Ensley v. Mollmann
155 Wash. App. 744 (2010)
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Rule of Law:
An employee's out-of-court statement is inadmissible hearsay against their employer unless the employee has been expressly authorized to speak on the employer's behalf. To defeat summary judgment in a negligent overservice case, a plaintiff must present admissible evidence that the person was 'apparently under the influence' based on direct observation at or near the time of service.
Facts:
- On the night of March 30, 2005, Rebecca Humphries, Nicholas Ensley, and Daniel Ahern went drinking at several bars.
- The group visited the Impromptu bar, then went to the Red Onion Tavern.
- Humphries was at the Red Onion for less than 30 minutes and consumed less than one drink there.
- After leaving the Red Onion, the group went to the Twilight Exit, where Humphries consumed several additional alcoholic drinks.
- Early on March 31, 2005, after leaving the Twilight Exit, Humphries crashed her car, causing serious injuries to her passenger, Nicholas Ensley.
- A few days after the accident, Red Onion bartender Clifford Pitcher allegedly told Daniel Ahern that Humphries had looked 'glassy-eyed' and that he should not have served her.
Procedural Posture:
- Nicholas Ensley sued Rebecca Humphries, Red Onion Tavern, and two other bars in a state trial court, alleging negligent overservice of alcohol.
- Red Onion Tavern filed a motion for summary judgment, arguing there was no evidence Humphries was apparently intoxicated when served.
- Ensley opposed the motion, relying on deposition testimony from Daniel Ahern recounting statements made by Red Onion's bartender, Clifford Pitcher.
- Red Onion moved to strike Ahern's testimony as inadmissible hearsay.
- The trial court granted Red Onion's motion to strike the testimony and then granted its motion for summary judgment, dismissing all claims against it.
- Ensley's subsequent motions for reconsideration and to amend his complaint to add the bartender as a defendant were denied by the trial court.
- Ensley, the appellant, appealed the trial court's orders to the Court of Appeals of Washington, with Red Onion Tavern as the appellee.
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Issue:
Is a bartender's statement, made days after an accident, that a patron looked 'glassy-eyed' and should not have been served, admissible against the tavern as a non-hearsay admission by a party-opponent when there is no evidence the bartender was authorized to speak for the tavern?
Opinions:
Majority - Lau, J.
No. A bartender's statement is not an admissible admission against their employer unless the employee was authorized to make statements on the employer's behalf. Under Washington's evidence rules (ER 801(d)(2)), for an agent's statement to be considered a non-hearsay admission of their principal (the party-opponent), the agent must be a 'speaking agent' authorized to make statements on the subject. Citing Barrie v. Hosts of America, Inc., the court found no evidence that Red Onion expressly authorized Pitcher, the bartender, to speak on its behalf regarding the service of alcohol or potential liability. The court distinguished this from cases like Lockwood v. AC&S, Inc., where speaking authority could be inferred from high-level corporate positions like health officials, noting that a bartender's duties are too limited to support such an inference. Because Pitcher's statement was inadmissible hearsay, and there was no other direct, observational evidence that Humphries was 'apparently under the influence' at Red Onion, summary judgment for the tavern was appropriate.
Analysis:
This decision reinforces the high evidentiary bar for plaintiffs in negligent overservice cases in Washington. It strictly construes the 'speaking agent' requirement under ER 801(d)(2), making it difficult to use after-the-fact statements by rank-and-file employees against their employers in litigation. The ruling solidifies the principle from Christen v. Lee that evidence of alcohol consumption before and after visiting a defendant establishment is insufficient, on its own, to create a factual issue of 'apparent intoxication' at the time of service. This makes it crucial for plaintiffs to secure admissible, direct observational evidence to survive summary judgment, thereby strengthening the position of commercial hosts in such lawsuits.
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