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Mortensen v. Moravec

Court of Appeals of Washington, Division 2

December 12, 2017

NICHOLAS MORTENSEN, an individual, Appellant,
v.
ROBERT MORAVEC, an individual; and DREW JAMES CORPORATION, d/b/a Main Street Station Bar & Grill, a for profit corporation; and GUITRON ESTRADA II, INC., d/b/a Rancho Viejo Sports Bar, a for profit corporation; and JOHN/JANE DOES 1-99 including Bartenders, Respondents.

          MAXA, A.C.J.

         A commercial seller of alcohol has a duty to not serve alcohol to an apparently intoxicated person. The question in this case is to whom that duty is owed; specifically, whether a commercial alcohol seller owes a duty to a person who is accidentally shot by an intoxicated customer after the customer leaves the seller's premises.

         Robert Moravec accidentally shot and seriously injured Nicholas Mortensen after an evening of drinking alcohol at two establishments: Main Street Station Bar & Grill, owned by Drew James Corporation (Main Street), and Rancho Viejo Sports Bar, owned by Guitron Estrada, II, Inc. (Rancho Viejo). Mortensen filed a lawsuit against Main Street and Rancho Viejo, alleging that they each were negligent in serving alcohol to Moravec when he was apparently intoxicated. The trial court granted summary judgment in favor of Main Street and Rancho Viejo, ruling that they were not liable as a matter of law because they owed no duty to Mortensen. Mortensen appeals the trial court's summary judgment order.

         RCW 66.44.200(1) prohibits a person from selling alcohol to any person apparently under the influence of alcohol. The Supreme Court in Christen v. Lee established the general rule that an alcohol seller's duty not to serve an intoxicated customer does not extend to the customer's criminal assault of a third person because such an assault is unforeseeable as a matter of law. 113 Wn.2d 479, 498, 501-03, 780 P.2d 1307 (1989). The court held that an alcohol seller's duty is limited to persons injured by the intoxicated customer's driving error. Id. at 495-96, 503. Mortensen claims that the RCW 66.44.200(1) duty extends to any third person who is accidentally injured because of the criminal conduct of a customer who is served alcohol while apparently intoxicated, and that in this case the foreseeability of injury is a question of fact that cannot be decided on summary judgment.

         We hold that (1) Christen compels the conclusion that an alcohol seller's duty under RCW 66.44.200(1) to not serve a person who is apparently intoxicated generally does not extend to a third person injured by the apparently intoxicated person's criminal assault, even if the injury was accidental; (2) because Moravec's shooting of Mortensen constituted a criminal assault, the general rule applies here; and (3) the exception to the general rule recognized in Christen for when the alcohol seller had some notice of the possibility of harm based on the intoxicated person's actions is inapplicable because Mortensen presented no evidence that Main Street and Rancho Viejo had notice of the possibility that Moravec would shoot him. Therefore, we hold that Main Street and Rancho Viejo owed no duty to Mortensen.

         Accordingly, we affirm the trial court's order granting summary judgment in favor of Main Street and Rancho Viejo and dismissing Mortensen's complaint.

         FACTS

         Accidental Shooting

         On April 10, 2015, Moravec and Mortensen spent part of the day buying ammunition and cleaning Moravec's handguns. Moravec left one of his handguns in his bedroom.

         Later that day, Moravec and Mortensen went to Main Street to drink and play pool. They were joined by several friends. Moravec had several alcoholic drinks. Moravec was served alcohol even though he was obviously intoxicated. The group left Main Street around 1:00 AM. The group then went to Rancho Viejo, where Moravec had more alcoholic drinks. Again, Moravec was served alcohol even though he was obviously intoxicated.

         At both establishments Moravec and the rest of the group were friendly and calm. There was no rowdy behavior, fighting, or arguments. Moravec did not have a gun with him.

         The group left Rancho Viejo at about 2:00 AM and went to Moravec's house. Moravec went into his bedroom with a female friend. Mortensen and others were being loud and banging on the door and walls outside the room. Moravec came out of his bedroom holding his handgun and waving the gun around. Moravec did not know that there was a bullet in the gun and that the safety was off.

         Moravec's gun had a modified trigger that required a lighter pull than normal. While Moravec was waving the gun, it went off accidentally and a bullet struck Mortensen. Moravec did not intend for the gun to go off. The bullet shattered several of Mortensen's vertebrae and rendered him unable to walk.

         Moravec later pleaded guilty to third degree assault under RCW 9A.36.031(1)(d), which states that a person is guilty if he "[w]ith criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm."

         Summary Judgment Motions

         Mortensen filed a lawsuit against Moravec, Main Street, and Rancho Viejo. The complaint alleged that Main Street and Rancho Viejo were liable for Mortensen's injuries because they served alcohol to Moravec when he was apparently under the influence of alcohol.

         Mortensen filed a summary judgment motion on the issue of legal duty, arguing that Main Street and Rancho Viejo owed him a duty under RCW 66.44.200(1) because he had been accidentally injured as a result of their service of alcohol to Moravec. Main Street and Rancho Viejo filed cross motions for summary judgment, arguing that they owed no duty to prevent Moravec from shooting Mortensen.

         The trial court granted summary judgment in favor of Main Street and Rancho Viejo, denied Mortensen's summary judgment motion, and dismissed Mortensen's complaint. The court ruled that Main Street and Rancho Viejo did not owe a duty to prevent Mortensen's injury and that the injury was not foreseeable based on the facts presented.

         Mortensen appeals the trial court's summary judgment order.

         ANALYSIS

         Mortensen argues that (1) Main Street and Rancho Viejo had a duty to not serve alcohol to Moravec because Moravec was apparently under the influence of alcohol, (2) this duty extended to anyone foreseeably injured by Moravec's alcohol-related conduct, and (3) whether it was foreseeable that Moravec would accidentally shoot Mortensen is a question of fact that could not be decided on summary judgment. Mortensen also argues that Main Street and Rancho Viejo had a duty to prevent the assault because they had notice of the possibility that Moravec could harm him.[1]

         We hold that under existing precedent, an alcohol seller's duty not to serve a person apparently under the influence of alcohol does not extend to someone injured by the intoxicated person's criminal assault, regardless of whether the injury was intentional or accidental. And we hold that Mortensen presented no evidence that Main Street and Rancho Viejo had notice of the possibility that Moravec would harm him.

         A. Standard of Review

         We review summary judgment orders de novo. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). On summary judgment, we construe all evidence and reasonable inferences in favor of the nonmoving party. Id. Summary judgment is appropriate when the record shows "no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." CR 56(c); see Keck, 184 Wn.2d at 370. An issue of fact is genuine if the evidence would be sufficient for a reasonable jury to find in favor of the nonmoving party. Keck, 184 Wn.2d at 370.

         "To avoid summary judgment in a negligence case, the plaintiff must show a genuine issue of material fact on each element of negligence - duty, breach, causation and damage." Clark County Fire Dist. No. 5 v. Bullivant Houser Bailey PC, 180 Wn.App. 689, 699, 324 P.3d 743 (2014).

         B. LIABILITY FOR SERVING ALCOHOL TO INTOXICATED PERSON

         1. Duty of Alcohol Seller

         "Generally, a person has no duty to prevent a third party from causing harm to another." Volk v. DeMeerleer, 187 Wn.2d 241, 255, 386 P.3d 254 (2016). However, Washington courts have recognized that a commercial seller of alcohol may be liable under certain circumstances when an intoxicated customer injures a third person. See, e.g., Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 269-74, 96 P.3d 386 (2004) (discussing civil liability for serving alcohol).

         Historically, the common law rule in Washington was that a commercial seller that served alcohol to a person generally was not liable if that person became intoxicated and injured a third person. See Burkhart v. Harrod, 110 Wn.2d 381, 383, 755 P.2d 759 (1988). One established exception was that a commercial seller could be liable for serving alcohol to a person who was "obviously intoxicated." Id. This exception imposed liability for injuries to third persons caused by a customer's intoxication, but not for the intoxicated customer's own injuries. Estate of Kelly v. Falin, 127 Wn.2d 31, 37-42, 896 P.2d 1245 (1995).

         RCW 66.44.200(1) provides a statutory prohibition similar to the common law's "obviously intoxicated" exception, stating that "[n]o person shall sell any liquor to any person apparently under the influence of liquor." In Barrett, the Supreme Court held that RCW 66.44.200(1) established the standard of civil liability for an alcohol seller for a customer's intoxicated driving. 152 Wn.2d at 273-74. The court stated that RCW 66.44.200(1) should be used to determine an alcohol seller's civil liability when the seller's service of alcohol to an apparently intoxicated person causes a "drunk driving accident injuring a third party." Barrett, 152 Wn.2d at 273. However, the court emphasized that other than changing the standard of liability, it was not upsetting established precedent regarding the liability of an alcohol seller for third party injuries. Id. at 274.

         The Supreme Court subsequently acknowledged that the statutory "apparently under the influence" standard had replaced the common law "obviously intoxicated" standard for determining an alcohol seller's liability. Faust v. ...


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