[Nos. 57821-9-I; 57321-7-I; 57320-9-I. Division One. January 7, 2008.]
[1] Trial Taking Case From Jury Sufficiency of Evidence Interpretation of Evidence. By challenging the sufficiency of the evidence supporting the plaintiff's claim or cause of action or by moving for a nonsuit, dismissal, directed verdict, new trial, or judgment notwithstanding the verdict, a defendant admits the truth of the plaintiff's evidence and all inferences that can reasonably be drawn therefrom. In ruling on the motion, the court interprets the evidence most strongly against the defendant and most favorably toward the plaintiff. [2] Trial Taking Case From Jury Sufficiency of Evidence Judgment as a Matter of Law Review Role of Appellate Court. An appellate court reviews a trial court's denial of a motion for a judgment as a matter of law by engaging in the same inquiry as the trial court. [3] Trial Taking Case From Jury Sufficiency of Evidence Judgment as a Matter of Law Test. A defendant's motion for a judgment as a matter of law should be granted if there is neither evidence nor reasonable inference therefrom sufficient to sustain a verdict for the plaintiff. [4] Trial Taking Case From Jury Sufficiency of Evidence Judgment as a Matter of Law Review Interpretation of Evidence Witness Credibility. An appellate court reviewing a trial court's denial of a defendant's motion for a judgment as a matter of law must defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence. [5] Trial Verdict Review Sufficiency of Evidence. A jury's verdict may be overturned by a reviewing court if the verdict is clearly unsupported by substantial evidence in the record. [6] New Trial Review Role of Appellate Court. An appellate court reviews a trial court's denial of a motion for a new trial by engaging in the same inquiry as the trial court. [7] New Trial Determination Test. A defendant's motion for a new trial should be granted if there is neither evidence nor reasonable inference therefrom sufficient to sustain a verdict for the plaintiff. [8] New Trial Review Interpretation of Evidence Witness Credibility. An appellate court reviewing a trial court's denial of a defendant's motion for a new trial must defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence. [9] Intoxicating Liquors Providing Liquor Duty of Commercial Vendor Standard for Civil Liability In General. A commercial host's civil liability for overservice of alcohol arises from the fact that a commercial host has a duty under RCW 66.44.200 to refrain from serving a person who is apparently under the influence of liquor. This duty is a limited exception to the general rule that it is not a tort to sell alcohol to ordinary able-bodied persons. The general rule is based on the theory that it is the drinking of the alcohol, not the furnishing of it, that is the proximate cause of any injury. The exception arises because, only when a commercial establishment furnishes liquor to one in such a state of helplessness or debauchery as to be deprived of personal will power or responsibility for personal behavior does applicability of the proximate cause rationale cease. Hence, the duty to refrain from serving alcohol applies only when the person seeking service already exhibits manifestations of the effect of alcohol. [10] Intoxicating Liquors Providing Liquor Duty of Commercial Vendor Standard for Civil Liability Apparent Intoxication Proof Postconsumption Observations. For purposes of an action for negligent overservice of alcohol, evidence of the drinker's appearance after being served alcohol by the defendant is insufficient, alone, to prove that the drinker was apparently under the influence of liquor at the time the alcohol was served; nor is such evidence sufficient to allow consideration of other corroborating evidence, such as evidence of blood alcohol content. Absent observational evidence that the drinker appeared under the influence of alcohol at the time of being served, the plaintiff cannot establish overservice by a preponderance of the evidence and the defendant is entitled to a directed verdict as a matter of law. [11] Intoxicating Liquors Providing Liquor Duty of Commercial Vendor Standard for Civil Liability Apparent Intoxication What Constitutes. For purposes of RCW 66.44.200, which proscribes the sale of liquor to any person apparently under the influence of liquor, "apparently under the influence of liquor" means "seemingly" drunk, as opposed to the higher standard of "unmistakably" or "certainly" drunk. [12] Intoxicating Liquors Providing Liquor Duty of Commercial Vendor Standard for Civil Liability Apparent Intoxication Proof Amount of Alcohol Consumed. For purposes of an action for negligent overservice of alcohol, evidence of the amount of alcohol consumed by the drinker is insufficient, alone, to establish that the drinker was furnished intoxicating liquor while apparently under the influence of liquor. To meet the legal standard of "apparently under the influence of liquor," the plaintiff must present evidence concerning whether the drinker was "seemingly" drunk at the time the defendant served alcohol to the drinker. [13] Intoxicating Liquors Providing Liquor Duty of Commercial Vendor Allowing Drunken Patron To Leave Premises. RCW 66.44.200, which proscribes the sale of liquor to any person apparently under the influence of liquor, does not impose liability for allowing a drunken patron to leave the premises, regardless of the whether the patron is cut off from service, thrown out, or leaves voluntarily. [14] Intoxicating Liquors Providing Liquor Duty of Commercial Vendor Standard for Civil Liability Apparent Intoxication Proof Intoxication at Time of Departure. For purposes of an action for negligent overservice of alcohol, evidence that the drinker was intoxicated when departing the establishment does not, alone, establish that the drinker was "apparently under the influence of liquor" at the time of being served alcohol by the establishment. [15] Intoxicating Liquors Providing Liquor Duty of Commercial Vendor Standard for Civil Liability Apparent Intoxication Proof Specific Point-in-Time Evidence Necessity. An action for negligent overservice of alcohol requires specific point-in-time evidence establishing the drinker's appearance at the time the drinker was served liquor by the defendant. [16] Constitutional Law Equal Protection Different Treatment for Different Persons In General. Under both the federal and state constitutions, the right to equal protection of the laws guarantees that persons similarly situated with respect to a legitimate purpose of the law receive like treatment. [17] Statutes Validity Presumption Burden of Proof Degree of Proof. When analyzing a challenge to the constitutional validity of a statute, a court begins with the presumption that the statute is constitutional. The party claiming that the statute is unconstitutional has the burden of proving that it is unconstitutional beyond a reasonable doubt. [18] Constitutional Law Equal Protection Classifications Minimal Scrutiny Test. Under the rational basis standard for analyzing an equal protection challenge to a legislative classification, the law must be rationally related to a legitimate state interest and will be upheld unless the classification rests on grounds wholly irrelevant to the achievement of a legitimate state objective. The rational basis standard is the most relaxed and tolerant form of judicial scrutiny under the equal protection clause. [19] Torts Interest Postjudgment Interest Torts Statutory Provisions Purposes. RCW 4.56.110(3), which specifies the rate of interest payable on tort judgments, is intended to align interest on tort judgments with the economy at judgment and help ensure that decisions to appeal are based on merit rather than on concern about the growth of a judgment due to interest. [20] Torts Interest Postjudgment Interest Torts Statutory Provisions Validity Equal Protection. RCW 4.56.110(3), which specifies the rate of interest payable on tort judgments, does not deprive tort judgment creditors of the equal protection of the laws by virtue of the fact that the statute applies a different interest rate than is applied to nontort judgments. Nature of Action: Action for damages for personal injuries sustained in a motor vehicle accident involving a drunk driver. The plaintiffs sought damages from the estate of the drunk driver, who was killed in the accident, the fraternal lodge where the drunk driver had consumed alcohol, and the lodge's bartender. Superior Court: The Superior Court for Whatcom County, No. 03-2-00859-8, Charles Snyder, J., on January 11, 2006, entered a judgment on a verdict in favor of the plaintiffs. Court of Appeals: Holding that the record did not support a finding that the driver appeared to be under the influence of alcohol at the time he was served alcohol at the lodge, the court reverses the judgment against the lodge and the bartender. Russell C. Love- (of Thorsrud Cane & Paulich) and William E. Fitzharris, Jr.- (of Preg O'Donnell & Gillett, PLLC) Edward M. Kay- and Paul V. Esposito- of (Clausen Miller, PC, of counsel), for appellants. Philip A. Talmadge- (of Talmadge Law Group, PLLC) and Steven J. Chance-, for respondents. Ά1 APPELWICK, C.J. After they were injured when their vehicle was struck by a drunk driver, the Fausts brought suit against the estate of the driver, who was killed in the accident. They also sued Alexis Chapman, bartender at the Moose Lodge, and the Moose Lodge itself for overservice of alcohol. The jury returned a verdict for the Fausts. Chapman and Moose Lodge appeal. The Fausts cross-appeal, contending that the interest rate on tort judgments violates their constitutional right to equal protection. Liability for overservice of alcohol requires that the consumer appear under the influence at the time of service. The evidence does not support overservice. We reverse and vacate the judgment against Chapman and the Moose Lodge and deny the cross-appeal. Facts Ά2 At approximately 7:45 p.m. on April 21, 2000, while driving southbound down LaBounty Road in Ferndale, Hawkeye Kinkaid's Ά3 One hour after the accident, toxicology showed that Kinkaid's blood alcohol content (BAC) was 0.16 percent, significantly above the legal limit of 0.08 percent. Ά4 On the evening of the accident, Kinkaid had been at the Moose Lodge in Bellingham where his girl friend, Alexis Chapman, was the bartender. The Faust family filed suit against Hawkeye Kinkaid's estate; the Bellingham Moose Lodge; Moose International, Inc.; and Chapman as employee and bartender at the Moose Lodge in Bellingham. The suit alleged that Kinkaid negligently injured the Fausts, that the Moose Lodge and Chapman overserved alcohol to Kinkaid, that the Moose Lodge negligently hired and supervised Chapman, and that Moose International failed to adequately monitor the Moose Lodge and Chapman. Moose International was dismissed from the case during trial. The parties stipulated to a judgment against Kinkaid's estate. Ά5 Testimony showed that Kinkaid and Chapman arrived at the Moose Lodge at about 4:30 p.m. According to Chapman, who had spent the afternoon with Kinkaid, he was sober upon arrival at the Moose Lodge. Chapman testified that she only served Kinkaid two beers. Members of the Moose Lodge who remembered seeing Kinkaid at the Moose Lodge that night testified that he appeared sober. The parties dispute the time of Kinkaid's departure from the Moose Lodge. The Fausts presented evidence that he left the bar around 7:30 p.m., including Chapman's original statement to an investigator. Other witnesses testified that Kinkaid left around 6 p.m. Two witnesses testified that they had seen Kinkaid drinking a beer at a bowling alley after 6 p.m., but the bartender at that establishment stated that Kinkaid had not been in the bar that night. Ά6 A jury returned a verdict for the Fausts and awarded significant damages, totaling approximately 14 million dollars. In apportioning negligence among the defendants, the jury attributed 50 percent to Kinkaid, 15 percent to Chapman, and 35 percent to the Moose Lodge. The Moose Lodge and Chapman (collectively Lodge) appeal. Discussion I. Overservice of Alcohol A. Requirements for Liability for Overservice of Alcohol [A] challenge to the sufficiency of the evidence, or a motion for nonsuit, dismissal, directed verdict, new trial, or judgment notwithstanding the verdict, admits the truth of the opponent's evidence and all inferences which can reasonably be drawn therefrom, and requires that the evidence be interpreted most strongly against the moving party and in a light most favorable to the opponent. Davis v. Early Constr. Co., 63 Wn.2d 252, 254, 386 P.2d 958 (1963). In reviewing a ruling on a motion for a judgment as a matter of law, we engage in the same inquiry as the trial court. Stiley v. Block, 130 Wn.2d 486, 504, 925 P.2d 194 (1996). A judgment as a matter of law requires the court to conclude as a matter of law "that there is no substantial evidence or reasonable inferences to sustain a verdict for the nonmoving party." Indus. Indem. Co. of Nw., Inc. v. Kallevig, 114 Wn.2d 907, 915-16, 792 P.2d 520 (1990). However, the court must "defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence." State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997). Overturning a jury verdict is only appropriate when the verdict is clearly unsupported by substantial evidence. Burnside v. Simpson Paper Co., 123 Wn.2d 93, 107, 108, 864 P.2d 937 (1994). Because the standards of review and issues are the same, this section will discuss whether the trial court erred in its denial of both motions for judgment as a matter of law and the motion for a new trial. Ά9 The Lodge contends that the Fausts needed to provide direct, observational evidence that Kinkaid was "apparently under the influence" at the time Chapman served him. The Fausts disagree, claiming that blood alcohol evidence can prove that a person is apparently under the influence of alcohol. The Washington Supreme Court has indicated its concern "that blood alcohol content be used only as evidence of intoxication at the time of the accident and not as evidence of the obviousness of intoxication at the time of alcohol service." Dickinson v. Edwards, 105 Wn.2d 457, 463, 716 P.2d 814 (1986). As a result of this concern, the court determined that "[w]hen the obviousness of intoxication is at issue, firsthand observations and other circumstances from which such obviousness can be inferred are most valuable to the court." Id. "Whether a person is obviously intoxicated or not is to be determined by the person's appearance to others around him or her at the time the intoxicating liquor is furnished to that person." Christen v. Lee, 113 Wn.2d 479, 487, 780 P.2d 1307 (1989). Ά10 Despite these clear pronouncements, the court has permitted cases to go forward from summary judgment based on direct observation evidence of obvious intoxication at the time of the accident, rather than service, see Dickinson, 105 Wn.2d at 464; Fairbanks v. J.B. McLoughlin Co., 131 Wn.2d 96, 929 P.2d 433 (1997). In Dickinson, the court considered statements of the investigating officer who observed the defendant's behavior a mere 10 minutes after the conclusion of a banquet where he had consumed 15 to 20 drinks in three and a half hours. 105 Wn.2d at 464-65. The court reversed the summary judgment because "subjective observations of obvious intoxication made in close time proximity to the period of alcohol consumption may raise an inference of obvious intoxication upon which to base a material question of fact." Id. at 464. Similarly, in Fairbanks, a police officer's firsthand observations of the defendant's slurred speech and staggering raised an inference about her intoxication when served since she did not consume alcohol after leaving the premises and no time remained unaccounted for between consumption of the beverages and the observation. 131 Wn.2d at 103. Ά12 The current statutory standard is "apparently under the influence of liquor." "Apparently under the influence of liquor" means "seemingly" drunk, as opposed to the higher standard of "unmistakably" or "certainly" drunk. Barrett, 152 Wn.2d at 264, 268. " '[E]vidence of the amount of alcohol consumed is not sufficient by itself to establish that a person was furnished intoxicating liquor while [apparently under the influence].' " Id. at 279 (quoting Christen, 113 Wn.2d at 487). Thus to meet the legal standard, the plaintiffs needed to present evidence concerning whether Kinkaid was "seemingly" drunk at the time Chapman served him alcoholic beverages. If evidence does not show that Kinkaid appeared intoxicated to those around him, the evidence is insufficient to raise an issue of fact as to overservice. Christen, 113 Wn.2d at 490. B. Evidence Presented at Trial In this case, the court's previous ruling that the statements of Alexis Chapman, the bartender at the Moose Lodge, was sufficient evidence of behavior evidencing that Hawkeye Kincaid was apparently under the influence of liquor reflects the determination by the court that the person serving the alcohol directly to Kincaid, who has a personal knowledge of him and his behavior, is well placed to observe those behaviors. Those statements provide sufficient evidence to take the case to the jury for determination as to liability. According to the trial court, the statements Chapman made to Rainy Kinkaid, Hawkeye Kinkaid's daughter, and Lisa Johnston provided adequate evidence. "In these statements, it was declared that Hawkeye Kincaid had too much to drink or was drunk, shouldn't have been driving, and should have been cut off from further service. It is for the jury, then, to decide from these statements whether or not the last service of alcohol, based on the bartender's familiarity with Hawkeye Kincaid, was over-service." The court also found the "evidence of Hawkeye Kincaid's blood alcohol level was not the sole evidence on which the jury's decision is based, but merely supporting evidence." However, the trial court did admit that "[w]ithout the statements of the bartender Chapman, Defendants' motion would be granted." Based on this statement, the trial court relied heavily on the testimony of Rainy and Lisa Johnston about Chapman's comments in order to deny the motions for a defense verdict. Ά14 Rainy testified that Chapman admitted to her that Kinkaid was drunk. A: That he was at the bar, and they were having an argument or not getting along or however you want to say it, and pretty much either she kicked him out or didn't want him there or told him to leave. Q: And did she describe his condition when she told him to leave? A: Yeah, she knew that he was tipsy, that he shouldn't be behind the wheel. Q: What did she say to you? A: She said that he had too much to drink, and shouldn't be driving. Rainy also testified that Chapman made similar comments at a later date. Q: [T]he second time that she talked to you, did she again indicate what his condition was when he left the Moose Lodge? A: Yes. Q: And what did she tell you the second time? A: That he had been drinking for quite awhile. Q: And what did she say in terms of his ability to operate a vehicle? A: Drunk. While Rainy's testimony appears damning for Chapman, the questions center on Kinkaid's condition when he left the Lodge. The statute does not impose liability for allowing a drunken patron to leave the premises regardless of whether he is cut off, thrown out, or leaves voluntarily. Rainy's testimony about Chapman's admissions do not show that she served Kinkaid when he was "apparently under the influence of liquor," only that he was intoxicated upon his departure. The statements do not fix Chapman's perception of Kinkaid's condition at the appropriate time to establish liability for overservice. Ά15 Similarly, Johnston's testimony about Chapman's statements does not establish Kinkaid's appearance to others around him at the time of service. Chapman apparently revealed that Kinkaid had been drunk to Johnston, a friend of Kinkaid and bouncer at the bar where Chapman had been employed as a bartender. Q: [D]id you ever talk to her about what happened that evening? A: Yes. Q: What did she tell you? A: She said that Hawkeye was sitting at the bar and he was being obnoxious and that he was drunk, and she cut him off and he got mad. Q: And then what happened after she cut him off and he got mad? A: He left. . . . Q: And you're certain, though, that she did tell you that heshe knew he was drunk? A: Yes. Once again, this testimony shows Kinkaid's condition after he had consumed alcohol, not when Chapman served the beverages. The statements provide no insight into whether Kinkaid had been "apparently" under the influence when he was served. Instead, the testimony describes Kinkaid's drunken condition after he had been drinking. Nothing says he was drunk when he got there, so that any service would have been overservice. In addition, the statements support responsible behavior by Chapmanshe cut him off when he became drunk and obnoxious. This suggests that Chapman recognized signs of drunkenness and refused to serve him, as required by law. Ά17 We reverse verdict against the Lodge on liability for overservice. As a result, we must also reverse the negligent hiring/supervision claim against the Lodge since it is based on Chapman's negligent overservice. The verdict and judgment against the estate of Hawkeye Kinkaid remains. II. Constitutionality of RCW 4.56.110(3) Ά18 The Fausts requested and received a 6.002 percent interest rate on their judgment. They agree that this interest rate is consistent with RCW 4.56.110(3), which awards interest on tort judgments at two percentage points above the equivalent coupon issue yield, as published by the board of governors of the federal reserve system, of the average bill rate for twenty-six week treasury bills as determined at the first bill market auction conducted during the calendar month immediately preceding the date of entry. For the first time on appeal, the Fausts challenge the constitutionality of RCW 4.56.110(3) because the statute applies a different rate of interest to tort judgments than other judgments. They base the challenge on both federal and state equal protection grounds. [I]nterest on judgments should reflect to some degree economic reality at the time a judgment is entered. The current rate makes considerations of interest charges alone drive decisions on whether to appeal a case. Interest charges on a judgment against a local government can grow to hundreds of thousands of dollars while a case is being appealed. The bill will let appeal decisions be made more on the merits of the case itself. H.B. REP. on H.B. 2485, at 3, 58th Leg., Reg. Sess. (Wash. 2004). Ά21 This legislative report shows a clear purposeto align interest on tort judgments with the economy at judgment and help ensure that decisions to appeal are based on merit, rather than concern about the growth of a judgment due to interest. These are legitimate government interests; therefore, the statute is constitutional "unless the classification rests on grounds wholly irrelevant to the achievement of a legitimate state objective." DeYoung, 136 Wn.2d at 144. The Fausts provide no evidence that the new method of determining the interest rate on tort judgments does not contribute to the achievement of the legitimate government objective. Instead, the Fausts merely argue that the statute is "punitive" because it requires a lower interest rate on tort judgments. As a result, the Fausts do not meet their burden of proof that the statute is unconstitutional beyond a reasonable doubt. The statute does not violate equal protection law. Ά22 We reverse and vacate the verdicts against Chapman and the Lodge. We deny the cross-appeal. ELLINGTON, J., and COLEMAN, J. PRO TEM., concur.