Lead Opinion
OPINION
I. INTRODUCTION
Jack Elias Morrell spent several hours in Chilkoot Charlie's bar and was served alcoholic beverages. After Morrell left the bar, he and Eric Kalenka had a confrontation; Morrell produced a knife and fatally stabbed Kalenka. The personal representative of Ka-lenka's estate brought a wrongful death claim against Chilkoot Charlie's, alleging the bar had served alcohol to Morrell when he was a statutorily defined "drunken person" and therefore the bar was liable for Kalen-ka's death.
The issue before us is whether the Kalenka Estate raised a genuine issue of fact whether Morrell was a "drunken person" within the meaning of AS 04.16.080 when he was served alcohol at Chilkoot Charlie's. We hold that the Kalenka Estate has presented enough evidence to clear Alaska's low threshold for summary judgment and to support a reasonable inference that Morrell's intoxication was plain and easily observed while at the bar. We therefore reverse the superior court's decision granting summary judgment to Chil-koot Charlie's.
II. FACTS AND PROCEEDINGS
A. Facts
In February 2004 Morrell and two cousins went to Chilkoot Charlie's in Anchorage. They were there for two to four hours, during which time Morrell was steadily drinking. Morrell stated that he did not have any drinks before arriving at Chilkoot Charlie's, nor did he have any drinks after leaving the bar.
After leaving Chilkoot Charlie's, possibly as late as 2:30 a.m., Morrell drove his cousin's vehicle to a nearby park and then to a Taco Bell. At about 3:15 a.m., in the Taco Bell drive-through, Morrell's vehicle struck Kalenka's vehicle's rear bumper. Kalenka got out of his car and a confrontation ensued; Morrell produced a knife and stabbed Kalen-ka multiple times. Kalenka died soon thereafter,.
Two police officers who arrived at the scene later testified at Morrell's criminal trial that shortly after stabbing Kalenka, Morrell was uncooperative, slurred his speech, and smelled of alcohol. Claude Doucet, who witnessed the confrontation, also testified at the criminal trial that Morrell appeared intoxicated, noting Morrell was loud, cursing, and stumbling. Morrell was estimated to have a blood alcohol level at the time of the incident as high as 0.27, the equivalent of having up to 13 to 14 typical alcoholic beverages in his system.
The general manager of Chilkoot Charlie's stated that none of the bar's employees remembered seeing Morrell that night. Dou-cet had also been at the bar for several hours that evening before the Taco Bell incident, and he stated he did not see Morrell at the bar and did not observe anyone "obviously intoxicated" being served at Chilkoot Charlie's. A Chilkoot Charlie's employee recognized Morrell from his picture in the newspa
B. Proceedings
In February 2006 Uwe Kalenka, the personal representative of Eric Kalenka's estate (Kalenka Estate), filed a wrongful death action against Jadon, Inc. (Chilkoot Charlie's).
In February 2010 Chilkoot Charlie's moved for summary judgment on two grounds: (1) there was no evidence that Chil-koot Charlie's with criminal negligence provided Morrell alcohol when he was a "drunken person"; and (2) Morrell's stabbing of Kalenka was a sufficient superseding cause to discharge Chilkoot Charlie's of any liability for Kalenka's death. The Kalenka Estate opposed the motion, presenting the expert report of Elizabeth Trendowski.
The Trendowski report's purpose "was to determine if the action/inaction of Chilkoot Charlie's('] employees and management was negligent and violated the Alaska state liquor code by permitting alcohol beverages to be sold or given to a visibly intoxicated person." Trendowski relied on: (1) a forensic toxicology report concluding Morrell "was under the influence of a combination of alcohol and energy drinks at the time of the stabbing"; (2) the police officers' testimony at Morrell's criminal trial describing Morrell's "actions and demeanor at the scene" after they arrived; and (8) Doucet's testimony at the criminal trial regarding his observations of Morrell at Taco Bell.
Trendowski's report concluded that "Mor-rell more likely than not exhibited visible signs of intoxication while on the premises of Chilkoot Charlie's. Based on the testimony of the independent witnesses at Taco Bell, Mr. Morrell was acting irrational, angry, and was uncooperative with both the victim and law enforcement." The report described Morrell's actions at Taco Bell as "visible and obvious signs of intoxication," and noted that "[a] reasonably attentive bartender or server would have observed similar signs at the bar and stopped the service of alcohol. The signs of intoxication observed shortly after Mr. Morrell left Chilkoot Charlie's would have been obvious to any aleohol server; particularly one who has been ... trained."
Although Trendowski's report conceded that behavioral changes associated with intoxication "do not all appear simultaneously," it asserted that "[they appear in a progressive manner" and "(there was plenty of opportunity for any attentive server, bartender or bouncer to observe some or all of [his] behaviors that indicated Mr. Morrell was obviously and visibly intoxicated." Trendow-ski's report ultimately concluded that Chil-koot Charlie's: (1) failed to monitor the number of drinks served to Morrell; (2) failed to observe and recognize his signs of intoxication; and (8) failed to stop serving aleoho! to a drunken person.
The superior court granted Chilkoot Charlie's' summary judgment motion on the basis that there was no admissible evidence its employees acted with criminal negligence as to Morrell The court stated Trendowski's report "implicate[d] the Court in such a degree of speculation" that no jury could properly infer Morrell was observably drunk at the bar.
The Kalenka Estate appeals the superior court's grant of summary judgment dismissing its suit against Chilkoot Charlie's.
III STANDARD OF REVIEW
We review a grant of summary judgment de novo.
IV. DISCUSSION
Alaska's dram shop statute immunizes a licensed alcohol provider from civil liability for damages caused by a patron's intoxication unless the licensee provided aleo-hol to the patron when that patron was a "drunken person."
The superior court granted summary judgment on the basis that the Trendowski report failed to raise a genuine issue of fact whether Chilkoot Charlie's served Morrell alcohol when he was a statutorily defined "drunken person." There is no direct evidence of Mor-rell's appearance or conduct at Chilkoot Charlie's, and the superior court stated that although Morrell may have been intoxicated "there still has to be a proper inference [regarding visible impairment] that the jury can draw, rather than pure speculation, and ... [the Trendowski report is] in the land of pure speculation here."
The Kalenka Estate argues that summary judgment was improper because evidence of Morrell's appearance and conduct at Taco Bell can be "extrapolated by the experts back to the time that Morrell was at Chilkoot Charlie's, and what his behavior would have been like [there]." The Kalenka Estate contends that based on the observations of Mor-rell at Taco Bell and the estimate that Mor-rell consumed between 7.5 and 19.5 drinks before the incident, Trendowski correctly concluded Morrell was observably impaired earlier at Chilkoot Charlie's. Chilkoot Charlie's responds that the superior court properly granted summary judgment because there was no factual basis for Trendowski's conclusions about Morrell's appearance or conduct at the bar. While conceding Morrell likely was legally intoxicated at the bar, Chilkoot Charlie's contends the proper question is whether he was a "drunken person" as defined in AS 04.21.080(b)(8).
Summary judgment should only be granted if the non-moving party has not raised a genuine issue of material fact.
In Kavorkian v. Tommy's Elbow Room, we examined an action under the dram shop statute.
Here, the Kalenka Estate has presented several pieces of evidence concerning Mor-rell's condition both during and shortly after his visit to the bar, which, when viewed in a light most favorable to the Estate,
This conclusion is consistent with decisions from a number of states holding that summary judgment is inappropriate even without direct evidence of intoxication at the time of service where there is evidence that the patron was served alcohol and was visibly intoxicated soon after. In Smith v. Shagnasty's, the Towa Supreme Court noted the chanee that the last drink pushed the patron over the brink into obvious intoxication is fairly small, and thus held that it would be reasonable for a jury to conclude that the patron was obviously intoxicated when she was served that last drink:
In affording [the plaintiff] all legitimate inferences, we simply recognize that if (1) one beer does not a drunk make, (2) [the bar} sold and served [the patron] a beer, and (3) [the patron] was shortly thereafter in a visibly intoxicated condition, then it stands to reason that (4) [the patron] was also noticeably intoxicated at the time of service. Moreover, if a patron was likely visibly intoxicated at the time of service, a jury could find (5) the bar knew or, at the very least, should have known of her intoxication.[24 ]
The logic in that case is particularly compelling where, as here, there is evidence that the patron (Morrell) had been drinking a large number of alcoholic beverages steadily for some time. Morrell admitted he drank no alcohol before or after he visited the bar. Further, there was evidence that shortly after he departed the bar, Morrell had a very high blood alcohol content and was observed to be a "drunken person." Accordingly, a jury could reasonably infer that Morrell was exhibiting obvious signs of intoxication when he was served his last drink of the night at Chilkoot Charlie's.
In Fairbanks v. J.B. McLoughlin Co., the Washington Supreme Court held that direct evidence of obvious intoxication at the time of
A police officer's subjective observation that the employee was obviously intoxicated shortly after leaving the banquet may raise an inference that she was obviously intoxicated when the employer served her, provided that the employee did not consume any alcohol after leaving the banquet and provided that no time remains unaccounted for between the banquet and the subsequent observation.[25 ]
Courts of appeal in Indiana and Pennsylvania have reached similar conclusions. In Indiana, the court of appeals held that "the fact that [the bar] served even one beer to a person who shortly thereafter was in a state of serious intoxication gives rise to a question of fact whether [the person] was visibly intoxicated at the time."
In all of these cases, direct testimony about a patron's behavior when the patron was served was not necessary to survive summary judgment. Given this authority from other states and our own low summary judgment threshold, the Kalenka Estate has presented enough evidence to survive summary judgment.
V, CONCLUSION
For the reasons discussed, we REVERSE the superior court's grant of summary judgment dismissing the Kalenka Estate's dram shop claim against Chilkoot Charlie's.
. The Estate also named Morrell and William P. Wassili, II as defendants. Neither of these individuals have participated in this appeal.
. AS 04.16.030 prohibits a licensed provider with . criminal negligence from selling or giving alcohol to a drunken person or allowing a drunken person to enter and remain on licensed premises.
AS 04.21.020(a), the dram shop immunity provision, reads in pertinent part:
[A] person who provides alcoholic beverages to another person may not be held civilly liable for injuries resulting from the intoxication of that person unless the person who provides the alcoholic beverages holds a license ... and ... (2) the alcoholic beverages are provided to a drunken person in violation of AS 04.16.030.
. The report is not a sworn statement, nor is it attached to a validly sworn affidavit. See Maines v. Kenworth Alaska, Inc., 155 P.3d 318, 323-24 (Alaska 2007) (concluding the superior court did not abuse its discretion in excluding unsigned and unsworn declaration from its consideration of summary judgment, as assertions of fact in unverified pleadings and memoranda cannot be relied on in denying motion for summary judgment). But Chilkoot Charlie's did not raise an appropriate objection in the superior court or this court, and the report was and will be considered on its merits.
. The criminal trial testimony was hearsay as to Chilkoot Charlie's. See Alaska R. Evid. 801(c) ("Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."). When its summary judgment motion was being considered, Chilkoot Charlie's had a pending motion challenging the admissibility of such testimony at trial, but an expert's opinion testimony can rely on inadmissible evidence. See Alaska R. Evid. 703 (providing that "facts or data upon which an expert bases an opinion" do not need to be admissible, "but must be of a type reasonably relied upon by experts in the particular field in forming opin-fons or inferences upon the subject"); see also Broderick v. King's Way Assembly of God Church, 808 P.2d 1211, 1217 (Alaska 1991) (stating hearsay can be a permissible basis of expert's opinion testimony "provided the reasonable reliance test is satisfied" (citing Norris v. Gatts, 738 P.2d 344, 349 (Alaska 1987))). Chilkoot Charlie's did not raise an objection in the superior court regarding Trendowski's reliance on hearsay evidence.
. Fraternal Order of Eagles v. City & Borough of Juneau, 254 P.3d 348, 352 (Alaska 2011) (citing Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005)).
. Id. (quoting Rockstad, 113 P.3d at 1219).
. Id. (quoting Rockstad, 113 P.3d at 1219).
. Burnett v. Covell, 191 P.3d 985, 990 (Alaska 2008) (citing McGee Steel Co. v. State ex rel. McDonald Indus. Alaska, Inc., 723 P.2d 611, 614 (Alaska 1986)).
. Olson v. Teck Cominco Alaska, Inc., 144 P.3d 459, 463 (Alaska 2006) (citing French v. Jadon, Inc., 911 P.2d 20, 24 (Alaska 1996)).
. See AS 04.21.020(a)(2) (immunizing alcohol provider from civil liability unless alcoholic beverages provided to drunken person); see also AS 04.16.030 (prohibiting alcohol provider with criminal negligence from selling or giving alcohol to drunken person).
. Gonzales v. Safeway Stores, Inc., 882 P.2d 389, 393 (Alaska 1994) (citing AS 04.21.080(b)(8)).
. AS 04.21.080(b)(8) provides:
"drunken person" means a person whose physical or mental conduct is substantially impaired as a result of the introduction of an alcoholic beverage into the person's body and who exhibits those plain and easily observed or discovered outward manifestations of behavior commonly known to be produced by the over-consumption of alcoholic beverages.
. See Gonzales, 882 P.2d at 395 (''The question of [the liquor store's] 'criminal negligence' is dependent on whether [the purchaser] was a drunken person.").
. See Price v. Unisea, Inc., 289 P.3d 914, 918 (Alaska 2012) (quoting Dominic Wenzell, D.M.D. P.C. v. Ingrim, 228 P.3d 103, 106 (Alaska 2010)).
. See Hammond v. State, Dep't of Transp. & Pub. Facilities, 107 P.3d 871, 881 (Alaska 2005) ("It is well established that 'the evidentiary threshold necessary to preclude an entry of summary judgment is low.' ") (quoting John's Heating Serv. v. Lamb, 46 P.3d 1024, 1032 (Alaska 2002)).
. See Price, 289 P.3d at 918 (quoting Dominic Wenzell, D.M.D. P.C., 228 P.3d at 106).
. Burnett v. Covell, 191 P.3d 985, 990 (Alaska 2008) (citing McGee Steel Co. v. State ex rel. McDonald Indus. Alaska, Inc., 723 P.2d 611, 614 (Alaska 1986)).
. 694 P.2d 160 (Alaska 1985).
. Id. at 165 n. 9.
. Fraternal Order of Eagles v. City & Borough of Juneau, 254 P.3d 348, 352 (Alaska 2011) (quoting Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).
. Id. (quoting Rockstad, 113 P.3d at 1219).
. Morrell stated that he consumed both beer and "mandarin Red Bull," a combination of vodka and an energy drink, at the bar.
. Witnesses testified that Morrell was emotional and uncooperative toward police commands and instructions and that he was stumbling and slurring his speech.
. 688 NW.2d 67, 75 (Iowa 2004).
. 131 Wash.2d 96, 929 P.2d 433, 436 (1997) (citing Dickinson v. Edwards, 105 Wash.2d 457, 716 P.2d 814 (1986)).
. 26 Ward v. D & A Enters. of Clark Cnty., Inc., 714 N.E.2d 728, 730 (Ind.App.1999).
. See Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980).
. Id. at 1188.
. Id.; see also Fandozzi v. Kelly Hotel, Inc., 711 A.2d 524, 527 (Pa.Super.Ct.1998) ("[We conclude that a plaintiff can prove dram shop liability in the absence of direct eyewitness evidence that an individual was served alcohol at a time when he or she was visibly intoxicated."); Speicher v. Reda, 290 Pa.Super. 168, 434 A.2d 183, 186 (1981) (visible intoxication "five or ten minutes" after leaving tavern was sufficient to submit the issue to a jury).
Dissenting Opinion
with whom WINFREE, Justice, joins, dissenting.
I would affirm the superior court's grant of summary judgment. Our threshold for defeating summary judgment is indeed low, as today's opinion points out,
Dram shop liability under Alaska law depends on proof of intoxication that is or should be apparent to the server. A licensee is immune from civil liability for injuries resulting from intoxication unless "the alcoholic beverages are provided to a drunken person in violation of AS 04.16.0830."
In short, Hability under the dram shop act requires not just that the licensee serve an intoxicated person; there must also be evidence that the licensee, in a gross deviation from a reasonable standard of care, failed to perceive "outward manifestations" of intoxication that were being "exhibit{ed]" and were "plain and easily observed or discovered." I have no quarrel in this case with the Estate's reliance on circumstantial evidence to show that Jack Morrell was intoxicated when he was served at Chilkoot Charlie's. What the Estate lacked, however, was any evidence of the equally critical part of its claim: that at the time Chilkoot Charlie's served Morrell, Morrell "exhibit{ed]" the "outward manifestations" of intoxication such that they were or should have been "plain and easily observed or discovered" by the person serving him. The Estate can only ask the jury to imagine the encounters in which this observation or discovery could have occurred, and the court's decision today unfortunately invites that speculation.
The opinion identifies six pieces of evidence that it concludes "support the reasonable inference that Morrell was visibly impaired through intoxication when he was served at Chilkoot Charlie's": (1) that he drank steadily at the bar for two to four hours; (2) that he had consumed no aleohol before arriving at the bar; (8) that he consumed as many as 18 or 19 drinks while at the bar; (4) that he did not consume any more aleohol after leaving the bar; (5) that he displayed "visible and obvious signs of intoxication" about 45 minutes after leaving the bar; and (6) that at the time of the altercation he had a blood alcohol content of about 0.27.
What were the "visible and obvious signs of intoxication" that the court seeks to pull back in time 45 minutes from when they were actually observed, in order to posit that Chilkoot Charlie's servers may have grossly deviated from a reasonable standard of care in failing to notice them? According to the court, these signs include "that Morrell was emotional and uncooperative toward police commands and instructions and that he was stumbling and slurring his speech."
Nor is there any evidence that Morrell had occasion at Chilkoot Charlie's to display the other "visible and obvious signs of intoxication" on which the court relies: "stumbling and slurring his speech." First, there is no evidence that Morrell got out of his chair even once while at the bar so as to display "stumbling." It can certainly be inferred, without direct evidence, that he walked into the bar-before he had had anything to drink-and that he walked out again-when any symptoms he displayed could no longer deter Chilkoot Charlie's from serving him. But any rambles around the bar in between times are purely speculative.
While I certainly agree that the ciream-stantial evidence on which the court relies is relevant to the question of whether Morrell was visibly intoxicated while at the bar, it is not enough on which to base a finding of liability. In Kavorkian v. Tommy's Elbow Room, Inc., as the court recites, we noted that "[tlestimony concerning [the patron's] condition shortly before and after his visit to [the bar] is cireumstantially relevant to the determination of [his] condition at [the bar]." "
The court today relies on cases from other jurisdictions that similarly allow juries to speculate, on the basis of blood-aleohol evidence and observations made later, about whether the driver's intoxication was manifest at the bar. But cases run the gamut when it comes to determining the critical point at which such evidence is deemed sufficient. In Reed v. Breton, for example, the Michigan Supreme Court rejected the plaintiffs' argument that the driver's blood alcohol level, the amount of time he spent drinking, and other cireumstantial evidence could raise an issue of fact as to whether he was visibly impaired while drinking at the defendant establishment, in the face of eyewitness testimony that he was not.
The evidence in this case strongly supports the conclusion that [the driver] was intoxicated at the seene of the accident; it might even be inferable that [the driver] was intoxicated when he left the Hooters restaurant. However, the record contains no evidence that would support an inference that any employee of Hooters served [the driver] alcohol while he was visibly intoxicated.[19 ]
And in Sorensen v. Denny Nash Inc., a New York court rejected, as insufficient to defeat summary judgment, an inference "that because [the driver] consumed a certain amount of alcohol throughout the evening and early morning hours and exhibited signs of intoxication at 8:15 A.M., he must have been intoxicated during a time period three hours before and, more importantly, appeared so."
In short, I do not believe the Kalenka Estate in this case presented evidence on which a reasonable jury could decide the dram shop claim in its favor. In the absence of such evidence, a verdict for the Estate could only be based on inferences about Mor-rell's behavior during interactions that themselves were imagined, not inferred. I would affirm the superior court's grant of summary judgment to Chilkoot Charlie's.
MAASSEN, Justice, with whom WINFREE, Justice, joins, dissenting.
. Op. at 352.
. AS 04.21.020(a)(2).
. AS 04.16.030(a)(1).
. AS 04.21.080(a)(1).
. Williford v. L.J. Carr Invs., Inc., 783 P.2d 235, 239 n. 12 (Alaska 1989) (emphasis added) (quoting Senate Journal Supp. No. 23 at 15-16, 1980 Senate Journal 661).
. AS 04.21.080(b)(8) (emphasis added).
. Op. at 351.
. Op. at 351, n. 23.
. Op. at 347.
. A jury could perhaps infer that Morrell would have traveled to the men's room at least once during the hours he spent at Chilkoot Charlie's. But with that reasonable inference in hand a jury would have to pile on others: that Morrell went to the men's room after becoming visibly intoxicated and not just before; that he exhibited the outward manifestations of intoxication while en route; and that, in what was apparently "a capacity crowd" for Mardi Gras night, the servers' failure to observe Morrell's intoxicated state during his hypothetical trip to the men's room was a gross deviation from a reasonable-person standard of care.
. As the superior court correctly observed at the summary judgment hearing, "There's no evidence that [Morrell] was incapable of sitting at a table and quietly saying to a server([, 'AJnother beer please.['] That's all you have to say to a server to get that beer coming, and there's zero testimony that he was so intoxicated that he couldn't sit and say[, 'AJuother beer.'"
. Op. at 350-51 (quoting Kavorkian v. Tommy's Elbow Room, Inc., 694 P.2d 160, 165 n. 9 (Alaska 1985), rev'd on other grounds on reh'g, 711 P.2d 521 (Alaska 1985)).
. Kavorkian, 694 P.2d at 165.
. Id. & nn. 12-13.
. The court remarked, "I must say I'm floored that [the Estate's counsel] did not take [Morrell's] deposition, because the Court threw him a lifeline to do so and virtually told him that the Court doesn't think you can make a case without Mr. Morrell giving you some information that gets you into play here, and for whatever reason ... [the Estate's counsel] didn't want to go there."
. 475 Mich. 531, 718 NW.2d 770, 776-77 (2006). Reed involved a claim brought against the second-to-last bar to serve the intoxicated driver; such bars enjoy a rebuttable presumption against dram shop liability under Michigan law. Id. at 774. Although the court held that the presumption could only be defeated by "clear and convincing evidence," it also held that "the proofs presented [in the case before it] could not even meet the competent and credible standard for rebutting the presumption to show service to a visibly intoxicated person." Id. at 775-76.
. 165 S.W.3d 7, 13-14 (Tex.App.2005); see also J.D. Abrams, Inc. v. McIver, 966 S.W.2d 87, 91 (Tex.App.1998) (holding that evidence of driver's alcohol consumption and his obvious intoxication at the accident scene an hour after he left the bar were insufficient in the absence of "any testimony that [the driver] was 'obviously intoxicated' ... at the time he was provided alcohol at [the defendant bars} ... or that such condition was then 'apparent' to the provider").
. 41 So.3d 743, 743 (Ala.2009) (Cobb, C.J., concurring).
. Id. at 744 (Cobb, C.J., concurring).
. 249 AD.2d 745, 671 N.Y.S.2d 559, 561 (1998).