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Williams v. Kingston Inn Inc.6/27/1990
The experts based their opinions on Burkhart having consumed alcohol only between 2 and 6 p.m. However, appellants contend that Burkhart continued drinking after dinner ended at 6:30 p.m. Burkhart may have drunk more alcohol after stopping at a store to buy beer . . . Even granting appellants every favorable inference . . ., the experts based their opinions on an inaccurate set of assumptions regarding when at the party Burkhart had consumed alcohol; the opinions must be considered speculative and irrelevant, and therefore inadmissible. See, e.g., Myers v. Harter, 76 Wash. 2d 772, 781-82, 459 P.2d 25 (1969).
Similarly, expert Davis' opinion that the bartender should have known that Mrs. Williams was intoxicated is based upon an assumption that she did all of her drinking at the Kingston Inn. The evidence does not support such an assumption.
Nevertheless, Mr. Williams contends that summary judgment is inappropriate because controlling facts in this case are particularly within the knowledge of the Kingston Inn. The cases relied upon by Mr. Williams involved situations in which the party moving for summary judgment had the only firsthand knowledge of the events in question. Felsman v. Kessler, 2 Wash. App. 493, 496-97, 468 P.2d 691 (landowner denied conspiracy to shoot and kill trespasser), review denied, 78 Wash. 2d 994 (1970); Michigan Nat'l Bank v. Olson, 44 Wash. App. 898, 905, 723 P.2d 438 (affidavits contained self-serving statements concerning plaintiff's conversations with defendant's deceased husband), review denied, 106 Wash. 2d 1011 (1986). In those circumstances, the courts held that the nonmoving party should have the opportunity to disprove such facts by cross examination
and by viewing the demeanor of the moving party while testifying. In contrast, the Kingston Inn and its employees were not the only ones to provide information as to events the evening in question. The McDougalls, Ms. Eronson, and Ms. Tooze all provided information. Mr. Moran also testified. Although he admitted being a regular at the Kingston Inn and knowing the owners, these admissions are not such that the court must discount his testimony.
Mr. Williams also argues that the Kingston Inn failed to secure an affidavit from the waitress who was on duty that evening or comply with his request for discovery of the names of employees who were working. He maintains these failures raise an inference the Kingston Inn was withholding testimony which would have been adverse to its position.
5 K. Tegland, Wash. Prac., Evidence § 85, at 247 (3d ed. 1989) (quoting State v. Baker, 56 Wash. 2d 846, 859, 355 P.2d 806 (1960)) states:
"The inference that witnesses available to a party would have testified adversely to such party arises only where, under all circumstances of the case, such unexplained failure to call witnesses creates a suspicion that there has been a willful attempt to withhold competent testimony."
(Italics ours.) See also Wright v. Safeway Stores, Inc., 7 Wash. 2d 341, 352, 109 P.2d 542, 135 A.L.R. 1367 (1941).
Here, the Kingston Inn maintains it has no record of the employees who worked that evening. Moreover, the fact that Mr. Moran's disinterested testimony confirms the bartender's version of events makes it even less likely that the Kingston Inn is willfully attempting to withhold competent testimony. In these circumstances, the fact the Kingston Inn did not produce the wa
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