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WPI 370.05 Furnishing Alcohol—Obviously Intoxicated Person—Assault—Burden of Proof

6A WAPRAC WPI 370.05Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 370.05 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part XX. Alcohol Liability
Chapter 370. Liability for Furnishing Alcohol
WPI 370.05 Furnishing Alcohol—Obviously Intoxicated Person—Assault—Burden of Proof
[On(name of plaintiff)'s claim that(name of defendant)was negligent in [selling] [serving] [furnishing] alcohol to(name of person),](name of plaintiff)has the burden of proving each of the following propositions:
(1) That(name of defendant)was a [commercial vendor of alcohol] [or] [quasi-commercial host];
(2) That(name of defendant)[sold] [served] [furnished] alcohol to(name of person);
(3) That(name of person)was obviously intoxicated at the time(name of defendant)[sold] [served] [furnished] [him] [her] the alcohol;
(4) That(name of defendant), at the time it [sold] [served] [furnished] the alcohol, had notice of the possibility of violent conduct and subsequent harm from the actions of(name of person)before or at the time of the [sale] [service] [furnishing]; and
(5) That the [sale] [service] [furnishing] of alcohol to(name of person)while [he] [she] was obviously intoxicated was a proximate cause of(name of plaintiff or decedent)'s [injury] [death].
If you find from your consideration of all of the evidence that each of these propositions has been proved, your verdict should be for(name of plaintiff)[on this claim]. On the other hand, if you find that any of these propositions has not been proved, your verdict should be for(name of defendant)[on this claim].
Use this instruction only if the claim of furnishing alcohol to an obviously intoxicated person involves harm from a criminal assault by the intoxicated person. Use WPI 370.01 (Furnishing Alcohol—Person Apparently Under the Influence or Obviously Intoxicated Person—Duty) and WPI 370.04 (Furnishing Alcohol—Obviously Intoxicated Person—Assault) with this instruction.
Use the bracketed language as applicable. If the furnishing of alcohol to an obviously intoxicated person is the only claim in the case, do not use the bracketed language in the first and last paragraphs.
Use WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence) with this instruction.
Pursuant to the analysis in Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 96 P.3d 386 (2004), alcohol-related criminal assault cases may still be governed by the common law standard of “obviously intoxicated” rather than by the statutory standard of “apparently under the influence.” See further discussion in the Comment to WPI 370.01 (Furnishing Alcohol—Person Apparently Under the Influence or Obviously Intoxicated Person—Duty).
Before liability can be imposed on a commercial vendor for breach of the duty not to serve an obviously intoxicated patron, it must be established that the resulting harm was foreseeable. Christen v. Lee, 113 Wn.2d 479, 492, 780 P.2d 1307 (1989).
A criminal assault may be a foreseeable result of furnishing intoxicating liquor to an obviously intoxicated person, but only if 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 491; see also Mortensen v. Moravec, 1 Wn.App.3d 608, 406 P.3d 1178 (2017) (holding that the duty of an alcohol seller not to serve an obviously intoxicated person does not extend to a third person injured by the intoxicated person's criminal assault, even if accidental, unless the alcohol seller had notice of the possibility of harm based on the intoxicated person's actions).
A drinking establishment's awareness that a person possesses a knife or other weapon does not by itself provide such notice; there must be some action on the part of that person indicating that he or she may actually use such a weapon. Christen, 113 Wn.2d at 491; cf. Cox v. Keg Rests., 86 Wn.App. 239, 251, 935 P.2d 1377 (1997) (evidence that person was yelling and banging on the phone approximately 90 minutes before the assault, that person appeared “tipsy,” and that person was served three shots of whiskey and three beers after the manager observed the unruly behavior was sufficient to give rise to an inference that vendor served person while he was obviously intoxicated and had notice of a possibility of harm).
Similar principles apply outside the commercial context. An adult who provides beer for a “kegger” is not liable for harm suffered when juvenile attendees assault another juvenile attendee, unless the assailants give “some notice that they, as individuals, [are] likely to become violent.” Cameron v. Murray, 151 Wn.App. 646, 656, 214 P.3d 150 (2009).
Instructions that contain both the “notice of a possibility of harm” and “obviously intoxicated” elements implicitly explain the issue of foreseeability and accurately apprise the jury of the commercial vendor's duty. Cox, 86 Wn.App. at 251–52.
The liability of a drinking establishment for a criminal assault by one of its patrons may involve not only its duty not to serve alcohol to obviously intoxicated persons, but also its duty to properly supervise its premises. See Christen, 113 Wn.2d at 497–98, 504–09. For more information concerning this premises duty, see WPI 120.06.03 (Duty to Business Invitee—Protection from Criminal Acts).
[Current as of February 2021.]
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