Yes. A law that makes it illegal to serve someone who 'seems' drunk is meant to protect everyone on the road. If a bar breaks this safety rule and someone gets hurt in a drunk driving accident, the bar can be held responsible. It's easier for a bartender to tell if someone 'seems' drunk than if they are 'obviously' drunk, so this rule does a better job of protecting the public.

No. For years, the rule has been that a bar is only responsible if it serves someone who is 'obviously' wasted. It's the drinker's own fault for choosing to drink too much and drive. The court shouldn't suddenly change this long-standing rule; that's a job for lawmakers. Also, the judge believed the person suing didn't complain correctly during the first trial, so he shouldn't get a do-over.

No. I agree with the main judges that the case could be appealed, but I agree with the losing judges on what the rule should be.

No, because the person suing didn't prove there's a real difference between 'seeming' drunk and being 'obviously' drunk. If there's no real difference, then the original jury's decision wasn't unfair. Without showing that the specific words used in the trial made a difference, there's no reason to have a whole new trial.

Yes, the law does set the rules for when bars can be blamed. We think the law that says bars can't serve people who 'seem drunk' should be used to decide if bars are responsible when drunk drivers hurt others. The court made a mistake by not letting the jury think about whether the Lucky Seven broke this rule. We're sending the case back for a new trial where the jury can consider if Maher seemed drunk when the bar served him.

I disagree. We've been using the 'obviously drunk' rule for a long time, and we shouldn't change it now. Barrett didn't complain about the jury instructions at the right time, so he shouldn't get to argue about it now. Even if he could, the 'obviously drunk' rule is the right one to use. Changing the rule will make things confusing and unfair for bars.

I agree that Barrett can argue about which rule to use, but I think Justice Sanders is right about which rule we should use.

I agree with Justice Sanders that Barrett shouldn't get a new trial. Barrett didn't show how using 'obviously drunk' instead of 'seems drunk' made any real difference in his case. Without showing it mattered, he can't get a new trial.

Yes, RCW 66.44.200(1), which forbids selling alcohol 'to any person apparently under the influence of liquor,' establishes the standard for a seller’s civil liability for damages caused to a third party by an intoxicated driver. The court applied the four-part test from the Restatement (Second) of Torts § 286 to determine whether a criminal statute could set the standard of care in a civil negligence action. The court found the statute's purpose was to protect a class of persons (the public) that includes the plaintiff, to protect against the interest invaded (personal safety), to protect against the kind of harm that resulted (a car crash), and to protect against the particular hazard (alcohol-induced driver error). The court distinguished the statutory standard 'apparently under the influence,' which implies 'seemingly,' from the common law standard 'obviously intoxicated,' which implies 'certainly,' concluding that the lower statutory threshold is the correct standard for civil liability in this context.

No, the long-standing common law standard of 'obviously intoxicated' should govern a commercial vendor's civil liability. The dissent first argues that the plaintiff waived the right to appeal this issue by failing to properly object to the 'obviously intoxicated' jury instructions at trial. Substantively, the dissent contends that decades of Washington precedent, established after the legislature repealed the Dramshop Act, have consistently held that civil liability attaches only when a patron is served while 'obviously intoxicated.' The majority's decision usurps the legislature's role, upsets established precedent, and creates an illogical dual standard of care where liability for a drunk driver differs from liability for an assault by an intoxicated patron. The dissent emphasizes that personal responsibility should remain with the patron who chooses to drink and drive.

No. The opinion concurs with the majority that the issue was properly preserved for appeal, but it agrees with the dissent's analysis and conclusion on the substantive legal question that the 'obviously intoxicated' standard should apply.

No, a new trial is not warranted because the petitioners failed to establish any meaningful legal difference between 'apparently under the influence' and 'obviously intoxicated.' To receive a new trial, the plaintiff must show that the trial court's instructional error was prejudicial. Since the petitioners did not adequately explain or prove how the two standards are legally distinct and how using one over the other would have changed the outcome, they failed to demonstrate reversible error. Therefore, the dissent's result of affirming the lower court is correct.

Yes. RCW 66.44.200(1) establishes the standard of civil liability for commercial alcohol providers whose alleged overservice causes a drunk driving accident injuring a third party. The statutory language of RCW 66.44.200(1) defines the minimum standard of conduct for commercial hosts because it aims to protect the public from the foreseeable harm caused by intoxicated drivers. The trial court erred in not allowing the jury to consider if Lucky Seven breached this standard by serving Maher when he was 'apparently under the influence of liquor.' We have previously applied the Restatement (Second) of Torts § 286 test to determine whether standards of civil liability may be derived from criminal provisions of the Washington Alcoholic Beverage Control Act. Applying that test here, Barrett was a member of the class protected by RCW 66.44.200(1), the statute was intended to protect against the kind of harm that resulted, and it aimed to protect against the particular hazard of alcohol-induced driver error that caused Barrett's harm. Therefore, Barrett should have been permitted to argue to the jury that Lucky Seven had a statutory duty to refrain from serving persons 'apparently under the influence of liquor.' The trial court's erroneous instructions prejudiced Barrett's case, so we reverse and remand for a new trial.

I dissent. The majority departs from decades of jurisprudence holding that the standard of civil liability in similar cases is service to an 'obviously intoxicated' patron. Barrett failed to properly preserve this alleged error for review by not objecting to the jury instructions on the 'obviously intoxicated' standard at trial. Even if the issue was properly preserved, the 'obviously intoxicated' instruction was correct. Since the repeal of the Dramshop Act, Washington courts have consistently required 'obvious intoxication' before liability attaches for overservice to an adult. The majority's holding will lead to inconsistent results by creating a dual standard of care that varies depending on the patron's future conduct. The majority also misreads precedent in concluding that RCW 66.44.200(1) establishes the standard for civil liability. We should adhere to the established 'obviously intoxicated' standard absent a clear showing that it is incorrect and harmful, which Barrett has not demonstrated.

I concur with the majority that Barrett adequately preserved the issue of whether RCW 66.44.200(1) establishes the standard of care for civil cases. However, I agree with the dissent's analysis and result regarding the resolution of that issue.

I concur in the result reached by the dissent. To obtain a new trial, petitioners must show reversible error. However, they have failed to establish any meaningful difference between serving alcohol to one who is 'obviously intoxicated' and serving alcohol to one who is 'apparently under the influence of liquor.' Without demonstrating a difference, petitioners have not shown they were prejudiced by the trial court's refusal to instruct on the 'apparently under the influence' standard. They have thus failed to demonstrate reversible error entitling them to a new trial.

Barrett v. Lucky Seven Saloon, Inc.

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