                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                     December 12, 2017
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 NICHOLAS MORTENSEN, an individual,                                 No. 49366-7-II

                       Appellant,

        v.                                                     PUBLISHED OPINION

 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
No. 49366-7-II




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.




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No. 49366-7-II




       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.



                                                3
No. 49366-7-II




       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



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No. 49366-7-II




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.”




1
  In addition, Mortensen briefly argues that common law liability for serving alcohol to a person
in a state of helplessness remains the standard of liability for alcohol sellers, even after the
adoption of RCW 66.44.200(1). But he does not explain why the scope of duty analysis would
be any different under a helplessness standard.


                                                 5
No. 49366-7-II




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



                                                  6
No. 49366-7-II




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. Albertson, 167 Wn.2d 531, 538, 222 P.3d 1208

(2009).

          2.   Scope of Duty

          There is no question that Main Street and Rancho Viejo had a duty under RCW

66.44.200(1) to not serve alcohol to Moravec if he was apparently under the influence of alcohol.

The question here is whether an alcohol seller owes a duty to a third person who is assaulted and

injured by a customer after the customer was served alcohol while apparently under the influence

of alcohol when the injury was accidental.

          In determining whether a defendant owes a duty to a particular plaintiff, a court must

decide both who owes the duty and to whom the duty is owed. Centurion Props. III v. Chi. Title

Ins. Co., 186 Wn.2d 58, 65, 375 P.3d 651 (2016).

          The existence of a defendant’s legal duty is a question of law. McKown v. Simon Prop.

Grp., Inc., 182 Wn.2d 752, 762, 344 P.3d 661 (2015). The scope of the duty – to whom the duty

is owed – depends upon the foreseeability of the harm. Id. at 763. Harm is foreseeable when the

hazard or injury at issue is within the general field of danger covered by the duty. Id. at 763.

The general rule is that “[f]oreseeability is normally an issue for the trier of fact and will be



                                                   7
No. 49366-7-II




decided as a matter of law only where reasonable minds cannot differ.” Schooley v. Pinch’s Deli

Mkt., Inc., 134 Wn.2d 468, 477, 951 P.2d 749 (1998).

       The Supreme Court in McKown noted that “we have held that foreseeability can be a

question of whether duty exists and also a question of whether the harm is within the scope of the

duty owed.” 182 Wn.2d at 764. “In this way, foreseeability plays a role in both the legal and

factual inquiries regarding duty and its scope.” Id.

C.     NO DUTY TO VICTIMS OF CRIMINAL ASSAULT

       1.   Christen

       The Supreme Court in Christen expressly addressed a commercial alcohol seller’s

liability when an intoxicated customer assaulted a third person. 113 Wn.2d at 483. In one of the

consolidated cases before the court, a customer at a drinking establishment was served several

alcoholic drinks even though he was obviously intoxicated. Id. at 485. After leaving the

establishment, the customer was involved in an accident and then stabbed a law enforcement

officer who had stopped to investigate. Id. at 486. The officer filed a lawsuit against the

establishment to recover for his injuries. Id.

       The court started its analysis by noting that even though there was sufficient evidence to

show that the establishment breached its duty not to serve alcohol to the intoxicated customer,

liability could be imposed for the breach of that duty only if the resulting harm was foreseeable.

Id. at 491. The court stated:

       The concept of foreseeability limits the scope of the duty owed. We have held that
       in order to establish foreseeability “the harm sustained must be reasonably
       perceived as being within the general field of danger covered by the specific duty
       owed by the defendant.” Maltman v. Sauer, 84 Wn.2d 975, 981, 530 P.2d 254
       (1975). The limitation imposed thereby is important because, as this court has
       previously observed, “a negligent act should have some end to its legal


                                                 8
No. 49366-7-II




        consequences.” Hunsley v. Giard, 87 Wn.2d 424, 435, 553 P.2d 1096 (1976).
        Foreseeability is normally an issue for the jury, but it will be decided as a matter of
        law where reasonable minds cannot differ.

Christen, 113 Wn.2d at 492 (footnotes omitted).

        The court next analyzed whether a criminal assault was a foreseeable result of serving an

intoxicated customer. Id. at 493-96. The court noted that in 1955 the legislature had repealed

the so-called dramshop act that imposed broad liability on alcohol sellers. Id. at 493-94. In the

absence of the dramshop act, the common law generally provided no liability for serving alcohol

to an adult unless that person was obviously intoxicated. Id. at 494. The court concluded:

        [T]he history of the duty owed by a furnisher of intoxicating liquor in this state
        evinces a well considered and reasoned reluctance on the part of this court, in light
        of the Legislature’s repeal of this state’s dramshop act, to now judicially decree
        common law liability in cases other than those fitting within the well-recognized
        exceptions to the common law rule.

Id. at 495.

        The court then recognized that the cases addressing the common law duty not to furnish

alcohol to an obviously intoxicated person “commonly involve automobile accidents.” Id. The

court stated:

        It follows that the general type of harm encompassed by this duty is that of alcohol-
        induced driver error. Driver error is a commonly understood and foreseeable
        consequence of serving intoxicants to an already obviously intoxicated person. The
        type of harm involved in the two cases before us, however, is that of a criminal
        assault. This is a drastically different type of harm than driver error. While driver
        error is not an intentional act, a criminal assault is an intentional act. Thus, the
        nature of the harm in the cases before us is not within the general field of danger
        traditionally covered by the duty not to furnish intoxicating liquor to an obviously
        intoxicated person.

Id. at 495-96 (first emphasis added, footnotes omitted).




                                                  9
No. 49366-7-II




       Finally, the court acknowledged that an alcohol seller could be liable for a criminal

assault committed by one of its customers if the seller had some notice of the possibility of harm

from the customer’s prior actions. Id. at 496. Incorporating this exception into the general rule,

the court stated its holding as follows:

       [W]e hold that a criminal assault is not a foreseeable result of furnishing
       intoxicating liquor to an obviously intoxicated person, unless the drinking
       establishment which furnished the intoxicating liquor had some notice of the
       possibility of harm from prior actions of the person causing the injury.

Id. at 498 (emphasis added).

       After finding no liability on the commercial seller of alcohol for an alcohol-induced

assault under the common law, the court addressed the effect of former RCW 66.44.200 (1933),

which prohibited selling alcohol to any person apparently under the influence of liquor.

Christen, 113 Wn.2d at 501. The court stated:

       In the foregoing discussion of the scope of the common law duty not to furnish
       intoxicating liquor to an obviously intoxicated person, we concluded that the
       general field of danger covered by this duty is that of driver error in causing
       automobile accidents. We further concluded that a criminal assault is not
       foreseeable solely from a breach of this particular duty. As we perceive it, in
       enacting the statute against furnishing intoxicating liquor to a person who appears
       intoxicated, the Legislature intended to protect against foreseeable hazards
       resulting therefrom. We conclude that said statute was not intended to protect
       against the hazard of a subsequent criminal assault.

Id. at 503 (emphasis added).

       The court concluded by referencing public policy and legislative intent:

       We also question whether, as a matter of policy, liability should attach to [the
       alcohol seller] in this case for a violation of these statutes. This case involves a
       subsequent criminal assault committed without any warning. To permit recovery
       under such circumstances would greatly extend the liability imposed on a furnisher
       of intoxicating liquor. Such broad liability may well be appropriate under a
       dramshop act, but as we have already pointed out, the Legislature in the exercise of
       its judgment repealed the state’s dramshop act in 1955. This strongly suggests that


                                                10
No. 49366-7-II




       it does not intend that statutes such as those here at issue serve as vehicles for
       imposing such liability.

Id. at 504 (footnotes omitted).

       2.   Barrett

       In Barrett, the Supreme Court addressed an alcohol seller’s liability for an automobile

accident involving an intoxicated customer. The court reiterated its holding in Christen that

RCW 66.44.200(1) was intended to impose liability for driver error, not for criminal assaults.

Barrett, 152 Wn.2d at 271-72.

       The court first noted that it had recognized in Christen that the legislature enacted RCW

66.44.200(1) to protect against foreseeable hazards resulting from furnishing alcohol to a person

who appears intoxicated. Barrett, 152 Wn.2d at 271. The court stated that it had concluded in

Christen that “ ‘a subsequent criminal assault,’ unlike an automobile accident arising from an

overserved patron’s ‘driver error,’ was not a foreseeable harm.” Id. (quoting Christen, 113

Wn.2d at 503).

       The court then emphasized again its holding in Christen that the scope of the statutory

standard extended only to alcohol-related driving accidents.

       [W]e have stated, in particular, that the RCW 66.44.200(1) standard would not
       apply in the context of third persons assaulted by an overserved patron, since the
       statute targets harms to third parties caused by the allegedly overserved patron’s
       driver error. . . . En route to holding that the RCW 66.44.200(1) standard would
       not apply . . . in a third party assault case, we have indicated that the purpose of the
       statute is to protect third parties from drunk driving accidents caused by a
       commercial host’s overservice of an adult patron.

Barrett, 152 Wn.2d at 272 (emphasis added).




                                                 11
No. 49366-7-II




       3.    Restatement § 286 Analysis

       Mortensen relies on the Restatement (Second) of Torts § 286 (Am. Law Inst. 1965).

Section 286 states:

       The court may adopt as the standard of conduct of a reasonable [person] the
       requirements of a legislative enactment . . . whose purpose is found to be
       exclusively or in part
          (a) to protect a class of persons which includes the one whose interest is
          invaded, and
          (b) to protect the particular interest which is invaded, and
          (c) to protect that interest against the kind of harm which has resulted, and
          (d) to protect that interest against the particular hazard from which the harm
          results.

Mortensen argues that the application of these factors supports a conclusion that Main Street and

Rancho Viejo owned a duty to him.

       The Supreme Court in both Christen and Barrett applied the section 286 four-factor test

to determine whether RCW 66.44.200(1) establishes a duty of care to a particular plaintiff.

Barrett, 152 Wn.2d at 269, 273; Christen, 113 Wn.2d at 502-04. The court in Christen stated

that the fourth section 286 factor related to foreseeability of the harm because the legislature

intended to protect against foreseeable hazards. 113 Wn.2d at 503. The court concluded that

“the general field of danger covered by this statutory duty [under former RCW 66.44.200(1)] is

that of driver error and that a criminal assault is not a foreseeable result from a violation thereof.”

Id. at 503-04.

       In Barrett, the court held that the first three section 286 factors supported application of

RCW 66.44.200(1) to third persons injured by intoxicated customers. 152 Wn.2d at 273.

Regarding the fourth factor, the court held that the particular peril that RCW 66.44.200(1)

addressed was “ ‘alcohol-induced driver error.’ ” Id. (quoting Christen, 113 Wn.2d at 495).



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No. 49366-7-II




Further, the court noted that it had stated that “the RCW 66.44.200(1) standard would not apply

in the context of third persons assaulted by an overserved patron.” Barrett, 152 Wn.2d at 272

(emphasis added).

       Therefore, under Christen and Barrett, a section 286 analysis supports a holding that

RCW 66.44.200(1) does not apply to an alcohol seller when an intoxicated customer assaults a

third person.

       4.    Cameron

       Since Barrett, one appellate case has addressed the liability of a person furnishing alcohol

to a person who assaulted a third person. Cameron v. Murray, 151 Wn. App. 646, 649, 214 P.3d

150 (2009). In that case, a minor who had been drinking alcohol deliberately hit another minor

in the head with a heavy beer mug. Id. at 650. The victim’s parent filed a lawsuit against the

person who had furnished the alcohol. Id.

       In addressing the scope of the common law duty not to furnish alcohol to an obviously

intoxicated person, Division One of this court relied on Christen in stating that “[c]riminal

assault is ‘not within the general field of danger traditionally covered by the duty not to furnish

intoxicating liquor to an obviously intoxicated person.’ ” Id. at 652 (quoting Christen, 113

Wn.2d at 496). The court acknowledged the argument that it was foreseeable that teenagers

drinking alcohol would produce criminal violence. Cameron, 151 Wn. App. at 654. However,

the court stated that “Christen is the closer case and the precedent we must follow in a case

concerning an alcohol furnisher’s liability for an assault by an intoxicated person.” Id. As a

result, the court concluded that Christen was dispositive and held as a matter of law that the

assault was not within the scope of any common law duty. Id. at 656.



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No. 49366-7-II




        The court in Cameron also addressed the alcohol furnisher’s duty under various statutes

prohibiting the sale of alcohol to minors. Id. The court again relied on “Christen and its holding

that a criminal assault is not a foreseeable result of furnishing alcohol to minors.” Id. The court

held that Christen controlled and required rejection of the statutory claim. Id. at 657.

        Finally, the court addressed exhibits the plaintiff had submitted demonstrating a

relationship between youthful alcohol consumption and violence. Id. at 657-58. The court noted

that the plaintiff was offering the exhibits “to support her policy argument for loosening the lid

Christen has placed on what is reasonably foreseeable.” Id. at 658. The court concluded:

        But notwithstanding the information and insights contained in those exhibits, the
        precedent is well established in Washington case law that in the absence of
        particularized notice, criminal assault is not a foreseeable result of providing
        alcohol. The liability belongs to the assailant, not to those who may have furnished
        alcohol to the assailant.

Id. at 660.

        5.    Duty Analysis

        Christen, Barrett, and Cameron are dispositive here. The Supreme Court in Christen

made it clear that injuries caused by alcohol-induced driver error are a foreseeable harm of

serving an intoxicated customer, but injuries caused by criminal assaults are not. 113 Wn.2d at

495-96. The court held that the general field of danger covered by RCW 66.44.200(1) was

automobile accidents caused by intoxicated drivers. Id. at 503. The Supreme Court in Barrett

emphasized again that the field of danger with which RCW 66.44.200(1) is concerned is drunk

driving accidents caused by a commercial seller’s service of alcohol to an intoxicated customer.

152 Wn.2d at 272.




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No. 49366-7-II




        Finally, Cameron demonstrates the straightforward application of the principles

expressed in Christen and Barrett. The court held that even though the plaintiff made

compelling arguments that violence was foreseeable when minors consumed alcohol, the holding

in Christen that criminal assault is not a foreseeable result of providing alcohol was dispositive.

Cameron, 151 Wn. App. at 652, 656, 660.

        Mortensen challenges on several grounds the application of the rule stated in Christen

and confirmed in Barrett. First, Mortensen argues that firearms accidents are the foreseeable

result – within the field of danger – of an alcohol seller serving alcohol to an apparently

intoxicated person. He disagrees that there is any meaningful distinction between injuries caused

by vehicles and by firearms, both of which are dangerous instrumentalities. He claims that

reasonable minds could differ regarding whether it is foreseeable that an intoxicated person

would accidentally harm others with a firearm, and therefore whether his injury was foreseeable

under the facts of this case is a question of fact for the jury.

        It may not be completely unlikely that a person would be involved in a shooting accident

after becoming intoxicated. However, the court in Christen expressly held that a criminal assault

was not a foreseeable result of serving alcohol to an intoxicated customer. 113 Wn.2d at 498.

Applying the foreseeability framework outlined in McKown, it is unclear whether the court in

Christen was addressing the legal question of whether a duty existed or the factual question of

whether a criminal assault was within the scope of the alcohol seller’s duty. However, under

either approach the court held as a matter of law that an alcohol seller could not be liable for a

criminal assault resulting from the service of alcohol to an apparently intoxicated customer.

Christen, 113 Wn.2d at 498, 503.



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No. 49366-7-II




       Second, Mortensen argues that Christen can be distinguished here because Moravec’s

shooting was accidental rather than a deliberate assault as in Christen (and Cameron).

Mortensen argues that the duty analysis in Christen hinges on the whether an act was intentional

or unintentional, not whether “criminal assault” occurred.

       We acknowledge that the accidental injury here was different than the intentional injury

in Christen. However, the court in Christen was very clear that a criminal assault was not the

foreseeable result of serving alcohol to an intoxicated customer. Here, Moravec engaged in a

criminal assault of Mortensen with his gun and in fact pleaded guilty to third degree assault

under RCW 9A.36.131(d). The court in Christen did not distinguish in any way between

negligent and intentional criminal assaults.

       In addition, Christen did not hold merely that a criminal assault was not the foreseeable

result of serving alcohol to an intoxicated customer. The court went further and affirmatively

held that RCW 66.44.200(1) was intended to impose liability only for “driver error in causing

automobile accidents.” Christen, 113 Wn.2d at 503. The court in Barrett repeated this holding,

stating that RCW 66.44.200(1) “targets harms to third parties caused by the allegedly overserved

patron’s driver error” and that “the purpose of the statute is to protect third parties from drunk

driving accidents.” Barrett, 152 Wn.2d at 272.

       Third, Mortensen essentially argues that Christen was wrongly decided. He points out

that nothing in RCW 66.44.200(1) limits the scope of the statutory duty to vehicle accidents. He

claims that although imposing liability for driver error may have been one purpose of the statute,

it was not the only purpose. He cites to Schooley, where the court held that a person who

violates a statute by furnishing alcohol to a minor owed a duty to another minor who drank the



                                                 16
No. 49366-7-II




alcohol and then was injured in a swimming pool accident. 134 Wn.2d at 474-78. Mortensen

concludes that “[c]ourts should not give bars a free pass to overserve patrons who kill or maim

others in firearms accidents.” Br. of Appellant at 26-27.

       However, we are bound by Supreme Court precedent. Even if we were inclined to accept

Mortensen’s argument, it simply is inconsistent with Christen and Barrett. Further, we presume

that the legislature is aware of the holdings in Christen and Barrett, and that the legislature’s

failure to amend RCW 66.44.200(1) after these cases were decided indicates legislative

acquiescence. See City of Fed. Way v. Koenig, 167 Wn.2d 341, 348, 217 P.3d 1172 (2009).

       Fourth, Mortensen relies upon negligent entrustment law in advocating for similar

treatment of automobiles and firearms with respect to an alcohol seller’s duty. The general

negligent entrustment rule for automobiles is that the owner of a vehicle is liable for entrusting it

to an intoxicated person. Hulse v. Driver, 11 Wn. App. 509, 514-15, 524 P.2d 255 (1974).

Similarly, a firearm seller can be liable for providing a gun to an intoxicated person. Bernethy v.

Walt Failor’s, Inc., 97 Wn.2d 929, 933-34, 653 P.2d 280 (1982). Mortensen claims that there is

no meaningful difference between a criminally negligent assault with a car and a criminally

negligent assault with a gun.

       However, the court in Christen expressly rejected an argument based on Bernethy.

Christen, 113 Wn.2d at 499. The court stated, “The distinction between accommodating an

intoxicated person who wishes to purchase a weapon, as in Bernethy, and serving alcohol to

someone . . . who already happens to have one is obvious.” Id. As a result, the fact that both

vehicles and firearms may be dangerous instrumentalities does not provide a basis for

disregarding the clear precedent of Christen.



                                                 17
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       Fifth, Mortensen refers to legislative enactments and public health data that focus on

firearm-related injuries and deaths. He argues that the foreseeability analysis should reflect the

legislature’s increasing concern with preventing the combination of alcohol and firearms. But

we cannot rely on public policy concerns to disregard the clear precedent established in Christen

and Barrett.

       In summary, Christen and Barrett establish that a commercial seller of alcohol who

serves alcohol to an apparently intoxicated customer owes a duty only to a third person who the

customer injures in a vehicle accident. Nothing in those cases suggests that an alcohol seller

owes a duty to a person injured by an intoxicated customer’s criminal assault with a firearm.

And although driver error and firearms accidents both can be caused by negligence, the Supreme

Court has determined that driver error and assault are distinct harms. Barrett, 152 Wn.2d at 272;

Christen, 113 Wn.2d at 496.

D.     NOTICE OF POSSIBILITY OF HARM

       As noted above, the court in Christen acknowledged – as an exception to the general

scope of duty rule – that a commercial alcohol seller could be liable for criminal assault

committed by one of its customers if the seller had some notice of the possibility of harm from

the customer’s prior actions. 113 Wn.2d at 496-98. Mortensen briefly argues that there is a

genuine issue of material fact under this theory of liability. We disagree.

       Here, Mortensen presented no evidence that Main Street and Rancho Viejo had any

notice of the possibility that Moravec might injure Mortensen. There was no evidence of any

disturbance, arguments, or violence at either establishment. The undisputed evidence is that




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Moravec and the rest of the group were joking and getting along up until the moment of the

accident. And Mortensen did not have a gun at either establishment.

       Because Mortensen did not present any facts indicating that Main Street and Rancho

Viejo may have known there would be an assault, we hold that those establishments did not owe

Mortensen a duty as a matter of law under the exception to the general rule.

                                         CONCLUSION

       We hold that the duty of Main Street and Rancho Viejo to not serve alcohol to Moravec

when he was apparently intoxicated does not extend to Moravec’s shooting of Mortensen. We

cannot disregard the precedent established in Christen and reaffirmed in Barrett that as a matter

of law, an alcohol seller’s duty to not serve alcohol to an intoxicated customer extends only to a

person injured by the customer’s driver error and does not extend to a person injured by the

customer’s criminal assault after the customer has left the premises. Any change in the law will

have to come from the Supreme Court or the legislature.

       Accordingly, we affirm the trial court’s order granting summary judgment in favor of

Main Street and Rancho Viejo and dismissing Mortensen’s complaint.



                                                     MAXA, A.C.J.
 We concur:



JOHANSON, J.




MELNICK, J.



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