KACEY HALLIGAN, Appellant, v. FRANK PUPO, ET AL, Respondents.
No. 6488-0-II
Division Two
March 14, 1984
Reconsideration denied April 13, 1984
37 Wn. App. 84
Review denied by Supreme Court June 22, 1984.
In State v. Walcott, supra at 962-63, the court (quoting Aguilar v. Texas, 378 U.S. at 111) stated:
Thus, when a search is based upon a magistrate‘s, rather than a police officer‘s, determination of probable cause, the reviewing courts will accept evidence of a less “judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,” [Jones v. United States, 362 U.S. 257, 270 (1960)], and will sustain the judicial determination so long as “there was substantial basis for [the magistrate] to conclude that narcotics were probably present...”
In my opinion, the affidavit here set forth an adequate factual basis for the magistrate to conclude defendant had marijuana in his home. Hence, the search warrant should have been upheld.
As noted in Gates, the reasonable person standard of interpreting search warrants is designed to keep the law in tune with the realities of criminal investigation and “common-sense conclusions about human behavior . . .” The position taken by the majority is hypertechnical and deviates from the approach espoused in Gates.
For the foregoing reasons, I would affirm.
Reconsideration denied April 5, 1984.
Review denied by Supreme Court June 22, 1984.
Jack Rosenow, for respondents.
REED, J.-On December 14, 1980, Kacey Halligan was injured in an automobile accident. The accident occurred as Thomas Potter, the allegedly drunk driver of the other car, was on his way home from the Tacoma Lawn and Tennis Club where he had attended his employer‘s company Christmas party. The party was sponsored by Sam‘s Tire Service, Inc. and Frank and Janice Pupo, the owners of 69 percent of the company‘s stock. It featured an open bar, tended by two bartenders hired for the occasion. Wine was also continuously available at each table. It is alleged that Potter drank an undetermined amount of alcohol at the
Halligan brought suit against the defendants, alleging that they were negligent by continuing to furnish alcohol to Potter even though he was in a state of obvious intoxication. Halligan also alleged that this negligence proximately caused her injuries. The defendants moved for summary judgment based on Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 458 P.2d 897 (1969). The motion having been granted, Halligan appeals.
Our Supreme Court recently interpreted the Halvorson case in Wilson v. Steinbach, 98 Wn.2d 434, 656 P.2d 1030 (1982) and Young v. Caravan Corp., 99 Wn.2d 655, 663 P.2d 834 (1983). In light of these cases, we reverse and remand for trial of the factual issues presented.
In Halvorson v. Birchfield Boiler, Inc., supra, in a setting almost identical to the one before us, the Supreme Court held that the furnisher of alcoholic beverages is not liable to a third party whose injury is caused by the intoxicated consumer. Halvorson was injured in an automobile accident with Wolf. Wolf had become intoxicated at his employer‘s Christmas party. The alcohol at the party was furnished by the defendants, Wolf‘s employer, Birchfield Boiler, Inc., and Ace Furnace and Steel Company. The court adopted the general common law rule that the furnisher of liquor is not liable, quoting with approval from 30 Am. Jur. Intoxicating Liquors §§ 520-521 (1958).
[I]t is not a tort to either sell or give intoxicating liquor to ordinary able-bodied men, and it has been frequently held that, in the absence of statute, there can be no cause of action against one furnishing liquor in favor of those injured by the intoxication of the person so furnished. . . .
It is generally held that there can be no cause of action against one furnishing liquor in favor of those injured by the intoxication of the person so furnished, even though the liquor was sold or given to one in violation of a law other than under a civil damage act, so
long as the person to whom the liquor was sold or given was not in such a state of helplessness or debauchery as to be deprived of his will power or responsibility for his behavior.
(Italics ours.) Halvorson, 76 Wn.2d at 762.
Revisiting Halvorson in Wilson v. Steinbach, supra, our Supreme Court interpreted Halvorson as follows:
In Halvorson, we recognized and adopted the general common law rule of nonliability for furnishing intoxicants to an able-bodied person, while simultaneously recognizing the exceptions to the rule for obviously intoxicated persons, persons in a state of helplessness, or persons in a special relationship to the furnisher of intoxicants.
(Italics ours.) Wilson v. Steinbach, 98 Wn.2d at 438. The Steinbachs had furnished alcohol to Shelly Wilson at a Christmas party. After leaving the party, she lost control of her car, struck a utility pole and was killed. Shelly‘s parents brought wrongful death and survival actions against the Steinbachs. The Supreme Court, upholding the trial court‘s dismissal of the complaint, found that plaintiffs failed to establish that Shelly‘s intoxication was obvious to the Steinbachs.
The Wilson formulation of the Halvorson rule was again applied in Young v. Caravan Corp., supra. Richard C. Young was killed in a 1-car automobile accident. Immediately before the accident he had been drinking at the Caravan Restaurant and Lounge. The decedent‘s mother brought a wrongful death action against Caravan. Her theory of liability was, inter alia, that Caravan was negligent by continuing to serve alcoholic beverages to her son after he was obviously intoxicated. The trial court dismissed the complaint by summary judgment. The Supreme Court reversed. In doing so, the court clung to the interpretation of Halvorson adopted in Wilson, relying upon the “recognized” exception to nonliability for furnishing alcohol to an obviously intoxicated person. Because Mrs. Young had created a genuine factual issue as to her son‘s obvious intoxication, the summary judgment was reversed.
As proof of Potter‘s condition, Halligan presented the deposition of Frances Budrow, a guest at the December 14 Christmas party. Ms. Budrow stated that Potter was unsteady on his feet and totally obnoxious at the time he made a presentation in front of the guests. She also stated that after the speech he was unsteady on his feet when he approached her table and she observed him continuing to drink at his own nearby table. This deposition creates a genuine issue of material fact. The summary judgment should not have been granted.
Defendants contend that merely making alcoholic beverages available to someone who then helps himself is not “furnishing” liquor. The manner in which Potter was served the alcohol is of no consequence. The relevant inquiry under Wilson and Young is who had authority to
Finally, the trial judge cannot be faulted for relying upon Halvorson as authority for dismissal of Halligan‘s complaint. In our opinion, if the granting of summary judgment was in error, it is because the law has been changed sub silentio while the court continues to state that the matter properly is one for the Legislature. See Wilson, 98 Wn.2d at 441.
We note several analytical difficulties with the adoption of the “recognized” exception in Wilson and Young. First, we can find in Halvorson no recognition that the furnisher may be liable for furnishing alcohol to an obviously intoxicated person. The case was dismissed by the trial court because the pleadings and opening statement failed to state a claim upon which relief could be granted. On appeal one of the plaintiffs’ allegations, which the Supreme Court accepted as true for purposes of reviewing the dismissal, was “[p]laintiffs further allege that the defendants were guilty of negligence because they furnished intoxicants to Mr. Wolf, knowing he was intoxicated . . .” Halvorson, 76 Wn.2d at 760. This allegation, in light of the procedural posture of the case, does not appear to allow for recognition of an exception for furnishing alcohol to an obviously intoxicated person. Halvorson reserves its exception for one whose drunken condition has produced such a state of “helplessness or debauchery” that he cannot control his actions. Second, nothing is said in Wilson and Young about the court‘s new attitude toward proximate cause. Three times in Halvorson, the court states that “the drinking of the liquor is the proximate cause of the injury, not the
Because Halligan has presented a factual issue for trial under the Supreme Court‘s new interpretation of Halvorson (which we must follow), we reverse and remand for trial.
CORBETT, J., concurs.
JOHNSON, J.* (concurring) - I am compelled to concur because the Supreme Court in Wilson v. Steinbach, 98 Wn.2d 434, 656 P.2d 1030 (1982) and Young v. Caravan Corp., 99 Wn.2d 655, 663 P.2d 834 (1983), in its recitation of the rule in Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 458 P.2d 897 (1969), has added an extra phrase, to wit, “obviously intoxicated persons.” The rule as laid down in Halvorson is found at page 762, and is accurately set forth in our opinion at pages 86-87, quoting 30 Am. Jur. Intoxicating Liquors §§ 520-521 (1958); it does not include the phrase, “obviously intoxicated persons.”
Despite its disclaimer in Wilson, 98 Wn.2d at 441, the Supreme Court has by its interpretation legislated an
Reconsideration denied April 13, 1984.