Cox v. the Keg Restaurants US, Inc.
86 Wash. App. 239, 1997 Wash. App. LEXIS 702, 935 P.2d 1377 (1997)
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Rule of Law:
A defendant asserting a plaintiff's unreasonable failure to mitigate damages must present substantial evidence, including expert testimony when medical causation is complex, to prove that the proposed mitigation would have, to a reasonable degree of medical certainty, alleviated injury or hastened recovery, and that the plaintiff's refusal was unreasonable, to preclude joint and several liability under the Tort Reform Act.
Facts:
- Philip Whalen arrived at The Keg Restaurant around 9:00 p.m. on November 1, 1991, having already consumed a double Bloody Mary.
- During the next two and a half hours at The Keg, Whalen ordered and consumed five shots of 100 proof whiskey and five beers, plus a partial "electric iced tea."
- Between 9:45 and 10:10 p.m., Whalen became irate and began banging on the pay phones, prompting The Keg's manager, James Kollasch, to ask him to "take it easy" and later to leave.
- Patron Shannon Seibel told Kollasch that Whalen was out of control and intoxicated and should be removed, but Kollasch did not remember telling his staff that he had asked an intoxicated person to leave.
- Whalen left as requested but immediately returned and remained at The Keg.
- Around 11:30 p.m., Whalen began antagonizing Patrick Cox on the dance floor, then pursued Cox as he left the restaurant, grabbed him from behind, knocked him to the ground, and repeatedly smashed his head onto the pavement.
- Cox suffered permanent brain damage, including memory loss and aggravation of hydrocephalus, requiring a shunt to drain excess fluid.
- Whalen subsequently pleaded guilty to second-degree assault.
Procedural Posture:
- Patrick Cox brought suit against Philip Whalen and The Keg Restaurant in state trial court.
- A jury returned a verdict finding Cox two percent at fault for failing to mitigate, The Keg 45 percent at fault, and Whalen 53 percent at fault, but not otherwise finding Cox at fault.
- The trial court found that Cox’s failure to mitigate was not the type of fault that should preclude joint liability under the Tort Reform Act of 1986.
- The trial court held The Keg and Whalen jointly liable for 98 percent of Cox’s damages.
- The Keg challenged this ruling on joint liability, the court’s admission of blood alcohol content (BAC) evidence, and its instructions to the jury, appealing to the Court of Appeals of Washington, Division 1.
- Cox cross-appealed to the Court of Appeals, arguing that there was insufficient evidence for the jury to find failure to mitigate.
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Issue:
1. Does an injured party's alleged "unreasonable failure to mitigate damages," unsupported by sufficient expert testimony on causation and certainty of benefit, constitute "fault" under Washington's Tort Reform Act to preclude joint and several liability? 2. Was the admission of blood alcohol content (BAC) evidence relevant and within the trial court's discretion when determining whether a commercial establishment served an "obviously intoxicated" person?
Opinions:
Majority - Ellington, J.
1. No, an injured party's alleged "unreasonable failure to mitigate damages" does not constitute "fault" under Washington's Tort Reform Act to preclude joint and several liability when there is insufficient evidence to establish the unreasonableness or certainty of benefit from the proposed mitigation. 2. Yes, the admission of blood alcohol content (BAC) evidence was relevant and within the trial court's discretion. Regarding the failure to mitigate, the court found that The Keg, as the party asserting unreasonable failure to mitigate, bore the burden of proof. It concluded there was insufficient evidence to present this issue to the jury because The Keg presented only evidence of possibilities of benefit from Cox's proposed treatments (shunt revision, antidepressants, physical therapy, speech therapy, psychotherapy, returning to work), rather than testimony to a reasonable degree of medical certainty that such refusals prolonged recovery or that the treatments would have been successful. For instance, Dr. Cantini, a physiatrist, only testified it might have been useful to consider revising the shunt, and deferred to Dr. Winn, Cox's neurosurgeon, who testified it was reasonable to decline a shunt revision and that removing the shunt would aggravate hydrocephalus. Similar lack of certainty applied to other recommendations, as witnesses only affirmed that interventions might have hastened recovery, not that they would have. A "mere possibility of benefit" is insufficient. Since the jury found no other fault on Cox's part, Whalen and The Keg are jointly and severally liable for Cox's damages, and the 2% fault erroneously attributed to Cox should be proportionally distributed to them. Regarding the admission of BAC evidence, the court held there was no error. While Christen v. Lee established that BAC evidence alone is insufficient to prove "obvious intoxication," it did not preclude its relevance when combined with other observations. Here, numerous witnesses testified to Whalen's visible intoxication and unruly behavior, and the BAC evidence was relevant to enhance the credibility of these observations. The trial court's discretion in admitting relevant evidence was not abused. Furthermore, the court affirmed the denial of The Keg's motion for a directed verdict, finding ample evidence that Whalen was served while obviously intoxicated and that his intoxication was causally related to the unprovoked assault on Cox. The jury instructions were also deemed adequate, correctly apprising the jury of The Keg's duty by requiring proof of serving an obviously intoxicated person and notice of possible harm, implicitly covering foreseeability.
Analysis:
This case significantly clarifies the evidentiary requirements for establishing a plaintiff's "unreasonable failure to mitigate damages" under Washington's Tort Reform Act, making it more challenging for defendants to use this defense without strong expert testimony. It reinforces that speculative possibilities of medical benefit are insufficient to shift fault. Moreover, the decision provides practical guidance for dram shop liability cases by affirming that Blood Alcohol Content (BAC) evidence, while not solely determinative, is admissible and relevant to corroborate eyewitness accounts of a person's obvious intoxication, thus strengthening a plaintiff's case. The court's emphasis on "reasonable medical certainty" sets a high bar for causation in mitigation defenses and underscores the importance of direct observational evidence in proving obvious intoxication.
