Revised Code of Washington

Wash. Rev. Code § 5.40.060 (2026)

✓ current as of May 2026

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(1) Except as provided in subsection (2) of this section, it 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 standard for determining whether a person was under the influence of intoxicating liquor or drugs shall be the same standard established for criminal convictions under RCW 46.61.502, and evidence that a person was under the influence of intoxicating liquor or drugs under the standard established by RCW 46.61.502 shall be conclusive proof that such person was under the influence of intoxicating liquor or drugs.

(2) In an action for damages for personal injury or wrongful death that is brought against the driver of a motor vehicle who was under the influence of intoxicating liquor or any drug at the time of the occurrence causing the injury or death and whose condition was a proximate cause of the injury or death, subsection (1) of this section does not create a defense against the action notwithstanding that the person injured or killed was also under the influence so long as such person's condition was not a proximate cause of the occurrence causing the injury or death.

[ 1994 c 275 s 30; 1987 c 212 s 1001; 1986 c 305 s 902.]

Notes:

Retroactive application—1994 c 275 s 30: "Section 30 of this act is remedial in nature and shall apply retroactively." [ 1994 c 275 s 31.]

Short title—Effective date—1994 c 275: See notes following RCW 46.04.015.

Preamble—Report to legislature—Applicability—Severability—1986 c 305: See notes following RCW 4.16.160.

Notes of Decisions

Cited in 45 cases (10 in the last 5 years), 1988–2026 · leading case: Geschwind v. Flanagan, 854 P.2d 1061 (Wash. 1993).

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Geschwind v. Flanagan, 854 P.2d 1061 (Wash. 1993). · cites it 65× “Pursuant to RCW 5.40.060, which prohibits recovery by an intoxicated plaintiff if the intoxication was a proximate cause of the injuries and the plaintiff is more than 50 percent at fault, Geschwind was denied recovery, and the defendant was awarded judgment.”

Gerlach v. The Cove Apts., LLC, 471 P.3d 181 (Wash. 2020). · cites it 14× “At trial, Cove claimed the “complete defense to an action for damages for personal injury” available under RCW 5.40.060 when “the person injured . .”

Morgan v. Johnson, 976 P.2d 619 (Wash. 1999). · cites it 23× “We decide in this case if the intoxication defense established in RCW 5.40.060 applies to an intentional tort.”

Morgan v. Johnson, 976 P.2d 619 (Wash. 1999). · cites it 22× “We decide in this case if the intoxication defense established in RCW 5.40.060 applies to an intentional tort.”

Peralta v. State, 389 P.3d 596 (Wash. 2017). · cites it 6× “In its answer, WSP pleaded an affirmative defense under RCW 5.40.060 (the intoxication defense statute), which provides a complete defense to an action for damages for personal injury when (1) the person injured was “under the influence of intoxicating liquor” at the time of the…”

Hickly v. Bare, 145 P.3d 433 (Wash. Ct. App. 2006). · cites it 39× “¶2 Holding that RCW 5.40.060’s plaintiff’s intoxication defense does not apply in the absence of proof of Hickly’s intoxication and that, therefore, the jury was entitled to consider her contributory negligence, we affirm.”

Deborah Peralta v. State Of Washington, 366 P.3d 45 (Wash. Ct. App. 2015). · cites it 17× “After a jury trial, the trial court entered judgment against Peralta and dismissed her complaint and claim with prejudice pursuant to the *936 intoxication defense of RCW 5.40.060. Peralta appeals, arguing that the trial court erred when it (1) ruled that Peralta’s response to…”

Gerlach v. Cove Apts., LLC, 446 P.3d 624 (Wash. Ct. App. 2019). · cites it 11× “At trial, Cove sought to limit its liability by proving that Gerlach's intoxication was the proximate cause of her damages and that she was more than 50 percent at fault, in accordance with the affirmative defense of voluntary intoxication *628 under RCW 5.40.060(1). Because the…”

Est. of Kelly v. Falin, 896 P.2d 1245 (Wash. 1995). · cites it 8× “The Patrons also argue that a tort action is warranted under RCW 5.40.060, which provides, in part: [I]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…”

Sofie v. Fibreboard Corp., 780 P.2d 260 (Wash. 1989). · cites it 2× “410 (immunity from liability of dog handler using police dog in line of duty); RCW 5.40.060 (absolute defense to an action for personal injury or wrongful death when influence of liquor or drugs was a proximate cause of the injury or death); RCW 7.”

Hansen v. Friend, 824 P.2d 483 (Wash. 1992). · cites it 2× “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.”

Schooley v. Pinch's Deli Mkt., Inc., 134 Wash. 2d 468 (Wash. 1998). · cites it 2× “2d at 484 ; RCW 5.40.060. 5 *482 Finally, the doctrine of superseding cause serves as a significant limitation on a commercial vendor’s liability.”

Show all 45 citing cases →

— Wash. Rev. Code § 5.40.060(1) — 12 cases

Gerlach v. The Cove Apts., LLC, 471 P.3d 181 (Wash. 2020). “At trial, Cove claimed the “complete defense to an action for damages for personal injury” available under RCW 5.40.060 when “the person injured . .”

Gerlach v. Cove Apts., LLC, 446 P.3d 624 (Wash. Ct. App. 2019). “At trial, Cove sought to limit its liability by proving that Gerlach's intoxication was the proximate cause of her damages and that she was more than 50 percent at fault, in accordance with the affirmative defense of voluntary intoxication *628 under RCW 5.40.060(1). Because the…”

Peralta v. State, 389 P.3d 596 (Wash. 2017). “In its answer, WSP pleaded an affirmative defense under RCW 5.40.060 (the intoxication defense statute), which provides a complete defense to an action for damages for personal injury when (1) the person injured was “under the influence of intoxicating liquor” at the time of the…”

Est. of Kelly v. Falin, 896 P.2d 1245 (Wash. 1995). “The Patrons also argue that a tort action is warranted under RCW 5.40.060, which provides, in part: [I]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…”

Deborah Peralta v. State Of Washington, 366 P.3d 45 (Wash. Ct. App. 2015). “After a jury trial, the trial court entered judgment against Peralta and dismissed her complaint and claim with prejudice pursuant to the *936 intoxication defense of RCW 5.40.060. Peralta appeals, arguing that the trial court erred when it (1) ruled that Peralta’s response to…”

— Wash. Rev. Code § 5.40.060(2) — 6 cases

Hickly v. Bare, 145 P.3d 433 (Wash. Ct. App. 2006). “¶2 Holding that RCW 5.40.060’s plaintiff’s intoxication defense does not apply in the absence of proof of Hickly’s intoxication and that, therefore, the jury was entitled to consider her contributory negligence, we affirm.”

Lowman v. Wilbur, 309 P.3d 387 (Wash. 2013).

David Gray, Est. Of Julian David Gray-florance, Apps. v. City Of Seattle, Resp. (Wash. Ct. App. 2019).

Cooper v. Whatcom Cnty. (W.D. Wash. 2023).

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