Arguing the Relevance of the BAC of a Plaintiff Who Admits Intoxication

Author: Mark Bolin

April 1, 2019 1:23pm

Gerlach v. The Cove Apartments, LLC, et al., Wa. Sup. Ct., No. 77179-5-1 (pub. Mar. 18, 2019)

The Washington Supreme Court recently reversed a judgment in favor of a plaintiff who had succeeded in excluding evidence her blood alcohol content (BAC) was .238 when she fell off the balcony of her friend’s apartment. The trial court had held the evidence was more prejudicial than probative despite the apartment complex’s reliance on a voluntary intoxication affirmative defense because plaintiff admitted being intoxicated on the night in question. However, the Washington Supreme Court held the trial court erred because while plaintiff’s BAC was not relevant to show she was intoxicated, it was relevant to show the effect her intoxication had on her actions.


Plaintiff and Appellee Kimberly J. Gerlach (“Gerlach”), her boyfriend Nathan Miller, and Colin and Brodie Liddell went to a birthday party and then a bar within walking distance of Miller’s apartment. Miller lived in a second story unit at the Cove Apartments, owned by the Cove Apartments, LLC (“the Cove”). After leaving the bar Miller and Colin stopped by a convenience store to buy beer while Brodie and Gerlach returned to Miller’s apartment. Brodie stopped to smoke a cigarette outside of the building. While he was smoking he heard a snap and turned around to see Gerlach in mid air just before she landed head-first on a concrete step on the ground floor. A rotting railing from Miller’s balcony also fell near Gerlach. Gerlach suffered a life threatening injury as a result of the fall.

Gerlach sued the Cove alleging breach of contract, violations of the Residential-Landlord Tenant Act of 1973 (RLTA), and negligence. There were no witnesses to Gerlach’s fall and she did not remember that night herself. However, Gerlach alleged she fell from the balcony when she leaned on the railing and it gave way. The Cover, on the other hand, argued Gerlach fell while trying to climb to the balcony because she did not have a key to get inside. This theory supported the Cove’s affirmative defense Gerlach was intoxicated at the time of the accident and intoxication caused her injuries.

In support thereof, the Cove attempted to introduce evidence Gerlach’s BAC was .238 at the time of her fall along with expert testimony on how such a BAC would affect a person’s judgment, psychomotor functions, and cognitive abilities. Gerlach’s BAC was determined from a blood test taken less than an hour after her injury. The trial court excluded this evidence in light of the fact Gerlach had admitted being intoxicated, finding the evidence and testimony would be more prejudicial than probative. The jury found the Cove negligent, Gerlach contributorily negligent and seven percent at fault, and the verdict was $3,799,793.78.


On appeal the Court first noted it reviews the evidentiary rulings of lower courts for abuse of discretion. All relevant evidence is admissible, however under the Washington Rules of Evidence (ER) Rule 403, a trial court can exclude relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice.”

The Cove was asserting Gerlach was voluntarily intoxicated and responsible for her injuries. Under the Revised Code of Washington (RCW) 5.40.060(1), a voluntary intoxication defense requires:

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.

In granting Gerlach’s motion to exclude evidence of her BAC the trial court had found an admission of intoxication was sufficient to establish intoxication for the purposes of a voluntary intoxication defense. Accordingly, the trial court had found evidence of Gerlach’s BAC was irrelevant to the Cove’s voluntary intoxication affirmative defense.

However, the Supreme Court disagreed and found although evidence of Gerlach’s blood alcohol level was irrelevant to establish intoxication once she admitted she was intoxicated, evidence was still relevant to prove the extent to which her intoxication proximately caused her injuries. Furthermore, the trial court’s error in excluding the blood alcohol evidence affected the outcome of the trial. Because of the error, Cove did not have the opportunity to present evidence on a key factual issue: whether Gerlach was predominantly liable for her injuries due to her level of intoxication.

Accordingly, the Supreme Court reversed and instructed the trial court to admit evidence of Gerlach’s BAC on remand.


The Washington Supreme Court’s decision is a reminder plaintiff’s counsel will sometimes fight hard to exclude relevant, damaging evidence with carefully-crafted admissions. In arguing for the admission of such evidence it is important to be specific regarding what the evidence will be used to show. When the purpose behind evidence is framed properly counsel can avoid pitfalls and ensure such important evidence comes to light.

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