“It ain’t over till it’s over.”

Last September I wrote about the Court of Appeals’ bewildering decision in Faust v. Albertson, 143 Wn. App. 272 (2008), in which Division One reversed a $14 million verdict in an alcohol overservice case on the ground of insufficient evidence. The plaintiffs’ petition for review was later granted by the Washington Supreme Court, which wanted to consider a potential conflict between the lower court’s decision and its own prior decisions involving the standard of civil liability in such cases. Twelve months later, I am happy to report the conflict was more than just “potential” – and that our high court recently held that the verdict was wrongly vacated.

Faust involves a tragic, two-car crash that occurred in Whatcom County in April 2000.

While driving southbound on LaBounty Road in Ferndale, an intoxicated Hawkeye Kinkaid wandered across the center line and struck a northbound car being driven by Bianca Faust, who was accompanied by her two children and infant granddaughter. All of the occupants were seriously hurt, especially Faust’s son, Christopher, who was left paraplegic. Kinkaid, likewise suffering severe injuries, later died at the hospital from massive bleeding and other complications.

Prior to the collision, Kinkaid had spent several hours with his girlfriend, Alexis Chapman, who tended bar at the Bellingham Moose Lodge. He arrived at 4:30 p.m., apparently sober, and left the lodge around 7:30 p.m., or only 15 minutes before the fatal crash. The Fausts later sued Kinkaid’s estate, the Moose Lodge, and Chapman for damages in Whatcom County Superior Court.

There was a major dispute at trial regarding the amount of alcoholic beverages consumed by Kinkaid before he left the lodge. According to the plaintiffs’ witnesses, Chapman told others her boyfriend had been drinking for a prolonged period of time – so much so that he became belligerent and argumentative with her and also too “tipsy” to be driving. Chapman also allegedly said Kinkaid was so drunk that she had to “cut him off.”

The Fausts also presented ample evidence that Kinkaid was intoxicated at the time of the crash.

For starters, a crime lab report showed Kinkaid’s blood alcohol level was .16 percent, or twice the legal limit, one hour after the collision. By time of autopsy, even after Kinkaid had lost a significant amount of blood and received plenty of fluids, his blood alcohol level was still .09. But according to the medical examiner, Kinkaid’s stomach contents included 1.5 liters of liquid that smelled strongly of alcohol and had not yet been absorbed into his bloodstream – and therefore wasn’t reflected by the blood level analyses. The Fausts’ forensic expert thus opined that Kinkaid’s blood alcohol level was approximately .32 percent at the time of the accident – i.e., the equivalent of either 21 12-ounce beers or 30 ounces of 80-proof alcohol.

A Whatcom County jury sided with the Fausts, awarding damages of $14 million. The trial court denied several posttrial motions filed by Chapman and the lodge, including a CR 50 motion for judgment as a matter of law. But Division One sided with the defendants in early 2008, ruling that there was no substantial evidence to support the verdict and that the defendants were therefore entitled to judgment as a matter of law.

Until five years ago, Washington followed the common law rule that commercial hosts who furnish alcohol to “obviously intoxicated” patrons are potentially liable to third-party victims for damages caused by their patron. The landscape changed overnight, however, when Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259 (2004), was decided. In that case, our high court ruled that given the enactment of RCW 66.44.200(1), which prohibits the sale of alcohol to anyone “apparently under the influence,” the common law rule had been replaced by a statutory standard.

Against this background, the Washington Supreme Court accepted review in Faust.

One question to be resolved, said the court, is whether under RCW 66.44.200(1), the plaintiff must produce “direct, point-in-time evidence” that the tortfeasor was apparently under the influence of liquor when he was “last served.” The other issue, said the court, pertained to whether the Court of Appeals had erred by reversing the trial court’s denial of the defense motion for judgment as a matter of law.

At the outset, the Faust court cited the relevant standards of review for CR 50 motions, including the following:

• Judgment as a matter of law is only appropriate when no competent and substantial evidence exists to support a verdict.

• In reviewing a ruling on a motion for judgment as a matter of law, the appellate court engages in the same inquiry as the trial court.

• The moving party admits the truth of the opponent’s evidence and all inferences that can reasonably be drawn.

• The court must defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence.

Between 1986 and 1997, our high court decided four cases involving liability for the alleged overservice of alcohol under the former “obviously intoxicated” standard. These decisions “remain good law,” said the Faust court, because Barrett expressly recognized that “[any] established precedent” was unaffected by the new statutory standard for civil liability.

Here is a condensed summary of the four prior dram shop cases, as discussed in Faust:

• Dickinson v. Edwards, 105 Wn.2d 457 (1986). The plaintiff was injured by a drunk driver traveling the wrong way on a freeway on-ramp. The drunk driver admitted to the investigating police officer that he had been drinking consistently at a banquet that he left only five minutes before the collision. In addition, the drunk driver was noted to have objective symptoms of intoxication at the scene. The defendant commercial host successfully moved for summary judgment. Held: Summary judgment reversed. “Because the officer’s testimony reflected the driver’s appearance so soon after leaving the banquet, the [Dickinson] court reasoned that the testimony would provide the basis for a reasonable inference about the driver’s appearance when he was served.”

• Purchase v. Meyer, 108 Wn.2d 220 (1987). The plaintiff was injured by a 19-year-old driver whose blood alcohol level was .13 percent between three and one half to four hours after she had left the restaurant. There was no “direct, observational evidence” regarding the driver’s sobriety at the time of service. The defendant commercial host unsuccessfully moved for summary judgment. Held: Denial of summary judgment reversed. “[T]he results of a blood alcohol test . . . and an expert’s opinion based thereon, and the physical appearance of that person at a substantial time after the intoxicating liquor was served, are not by themselves sufficient [to survive summary judgment].”

• Christen v. Lee, 113 Wn.2d 479 (1989). The plaintiff was injured by an intoxicated driver whose blood alcohol level was apparently unknown. The lone evidence instead came from a waitress who “deduced that the tortfeasor must have appeared under the influence based on the amount of alcohol he was served.” The defendant commercial host successfully moved for summary judgment. Held: Summary judgment affirmed. The plaintiff’s evidence was insufficient “because no evidence existed on the record as to the tortfeasor’s actual appearance [at the time of service].”

• Fairbanks v. J.B. McLoughlin Co., 131 Wn.2d 96 (1997). The plaintiff was injured by an intoxicated driver who was allegedly overserved at a banquet hosted by her employer. The plaintiff’s evidence consisted of “observational evidence” by the plaintiff and a police officer obtained shortly after the collision. The defendant employer successfully moved for summary judgment. Held: Summary judgment reversed. “Fairbanks and Dickinson allow juries to draw inferences from firsthand observations of a person’s intoxication and to make any related credibility determinations.”

Given these prior precedents, the Faust court held in a unanimous 9-0 opinion that “direct, point-in-time evidence” is not required in cases involving the alleged overservice of alcohol. Instead, jurors may properly “consider and weigh circumstantial evidence of the appearance of intoxication,” the justices said, as long as the witness’s observation occurs “within a short period of time” of the alleged overservice. Moreover, while noting that jurors cannot make an “inferential leap” based on blood alcohol level analyses – i.e., that because the tortfeasor had a certain blood alcohol level, then he must have appeared drunk – the high court expressly held for the very first time that such evidence is “relevant as corroborative and supportive of the credibility of firsthand observations.”

After clarifying the evidence “necessary to properly establish a triable issue of fact regarding negligent overservice under RCW 66.44.200(1),” the high court next examined whether Division One had erred by vacating the $14 million verdict. For the following reasons, the justices sided with the Fausts:

• Under Washington law, corroborated admissions of a party – in this case, those made by Chapman – may constitute substantial evidence of any issue of fact.

• Given the bartender’s admission that Kinkaid appeared drunk when he left the lodge, a jury could reasonably infer that she could tell her boyfriend appeared drunk when she last served him.

• Chapman’s observations occurred “within a window of time” that satisfied Dickinson and Fairbanks, supra.

• The results of Kinkaid’s blood alcohol analyses, combined with the opinions of plaintiffs’ expert, corroborated that Kinkaid was drunk at the time of the crash.

• As recognized by the trial court, the timing of the collision created a triable issue of fact for the jury.

• By considering the defendants’ “observational evidence” – e.g., the testimony of other lodge patrons that Kinkaid didn’t appear under the influence – the Court of Appeals had improperly weighed the evidence.

So does the Washington Supreme Court break new ground in Faust v. Albertson?

Not really, since review was granted to determine whether the lower court’s opinion conflicted with existing precedent. But in terms of clarifying the necessary evidence for a plaintiff to get an alcohol overservice case to the jury, the high court unquestionably accomplished its goal. Moreover, by officially jettisoning any requirement that a plaintiff in such cases produce “direct, point-in-time evidence” that the tortfeasor was apparently under the influence when he was last served – evidence that more often than not will be unavailable since those most in the know will be uncooperative defendants – commercial hosts should be more accountable to third-party victims who are injured by their overserved patrons. The main proviso? That any other so-called “observational evidence” presented by the plaintiff not be overly remote in time.

Since I began this article with a Yogi Berra quote, here’s another: “When you come to a fork in the road, take it.” Thankfully, the fork taken by our Supreme Court proved to be a very positive one for Christopher Faust.