Supreme Court makes liquor liability easier to prove

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Writing for a six-justice majority, Supreme Court Justice Susan Owens noted the difference between the definitions of “apparently,” which means seemingly, requiring some reflection and thought, and “obviously,” which means certainly or unmistakably.

Lucky Seven argued that the statute was regulatory only and did not impose a standard of civil liability. The Barrett Court noted that in other cases, the Supreme Court had adopted regulatory standards as a basis for tort liability, because the claimants in those cases were persons that the statute was intended to protect, and the same was true of Barrett here.

Three justices, led by Justice Richard Sanders, dissented. The dissent argued that “it is the patron who imbibes to excess, and it is the patron – not the business – who voluntarily elects to get behind the wheel .... Deep pockets do not change the equation.”

The dissent asserted that the majority opinion departed from prior Washington cases in which liquor liability would arise only if the patron was obviously intoxicated. The dissent concluded that the few cases that imposed tort liability for serving a patron “apparently under the influence” involved very different issues, for example, whether a legal duty existed at all, to third persons not to sell alcohol to minors.

The dissent noted that Barrett had failed to except adequately to the failure to give his proposed jury instructions and should not be permitted to argue that point on appeal. The dissent also faulted Barrett’s proposed jury instructions as a whole, opining that if “all of Barrett’s proposed instructions ... been given, the result would have been a hodgepodge, rife with self-contradictory references to both ‘apparent’ and ‘obvious.’”