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She And Her Son Have A Wrongful Death Claim Against The Tavern Despite The Holding In Estate Of Kelly

In Estate of Kelly v. Falin, 127 Wn.2d 31, 896 P.2d 1245 (1995), the Washington State Supreme Court held that tavern owners who negligently overserve alcohol owe no duty to adult patrons who suffer harm as the result of intoxication.  Shannon Jiggens, the surviving spouse of Robert Jiggens, and their minor son Rylan, (Ms. Jiggens) sued the 1896 Tavern and its owners, Randy Batten and Santana Nicola, (Tavern) for negligently overserving her husband the night he died in a car accident. Ms. Jiggens appeals the trial court's decision to dismiss the wrongful death and negligence claims against the Tavern.  Ms. Jiggens argues Estate of Kelly does not bar wrongful death and negligence claims by a patron's
surviving spouse and minor child.  We conclude the Court's decision in Estate of Kelly is dispositive and affirm the trial court's dismissal of Ms. Jiggens' lawsuit. FACTS After drinking at the Tavern on the night of October 17, 2002, Robert
Jiggens drove his car across the center line, collided with another car and was fatally injured.  Robert Jiggens' blood alcohol level was .31, nearly four times the legal limit of .08.  He is survived by his spouse, Shannon Jiggens and his minor son, Rylan. Ms. Jiggens sued the Tavern for wrongful death and negligence.  She filed a motion for declaratory judgment asking the trial court to rule that the Supreme Court's decision in Estate of Kelly did not bar recovery by a surviving spouse and minor child against the Tavern for negligently overserving her husband.  Ms. Jiggens argued the Court in Estate of Kelly
did not address whether innocent survivors of an intoxicated patron could sue a tavern for negligently overserving a patron.1  In response, the Tavern filed a CR 12 (c) motion to dismiss Ms. Jiggens' lawsuit.  The Tavern argued her lawsuit was barred by the Court's decision in Estate of Kelly. 

The trial court denied Ms. Jiggens' motion for declaratory judgment and granted the Tavern's motion to dismiss.  In her motion for reconsideration, Ms. Jiggens argued she was entitled to proceed on her common law negligence claim against the Tavern.  The trial court denied her motion to reconsider.  Ms. Jiggens appeals the dismissal of her lawsuit. ANALYSIS Ms. Jiggens contends the trial court erred in dismissing her wrongful death and negligence claims against the Tavern.  We review the trial court's CR 12 (c) decision for judgment on the pleadings de novo and examine the pleadings to determine whether the claimant can prove any set of facts, consistent with the complaint, which would entitle the claimant to relief. North Coast Enterprises, Inc. v. Factoria Partnership, 94 Wn. App. 855, 858- 59, 974 P.2d 1257 (1999).  We accept the factual allegations in the complaint as true and review the case strictly as a matter of law.  Id. A negligence action and a wrongful death action based on negligence require Ms. Jiggens to establish the existence of a duty, breach, resulting injury, and proximate cause between the breach and the injury.  Reynolds v. Hicks, 134 Wn.2d 491, 495, 951 P.2d 761 447 (1998).  The threshold determination is whether a duty of care is owed by the defendant to the plaintiff. Taylor v. Stevens County, 111 Wn.2d 159, 163 759 P.2d.  Whether there is a duty owed by the Tavern to the surviving spouse and minor child of an intoxicated patron is a question of law.  Hertog, ex rel. S.A.H. v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).  We review questions of law de novo.  Wilson Court Ltd. Partnership v. Tony Maroni's, Inc., 134 Wn.2d 692, 698, 952 P.2d 590 (1998). In 1955, the Legislature repealed the 'Dramshop Act' which made taverns liable for furnishing liquor.2  In response to the Legislature's decision, the Washington Supreme Court adopted the common law rule that a patron is responsible for his own acts and commercial vendors were not liable for overserving patrons or for torts committed by patrons who consume alcohol.3 The Court recognizes two exceptions to the common law rule: (1) when a commercial establishment furnishes a minor with alcohol it may be sued for injuries resulting from the minor's intoxication, and (2) when a commercial establishment serves alcohol to an obviously intoxicated patron it can be liable if that patron then injures or kills an innocent third party bystander.  Estate of Kelly, 127 Wn.2d at 36-7.4 The question in Estate of Kelly was whether a patron who was negligently overserved by a commercial vendor could recovery damages for his injuries.

In Estate of Kelly, the Court consolidated two lawsuits.  In one lawsuit, the Estate of Cary Kelly sued a tavern and its owner for wrongful death, alleging the tavern had overserved Mr. Kelly leading to his death in a car accident.5  The trial court entered judgment on the jury's verdict in favor of Kelly's estate and the Tavern appealed.  In the other consolidated
lawsuit, Richard Wolfram alleged a pub overserved him and caused the car accident in which he was seriously injured.  Wolfram's lawsuit was dismissed on summary judgment and he appealed.  The plaintiffs in Estate of Kelly contended that allowing them to sue the commercial vendors was a logical extension of the common law exceptions that a commercial
establishment only owes a duty to care towards minors and injured third parties.  The plaintiffs argued that commercial vendors should also have a legal duty to not serve alcohol to obviously intoxicated patrons.  Estate of Kelly, 127 Wn.2d at 36.  The Court reiterated the common law rule that patrons are responsible for their own acts and rejected the plaintiffs'
request to extend the exceptions to the common law rule.  The Court held that commercial vendors are not liable for furnishing alcohol to intoxicated adults.  The Court reversed the judgment on the jury's verdict in favor of Kelly's estate and affirmed the trial court's summary decision to dismiss Wolfram's lawsuit against the pub. 

Estate of Kelly, 127 Wn.2d at 34, 42.6  Under Estate of Kelly, 'no duty arises when intoxicated adults harm themselves.'  Id. at 40. Ms. Jiggens brought a wrongful death action under RCW 4.20.010 and .020 on behalf of herself and her minor son as the survivors of Mr. Jiggens to recover for their losses.  Ms. Jiggens contends she and her son have a wrongful death claim against the Tavern despite the holding in Estate of Kelly because the Court in Estate of Kelly did not address whether an intoxicated adult patron's survivors can sue for wrongful death under RCW 4.20.010-020. There was no common law action for wrongful death.  Wrongful death actions are strictly statutory.  Huntington v. Samaritan Hosp., 101 Wn.2d 466, 470, 680 P.2d 58 (1984).  In Washington, the personal representative of an estate may bring a wrongful death action on behalf of statutory beneficiaries, including the surviving spouse and children, under RCW 4.20.010 and .020.7  The general wrongful death statute, RCW 4.20.010, provides, in part, '{w}hen the death of a person is caused by the wrongful
act, neglect or default of another his personal representative may maintain an action for damages against the person causing the death.'8  To recover under the wrongful death statute, the death must be wrongful.  RCW 4.20.010; Estate of Lee v. City of Spokane, 101 Wn. App. 158, 174, 2 P.3d 979 (2000); see also Johnson v. Ottomeier, 45 Wn.2d 419, 422, 275 P.2d 723 (1954).  Ms. Jiggens argues Estate of Lee is distinguishable because in that case the defendant did not act unlawfully, whereas here, the Tavern unlawfully overserved Mr. Jiggens. 

But Lee states that the focus of the wrongful death statute, RCW 4.20.010, is on whether the tortfeasor breached a duty owed to the decedent.  Estate of Lee, 101 Wn. App. at 174, citing Johnson, 45 Wn.2d 419 at 422.  The appropriate inquiry in determining whether Ms. Jiggens has a wrongful death claim against the Tavern is not whether the Tavern acted unlawfully, but whether the Tavern owed Mr. Jiggens a duty.  If the Tavern did not owe a duty to Mr. Jiggens, his death is not wrongful.  Johnson, 45 Wn.2d at 422; State v. Lee, 101 Wn. App. at 174. Ms. Jiggens attempts to distinguish the decision in Estate of Kelly on the grounds that the Court only addressed a commercial establishment's liability for a patron's injuries and not a wrongful death claim by an injured patron's surviving spouse and child.  But the Court's holding in Estate of Kelly that 'a commercial vendor owes no duty of care to patrons who suffer injuries as a result of their intoxication,' bars a wrongful death action based on a patron's death.  Estate of Kelly, 127 Wn.2d at 42. Under Estate of Kelly, the Tavern did not owe a duty to Mr. Jiggens. Because the Tavern did not owe a duty to Mr. Jiggens, his statutory beneficiaries cannot pursue a statutory wrongful death claim.Alternatively, Ms. Jiggens contends that she is entitled to recover on the common law negligence claim against the Tavern.  Ms. Jiggens argues the Tavern negligently overserved her husband in violation of Washington's law
against overserving.  RCW 66.44.200 (1).  RCW 66.44.200(1) was enacted to protect the 'welfare, health, peace, morals, and safety of the people of the state.'  RCW 66.08.010.  RCW 66.44.200 (1) provides that '{n}o person shall sell any liquor to any person apparently under the influence of liquor.' The Court in Estate of Kelly considered and rejected an identical argument.

In Estate of Kelly, the plaintiffs argued that RCW 66.44.200 created a duty of care for commercial vendors.  The Court concluded that the statute excluded adult patrons who drink from the class of people protected by the
statute. It belies common sense, however, to suggest that RCW 66.44.200, which proscribes selling alcohol to intoxicated adults, was intended to shield the drunk driver from responsibility for his or her own actions. The Patrons offer no evidence that the Legislature intended RCW 66.44.200 to protect the drunk driver.  Statutes should be construed to effect their
purpose, and avoid unlikely 'absurd or strained consequences.'  Without a more precise directive from the Legislature, it would be utterly fatuous to interpret RCW 66.44.200 as protecting the drunk driver.  Adults are expected to temper their alcohol consumption or simply refrain from driving when intoxicated.  Unlike an innocent bystander hit by a drunk driver or a
youth whose sense of immortality leads to reckless abandon, the responsibility for self-inflicted injuries lies with the intoxicated adult. Until the Legislature indicates otherwise, this court will not absolve intoxicated adults of their accountability for such accidents.

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