WPI 370.01 Furnishing Alcohol—Person Apparently Under the Influence of Alcohol or Obviously Int...
6A WAPRAC WPI 370.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 370.01 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XX. Alcohol Liability
Chapter 370. Liability for Furnishing Alcohol
WPI 370.01 Furnishing Alcohol—Person Apparently Under the Influence of Alcohol or Obviously Intoxicated Person—Duty
[A [commercial vendor of alcohol] [quasi-commercial host] owes a duty to third persons not to [sell] [serve] [furnish] alcohol to a person who is apparently under the influence of alcohol. [A purely social host, however, owes no such duty.]]
[A [commercial vendor of alcohol] [quasi-commercial host] owes a duty to third persons not to [sell] [serve] [furnish] alcohol to a person who is obviously intoxicated. [A purely social host, however, owes no such duty.]]
NOTE ON USE
Use the applicable paragraph in this instruction for claims that a commercial vendor or quasi-commercial host was negligent in furnishing alcohol to another. The first paragraph uses the “apparently under the influence of alcohol” standard; it is to be used in cases under RCW 66.44.200, such as cases involving injury from a drunk driving accident. The second paragraph uses the “obviously intoxicated” standard; it is to be used in cases for which the statute does not apply, such as cases involving intoxication-related assaults. For further discussion, see the Comment.
Within each paragraph, use bracketed language as applicable.
With this instruction, use either WPI 370.01.01 (Furnishing Alcohol—Person Apparently Under the Influence of Alcohol—Definition) or WPI 370.02 (Furnishing Alcohol—Obviously Intoxicated Person—Definition).
If the person to whom alcohol was furnished was a minor, also use WPI 370.07 (Furnishing Alcohol to Minors—Duty of Commercial Vendor).
For instructions on the burden of proof for claims involving the furnishing of alcohol to obviously intoxicated persons, use either WPI 370.03 (Furnishing Alcohol—Person Apparently Under the Influence of Alcohol or Obviously Intoxicated Person—Burden of Proof) or WPI 370.05 (Furnishing Alcohol—Obviously Intoxicated Person—Assault—Burden of Proof).
If there is an issue whether the defendant was a commercial vendor, a quasi-commercial host, or a purely social host, use WPI 370.06 (Commercial Vendor—Quasi-Commercial Host—Definitions).
Development of standards—Common law—“Obviously intoxicated.” Washington has adopted the common law rule that furnishers of alcohol generally are not liable for damages caused by the intoxication of the persons they serve. E.g., Burkhart v. Harrod, 110 Wn.2d 381, 384, 755 P.2d 759 (1988); Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 762, 458 P.2d 897 (1969). Exceptions to this rule exist when alcohol is furnished to a person who is obviously intoxicated, helpless, or in a special relationship with the furnisher of the alcohol. Burkhart, 110 Wn.2d at 384; Dickinson v. Edwards, 105 Wn.2d 457, 461, 716 P.2d 814 (1986); Young v. Caravan Corp., 99 Wn.2d 655, 658, 663 P.2d 834, amended 672 P.2d 1267 (1983); Wilson v. Steinbach, 98 Wn.2d 434, 438, 656 P.2d 1030 (1982).
Common law—Commercial vendors. Under these common law rules, liability may be imposed on commercial vendors for furnishing alcohol to obviously intoxicated persons. E.g., Purchase v. Meyer, 108 Wn.2d 220, 228–29, 737 P.2d 661 (1987); Young, 99 Wn.2d at 658–59. Thus, under Washington common law, a commercial vendor owes a duty not to furnish alcohol to a person who is obviously intoxicated. E.g., Estate of Kelly v. Falin, 127 Wn.2d 31, 37, 896 P.2d 1245 (1995); Christen v. Lee, 113 Wn.2d 479, 488, 780 P.2d 1307 (1989); Dickinson, 105 Wn.2d at 461; Young, 99 Wn.2d at 658.
Under these common law rules, a commercial vendor's duty was consistently described as a duty not to serve alcohol to an “obviously intoxicated” person. E.g., Christen, 113 Wn.2d at 488; Purchase, 108 Wn.2d at 225; Wilson, 98 Wn.2d at 438; Dickerson v. Chadwell, 62 Wn.App. 426, 434, 814 P.2d 687 (1991). Even though RCW 66.44.200 provides that “[n]o person shall sell any liquor to any person apparently under the influence of liquor,” (emphasis added), the court in Dickerson held that it was error to instruct the jury that a commercial vendor had a duty not to serve alcohol to an apparently intoxicated person. Dickerson, 62 Wn.App. at 435. According to Dickerson, the statute and its “apparently under the influence” standard did not alter the well-established common law duty imposed on commercial vendors of alcohol not to serve obviously intoxicated persons.
Recent developments—Statutory standard—“Apparently under the influence.” The Dickerson approach was rejected by more recent cases from the Washington Supreme Court. In these cases, the court held that the “apparently under the influence” standard from RCW 66.44.200 has at least partially replaced the common law standard of obvious intoxication. See Faust v. Albertson, 167 Wn.2d 531, 538, 222 P.3d 1208 (2009); Barrett v. Lucky Seven Saloon, 152 Wn.2d 259, 274–75, 96 P.3d 386 (2004); see also Ensley v. Mollman, 155 Wn.App. 744, 230 P.3d 599 (2010).
In Barrett, the court held narrowly that the statutory standard replaces the common law standard only for certain categories of cases. The Barrett court held that the statutory standard may be used to establish civil liability only if the four-part test from the Restatement (Second) of Torts § 286 (1965) is met. Under the Restatement test, a court analyzes whether the Legislature intended the statute:
(a) to protect a class of persons which includes the one whose interest is invaded, (b) to protect the particular interest which is invaded, (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results.
Barrett, 152 Wn.2d at 269.
The Barrett court applied the Restatement test and concluded that the statutory standard applies when a third-party plaintiff is injured in an automobile accident caused by a commercial host's alleged overservice of an adult patron. In so holding, the court distinguished first-party drunk driving cases and third-party assault cases, citing to cases holding that the Restatement test does not generally support application of the statutory standard in these other circumstances. Barrett, 152 Wn.2d at 270–73. For more detailed analysis of these other circumstances, see the discussion in the Comment's next section.
Thereafter, both Faust and Ensley cited Barrett for the broad proposition that the statutory standard has replaced the common law standard. Neither Faust nor Ensley limited this proposition to any particular category of cases and neither mentioned the Restatement test. It is thus not entirely clear whether the common law's obvious intoxication standard has been fully replaced, or has merely been replaced to the extent that the statute applies to a given case.
Both Faust and Ensley were third-party drunk driving cases, so the opinions did not require analysis of whether the common law standard had been replaced for other categories of cases. It appears unlikely that the Supreme Court intended for the brief, general statements in Faust and Ensley to be taken as a silent rejection of Barrett's recent analysis of the Restatement test, especially when such a holding would leave courts without any standard to apply to the non-statutory cases. The WPI Committee thus concludes that the Supreme Court would likely still apply the common law standard to those categories of cases that do not fall under the statutory standard.
Limit on liability—Duty owed only to third parties. The duty of a commercial vendor not to furnish alcohol to an intoxicated adult patron is owed only to innocent bystanders injured or killed by the obviously intoxicated patron; it is not owed to intoxicated adult patrons who are injured due to their own intoxication. Estate of Kelly, 127 Wn.2d at 37–42. The scope of the duty of a commercial vendor not to furnish alcohol to a minor, whether or not the minor was obviously intoxicated or apparently under the influence of alcohol, is more expansive. See Comment to WPI 370.07 (Furnishing Alcohol to Minors—Duty of Commercial Vendor).
Limit on liability—Assaults. Lawsuits by innocent bystanders against commercial vendors for furnishing alcohol to intoxicated persons most often involve drunk driving accidents, see Estate of Kelly, 127 Wn.2d at 37, but liability may also attach in the context of a criminal assault, if the criminal assault was a foreseeable result of furnishing intoxicating liquor to an obviously intoxicated patron. See Christen, 113 Wn.2d at 491–98; Cox v. Keg Rests., 86 Wn.App. 239, 247, 935 P.2d 1377 (1997). A criminal assault, however:
is not a foreseeable result of furnishing intoxicating liquor to an obviously intoxicated person, unless the drinking establishment which furnished the intoxicating liquor had some notice of the possibility of harm from prior actions of the person causing the injury, either on the occasion of the injury, or on previous occasions.
Christen, 113 Wn.2d at 498.
Social hosts. Unlike commercial vendors, social hosts are not potentially liable for serving intoxicated adults. The Washington Supreme Court has declined to impose common law liability on purely social hosts. In Burkhart v. Harrod, 110 Wn.2d 381, 388, 390, 755 P.2d 759 (1988), the court held that, absent future legislative action to impose such social host liability, a social host who provides alcohol to an “obviously intoxicated” guest may not be held liable for damages caused by that intoxication. Likewise, social hosts have no liability under the statute, which applies only to the sale of alcohol by commercial vendors. See RCW 66.44.200.
Quasi-commercial hosts. The court has indicated, however, that common law liability for furnishing liquor to obviously intoxicated persons may be imposed on “quasi-commercial hosts, i.e., those who did not sell alcohol, but who otherwise had business interests in furnishing alcohol to their guests.” Burkhart, 110 Wn.2d at 384; see also Fairbanks v. J.B. McLoughlin Co., Inc. 131 Wn.2d 96, 929 P.2d 433 (1997) (banquet-hosting employer may be liable for injuries to third persons proximately caused by intoxication of employee who became intoxicated at the banquet); Dickinson, 105 Wn.2d at 466 (when presence of banquet-hosting employer's management suggested that employer could have ordered service to be denied to intoxicated employee, genuine issue of material fact existed as to whether employer could be held liable to injured third person for furnishing alcohol to obviously intoxicated employee).
The status of common law liability for quasi-commercial hosts is not entirely clear in light of the broad statements in Faust and Ensley about the common law standard having been replaced by the statutory standard. Also, it appears that RCW 66.44.200 does not apply to quasi-commercial hosts, because the statute applies only to the sale of alcohol, whereas quasi-commercial hosts are by definition those who furnish alcohol free of charge in connection with some other business purpose. See the Comment to WPI 370.06 (Commercial Vendor—Quasi-Commercial Host—Definitions).
[Current as of February 2021.]
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