Supreme Court makes liquor liability easier to prove

By Donna M. Young

A seller of alcohol can be liable for overserving a patron who is merely “apparently under the influence,” the Washington Supreme Court recently held. Because liquor liability previously required proof that the patron was “obviously intoxicated,” the case liberalizes the standard of such liability in Washington.

In Barrett v. Lucky 7 Saloon, Inc., no. 72984-1 (Aug. 26, 2004), Jeffrey Barrett suffered severe injuries in an accident caused by Ned Maher, a drunk driver. Maher had spent three hours at the Lucky Seven Saloon, where he ordered three pitchers of beer and drank at least two of the pitchers himself. He left the tavern, fell asleep during his drive home, crossed the centerline, and collided with Barrett’s car. Two hours after the accident, Maher’s blood-alcohol content was measured at 0.13 percent.

Barrett sued the Lucky Seven, alleging that it negligently overserved Maher. Barrett alleged violation of a statute, RCW 66.44.200, and a regulation promulgated under that statute, WAC 314-16-150, which prohibit the sale of “any liquor to any person apparently under the influence of alcohol.”

Before trial began, Lucky Seven moved in limine to prevent Barrett from arguing that the statute and regulation imposed a standard of tort liability on it. Barrett offered jury instructions that set out this language and that stated the rule that a violation of a statute or regulation is evidence of negligence. The trial court rejected those jury instructions and granted Lucky Seven’s motion in limine. The jury later returned a defense verdict, and Barrett appealed. The Washington Court of Appeals affirmed. The Supreme Court accepted review.