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Cox v. Keg Restaurants U.S. Inc.

May 5, 1997

PATRICK B. COX, JR., AN INDIVIDUAL, RESPONDENT/CROSS-APPELLANT
v.
THE KEG RESTAURANTS U.S., INC., A FOREIGN CORPORATION D/B/A THE KEG; THE KEG WASHINGTON, INC., A WASHINGTON CORPORATION D/B/A THE KEG, APPELLANT/CROSS-RESPONDENT, PHILLIP J. WHALEN, DEFENDANT.



Appeal from Superior Court of King County. Docket No: 93-2-15186-1. Date filed: 03/02/95. Judge signing: Hon. Michael J. Fox.

Petition for Review Denied October 7, 1997,

Authored by Ann L. Ellington. Concurring: Walter E. Webster, Mary K. Becker.

The opinion of the court was delivered by: Ellington

ELLINGTON, J. -- On November 1, 1991, Patrick Cox and Philip Whalen each patronized The Keg Restaurant. After The Keg served Whalen 10 drinks in two and a half hours, he assaulted Cox without provocation and inflicted permanent brain damage. Cox brought suit against Whalen and The Keg, and introduced evidence of Whalen's blood alcohol content. The jury returned a verdict for Cox, finding Cox two percent at fault for failing to mitigate but not otherwise at fault, and assigning the remaining fault roughly equally between The Keg and Whalen.

The trial court found that Cox's failure to mitigate was not the type of fault that should preclude joint liability under the Tort Reform Act of 1986, and held The Keg and Cox jointly liable for 98 percent of Cox's damages. The Keg challenges this ruling and challenges the court's admission of BAC evidence and its instructions to the jury. Cox cross appeals, arguing that there was insufficient evidence for the jury to find failure to mitigate. We agree that the evidence was insufficient and therefore hold Whalen and The Keg each jointly and severally liable for Cox's entire damages, and remand for apportionment to The Keg and Whalen the fault erroneously assigned to Cox. On all other issues, we affirm.

Facts/Procedure

When Philip Whalen arrived at The Keg at approximately 9:00 p.m. on November 1, 1991, he had already consumed a double bloody Mary. Whalen testified that during the next two and a half hours at The Keg, he ordered and consumed five shots of 100 proof whiskey and five beers, as well as a partial "electric iced tea." The Keg's computer drink tracking system verified that shots of whiskey were served at 9:02, 9:33, 9:59, 10:17, and 11:23 p.m. Between 9:45 and 10:10 p.m., Whalen became irate and began banging on the pay phones. James Kollasch, The Keg's manager, asked Whalen to "take it easy." About 30 seconds later, Kollasch handed Whalen a mechanical pencil he had requested, which Whalen soon broke as he began banging on the phones again. Patron Shannon Seibel told Kollasch that Whalen was out of control and should be removed from the premises. According to Seibel, Kollasch said he knew Whalen was out of control and had had too much to drink. Kollasch did not remember this Discussion, but did remember asking Whalen to leave. Kollasch also could not remember whether he told his staff that he had asked an intoxicated person to leave the premises. Seibel testified that he did not, but instead walked directly back to his office. Whalen apparently left as requested, but immediately returned. Seibel testified that she asked the bartender to inform Kollasch that Whalen returned. The bartender did not recall this conversation. Whalen remained at The Keg.

At approximately 11:30 p.m., Whalen and Cox were both on the dance floor. Whalen began to antagonize Cox, at one point telling the disc jockey that Cox was "about to get his ass kicked." Whalen eventually pushed Cox, who pushed back and left the building. Whalen ran after Cox, catching up to him as he left the restaurant. He grabbed Cox from behind, knocked him to the ground, and repeatedly smashed his head onto the pavement. Cox was knocked unconscious. Whalen promptly left the scene. He later pleaded guilty to second degree assault.

Cox suffered brain damage, including permanent memory loss and aggravation of an existing but nonsymptomatic hydrocephalus condition. *fn1 Dr. Richard Winn installed a shunt in Cox's brain to drain excess fluid. Despite the shunt, Cox continues to experience headaches and fatigue. Winn testified that with a head injury such as Cox sustained, such symptoms could last for years.

At trial, Cox argued The Keg was liable for serving an obviously intoxicated person when it had notice of a possibility of harm. The Keg argued that Cox was negligent for provoking the incident, and had failed to mitigate his damages. The jury found Cox was two percent at fault for failing to mitigate, but was not otherwise at fault, that The Keg's negligence caused 45 percent of Cox's damages, and that Whalen caused the remaining 53 percent.

After the verdict, Cox argued that the defendants should be held jointly and severally liable. The Tort Reform Act of 1986 generally precludes the imposition of joint and several liability when the party suffering injuries was "at fault." See RCW 4.22.070. The Act defines fault as including unreasonable failure to mitigate damages. See RCW 4.22.015. The court reviewed these statutes and concluded that a failure to mitigate could not rationally be considered as a type of fault on the part of plaintiff which would preclude joint liability. The court therefore held the defendants jointly and severally liable for 98 percent of Cox's damages. Cox and The Keg appeal.

Joint Liability and the Sufficiency of the Mitigation Evidence

The central questions on appeal surround the issue of joint and several liability. We find that there was insufficient evidence to present a jury question on failure to mitigate. Without such evidence there was no basis to assign fault to Cox, and The Keg is jointly liable with Whalen for Cox's damages.

Sufficiency of Evidence - Failure to Mitigate

Cox argues that there was insufficient evidence to create a jury question on failure to mitigate, and that because he was not otherwise at fault, liability is joint ...


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