Faust v. Albertson
222 P.3d 1208 (2009)
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Rule of Law:
A plaintiff may establish that a commercial vendor served alcohol to a person "apparently under the influence" using circumstantial evidence. Direct, point-in-time observational evidence of the patron's appearance at the moment of service is not required to create a triable issue of fact.
Facts:
- Hawkeye Kinkaid arrived at the Bellingham Moose Lodge at 4:30 p.m. with his girlfriend, Alexis Chapman, who was a bartender at the lodge.
- Evidence suggested Kinkaid had not consumed any alcohol prior to arriving at the lodge.
- Chapman served Kinkaid alcoholic beverages while they were at the lodge.
- Chapman later told others that Kinkaid had been drinking for a prolonged period, had become belligerent, and was too "tipsy" to drive.
- Chapman also admitted to a friend of Kinkaid's that he was so drunk that night she had to "cut him off."
- Shortly after leaving the lodge, Kinkaid drove his vehicle across the center line and collided with a car driven by Bianca Faust.
- The collision caused severe injuries to Faust and her passengers.
- A toxicology report an hour after the accident showed Kinkaid's BAC was .14, and a forensic expert estimated it was likely .32 at the time of the collision.
Procedural Posture:
- Bianca Faust sued Hawkeye Kinkaid's estate, the Bellingham Lodge, and Alexis Chapman in state trial court for negligence.
- A jury found in favor of Faust, and the trial court entered a judgment of $14 million.
- The trial court denied the defendants' post-trial motions, including a motion for judgment as a matter of law.
- The Bellingham Lodge and Chapman, as appellants, appealed to the Washington Court of Appeals.
- The Court of Appeals reversed the trial court's judgment and vacated the verdict against the lodge and Chapman.
- Faust, as petitioner, sought and was granted review by the Supreme Court of Washington.
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Issue:
Does circumstantial evidence, including post-service observations of intoxication and corroborating blood alcohol content (BAC) tests, create a triable issue of fact as to whether a commercial vendor served a person who was 'apparently under the influence of liquor' in violation of state law?
Opinions:
Majority - Justice Owens
Yes, circumstantial evidence is sufficient to create a triable issue of fact. A plaintiff is not required to produce direct, point-in-time evidence that a patron was 'apparently under the influence' at the exact moment of service. The court reasoned that while its precedent in Purchase v. Meyer established that a high BAC alone is insufficient, that rule does not bar all circumstantial evidence. Citing Dickinson v. Edwards, the court affirmed that reasonable inferences about a person's appearance at the time of service can be drawn from observations made shortly thereafter. In this case, Chapman's admissions that Kinkaid was too drunk to be driving when he left the lodge constitute powerful circumstantial evidence. The court further held that while BAC evidence is not sufficient on its own, it is relevant and admissible as corroborative evidence to support the credibility of firsthand observations. The Court of Appeals erred by weighing conflicting testimony, a task properly reserved for the jury.
Analysis:
This decision significantly clarifies the evidentiary standard for dram shop liability cases in Washington. By explicitly permitting circumstantial evidence and defining a corroborative role for scientific evidence like BAC tests, the court lowers the barrier for plaintiffs to survive summary judgment. It rejects a rigid requirement for direct, point-in-time observation, which is often impossible to obtain. This holding makes it easier for victims to get their claims before a jury, thereby increasing the potential liability for commercial vendors who over-serve patrons and encouraging more responsible serving practices.
