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Case Law Update: The Voluntary Intoxication Defense

Posted Monday, March 18, 2019 by Christopher L. Thayer

In Gerlach v. The Cove Apartments, the Court of Appeals Division I recently addressed application of the so-called “voluntary intoxication” affirmative defense in the context of a personal injury action. In Gerlach, after a long night of drinking with friends, plaintiff came back to her boyfriend’s second floor apartment. While her boyfriend was still upstairs, she fell from the second floor balcony when a mostly-rotted railing gave way. She landed on her head and was severely injured. She subsequently filed a personal injury action against the apartment complex owners. She had no recollection of what caused the fall, and there were no witnesses to confirm exactly how she fell. It was undisputed the railing was rotten.

The case proceeded to trial. Defendant argued plaintiff must have fallen while attempting to get in to the apartment while climbing in the balcony. Defendant also argued the “voluntary intoxication” defense and sought to have plaintiff’s blood alcohol level (.238) introduced into evidence. The trial court did not allow the blood alcohol evidence to be presented to the jury, but did instruct the jury plaintiff “was under the influence of intoxicating liquor at the time of the accident.” The jury returned a verdict in favor of plaintiff for over $3.7 million, which was reduced to $3.5 million based on the jury’s finding plaintiff was 7% at fault. Defendant appealed, claiming the trial court erred when it prohibited introduction of plaintiff’s blood alcohol level into evidence.

The voluntary intoxication defense is codified as RCW 5.40.060(1). It provides a complete defense to plaintiff’s action for personal injury if she was intoxicated, her intoxication was a proximate cause of her injury, and she was more than 50 percent at fault.

RCW 5.40.060(1) states:

[l]t is a complete defense to an action for damages for personal injury or wrongful death that the person injured or killed was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and that such condition was a proximate cause of the injury or death and the trier of fact finds such person to have been more than fifty percent at fault.

The trial court had excluded the blood alcohol level under Evidence Rule 403, which allows a court to exclude evidence where such evidence may cause “unfair prejudice” and when the evidence sought to be excluded might “stimulate an emotional response rather than a rational decision….” The Court of Appeals ruled Evidence Rule 403 did not support exclusion of the blood alcohol level. The Court of Appeals reversed the trial court and remanded for a new trial.

Under Washington tort law, in most circumstances does not bar an injured party from recovering for personal injuries, even if they were partially at fault for causing their injury. Instead, in most cases, if there is evidence the injured party may have been partially at “fault” for causing their injury, the trier of fact may assign a relative percentage of liability to the injured party, which reduces the amount of their damage award (if any). Thus, if an injured party is 70% at fault, they would only receive 30% of the damages awarded. Here, under the voluntary intoxication defense, if it can be proven the person was intoxicated and more than 50% at fault – it acts as a complete bar to recovery.

If you have questions about a personal injury claim, please feel free to contact managing member Chris Thayer at (206) 805-1494 or CThayer@PivotalLawGroup.com.