Nicholas Mortensen v. v. Robert Moravec
49366-7
| Wash. Ct. App. | Dec 12, 2017Background
- On April 10, 2015, Moravec and Mortensen drank at two bars (Main Street Station and Rancho Viejo); Moravec was visibly intoxicated and was served at both establishments.
- After leaving the bars they went to Moravec’s home; while waving a handgun with a modified trigger, the gun discharged and Mortensen was severely injured and paralyzed.
- Moravec pleaded guilty to third-degree assault (criminal negligence with a weapon).
- Mortensen sued the two bars under RCW 66.44.200(1), alleging negligent overservice to an apparently intoxicated person causing his injuries.
- The trial court granted summary judgment for the bars, finding they owed no duty to Mortensen; Mortensen appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RCW 66.44.200(1) duty to not serve an apparently intoxicated person extends to third persons injured by that person's post-departure conduct | Mortensen: statutory duty extends to any foreseeable third‑party harm, including accidental shootings; foreseeability is fact question for jury | Bars: statute and precedent limit duty to harms within the field of danger (drunk‑driving); criminal assaults (even accidental) are not foreseeable as a matter of law | Held: Duty does not extend to third persons injured by a customer’s criminal assault; summary judgment for bars affirmed |
| Whether Christen’s exception (seller liability when seller had notice of likely harm) applies here | Mortensen: sellers may have had notice; factual dispute exists | Bars: no evidence of prior notice, disturbance, or warning at the establishments | Held: No evidence of notice; exception inapplicable as a matter of law |
| Whether an accidental firearm discharge differs from intentional assault for foreseeability/scope of duty | Mortensen: no meaningful distinction between vehicle and firearm accidents; accidental shooting is foreseeable | Bars: Christen treats criminal assault broadly and limits RCW 66.44.200(1) to driving harms; precedent controls | Held: Court treats the incident as criminal assault (Moravec’s guilty plea) and applies Christen/Barrett limiting duty to driving accidents |
| Whether precedent should be overruled or extended to include firearm injuries | Mortensen: policy and public health concerns support extension; statute text is broad | Bars: bound by Supreme Court precedent; any change rests with legislature or Supreme Court | Held: Court declines to extend or overrule Christen/Barrett; legislative or Supreme Court change required |
Key Cases Cited
- Christen v. Lee, 113 Wn.2d 479 (superseding holding that statutory "apparently under the influence" duty does not reach criminal assaults)
- Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259 (confirms RCW 66.44.200(1) targets alcohol‑related driving accidents, not assaults)
- Cameron v. Murray, 151 Wn. App. 646 (applies Christen to bar‑service assaults and rejects broader foreseeability arguments)
- McKown v. Simon Prop. Grp., Inc., 182 Wn.2d 752 (articulates duty/scope analysis and foreseeability framework used by the court)