Hit by a Drunk Driver in Washington: Negligence Per Se, the Bar That Served Him, and What Restitution Will Not Cover

Drunk driving is one of the few things Washington still calls negligence per se

In most injury cases, breaking a traffic law is evidence rather than proof. RCW 5.40.050 says a breach of a duty imposed by statute, ordinance, or administrative rule shall not be considered negligence per se, but may be considered by the trier of fact as evidence of negligence.

Then it lists four exceptions that remain negligence per se, and the fourth is a breach of a duty relating to driving while under the influence of intoxicating liquor or any drug.

So in a case against a drunk driver, the negligence element is not the fight. That is unusual, and it changes what the case is about. The contest moves to causation, to damages, and above all to whether there is enough insurance anywhere to pay for what happened, which is why the next two sections matter more than people expect.

When the bar or restaurant is liable

RCW 66.44.200(1) is one sentence: no person shall sell any liquor to any person apparently under the influence of liquor.

In Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259 (2004), the Washington Supreme Court took review on the single question whether RCW 66.44.200(1) establishes a standard of civil liability for damages caused by intoxicated drivers, and answered it in the affirmative. The trial court in that case had required the plaintiff to show the tavern sold alcohol to the driver when he was obviously intoxicated, which was the older common law phrase, rather than simply apparently under the influence, which is the statute's phrase. The court held that was error, reversed the Court of Appeals, and remanded for a new trial.

The difference between those two phrases is the difference between many of these cases being viable and not. Apparently under the influence is a lower threshold than obviously intoxicated, and it is the standard the statute wrote.

Proving it is evidentiary work done early. Receipts and point of sale records show how much was served and over how long. Server and bartender identities need to be fixed before turnover. Camera footage in a bar is overwritten in weeks. And the people who were drinking with the driver are the witnesses who can say what he looked like at 11:40, which is a thing nobody will remember in a year.

The private party is different, and usually not liable

People assume that if a bar can be liable, the host of a party can be too. In Washington that is generally not so where the drinker was an adult.

In Burkhart v. Harrod, 110 Wn.2d 381 (1988), the Supreme Court was asked to extend to social hosts the principle that commercial furnishers who serve obviously intoxicated customers can be liable for damages caused by that intoxication. It declined. The court said that if social host liability is to be imposed in Washington it should be done through the Legislature, which has the greater ability to explore the competing interests, and held only that the judiciary is ill equipped to impose such a remedy. The trial court's summary judgment for the hosts was affirmed.

Two boundaries on that are worth stating rather than guessing at. Burkhart was about furnishing alcohol to an adult. Furnishing to someone under twenty-one is separately unlawful under RCW 66.44.270(1), which makes it a gross misdemeanor to sell, give, or otherwise supply liquor to a person under twenty-one or to permit a person under that age to consume liquor on premises under your control, and the statute defines premises to include real property, houses, buildings, motor vehicles, and watercraft. Whether and how that statute bears on a civil claim is a different question than the one Burkhart answered, and it is one to work through on the facts rather than to assume in either direction.

If you had been drinking too

RCW 5.40.060 is the provision to understand, because it is harsher than ordinary comparative fault and because it contains a carve-out that most people never reach.

Subsection (1) makes it a complete defense that the injured person was under the influence at the time, that the condition was a proximate cause of the injury, and that the trier of fact finds that person more than fifty percent at fault. The standard for being under the influence is the criminal standard in RCW 46.61.502, and the statute says evidence meeting that standard is conclusive proof of the condition.

Subsection (2) is the carve-out, and it is squarely about this situation. In an action against the driver of a motor vehicle who was under the influence and whose condition was a proximate cause of the injury or death, subsection (1) does not create a defense even though the injured person was also under the influence, so long as that person's condition was not a proximate cause of the occurrence.

Read together: a passenger who had been drinking, in a car hit by a drunk driver, is not stripped of a claim by subsection (1) unless their own condition helped cause the crash. That is a narrower rule than the one adjusters describe.

Restitution is not compensation, and the statute says so

This is where families are most often misled, and it is not a matter of interpretation. RCW 9.94A.753(3)(a) says restitution ordered on a criminal conviction shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury. It then says restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses, though it may include the cost of counseling reasonably related to the offense. The same subsection caps the amount at no more than double the offender's gain or the victim's loss.

So the category that is usually the largest part of a serious injury claim is excluded from restitution by the text of the statute, and the ceiling is set by the offender's gain or your loss rather than by what you actually need.

RCW 9.94A.753(9) is the other half of it: the section does not limit civil remedies or defenses available to the victim, the survivors of the victim, or the offender. The criminal case and the civil claim run alongside each other. Participating in one does not spend the other, and a restitution order is not a settlement.

Whether anybody can pay, which is the real question

Drivers who cause these crashes are frequently uninsured, carrying minimum limits, or driving a car that belongs to someone else. A liability policy may also contain exclusions the owner has never read.

That is why the first document to find is your own declarations page. RCW 48.22.030(2) requires underinsured motorist coverage on auto policies issued in Washington, covering underinsured vehicles, hit-and-run vehicles, and phantom vehicles, and it is frequently the only coverage adequate to a serious injury. RCW 48.22.085(1) requires personal injury protection to be offered as an optional coverage on every automobile liability policy issued or renewed here, and RCW 48.22.085(2) permits a named insured to reject it in writing.

If the driver was working, or driving a company vehicle, or leaving a work function, there may be a commercial policy behind the personal one. Those questions get answered by investigation in the first weeks, not by waiting to see what the liability carrier offers.

How long do I have?

Three years. RCW 4.16.080(2) sets a three-year limit for any other injury to the person or rights of another, running from the date of the crash, and it runs on its own schedule regardless of how long the criminal case takes.

RCW 4.16.190 takes out of the limitation period the time a claimant was under eighteen, which matters where children were in the car.

A claim for the death of a family member runs under the wrongful death statutes and requires a personal representative, which takes time to arrange. That is covered in the article on wrongful death.

Where this goes wrong

The family waits for the criminal case to finish, assuming restitution will handle it, and discovers at sentencing what RCW 9.94A.753(3)(a) excludes.

Nobody investigates where the driver was drinking. Receipts, server identities, and bar video age out inside the first few months, and by the time anyone asks, the Barrett theory is unprovable even where it was true.

An adjuster tells a passenger who had also been drinking that RCW 5.40.060 ends the claim, without mentioning subsection (2).

Nobody looks for a second policy. An employer, a vehicle owner, or an umbrella policy is often where the actual coverage is, and none of them volunteer.

A quick settlement with the liability carrier is signed before anyone asks whether it releases the underinsured motorist claim or whether consent to settle was required under that policy.

Treatment stops because of the cost, which both harms the person and hands the defense an argument about the injury having resolved.

What a lawyer does here

The liability case against the driver is usually the easy part, and that is exactly why the work goes elsewhere. Getting the breath or blood results and the criminal file. Finding where the driver was served, and getting receipts, point of sale data, server names and video before any of it is gone. Running down every policy that might reach the crash, including the ones on your own refrigerator door. Keeping your participation in the criminal case from damaging the civil one. And making sure nobody in the family signs a release in month two that costs them the underinsured motorist claim in month nine.

I handle drunk driving injury claims from my office in downtown Spokane, and I represent clients throughout Washington. I am admitted in Washington, WSBA #55307, and Oregon, OSB #242384.

If a drunk driver hurt you or someone in your family, I offer a free consultation by appointment at my Spokane office, 601 W. 1st Ave., Suite 1400. Bring the collision report number, the criminal cause number if charges have been filed, and the declarations pages for every auto policy in the household.

Disclaimer

This article is general information about Washington law, not legal advice, and reading it does not create an attorney-client relationship. Law changes, and how it applies depends on facts specific to your situation. If you have a question about your own circumstances, speak with a lawyer.