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.

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.’”

Survivors may not recover for decedent’s loss of enjoyment of life
By Kathleen B. Fitzgerald

In a survival action, the decedent’s estate may not recover damages for loss of enjoyment of life based on the decedent’s life being cut short, the Washington Supreme Court has held.

In Otani v. Broudy, 151 Wn.2d 750 (Jun. 10, 2004), Dr. David Broudy performed surgery on Yaeko Otani to install a pacemaker. During the surgery, he punctured her aorta. Otani died several hours later without regaining consciousness. Her estate sued Dr. Broudy for malpractice under Washington’s “survival” statutes, which permit the estate to sue for damages that the decedent could have claimed had she lived.

The evidence at trial showed that had the surgery been successful, the 81-year-old Otani would have had a life expectancy of another 7.9 years. The estate prevailed at trial and received a judgment for $496,617.12 that included $450,000 for loss of enjoyment of life. Dr. Broudy appealed, arguing that that element of damages was not available to the estate under the survival statutes.

Dr. Broudy argued that the statutes address two separate types of general damages — pain and suffering, for the discomfort caused by the defendant’s conduct, and loss of enjoyment of life, for the deprivation of the ability to lead a normal life because of the injury. In this case, there were no pain-and-suffering damages because Otani was unconscious at the time of the surgery and never regained consciousness before dying.

Dr. Broudy argued, and the Court agreed, that because “the statute preserves causes of action that a decedent could have maintained had he or she survived,” Otani’s estate could not recover for loss of enjoyment of life “because it is not a loss she experienced during life.”

The Otani Court reviewed the legislative history of the survival statutes. Although they were amended in 1993 to permit the estate to recover for the decedent’s pain and suffering, the decedent must have actually experienced those damages before dying. That could not be true of damages for loss of enjoyment of life where the decedent died before experiencing them.

The Court rejected the estate’s policy argument that unless such damages are available in survival actions, it is “cheaper for a tortfeasor to kill a plaintiff than to harm a plaintiff.” Other damages that are available under Washington’s wrongful-death statutes prevent this result. Those statutes also govern the scope of recovery when a tortfeasor negligently causes another’s death, but they permit specifically named beneficiaries to recover post-death damages that arise from the death. Those damages include the loss of financial support that the decedent would have provided to the beneficiaries. As a result, in many cases the defendant could be liable for more damages if the victim died than if the victim lived.

Three justices dissented. The dissent wrote, “The majority’s view fails to recognize that life itself has value and a person whose life is shortened by the wrongful conduct of another has suffered a grievous and compensable loss.”

The dissent noted that the courts of many states have permitted claimants to recover for shortened life expectancy as a separate item of damages. And, contrary to the majority’s rationale, “none of the cases ... require plaintiff’s conscious awareness of the loss as a prerequisite to recovery. ... [L]ife itself has value and a defendant should be required to pay damages for wrongful conduct that reduces a person’s life expectancy. To be sure, what is more valuable than life itself?”

Around The Firm

Sam B. Franklin and Ketia Berry Wick defended Richardson v. H.P., a six-week legal-malpractice trial based on underlying claims of medical malpractice and premises liability. The plaintiff suffered a serious personal injury and asked the jury for just under $5.2 million. The jury returned a defense verdict. Marc Rosenberg assisted in the case ... In Brees v. Beers, Duncan K. Fobes and Marc Rosenberg defended Jefferson County and employees of the county in a federal civil-rights claim. Plaintiff was turned down for a volunteer position as a court-appointed guardian ad litem. He claimed that he was deprived of an opportunity to rebut statements that a sheriff’s deputy had made about him. The federal court agreed with Duncan and Marc that the county had not deprived plaintiff of liberty and property without due process and that the county’s employees enjoyed qualified immunity. The court dismissed the action on summary judgment.

In S.H. v. Corp. of the Archdiocese of Seattle, August G. Cifelli and Marc Rosenberg won a motion on the merits in the Court of Appeals, in which the appellate-court commissioner held that plaintiff’s appeal had no merit and recommended to the three-judge panel that it be summarily dismissed. Plaintiff, a parochial-school student, claimed that he suffered an injury when a tennis ball struck him during a game of “home run derby.” The trial court had dismissed the case on summary judgment because plaintiff had shown no breach of any duty or proximate cause, and the appellate-court commissioner agreed. The three-judge panel affirmed the ruling and ordered dismissal of the action.

Steven G. Wraith and Aaron P. Gilligan won summary judgment of dismissal in Windward Cove at the Lakes H.O.A. v. Windward Cove, L.L.C. The lawsuit involved alleged construction defects at the Windward Cove at the Lakes condominium. Steve and Aaron represented Sung Siding, a fourth-party defendant, which was sued for breach of contract, indemnity, and negligent construction. Steve and Aaron successfully argued that the claim for breach of an oral contract accrued at the time of substantial completion of the project, so that the statute of limitations barred the claim against his client. They also argued that Washington law does not recognize the fourth-party plaintiff’s claims for implied indemnity and negligent construction in construction-defect cases. The court agreed and dismissed all claims against Steve and Aaron’s client.

In Dunkley v. Jain, Philip B. Grennan and Aaron P. Gilligan won summary judgment. Plaintiff sued a real estate agent who represented both the plaintiff-tenant and the seller in the lease of commercial property where plaintiff planned to run a restaurant. Before signing the lease, plaintiff and the real estate agent walked the premises. The agent told plaintiff that the lessor was a “good guy.” At the time of that walk-through, the property was connected to a water supply. But when plaintiff was having the premises built out, the lessor shut off the water supply to the property, which kept plaintiff from opening his restaurant. Plaintiff sued the lessor and the real estate agent for breach of contract and misrepresentation. Phil and Aaron moved for summary judgment, arguing that the real estate agent was not a party to any contract with plaintiff. They also argued that plaintiff lacked the necessary clear, cogent, and convincing evidence to prove a claim of misrepresentation, and the real estate agent’s expression of opinion was not a factual statement that could be the basis of a misrepresentation claim.

Joel E. Wright and Janine E. Leary won the appeal of Williams v. Jones, a legal-malpractice action based on an underlying claim of medical malpractice. Joel and Janine won summary judgment before the trial court because the statute of limitations had run almost a year before she consulted an attorney. The Court of Appeals agreed and affirmed the dismissal.

Washington Law & Politics has named Tammy L. Williams a Superlawyer for 2004. The magazine confers the award annually on outstanding lawyers in Washington, after an extensive survey of their peers to determine the best in their profession. Tammy joins several other Lee Smart lawyers who were Superlawyer honorees in prior years and again were named Superlawyers for 2004: David L. Martin, Michael A. Patterson, Joel E. Wright, Steven J. Jager, Jeffrey P. Downer, August G. Cifelli, and Sam B. Franklin.

Philip B. Grennan and Pamela J. DeVet won dismissal of Boys v. Coldwell Banker First Harbor Real Estate, a real-estate malpractice action. Plaintiff, a home purchaser, complained that his real estate agent failed to disclose a defect in the home. The case had questionable merit, but it also was clear that the statute of limitations had run because plaintiff sued more than three years after discovering the defect. Phil and Pam moved for summary judgment based on the statute of limitations. After seeing the motion, plaintiff’s counsel voluntarily dismissed all claims against the real estate agent. ... Tammy Williams, A. Janay Ferguson, and Eric S. Newman won Baugh v. FSF Overlook Rim Associates, a premises-liability claim against an apartment complex and its management company. The court dismissed the case with prejudice based on plaintiff’s discovery violations.