After a night of drinking, Rebecca Humphries crashed her car into two parked cars resulting in serious injuries to Nicolas Ensley. Ensley sued Humphries, Red Onion Tavern, and two other bars that served her alcohol, alleging negligent overservice of Humphries while apparently under the influence of alcohol. Ensley appeals trial court orders (1) granting Red Onion Tavern's summary judgment dismissal motion, (2) striking appearance of intoxication evidence as hearsay, (3) affirming dismissal of all claims against Red Onion Tavern, and (4) denying motions to amend complaint, to vacate judgments, and shorten time. Because Ensley presented no admissible evidence that Red Onion Tavern served alcohol to Humphries while apparently intoxicated, we conclude the court properly granted summary judgment dismissal. And because Ensley's remaining contentions are without merit, we affirm.
FACTS and Procedural History
Early on March 31, 2005, Nicholas Ensley suffered serious injuries when Rebecca Humphries crashed her car into two parked cars after a night of drinking. On the night of March 30, Ensley, Humphries, and Daniel Ahern started drinking at the Impromptu bar, moved to the Red Onion Tavern, and ended their night at Twilight Exit. Ensley sued Humphries and the bars alleging several negligence theories, including negligent overservice.
Ensley opposed summary judgment, relying principally on the deposition of Ahern, who spoke with Red Onion bartender, Clifford Pitcher, "a couple days after the accident."
In response, Red Onion moved to shorten time and to strike this testimony as inadmissible hearsay.
On November 21, 2007, Ensley moved to amend his complaint to add claims against Pitcher. He filed this motion just weeks before the discovery cutoff and two months before the scheduled trial, despite knowledge for almost ten months about Pitcher's alleged inculpatory statements to Ahern. The court denied the motion to amend, citing unfairness to the defendants by delaying the trial beyond the scheduled date.
Eight months later, Ensley filed a CR 60(b) motion to vacate the orders granting Red Onion's motion to strike, granting summary judgment dismissal, and denying motion to amend his complaint. The court denied the motion to vacate and Ensley's subsequent motion for reconsideration. And on September 11, 2008, the court granted Red Onion's motion for CR 11 sanctions against Ensley's counsel.
On December 1, 2008, Red Onion filed a motion to affirm that the summary judgment order dismissed all claims by Ensley against Red Onion Tavern.
Standard of Review
We review most of Ensley's assignments of error under an abuse of discretion standard. A court abuses its discretion when its decision is based on untenable grounds or reasoning.
Motion to Strike 7
Ensley first argues that the court erred by striking declaration excerpts opposing summary judgment because it found the evidence was inadmissible hearsay. The stricken excerpts included Ahern's above-quoted deposition testimony in which he claimed that Pitcher told him Humphries looked glassy eyed and he should not have served her a beer. The court also struck Ensley's expert witness testimony that relied on Ahern's deposition testimony.
"`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." ER 801(c). However, under ER 801(d)(2) a statement of admission by party-opponent is nonhearsay,
But "[i]n order for a statement to satisfy these requirements, the declarant must be authorized to make the particular statement at issue, or statements concerning the subject matter, on behalf of the party."
The Supreme Court addressed a nearly identical issue in
The circumstance here is analogous—no evidence appears in the record that Pitcher was expressly authorized to speak on behalf of Red Onion. And a bartender is not necessarily authorized to admit key facts related to liability merely because he is the only server on duty and thus in "the position of authority over the service." Br. of Appellant at 32;
Ensley relies on
Ensley next argues that since the statements were not offered for their truth, they are nonhearsay statements. In the alternative, he maintains the statements fall under the state of mind exception to the hearsay bar.
The "to prove the truth of the matter asserted" rule is
Karl B. Tegland, Courtroom Handbook on Washington Evidence 391 (2009—2010 ed.). Here, Pitcher's statements are hearsay because it is the
And Ensley's contention that Pitcher's statements reveal his "state of mind" under ER 803(a)(3) also fails. That rule provides, "A statement of the declarant's
Summary Judgment 13
Ensley next argues that the court erred in granting summary judgment dismissal because Humphries's alcohol consumption before arriving at the Red Onion and her appearance after leaving created an inference that she was apparently intoxicated when served at the Red Onion. Red Onion responds that Humphries's actions before arriving at and her appearance after leaving the Red Onion are insufficient to establish a material issue of fact. We review summary judgment de novo.
RCW 66.44.200(1) prohibits the sale of alcohol to anyone "apparently under the influence of liquor." That language also establishes the standard of civil liability for a commercial host in an overservice case.
To survive summary judgment in an overservice case, a plaintiff must demonstrate "that the tortfeasor was `apparently under the influence' by direct, observational evidence at the time of the alleged overservice or by reasonable inference deduced from observation shortly thereafter."
Here, no admissible evidence appears in the record that Humphries was apparently intoxicated at the time Pitcher served her. The undisputed evidence shows that when Ahern talked to Humphries at the Red Onion, she was not slurring her speech or speaking loudly and he did not think she was drunk. Pitcher testified that he looked Humphries in the eyes and the face before serving her and she did not have glassy eyes, flushed cheeks, or exhibit trouble walking, drinking, or talking. He further testified that he saw no indication that she had been drinking before arriving at the Red Onion. Finally, Ensley testified in his deposition that while at the Red Onion he did not observe Humphries speaking loudly, slurring her speech, or stumbling because he had his back to Humphries.
Ensley relies on
While Ensley acknowledges the holding in
Here, the only evidence in the record that Humphries appeared intoxicated after leaving the Red Onion is that she fell at Twilight and crashed her car after leaving Twilight.
Summary Judgment Affirmation
Ensley next contends that the court erred in granting Red Onion's motion to affirm the summary judgment dismissal of all his claims. According to Ensley, Red Onion moved for summary judgment dismissal of his overservice claim but not his negligent hiring and supervision claims. Ensley therefore argues that these claims remain pending. We disagree.
Our review of the undisputed record shows that on March 9, 2007, Red Onion moved for summary judgment requesting the court to "dismiss
Motion to Amend
Ensley next contends that the court erred by denying his motion to amend his complaint to add Pitcher as a defendant. Leave to amend pleadings is freely given by a trial court when justice so requires. CR 15(a). "The disposition of motions to amend the pleadings is discretionary with the trial court, and its refusal to permit such an amendment will not be overturned except for manifest abuse of discretion."
Here, it is undisputed that Ensley filed his motion to amend over two years after his original complaint, almost ten months after deposing Ahern, over seven months after summary judgment, two months before the scheduled trial date, and two weeks before the discovery cut off. On this record, we conclude that the court properly denied Ensley's motion to amend his complaint.
Finally, Ensley challenges the award of sanctions against his attorney in his opening brief but withdraws that assignment of error in his reply brief.
Red Onion, however, asks us to award sanctions against Ensley or his counsel, Aaron Adee, "for filing a frivolous appeal of the (1) order denying CR 60(b) motion; and (2) order granting sanctions." Respondent's Br. at 45. Under RAP 18.9(a),
Considering the entire record, Ensley's appeal is not frivolous. Ensley cites applicable case law and presents several issues that are at least debatable. "An appeal that is affirmed merely because the arguments are rejected is not frivolous."
In sum, because Ensley presented no admissible evidence that raises a material fact issue on an element central to his overservice claim—Humphries's appearance of intoxication—the court properly granted Red Onion's summary judgment dismissal. And based on the foregoing reasons, Ensley's remaining challenges fail. We affirm.
GROSSE, and BECKER, JJ., concur.
"The trial court granted the defendants' motion to strike these materials from the record. Cameron assigns error to this ruling. Her objection is well taken. To begin with, materials submitted to the trial court in connection with a motion for summary judgment cannot actually be stricken from consideration as is true of evidence that is removed from consideration by a jury; they remain in the record to be considered on appeal. Thus, it is misleading to denominate as a "motion to strike" what is actually an objection to the admissibility of evidence that could have been preserved in a reply brief rather than by a separate motion."
"13. While at Red Onion, Rebecca Humphries exhibited signs of intoxication. A few days after the crash, the bartender confessed to Daniel Ahern that Rebecca Humphries's eyes were glassy and that he should not have served her alcohol. Glassy eyes on a drinker is a recognized sign of intoxication. A statement by the bartender that he should not have served Rebecca Humphries clearly shows that he saw signs of intoxication and appreciated their significance."
And the stricken portion of Dr. Denny Rutherford's declaration states,
"20. Cliff Pitcher did look at the eyes of Rebecca Humphries. A few days after the crash, Cliff Pitcher confessed to Daniel Ahern that Rebecca Humphries's eyes were "glassy" and that he should not have served her any alcohol. Thus, Cliff Pitcher recognized a classic sign that Rebecca Humphries was under the influence of alcohol. Given that information, a bartender following the industry standard for the safe service of alcohol would have not served Rebecca Humphries or taken her drink away, and then made arrangements for her to get home safely. Nevertheless, the bartender at Red Onion allowed Rebecca Humphries to continue to drink and then allowed her [to] get in her car and drive to Twilight."
We also note that while Ensley assigns error to the trial court's orders denying his motions to vacate orders granting summary judgment and denying his motion to amend, his entire argument is devoted to the motion to strike issue. Accordingly, we do not address his other contentions.