Serving the "apparently Under the Influence" Patron: the Ramifications of Barrett v. Lucky Seven Saloon, Inc

• Publication year: 2007
• Citation: Vol. 31 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 2WINTER 2008

NOTE

Serving the "Apparently Under the Influence" Patron: The Ramifications of Barrett v. Lucky Seven Saloon, Inc.

Kathryn M. Knudsen(fn*)

Given a choice between a rule that fosters individual responsibility and one that forsakes personal accountability, we opt for personal agency over dependency and embrace individual autonomy over paternalism.(fn1)

I. Introduction

Imagine a woman named Sue meets a friend for dinner at a restaurant in downtown Seattle. The restaurant is packed with customers, and Sue decides to have a few beers. She is not loud, and she maintains her outward composure. Given these facts, the bartender would probably not be able to determine that Sue is intoxicated. He or she might subjectively determine, however, that Sue is "apparently under the influence" of alcohol because close observation would reflect that her eyes are slightly red and her breath smells faintly of beer. After a few hours, Sue leaves the restaurant, drives off in her car, and hits a pedestrian. Under the recently established standard set forth in Barrett v. Lucky Seven Saloon, Inc.,(fn2) a court would probably determine that the pedestrian's injury was a foreseeable event, and the restaurant could be held liable for serving Sue alcohol, even though she was not "obviously intoxicated" at the time the restaurant served her.

A different individual-and well-known brawler-named Joe regularly drinks to excess at his neighborhood pub in a small town in Washington. One night Joe excitedly shows the bartender a switch-blade knife he recently purchased. The bartender serves Joe several pitchers of beer. Joe, like Sue, handles his liquor well and shows no outward signs of intoxication. Subsequently, Joe leaves the pub, gets into a scuffle across the street, and stabs another man to death. Despite the foreseeability of harm based on Joe's violent reputation, his new weapon, and his consumption of several pitchers of beer, the commercial vendor would probably not be liable to the third party victim for over-serving Joe, because Joe was not "obviously intoxicated"(fn3) and did not injure his victim with an automobile.(fn4)

If foreseeability of harm is the foundation of negligence,(fn5) is it really more foreseeable that Sue, and not Joe, would injure a third party, when Joe brandished a weapon and neither party was "obviously intoxicated"? Moreover, should we really presume that injuries caused by impaired drivers are any more foreseeable than those caused by other impaired tortfeasors?

In Barrett, the Washington Supreme Court erroneously expanded commercial vendor(fn6) liability to third parties who are injured in automobile accidents by a patron who drives while impaired.(fn7) This decision flies in the face of Washington vendor liability jurisprudence, which has shown a reluctance to hold vendors liable for negligently serving alcohol; prior to Barrett, courts would not do so unless the patron was a minor or was "obviously intoxicated."(fn8) Nevertheless, Barrett rejected the common law "obviously intoxicated" rule in exchange for a new form of civil liability based on a criminal statute that prohibits a commercial vendor from serving a patron who is "apparently under the influence" of alcohol.(fn9) Although the "obviously intoxicated" standard is highly preferable to the "apparently under the influence" standard, there are circumstances in which neither standard will suffice.(fn10) Therefore, the Washington Legislature should enact the following standard of conduct to clarify civil liability for commercial vendors: Vendors are liable when they "biew or should have known" that the patron was intoxicated at the time of service.(fn11)

This Note is divided into five parts that collectively explore the history of vendor liability in Washington, the mistakes made by the Washington Supreme Court in deciding Barrett, and how best to determine when a commercial vendor should be liable for an injury to a third party. Part II provides the history of commercial vendor liability in Washington and explains that liability traditionally attached only when the vendor was on notice that injury to a third party may occur. Part III discusses the Barrett opinion and how it expanded vendor liability by raising a vendor's duty of care to third parties.(fn12) This higher duty shifts responsibility from the patron who chooses to drink excessively to the server. Part IV argues that the court simply got it wrong. Instead of applying sound legal reasoning, the majority succumbed to its desire to compensate the severely injured victim.(fn13) The court's decision to stray from the "obviously intoxicated" standard to the "apparently under the influence" standard cannot be justified; the new rule conflicts with the general rejection of negligence per se as a form of recovery in Washington, the fore-seeability-of-harm requirement in a negligence claim, the doctrine of stare decisis, and the principle of legislative intent.(fn14) Finally, in Part V, a practical and applicable standard to determine liability is presented, as are other possible solutions to the problems created by the Barrett decision.

II. Vendor Liability History in Washington

The history of vendor liability in Washington reveals that, although the sale of alcohol has consistently been regulated in one form or another,(fn15) the courts and legislature have been reluctant to attach liability to a vendor unless the patron was "obviously intoxicated" at the time of service.(fn16) This Part discusses the basic principles of negligence liability, the important distinction between the "obviously intoxicated" standard and the "apparently under the influence" standard, and the development of vendor liability until Barrett was decided.

A. The Basis of General Civil Liability

Under the law of torts, a person is liable for the injuries caused by his or her negligence.(fn17) A claim for negligence requires proof of duty owed to the plaintiff, breach of that duty, and harm or damages that are proximately caused by the breach.(fn18) Litigants in vendor liability actions dispute whether a commercial vendor is negligent for serving alcohol, focusing on the elements of duty and proximate causation.(fn19) A vendor's duty arises at the moment the act of serving alcohol to a patron creates a foreseeable risk of harm to third parties who may be injured by the patron.(fn20) The issue of proximate cause arises under the common law theory that the impaired driver's conduct, not the act of serving alcohol, causes the injury to the third party.(fn21)

B. Dramshop Liability

The common law rule provided that a vendor who over-served a patron could not be liable for the patron's tortious acts(fn22)-no matter how much alcohol was served, or how foreseeable the patron's harmful action was to the vendor-because it was the patron who decided to go to the bar and drink to the point of intoxication.(fn23) The rule was based on the premise that a commercial vendor cannot be the proximate cause of injury to a third party simply by serving alcohol.(fn24) By shielding vendors from proximate liability, the legal system held patrons personally accountable for their voluntary decisions to drink and their poor decisions that resulted from drinking.

Nevertheless, the thinking on commercial vendor liability for serving alcohol changed over time. Such liability was established during the beginning of the Prohibition era as dramshop(fn25) acts were enacted.(fn26) In the 1830s, people abandoned hope that "drinkers would reform themselves," and prohibitionists attempted to eliminate the public's alcohol supply through legislative means.(fn27) While still a territory,(fn28) Washington enacted a dramshop act that allowed a civil cause of action against any person or vendor that provided alcohol to an intoxicated person who then caused injury to another.(fn29) Dramshop liability survived from 1879 until 1955, when the Legislature expressly repealed the statute.(fn30) Although legislative history fails to explain the rationale behind the repeal, courts have consistently inferred that the repeal indicated the legislature's disapproval of third party recovery against a commercial vendor for serving alcohol.(fn31) Consequently, injured parties searched elsewhere for compensation.

C. Post-Dramshop Act Liability

Even after dramshop liability was eliminated in Washington, the Washington Liquor Control Board retained power to regulate liquor sales "for the protection of the welfare, health, peace, morals, and safety of the people of the state."(fn32) Since 1933, a Washington statute has prohibited commercial vendors from serving a patron who is "apparently under the influence" of alcohol.(fn33) Vendors violating the statute face sanctions that include fines, liquor license suspension or revocation, or imprisonment.(fn34) Significantly, the statute remains silent as to the issue of civil liability, even after amendments.(fn35) After the dramshop act was repealed,(fn36) the legislative silence on civil liability forced courts to revert to the common law rule that a commercial vendor does not owe a duty to a third party because "it is not a tort to either sell or give intoxicating liquor to ordinary able-bodied men."(fn37) The common law rule prohibited vendor liability based on the...