Implications of the Washington Supreme Court’s Ruling in Gerlach v. The Cove Apartments, LLC Regarding the Affirmative Defense Voluntary Intoxication
Gerlach v. The Cove Apartments
Washington’s Supreme Court recently issued a decision in Gerlach v. The Cove Apartments, LLC, 196 Wn.2d 111, 471 P.3d 181 (2020), affirming that a plaintiff’s blood alcohol concentration (“BAC”) was only minimally relevant and excluded it pursuant to ER 403 because the plaintiff admitted intoxication. The Washington State Supreme Court reasoned that BAC results are not relevant to questions of causation and fault because these questions turn on evidence of a plaintiff’s behavior, not intoxication status; thus, admitting such testimony would be unduly prejudicial to the plaintiff.
By way of summary, after a night out drinking with friends, Gerlach returned to her boyfriend’s unit at the Cove Apartments (“Cove”). Gerlach entered the unit alone while one of her friends remained outside to smoke. A short time later, Gerlach fell headfirst from the second story balcony after the decaying balcony railing gave way. There was a dispute about how Gerlach fell and whether her intoxication was a proximate cause of her fall. There were no witnesses to her fall, and Gerlach did not remember the evening.
Gerlach sued and argued that Cove’s failure to repair the railing caused her fall. Cove asserted the affirmative defense of voluntary intoxication and attempted to introduce evidence of Gerlach’s BAC level of 0.219 as foundation for its expert testimony. Cove’s expert would have testified regarding psychomotor impairment, which Cove argued was critical to the case given Gerlach’s high BAC. During trial, Cove’s expert admitted that the testimony would be about population averages, and he was unable to say anything specific about Gerlach. Gerlach moved to exclude the testimony, arguing that an expert cannot testify on how an intoxicant is likely to affect an individual on any particular occasion, because without specific evidence that the intoxicant had that effect on the individual, the testimony would be speculative and unfairly prejudicial. Gerlach admitted that she was intoxicated, and the trial court excluded the evidence of her BAC and expert testimony relating to intoxication. In doing so, the trial court ruled that under ER 403, the probative value was outweighed by the risk of prejudice against Gerlach.
A jury found Cove was 93 percent at fault for Plaintiff’s injuries. The Court of Appeals overturned and remanded for a new trial, reasoning, amongst other things, that the trial court erred by excluding evidence of Gerlach’s BAC and by not dismissing her statutory claim. The Washington State Supreme Court subsequently reversed the Court of Appeal’s decision and reinstated the verdict for Gerlach. The Supreme Court determined that the trial court did not abuse its discretion under ER 403 by excluding evidence of Gerlach’s BAC and related expert testimony because the evidence would have been speculative, prejudicial and only minimally probative of Cove’s affirmative defense.
Discussion and Implications:
This case has potentially far-reaching implications on cases involving intoxicants where an affirmative defense under RCW 5.40.060(1) is asserted. The statute provides a “complete defense to an action for damages for personal injury” if the “the person injured … was [(1)] under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury … and [(2)] that such condition was a proximate cause of the injury … and [(3)] the trier of fact finds such person to have been more than fifty percent at fault.” Cove asserted this defense and was precluded from presenting BAC evidence to the jury.
The Washington Supreme Court held that the first prong of the statute was met by Gerlach admitting intoxication. However, there needed to be factual support that the intoxication was a proximate cause of the accident to fulfill the second prong of the statute. The Court reasoned that it is not enough to offer evidence of a BAC level, even one that is nearly three times the legal limit, if it is not coupled with evidence regarding the effects of the intoxicant on the specific person in question to demonstrate that the intoxication was a proximate cause of the injury. Thus, without this evidence, presentation of a BAC was unduly prejudicial. “BAC results are not relevant to questions of causation and fault because these questions turn on evidence of a plaintiff’s behavior, not intoxication status.”
Importantly, and what may come as a relief to our clients and the defense bar as a whole, this was not a unanimous decision. The dissent had a different opinion and argued that intoxication and how that intoxication affected her ability to function were major issues for trial and simply because it may have been prejudicial did not render that evidence inadmissible. The question was not whether the evidence was prejudicial as most evidence will be prejudicial to one side or another, but whether the evidence is unfairly prejudicial. The dissent did not believe the evidence was unfairly prejudicial but rather probative of the central issues of the case.
Further, the dissent argued that the trial court failed to recognize that Gerlach’s severe intoxication could have proximately caused her injuries and that the degree of intoxication mattered. Gerlach’s intoxication was relevant to more than the first prong of the defense (whether she was intoxicated or not) as someone who was intoxicated, but not severely, may have made different choices than someone who was as intoxicated as she was. Expert testimony should have been allowed to prove this, and Cove’s expert was not speculating as to Plaintiff’s level of intoxication.
The dissent also believed that the majority misinterpreted precedent from Peralta v. State, 187 Wn.2d 888, 389 P.3d 596 (2017) as compelling the conclusion that a plaintiff’s BAC was relevant only on the first element of the intoxication defense. The dissent argued that this case did not stand for this proposition; instead, it holds that an admission of intoxication may satisfy the first element of the intoxication defense, but it does not support barring additional evidence of a plaintiff’s intoxication beyond her admission. Nor does it suggest that an admission is relevant to only the first prong. In short, the majority’s reliance on Peralta is inapposite.
Moving forward, under Gerlach, experts who are prepared with population averages or generalizations about the effects of a particular intoxicant may be excluded as inherently speculative and prejudicial. The Court was concerned that admitting the BAC, especially one as high as Gerlach’s, would be very difficult for the jury to ignore where a medical doctor speculates about the impact on blood alcohol. Taking this case into consideration, it will be important to recognize that evidence of severe intoxication or a high BAC may not be enough to support a complete defense to recovery if it is not accompanied by additional evidence demonstrating how that level of intoxication specifically affected the individual. It will therefore be imperative to make sure that experts are aware of this ruling and are prepared to address these arguments.