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Fairbanks v. J.B. McLoughlin Co.

January 16, 1997

EUGENE FAIRBANKS AND CAROLEE FAIRBANKS, HUSBAND AND WIFE, AND AS PARENTS OF THEIR MINOR CHILDREN, PETITIONERS,
v.
J.B. MCLOUGHLIN COMPANY, INC., A WASHINGTON CORPORATION, AND THE EMPRESS OF CHINA, A WASHINGTON CORPORATION, AND XYZ ESTABLISHMENT, AND JUDY LAN AND JOHN DOE LAN, WIFE AND HUSBAND, AND THE MARITAL COMMUNITY COMPRISED THEREOF, RESPONDENTS.



Appeal from Superior Court, King County. 93-2-29900-1. Honorable Michael C. Hayden, Judge. Judgment Date: 1-3-95.

PER CURIAM.

Carolee Fairbanks was injured in a car accident caused by an intoxicated J.B. McLoughlin Company employee who had earlier attended a company banquet. The trial court dismissed her vicarious liability and negligent furnishing claims on summary judgment and the Court of Appeals affirmed. Finding a genuine issue of fact as to whether the employee drank to intoxication at the banquet, we reverse.

Ann Neely, a J.B. McLoughlin property manager, attended the 1990 company Christmas banquet and presented awards to several employees. The banquet was held at one of the McLoughlin properties in Redmond. McLoughlin provided food, wine, and champagne for the guests. In her deposition, Neely testified that she arrived at the party about 7:00 p.m. and left between 10:00 p.m. and 10:30 p.m. She later submitted an affidavit stating that she left around 10:00 p.m., however. Neely claimed that she only drank two glasses of champagne at the banquet and denied becoming intoxicated. She also testified that she drinks socially about once every other month.

At about 10:50 p.m., Neely hit Fairbanks' car from the rear at a stoplight in the Eastgate area, injuring Fairbanks. Shortly after 11:00 p.m., Bellevue Police Officer David Asheim arrived at the scene. He smelled alcohol on Neely's breath, noted that her speech was slurred, and asked her if she had been drinking. She responded that she had two glasses of wine at a company Christmas party. Asheim noted that Neely stumbled as she got out of the car and staggered when she walked. He administered field sobriety tests and arrested her for driving under the influence. A breathalyzer test, performed about an hour later, showed Neely's blood-alcohol level at .17.

Fairbanks settled with Neely and her insurer and sued McLoughlin, alleging negligent furnishing of alcohol and vicarious liability causes of action. Neely then declared for the first time that she had met several other employees for drinks at the Empress of China lounge after leaving the banquet. She claimed that she had two or three cognacs and left the lounge at 10:45 p.m. Neely testified in deposition that the Empress of China lounge is 10 to 15 minutes from the banquet site. Fairbanks then amended her complaint naming the Empress of China as an additional defendant. That claim has also been settled.

McLoughlin moved for summary judgment contending that Fairbanks had failed to produce sufficient evidence that Neely became intoxicated at the banquet. In support of its motion, McLoughlin produced declarations from three employees who had been at the banquet. Maureen Chandler declared that at about 9:00 p.m., Neely gave a clear and succinct speech and presented her with an Employee of the Year award. Neely hugged Chandler when she gave her the award and Chandler did not smell any alcohol on her breath or notice any sign that she was intoxicated. Fran Billings, McLoughlin's Controller Treasurer, declared that she was in charge of the banquet and that she recalled being embarrassed because the champagne ran out well before the end of the evening. Billings watched Neely present awards and did not notice any sign that she was intoxicated. Sandi Repetowski, McLoughlin's Executive Vice President, also declared that he did not notice Neely acting intoxicated at any point during the evening. McLoughlin also submitted Neely's declaration that she had additional drinks at the Empress of China after leaving the banquet.

In opposition to the motion, Fairbanks produced the deposition testimony of Empress of China owner Judy Lan. Lan testified that the Empress of China closes at 10:00 p.m. The bar mainly serves the restaurant and rarely has more than a few customers during the entire night so that it would have been unusual to serve a group the size of Neely's. Lan worked until closing on the night of the accident and periodically checked the bar while making her rounds. She did not recall seeing any large group in the lounge that night, and her records show that the bar receipts, including soda pop, totaled only $150 for the entire day. Fairbanks also produced Officer Asheim's police report and declaration.

The trial court granted McLoughlin's motion for summary judgment on both of Fairbanks' theories of liability. The Court of Appeals affirmed in an unpublished opinion. We reverse.

Vicarious Liability. A plaintiff seeking recovery from a banquet-hosting employer under a respondeat superior theory of liability must prove the following:

1. The employee consumed alcohol at a party hosted by the employer which was held to further the employer's interest in some way and at which the employee's presence was requested or impliedly or expressly required by the employer.

2. The employee negligently consumed alcohol to the point of intoxication when he knew or should have known he would need to operate a vehicle on some public highway upon leaving the banquet.

3. The employee caused the accident while driving from the banquet.

4. The proximate cause of the accident, the intoxication, occurred at the time the employee negligently consumed the alcohol. Dickinson v. Edwards, 105 Wash. 2d 457, 468, 716 P.2d 814 (1986).

McLoughlin concedes that the banquet furthered its interest and that Neely's presence was required. The issue is whether Fairbanks submitted evidence sufficient to create a factual dispute as to whether Neely ...


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