Kalenka v. Jadon, Inc. , 2013 Alas. LEXIS 99 ( 2013 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
UWE KALENKA, Personal )
Representative of the Estate of) Supreme Court No. S-13899
ERIC W. KALENKA, )
) Superior Court No. 3AN-06-05528 CI
Appellant, )
) OPINION
v. )
) No. 6805 – August 9, 2013
JADON, INC., d/b/a CHILKOOT )
CHARLIE’S, JACK ELIAS MORRELL, )
and WILLIAM P. WASSILI, II, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, John Suddock, Judge.
Appearances: Kenneth P. Jacobus, Kenneth P. Jacobus, P.C.,
Anchorage, for Appellant. Robert P. Blasco, Hoffman Silver
Gilman & Blasco, Juneau, for Appellee Jadon, Inc. No
appearance by Appellees Jack Elias Morrell and William P.
Wassili, II.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Stowers,
and Maassen, Justices.
STOWERS, Justice.
MAASSEN, Justice, with whom WINFREE, Justice, joins, dissenting.
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 Kalenka’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 Kalenka’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 04.16.030 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 Chilkoot 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 Kalenka 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
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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. Doucet 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 newspaper and stated that he had seen Morrell in the bar several times before
February 2004: “On those occasions [Morrell] had been polite, soft spoken and
mellow.” Neither party presented any direct evidence of Morrell’s actual appearance or
conduct while at Chilkoot Charlie’s, and, more specifically, presented no direct evidence
of Morrell’s appearance or conduct when served alcohol at Chilkoot Charlie’s.
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).1 The Kalenka Estate claimed Chilkoot Charlie’s violated
AS 04.16.030 by serving alcohol to Morrell when he was a drunken person and therefore
was liable for Kalenka’s death.2
1
The Estate also named Morrell and William P. Wassili, II as defendants.
Neither of these individuals have participated in this appeal.
2
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.
(continued...)
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In February 2010 Chilkoot Charlie’s moved for summary judgment on two
grounds: (1) there was no evidence that Chilkoot 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.3
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 (3)
2
(...continued)
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.
3
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.
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Doucet’s testimony at the criminal trial regarding his observations of Morrell at Taco
Bell.4 The toxicology report extrapolated Morrell’s blood alcohol concentration to be
between 0.11 and 0.27 at 3:15 a.m., the time of the stabbing, and estimated Morrell had
consumed between seven and 18 drinks. In addition to the toxicological findings
Trendowski relied upon, the Kalenka Estate submitted toxicologist Joel R. Milzoff’s
report extrapolating the same blood-alcohol concentration but estimating Morrell
consumed between 7.5 and 19.5 drinks.
After discussing Alaska’s statutory requirements for a liquor licensee and
employee alcohol-server education, Trendowski’s report stated, “Morrell’s aberrant
behavior was a direct result of his intoxication and should have reasonably been
observed by a certified . . . bartender, server or bouncer.” The report stated that based
on the toxicology report, “[c]ertified . . . servers should have recognized the effect . . .
the excessive amount of vodka and [energy drink] was having on Mr. Morrell and cut
him off from consuming any more alcohol.”
Trendowski’s report concluded that “Morrell more likely than not exhibited
4
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 opinions 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.
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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 alcohol
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 “[t]hey appear in a
progressive manner” and “[t]here 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.” Trendowski’s report ultimately concluded that
Chilkoot Charlie’s: (1) failed to monitor the number of drinks served to Morrell; (2)
failed to observe and recognize his signs of intoxication; and (3) failed to stop serving
alcohol 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.
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III. STANDARD OF REVIEW
We review a grant of summary judgment de novo.5 We review the facts in
the light most favorable to the non-moving party and draw all factual inferences in the
non-moving party’s favor.6 A grant of summary judgment is affirmed “when there are
no genuine issues of material fact, and the prevailing party . . . [is] entitled to judgment
as a matter of law.”7 “A genuine issue of material fact exists where reasonable jurors
could disagree on the resolution of a factual issue.”8 Whether the evidence presented a
genuine issue of material fact is a question of law that we independently review.9
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
alcohol to the patron when that patron was a “drunken person.”10 A drunken person is
“a person whose conduct is substantially and visibly impaired as a result of alcohol
5
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)).
6
Id. (quoting Rockstad, 113 P.3d at 1219).
7
Id. (quoting Rockstad, 113 P.3d at 1219).
8
Bur. 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)).
9
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)).
10
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).
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ingestion.”11 The statutory definition of “drunken person” includes two elements:
(1) substantial impairment of the person’s physical or mental conduct; and (2) that such
impairment be “plain and easily observed or discovered.”12 Thus, Chilkoot Charlie’s’
potential liability depends on whether it served Morrell drinks when he was visibly
impaired through intoxication.13
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 Morrell’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
11
Gonzales v. Safeway Stores, Inc., 882 P.2d 389, 393 (Alaska 1994) (citing
AS 04.21.080(b)(8)).
12
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 overconsumption of alcoholic
beverages.
13
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.”).
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would have been like [there].” The Kalenka Estate contends that based on the
observations of Morrell at Taco Bell and the estimate that Morrell 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.14 This is not a stringent standard.15 When
deciding whether there is a genuine issue of material fact, we must draw all reasonable
inferences from the evidence in favor of the non-moving party.16 “A genuine issue of
material fact exists where reasonable jurors could disagree on the resolution of a factual
issue.”17 We conclude that reasonable jurors could disagree about whether Chilkoot
Charlie’s served Morrell while he was a statutorily defined “drunken person.”
In Kavorkian v. Tommy’s Elbow Room, we examined an action under the
14
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)).
15
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)).
16
See Price, 289 P.3d at 918 (quoting Dominic Wenzell, D.M.D. P.C., 228
P.3d at 106).
17
Bur. 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)).
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dram shop statute.18 The jury in that case heard conflicting testimony about whether the
patron was visibly intoxicated while served at the bar, and we noted that “[t]estimony
concerning [the patron’s] condition shortly before and after his visit to [the bar] is
circumstantially relevant to the determination of [his] condition at [the bar].”19
Here, the Kalenka Estate has presented several pieces of evidence
concerning Morrell’s condition both during and shortly after his visit to the bar, which,
when viewed in a light most favorable to the Estate,20 and drawing all inferences in favor
of the Estate,21 together raise a genuine issue of material fact, or to put it another way,
support a reasonable inference that Morrell was visibly impaired through intoxication
when he was served at Chilkoot Charlie’s: (1) Morrell was at Chilkoot Charlie’s for two
to four hours, during which time he was steadily drinking; (2) Morrell admitted he
consumed no alcohol before arriving at Chilkoot Charlie’s; (3) Morrell was served and
consumed as many as 18 or 19 alcoholic drinks while at the bar;22 (4) Morrell consumed
no additional alcohol after leaving Chilkoot Charlie’s; (5) approximately 45 minutes after
leaving Chilkoot Charlie’s, Morrell displayed “visible and obvious signs of
intoxication;”23 and (6) Morrell was estimated to have a blood-alcohol level at the time
18
694 P.2d 160 (Alaska 1985).
19
Id. at 165 n.9.
20
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)).
21
Id. (quoting Rockstad, 113 P.3d at 1219).
22
Morrell stated that he consumed both beer and “mandarin Red Bull,” a
combination of vodka and an energy drink, at the bar.
23
Witnesses testified that Morrell was emotional and uncooperative toward
police commands and instructions and that he was stumbling and slurring his speech.
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of the altercation as high as 0.27, the equivalent of having 13 to 14 typical alcoholic
beverages in his system. Thus, evaluating all of this factual evidence in a light most
favorable to the Kalenka Estate, before the stabbing Morrell consumed alcohol only at
Chilkoot Charlie’s, he was at Chilkoot Charlie’s two to four hours, he drank about 13-18
drinks in that time period, he was observed to be visibly and obviously impaired by
intoxication about 45 minutes after he left, and his blood alcohol at that 45-minute mark
was .027. These facts are sufficient to raise a genuine issue of fact whether Morrell was
impaired by intoxication when he was served his last drink at Chilkoot Charlie’s.
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 Iowa
Supreme Court noted the chance 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
24
688 N.W.2d 67, 75 (Iowa 2004).
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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 service is not necessary to
survive summary judgment:
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.”26 A
Pennsylvania court was confronted with a similar question.27 Evidence presented at trial
established that the patron had consumed a substantial amount of alcohol before being
served his last drink at the bar, that he drove erratically upon leaving the bar, that he
25
929 P.2d 433, 436 (Wash. 1997) (citing Dickinson v. Edwards, 716 P.2d
814 (Wash. 1986)).
26
Ward v. D & A Enters. of Clark Cnty., Inc., 714 N.E.2d 728, 730 (Ind. App.
1999).
27
See Couts v. Ghion, 421 A.2d 1184 (Pa. Super. Ct. 1980).
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appeared intoxicated to the investigating police officer, and that his blood-alcohol
content was elevated.28 The court held that “[d]espite the lack of direct evidence bearing
on [the patron’s] condition when he was served his last drink, we think that the jury
could have reasonably concluded that he was visibly intoxicated at that time.”29
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.
28
Id. at 1188.
29
Id.; see also Fandozzi v. Kelly Hotel, Inc., 711 A.2d 524, 527 (Pa. Super.
Ct. 1998) (“[W]e 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, 434 A.2d 183, 186 (Pa. Super. Ct. 1981)
(visible intoxication “five or ten minutes” after leaving tavern was sufficient to submit
the issue to a jury).
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MAASSEN, Justice, 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,1
but it is still a threshold that can be crossed only with evidence. The Kalenka Estate’s
liability claim requires the jury not only to consider the evidence and draw reasonable
inferences from it, but also to speculate that certain interactions occurred and then draw
inferences from those imagined events. This travels too far into the realm of speculation.
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 04.16.030.”2 Alaska Statute 04.16.030 is violated
only if, as relevant here, the licensee “sell[s], give[s], or barter[s] alcoholic beverages to
a drunken person” and does so “with criminal negligence.”3 “Criminal negligence” with
respect to a particular circumstance means that “the person fails to perceive a substantial
and unjustifiable risk that . . . the circumstance exists; the risk must be of such a nature
and degree that the failure to perceive it constitutes a gross deviation from the standard
of care that a reasonable person would observe in the situation.”4 The legislature has
expounded on the standard of care in these cases: it requires that servers “use their
powers of observation to see that which can easily be seen, and hear that which can
easily be heard, under the existing conditions and circumstances and to determine
whether the person is so far under the influence of intoxicating beverages that his
1
Slip Op. at 13.
2
AS 04.21.020(a)(2).
3
AS 04.16.030(a)(1).
4
AS 04.21.080(a)(1).
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conduct and demeanor are drunken.”5 A “drunken person” is one “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
overconsumption of alcoholic beverages.”6
In short, liability 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 alcohol before arriving at the bar; (3) that he consumed as
many as 18 or 19 drinks while at the bar; (4) that he did not consume any more alcohol
5
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).
6
AS 04.21.080(b)(8) (emphasis added).
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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 0.27.7 This boils down to proof of only two relevant
points: that Morrell was highly intoxicated at the bar (items (1)-(4) and (6)), and that he
exhibited the outward manifestations of his intoxication about 45 minutes later during
a fight and a highly charged encounter with police (item (5)). Even taken together, this
evidence cannot prove Chilkoot Charlie’s’ liability under the dram shop act, because that
liability depends on proof not just that Morrell was intoxicated at the bar but that he
exhibited the outward manifestations of intoxication while he was being served there.
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.”8 But these symptoms of intoxication
were entirely reactive and specific to the unfortunate context of Morrell’s altercation with
Eric Kalenka and its aftermath. There is no evidence that any such prompt occurred
while Morrell was at Chilkoot Charlie’s; there is no evidence that he had occasion to be
“emotional and uncooperative” toward anybody. Indeed, as the court also notes, the only
eyewitness testimony about Morrell’s usual appearance at Chilkoot Charlie’s was that
he was “polite, soft spoken and mellow.”9
Nor is there any evidence that Morrell had occasion at Chilkoot Charlie’s
7
Slip Op. at 11.
8
Slip Op. at 10, n.23.
9
Slip Op. at 3.
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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.10 Nor is there any evidence that Morrell
ever spoke in the presence of a server, so as to exhibit the “slurring of speech” on which
the court also relies.11 I do not believe that the jury can reasonably “infer” that such a
conversation occurred, “infer” that it occurred after Morrell had become visibly
intoxicated, and “infer” that in this hypothetical conversation Morrell slurred his speech
in such a way that any server who failed to notice it was grossly deviating from a
reasonable-person standard of care. Any such chain of conclusions is pure speculation,
not reasonable inferences from the evidence.
While I certainly agree that the circumstantial evidence on which the court
relies is relevant to the question of whether Morrell was visibly intoxicated while at the
10
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.
11
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[, ‘A]nother 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[, ‘A]nother beer.’ ”
-17- 6805
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 “[t]estimony concerning [the
patron’s] condition shortly before and after his visit to [the bar] is circumstantially
relevant to the determination of [his] condition at [the bar].”12 But we also mentioned
testimony that the patron had “experienced difficulty walking to the foosball table once
inside [the bar].”13 An off-duty waitress who witnessed the patron’s condition at the bar
testified that he was “obviously drunk,” though a bartender and a customer testified that
he was not.14 There was thus direct evidence in Kavorkian that has no counterpart here.
It bears noting that such evidence may well have been available. The
superior court, in its oral remarks during the summary judgment hearing, noted that
“there’s zero testimony in the case about where Morrell went [in the bar], where he sat,
how he got served, who served him, what he did, how he behaved in the bar,” even
though the court had granted a continuance of trial “in part to give [the Estate] an
opportunity to depose Mr. Morrell,” an opportunity the Estate inexplicably passed up.15
Morrell was participating in the case and apparently available to be deposed. Even
absent other, more disinterested eyewitness testimony, reasonable inferences about
whether Morrell exhibited the outward manifestations of intoxication could have been
12
Slip Op. at 9-10 (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)).
13
Kavorkian, 694 P.2d at 165.
14
Id. & nn.12-13.
15
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 w hatever reason . . .
[the Estate’s counsel] didn’t want to go there.”
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developed from his deposition testimony about his interactions and movements in the
bar. I am not proposing any sort of insurmountable evidentiary hurdle when I call the
Estate’s case speculative as it stands.
The court today relies on cases from other jurisdictions that similarly allow
juries to speculate, on the basis of blood-alcohol 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 circumstantial 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.16 In Alaniz v. Rebello Food & Beverage, L.L.C.,
a Texas appellate court held that a videotape and eyewitness testimony demonstrating
the driver’s obvious intoxication at a convenience store 50 to 55 minutes after he left the
bar “does not establish that [the driver] was obviously intoxicated while being served at
[the bar], and any inferences regarding his obvious intoxication while there would
amount to no more than mere speculation.”17 In Owens v. Hooters Restaurant, the
16
718 N.W.2d 770, 776-77 (Mich. 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.
17
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
(continued...)
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Alabama Supreme Court affirmed without opinion the grant of summary judgment to the
defendant in a dram shop case in which the driver was in an accident just six-tenths of
a mile away from the restaurant, where he was found to have a blood-alcohol content of
.16 and “was slurring his speech and staggering.”18 Chief Justice Cobb, concurring in
the per curiam affirmance, explained why she found the plaintiff’s evidence insufficient:
The evidence in this case strongly supports the conclusion
that [the driver] was intoxicated at the scene 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 3:15 A.M., he must have been intoxicated during a time period three hours
before and, more importantly, appeared so.”20 I find these cases more persuasive than the
ones cited in the opinion.
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
17
(...continued)
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”).
18
41 So. 3d 743, 743 (Ala. 2009) (Cobb, C.J., concurring).
19
Id. at 744 (Cobb, C.J., concurring).
20
671 N.Y.S.2d 559, 561 (N.Y. App. Div. 1998).
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Morrell’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.
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