Evidently Intoxicated: A Discussion of BAC Readings as Evidence in Support of a Complete Defense to Claims for Personal Injury Under RCW 5.40.060

From the desk of Thomas McCurdy: We here at Smith Freed Eberhard understand the importance an individual’s Blood Alcohol Concentration (BAC) can play in our ability to win a case.  Indeed, SFE is at the forefront of Oregon’s dram shop frontier, meaning that BACs hold something of a special place in our hearts.  For that reason, we are excited to report on yet another case, this time out of Washington, wherein a plaintiff’s BAC became central to the liability inquiry.  Unfortunately for the defendant, their reasoning for introducing the evidence was not strong enough to overcome the court’s “probative vs prejudicial value” balancing test.  That notwithstanding, this case provides yet another insight into the potential value of a BAC in where liability is disputed.  I encourage you to read on to see its value for yourself.

Case Pointer: This case arose from a faulty apartment balcony railing, a non-tenant, and alcohol consumption.  You have probably already guessed what the sum of those parts was.  At trial, the defendant, the apartment complex where Plaintiff sustained her injuries, attempted to introduce evidence of Plaintiff’s 0.219 BAC to establish a complete defense to Plaintiff’s action.  After the defendant apartment complex attempted to invoke the complete defense provisions of RCW 5.40.060, the following discussion ensued.  Ultimately, the matter made its way to the Washington Supreme Court, which used the opportunity to explain that an injured plaintiff’s BAC is not always admissible, despite it being at the center of the RCW 5.40.060 inquiry.

Gerlach v. Cove Apts., LLC, 2020 Wash. LEXIS 441 (August 27, 2020).

Plaintiff and a few friends attended a birthday party hosted at Plaintiff’s boyfriend’s apartment, which he leased from Cove Apartments, LLC (Defendant).  Plaintiff’s boyfriend lived in a second-story unit.  Plaintiff eventually fell headfirst from the apartment’s patio after the decayed balcony railing gave way.  There was a dispute as to how Plaintiff fell, with Plaintiff claiming the railing gave out while she was leaning on it and Defendant claiming that she more likely had fallen while trying to climb over the railing.  Plaintiff was rushed to a nearby hospital by paramedics and a blood test taken within one hour of Plaintiff’s fall indicated a BAC of 0.219 – nearly three times the legal limit.

Plaintiff sued Defendant for negligently causing her injuries under several theories.  At trial, the only two claims which survived summary judgment arose under the Residential Landlord-Tenant Act (RLTA) and common law.  Defendant attempted to invoke the complete defense afforded by RCW 5.40.060 (which, essentially, states that a plaintiff cannot sue for personal injuries if the injuries were sustained while they were under the influence of alcohol, that their impairment was a proximate cause of the injury, and if the intoxicated person is found more than 50% at fault) with the support of evidence showing Plaintiff’s 0.219 BAC.  At first, the trial court nearly allowed the evidence, but ultimately decided to exclude it after Plaintiff admitted the fact of her intoxication.  A jury ultimately found Defendant 93% at fault for Plaintiff’s injuries.  On appeal, the Court of Appeals reversed, finding that the trial court had erred in excluding evidence of Plaintiff’s BAC and related expert testimony.  Plaintiff appealed and the Washington Supreme Court accepted review.

The critical question before the Washington Supreme Court was whether evidence of Plaintiff’s BAC would be more prejudicial to Plaintiff than it would be probative (that is, “helpful”) to Defendant’s RCW 5.40.060 defense.  The problem facing Defendant was that Plaintiff had already admitted her intoxication, thereby satisfying the first of RCW 5.40.060’s three requirements (that the injured person was under the influence of alcohol).  The only remaining items were (1) whether Plaintiff’s intoxication was the proximate cause of her injury, and (2) whether Plaintiff was more than 50% at fault in bringing about her injury.

The Supreme Court looked at the evidence of Plaintiff’s BAC and associated expert testimony (a doctor who testified that Plaintiff was probably staggering, stumbling, off balance, etc.) in the context of the remaining two RCW 5.40.060 factors and determined that the trial court had correctly excluded it on the grounds that it was “only minimally probative of the issues relevant to [Defendant’s] affirmative defense.”  The main issue with Defendant’s expert’s testimony was that while the expert was able to opine that most people would be significantly impaired with a BAC of 0.219, he was not able to “specifically say anything about [Plaintiff] herself.”  Essentially, Defendant’s expert was speculating as to how Plaintiff ‘probably’ reacted to the noted level of intoxication, and speculation is seldom welcome in the court of law.

Thus, the remaining issue pertaining to evidence of Plaintiff’s BAC was whether the BAC itself could be introduced for purposes of establishing that Plaintiff’s intoxication caused her to fall and her degree of fault.  The answer was a swift “no.”  In short, while her BAC reading unquestionably indicated that she was intoxicated, it did not show anything else.  The Supreme Court reasoned that because Plaintiff strategically admitted her intoxication, any evidence as to that intoxication would be moot.  Indeed, as the Court stated: “without other evidence or testimony that could connect [Plaintiff’s]’s BAC results to behavior that caused her fall, the BAC results were not relevant to whether her intoxication was a proximate cause of her injuries or to her degree of fault.”

The Washington Supreme Court then addressed whether or not Defendant had violated the RLTA as to Plaintiff, who was arguing that she was owed a certain duty of care despite not herself being a tenant of the subject apartment unit.  In very short, the Court determined that the RLTA does not extend to the guests of tenants, and so the trial court should not have allowed the jury to consider the claims Plaintiff brought under it.

Ultimately, the Washington Supreme Court reversed the Court of Appeals and reinstated the trial court’s ruling in favor of Plaintiff.  The trial court had not erred in excluding critical evidence of Plaintiff’s BAC following her accident because it lacked the necessary probative value to be admitted.  This case goes to show that, while an injured party’s BAC at the time of an injury can be the “make or break” of a successful defense, it is not always permissible without additional accompanying information.  As we here at Smith Freed Eberhard know, and as you have now seen in this update, defending cases with an intoxicated plaintiff is not as easy as it may seem.