Faust v. Albertson
167 Wash.2d 531 (2009)
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Rule of Law:
To establish a triable issue of fact for negligent overservice of alcohol, a plaintiff may use direct or circumstantial evidence, and scientific evidence like a Blood Alcohol Content (BAC) test can be used to corroborate observational testimony that the person was 'apparently under the influence' at or near the time of service.
Facts:
- Hawkeye Kinkaid went to the Bellingham Moose Lodge at 4:30 p.m. with his girlfriend, Alexis Chapman, who was working as a server.
- Kinkaid had not been drinking before his arrival at the lodge.
- Chapman served Kinkaid alcohol over a prolonged period.
- Chapman later told others that Kinkaid had become belligerent, argumentative, and too 'tipsy' to be driving, and that she eventually had to 'cut him off' because he was so drunk.
- Shortly after leaving the lodge, Kinkaid drove his car across the center line and collided with a vehicle driven by Bianca Faust.
- The collision killed Kinkaid and severely injured Faust and her passengers, leaving one passenger paraplegic.
- A toxicology report showed Kinkaid’s BAC was 0.14 one hour after the accident, and a forensic consultant estimated his BAC was likely 0.32 at the time of the collision.
Procedural Posture:
- Bianca Faust sued Hawkeye Kinkaid’s estate, the Bellingham Moose Lodge, and Alexis Chapman in a state trial court for negligence.
- The case proceeded to a jury trial, where the jury returned a verdict 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 Lodge and Chapman, as appellants, appealed to the Washington Court of Appeals, an intermediate appellate court.
- The Court of Appeals reversed the trial court's decision and vacated the judgment against the Lodge and Chapman.
- Faust, as petitioner, sought review from the Washington Supreme Court, which granted the petition.
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Issue:
Does Washington law require a plaintiff in a negligent overservice case to present direct, point-in-time observational evidence that a person was 'apparently under the influence' at the exact moment of service to survive a judgment as a matter of law?
Opinions:
Majority - Owens, J.
No. To establish a claim for negligent overservice of alcohol, a plaintiff is not required to produce direct, point-in-time evidence that the tortfeasor was 'apparently under the influence of liquor' when last served; circumstantial evidence can be sufficient. The court reasoned that while its precedent in Purchase v. Meyer established that a high BAC alone is insufficient to prove a person appeared intoxicated, such evidence is relevant and admissible to corroborate direct or circumstantial observational evidence. Here, Chapman's admissions that Kinkaid was too drunk to drive when he left the lodge constituted significant circumstantial evidence from which a jury could reasonably infer he was 'apparently under the influence' when she last served him. Because these observations occurred shortly after the last service, they create a triable issue of fact under the standard set in cases like Dickinson v. Edwards. The Court of Appeals erred by weighing conflicting testimony itself rather than recognizing that credibility determinations are the province of the jury.
Analysis:
This decision clarifies and arguably lowers the evidentiary burden for plaintiffs in dram shop liability cases in Washington. By explicitly permitting circumstantial evidence and the use of BAC tests as corroboration, the court makes it easier for such cases to survive summary judgment or a motion for judgment as a matter of law. This ruling prevents establishments from escaping liability simply because there was no direct witness to the patron's appearance at the precise moment of the final sale. The case reinforces that juries can make reasonable inferences based on evidence of a patron's condition shortly after leaving an establishment, shifting the focus from a requirement of 'smoking gun' evidence to a more holistic view of the circumstances.
