In Barrett v. Lucky Seven Saloon, Inc., the Washington Supreme Court erroneously expanded commercial vendor liability to third parties who are injured in automobile accidents by a patron who drives while impaired. This decision flies in the face of Washington vendor liability jurisprudence, which has shown a reluctance to hold vendors liable for negligently serving alcohol; prior to Barrett, courts would not do so unless the patron was a minor or was "obviously intoxicated." Nevertheless, Barrett rejected the common law "obviously intoxicated" rule in exchange for a new form of civil liability based on a criminal statute that prohibits a commercial vendor from serving a patron who is "apparently under the influence" of alcohol. Although the "obviously intoxicated" standard is highly preferable to the "apparently under the influence" standard, there are circumstances in which neither standard will suffice. Therefore, the Washington Legislature should enact the following standard of conduct to clarify civil liability for commercial vendors: Vendors are liable when they "knew or should have known that the patron was intoxicated at the time of service."
Kathryn M. Knudsen, Serving the "Apparently Under the Influence" Patron: The Ramifications of Barrett v. Lucky Seven Saloon, Inc., 31 SEATTLE U. L. REV. 385 (2007).