apparent requires at least some reflection and thought.” Id. at note 4 (emphasis added).

As the Dickerson court suggested, the dictionary definitions of “apparently” and “obviously” establish a distinction: “apparently” is defined as “in an apparent manner : seemingly, evidently,” whereas “obviously” is defined as “in an obvious manner : certainly.” Webster’s Third New International Dictionary of the English Language 103, 1559 (2002) (emphasis added). The definitions of the adjectives likewise show that “apparently” implies less certainty than “obviously.” The word “apparent” is defined as “readily perceptible to the senses” and “capable of being readily perceived by the sensibilities or understanding as certainly existent or present”; in contrast, “obvious” is defined as “readily perceived by the senses” and “readily. . . perceived by the sensibilities or mind.” Id. at 102, 1559 (emphasis added). While these definitions support Division One’s conclusion that “unlike the determination of something obvious, determination of something apparent requires at least some reflection and thought,” Dickerson, 62 Wn. App. at 435 n.4 (emphasis added), other definitions reinforce the conclusion that the adverb “apparently” implies less certainty than “obviously.” For example, the word “obvious” is also defined as “so simple and clear as to be unmistakable” and “disappointingly simple and easy to discover or interpret.” Webster’s Third, supra, at 1559. Whereas these definitions establish that something is “obvious” when it is virtually certain to the senses or understanding, definitions of “apparent” approach the opposite end of the semantic spectrum, suggesting that something that is “apparent” may be “distinct from or contrary to reality or truth” or may “describe a semblance contrary to truth and actuality.” Id. at 102-03. Thus, these definitions of the adjectives likewise support the potentially distinct definitions of the adverbs— “obviously” as “certainly,” “apparently” as “seemingly.”

In sum, we accept the parties’ position that the two standards — “apparently under the influence” and “obviously intoxicated” — differ meaningfully. Barrett sought this court’s review because, in his view, the Lucky Seven’s duty to stop serving Maher should have arisen when Maher became “apparently” or “seemingly” drunk, not when he reached the point of being “obviously” — “unmistakabliy]” or “certainly” — drunk. Id. at 103, 1559. That the standards differ meaningfully was a presupposition of our granting Barrett’s requested review of the issue set forth above; indeed, had we regarded the two standards as interchangeable, the issue of the applicability of the statutory standard would have been moot, for there could have been no possible error in instructing the jury on both of the synonymous standards, on one alone, or on the other.

Whether the Statutory Standard Establishes a Standard for Civil Liability. We must determine, as an issue of first impression, whether the statutory standard of RCW 66.44.200(1) establishes a standard for a seller’s civil liability for damages caused to a third party by an intoxicated driver. The proper approach to this issue has clear roots in our case law. For more than 30 years, we have turned to the Restatement (Second) of Torts section 286 (1965) “[i]n deciding whether violation of a public law or regulation shall be considered in determining liability.” Kness v. Truck Trailer Equip. Co., 81 Wn.2d 251, 257, 501 P.2d 285 (1972). Section 286 provides a four-part test:

The court may adopt as the standard of conduct of a reasonable [person] the requirements of a legislative enactment. .. whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose interest is invaded, and

(b) to protect the particular interest which is invaded, and

(c) to protect that interest against the kind of harm which has resulted, and

(d) to protect that interest against the particular hazard from which the harm results.

We have, in fact, previously applied Restatement section 286 to determine whether standards of conduct for commercial and social hosts may be derived from criminal provisions of the Washington State alcoholic beverage control act (WABC Act). See Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 475, 951 P.2d 749 (1998); Reynolds v. Hicks, 134 Wn.2d 491, 496, 951 P.2d 761 (1998); Crowe v. Gaston, 134 Wn.2d 509, 515-16, 951 P.2d 1118 (1998); Estate of Kelly v. Falin, 127 Wn.2d 31, 38, 896 P.2d 1245 (1995); Hansen v. Friend, 118 Wn.2d 476, 480-81, 824 P.2d 483 (1992); Christen v. Lee, 113 Wn.2d 479, 502-03, 780 P.2d 1307 (1989). In Schooley, we acknowledged that criminal provisions of chapter 66.44 RCW had established the duty of care in civil suits:

Although the Legislature was silent on the issue of civil liability, this court has recognized that the criminal provisions of the WABC Act may create a minimum standard of conduct for a reasonable person. This court has recognized that RCW 66.44.320, which prohibits vendors from selling alcohol to minors, creates a standard of care that when breached can be considered by the trier of fact as evidence of negligence.

134 Wn.2d at 473 (citing Purchase v. Meyer, 108 Wn.2d 220, 737 P.2d 661 (1987)). While in Schooley, Reynolds, Crowe, and Hansen, Restatement section 286 was applied to provisions forbidding the selling or giving of alcohol to minors,⁵ in Kelly and Christen, the applicability of RCW 66.44.200(1) was raised.

Although no prior case has considered whether RCW 66.44.200(1) establishes the standard of civil liability for a commercial host whose allegedly overserved adult patron injures a third party in a drunk driving accident, the parameters in Kelly are very similar. There, the two consolidated cases involved the liability of commercial hosts who had sold alcohol to adult patrons who thereafter caused drunk driving accidents, and the plaintiffs (the adult patrons) asked the court to apply RCW 66.44.200(1). Whereas the cases in Kelly addressed the issue of a tavern’s first party liability (liability for injuries to the drunk driver himself), the present case involves the tavern’s third party liability (liability for injuries the drunk driver causes to another). In Kelly, the plaintiffs argued that, apart from the common law rule, “RCW 66.44.200 establishes a duty of care on commercial vendors.” 127 Wn.2d at 38. The Kelly court acknowledged that this court had previously relied on Restatement section 286 in holding that RCW 66.44.270(1) established a duty of care, making social hosts liable for injuries to a minor who had been given alcohol. Id. at 39 (citing Hansen, 118 Wn.2d at 481). The court then considered whether “RCW 66.44.200, which proscribes selling alcohol to intoxicated adults, was intended to shield the drunk driver from responsibility for his or her own actions.” Id. Distinguishing the drunk driver himself from the “innocent bystander hit by a drunk driver,” the court concluded that “it would be utterly fatuous to interpret RCW 66.44.200 as protecting the drunk driver.” Id. at 39-40. Notably, in finding that the statute could not be construed to extinguish the drunk driver’s “accountability” for his own harm, the Kelly court did not question whether RCW 66.44.200(1) could establish a civil liability standard for injuries to third parties. Id. at 40.

That the Kelly court implicitly found RCW 66.44.200(1) applicable as a standard of liability for harms caused to third parties is not surprising, since this court had previously applied the Restatement section 286 test to RCW 66.44.200(1) and had recognized that, “in enacting the statute against furnishing intoxicating liquor to a person who appears intoxicated, the Legislature intended to protect against foreseeable hazards resulting therefrom.” Christen, 113 Wn.2d at 503. The Christen court concluded that “a subsequent criminal assault,” unlike an automobile accident arising from an overserved patron’s “driver error,” was not a foreseeable harm. Id. Drawing on the Christen decision, the Court of Appeals held in a subsequent case that it was error to apply the “apparently under the influence” standard because an assault committed by an allegedly overserved patron was outside the “field of danger with which the statute is concerned” — that is, “driver error.”⁶

In sum, we have used the Restatement section 286 test for more than three decades; we have applied the test to determine whether standards of civil liability may be derived from criminal provisions of the WABC Act; we have weighed the applicability of the RCW 66.44.200(1) standard in a case involving a commercial host’s liability for the drunk driver’s own injuries, rejecting first person liability in contrast to third person liability; and we have stated, in particular, that the RCW 66.44.200(1) standard would not apply in the context of third persons assaulted by an overserved patron, since the statute targets harms to third parties caused by the allegedly overserved patron’s driver error. Thus, as this summary shows, although the issue in the present case is one of first impression, it is one that this court’s prior decisions have provided a clear road map for resolving. En route to holding that the RCW 66.44.200(1) standard would not apply in a first party drunk driving case or in a third party assault case, we have indicated that the purpose of the statute is to protect third parties from drunk driving accidents caused by a commercial host’s overservice of an adult patron. That circumstance is now before us: Barrett contends that the purpose of RCW 66.44.200(1) was to protect him, a third party plaintiff injured in an automobile accident caused by a commercial host’s alleged overservice of an adult patron.

The four-part Restatement test leads to but one conclusion: Barrett was entitled to argue the statutory “apparently under the influence” standard to the jury. The first inquiry under Restatement section 286 is whether Barrett was a member of the class protected by RCW 66.44.200(1). The general purpose of Title 66 RCW is “the protection of the welfare, health, peace, morals, and safety of the people of the state, and all its provisions shall be liberally construed for the accomplishment of that purpose.” RCW 66.08.010 (emphasis added). RCW 66.44.200(1), like all provisions of Title 66, was intended to protect the citizens of Washington, and Barrett is a member of that protected class. The second and third inquiries under the Restatement test are whether RCW 66.44.200(1) was intended “to protect the particular interest. . . invaded . . . against the kind of harm which has resulted.” Clearly, this provision of Title 66 was intended to protect Barrett’s personal welfare, health, and safety against the catastrophic financial, physical, and emotional harm that resulted. The fourth and final inquiry under the Restatement test is whether the statute aimed to protect Barrett’s interest in his welfare, health, and safety “against the particular hazard from which the harm results.” As noted above, this court has already recognized that RCW 66.44.200(1) aimed to protect against the particular peril that caused Barrett’s harm — “alcohol-induced driver error.” Christen, 113 Wn.2d at 495 (citing Burkhart v. Harrod, 110 Wn.2d 381, 395, 755 P.2d 759 (1988) (Utter, J., concurring) (describing the spectrum of foreseeable consequences of drinking and driving as “some driving error, or at the most a tragic accident”)). Based on the four-part test, we therefore conclude that RCW 66.44.200(1), which forbids the selling of alcohol “to any person apparently under the influence of liquor,” defines the minimum standard of conduct for commercial hosts whose alleged overservice causes a drunk driving accident injuring a third party. Barrett should have been permitted to tell the jury that a commercial host has a statutory duty to refrain from serving persons “apparently under the influence of liquor.” He should have been allowed to argue that the Lucky Seven served Maher when he was “apparently under the influence of liquor” and that such service constituted evidence of negligence.

In concluding that RCW 66.44.200(1) establishes the standard of civil liability under the facts of this case, we upset no established precedent and usurp no legislative prerogative. For more than 25 years, Washington courts have applied the Restatement (Second) of Torts section 286 to provisions of chapter 66.44 RCW to determine whether the criminal statutes may establish minimum standards of conduct in civil suits, see Callan v. O'Neil, 20 Wn. App. 32, 578 P.2d 890 (1978), and for 15 years, we have regarded RCW 66.44.200(1) as applicable to cases involving “alcohol-induced driver error” — a position refined 10 years ago in Kelly to extinguish a commercial host’s first party liability. Christen, 113 Wn.2d at 495; Kelly, 127 Wn.2d 31. Moreover, because commercial hosts have been under this same statutory obligation for 70 years — that is, the obligation not to sell alcohol to one “apparently under the influence of liquor” — our opinion today adds no new, additional burden; if this holding nevertheless were to make liquor licensees more vigilant in meeting their preexisting statutory obligation, then the public would be better protected from the enormous personal and social costs arising from drunk driving accidents. See Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 764, 458 P.2d 897 (1969) (quoting Rappaport v. Nichols, 31 N.J. 188, 205-06, 156 A.2d 1 (1959)).

By granting the Lucky Seven’s motion in limine and rejecting Barrett’s jury instructions on the statutory standard, the trial court prohibited Barrett from arguing his theory of the case and informing the jury of the applicable law. Given that the two standards differ meaningfully, jury instructions on both standards would have improperly misled the jury. Bell, 147 Wn.2d at 176. The trial court should have instructed the jury on the statutory standard alone, as requested in Barrett’s original set of proposed jury instructions. Because Barrett was required to show that the Lucky Seven had sold alcohol to Maher when he was “obviously intoxicated,” not simply “apparently under the influence,” the erroneous instructions prejudiced Barrett’s case against the Lucky Seven. We therefore reverse the decision of the Court of Appeals and remand this matter for a new trial.

Alexander, C.J., and Johnson, Ireland, Chambers, and Fairhurst, JJ., concur.

1 The provision, which was designated subsection (1) in a 1998 amendment, dates to 1933. See Laws of 1998, ch. 259, § 1.

2 A second suit against the Lucky Seven, brought by Barrett’s wife on her own behalf and as guardian for their two children, was settled prior to trial.

3 See Def.’s Mots, in Limine § III.H. (“Testimony Regarding Behavior Evidencing ‘Apparent Intoxication’ is Inadmissible, Because the Lucky Seven’s Legal Duty is to Refrain From Serving ‘Obviously Intoxicated’ Persons”). CP at 70.

4 Barrett’s previously proposed instruction had prefaced the sentence with “[a] Washington law provides.” CP at 130, Pis.’ Proposed Jury Instruction 23.

5 Former RCW 66.44.320 (1973), repealed by Laws of 1999, ch. 189, § 4, prohibited the sale of alcohol to minors; RCW 66.44.270(1) forbids selling, giving, or supplying liquor to minors.

6 Dickerson v. Chadwell, Inc., 62 Wn. App. 426, 435, 814 P.2d 687 (1991) (citing Christen, 113 Wn.2d at 503), review denied, 118 Wn.2d 1011 (1992). The trial court and Court of Appeals in the present case indisputably misread the holding in Dickerson, applying its result (preclusion of the statutory standard), while ignoring its conclusion that, unlike harms caused by driver error, injuries arising from assault were beyond the scope of RCW 66.44.200(1). See RP (Mar. 15, 2000) at 66-67; Barrett v. Lucky Seven Saloon, Inc., noted at 112 Wn. App. 1041, 2002 WL 1608479. Far from supporting the Lucky Seven’s position, the analysis in Dickerson supports Barrett’s view that RCW 66.44.200(1) should establish the commercial host’s standard of conduct when a patron’s subsequent driver error harms a third party.