Grady v. Cedar Side Inn, Inc. , 154 Or. App. 622 ( 1997 )

LANDAU, J.

Plaintiff appeals a judgment entered after the trial court granted defendants’ motions for summary judgment on plaintiffs claim for damages. We review to determine whether there is a genuine issue of material fact and whether, viewing the evidence and all reasonable inferences in the light most favorable to plaintiff, the nonmoving party, defendants are entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997). We reverse.

Viewed in the light most favorable to plaintiff, the facts are as follows: On August 29,1993, at about 11:00 a.m., Josh Elliott went to plaintiffs house in Vernonia. He had approximately six dollars in his pocket. Plaintiff, age 30, and Elliott, age 21, each drank two or three beers from a 12-pack provided by plaintiff while they discussed their plans for the rest of the day. They left plaintiffs house in Elliott’s pickup truck, carrying the remaining beers from the 12-pack. Plaintiff had $100 with him when they left.

That afternoon, plaintiff and Elliott drank approximately a case of beer with Angie Peterson and Rochelle Ray on a logging road outside of Vernonia. Both men felt intoxicated by that point, and neither remembers clearly the events that followed.

Sometime later, plaintiff and Elliott went to a billiard hall in Banks, where they drank a pitcher of beer and played pool. Afterwards, Elliott borrowed his father’s car for the evening. Around 4 p.m., plaintiff and Elliott drove the borrowed car to the Crabtree Bar in Vernonia. Crabtree bartender Debbie Makepeace refused to serve them alcohol because they were visibly intoxicated. Instead, she served them food without charge. Plaintiff and Elliott then left the Crabtree Bar and walked across the street to defendant Cedar Side Inn. Plaintiff recalls drinking four single shots of whiskey at the Cedar Side Inn, and there is testimony in the record that Elliott also was served alcohol at the Cedar Side Inn.¹

Plaintiff and Elliott eventually left the Cedar Side Inn in Elliott’s father’s car and drove to defendant Mini-Mart of Vernonia. Although neither plaintiff nor Elliott recalls going to the Mini-Mart, several witnesses saw them there, and two witnesses saw them leave the Mini-Mart with a 12-pack of beer.²

Elliott drove away from the Mini-Mart in his father’s car, with plaintiff as a passenger. The car veered off Highway 47 about ten minutes later, at 9:30 p.m., struck a power pole and flipped over. Plaintiff and Elliott were injured seriously. The police officers who investigated the crash scene saw a 12-pack of beer lying a few feet from the car. Only one bottle of beer was left in the carton, and it was cool to the touch. Although he has no independent memory of who purchased the alcoholic drinks that day, plaintiff testified that he was “the one that had the money, so if the beer would have got purchased, it would have been from me.” Plaintiff also responded affirmatively to the question whether he was paying for everything during his time with Elliott on August 29. Plaintiff testified that he did so because “I was just making a kind gesture. * * * Just trying to entertain him.” When Elliott left the hospital after the accident, he had six dollars, the same amount he had on August 29.

Plaintiff filed a complaint against defendants Garold L. and Shirley E. Settje, doing business as Mini-Mart of Vernonia, and defendant Cedar Side Inn, Inc., alleging a claim for damages pursuant to ORS 30.950 (1993)³ and common-law negligence. The complaint alleges that defendants served alcohol to Elliott while Elliott was visibly intoxicated and that they therefore are liable for the damages plaintiff suffered in the car accident, because plaintiffs injuries were the foreseeable result of defendants serving or selling alcohol to Elliott when he was visibly intoxicated. Defendants moved for summary judgment on each of plaintiffs claims, arguing that, because plaintiff participated with Elliott in becoming intoxicated, he could not recover as a matter of law. The trial court granted the motions on that ground.

On appeal, plaintiff contends that the trial court erred in granting defendants’ motions for summary judgment. According to plaintiff, there is no authority for the proposition that an injured person may not recover for his or her injuries merely because he or she was intoxicated at the time. Defendants contend that the issue is squarely controlled by Smith v. Harms, 125 Or App 494, 865 P2d 486 (1993), rev dismissed as improvidently allowed 320 Or 268 (1994).

We recently examined the law concerning recovery for injuries to an intoxicated person in Fulmer v. Timber Inn Restaurant and Lounge, Inc., 152 Or App 334, 954 P2d 201 (1998). In that case, the plaintiff complained that he suffered injuries as a direct result of the defendant restaurant’s decision to continue serving him alcoholic beverages when he was visibly intoxicated. We held that the plaintiff could not recover. In so holding, we explained that, although there once existed a common-law right to recover against persons who furnish alcohol for injuries that result, in 1979 the legislature enacted ORS 30.950, which the courts consistently have construed “ ‘to confine the judicially created liability of alcohol servers to third parties.’ ”Fulmer, 152 Or App at 342 (quoting Plattner v. VIP’s Industries, Inc., 95 Or App 351, 354, 768 P2d 440, rev den 308 Or 79 (1989) (emphasis in original)). Because the plaintiff was not a third party — that is, one who was injured as a result of the restaurant serving another person who was visibly intoxicated — he could not recover. Id.

Whether an intoxicated person who is injured as a result of the actions of another intoxicated person is barred from recovering against the alcohol provider has never been determined by the courts of this state. Two decisions, however, involve facts sufficiently close to that precise question to be instructive.

The first is Miller v. City of Portland, 288 Or 271, 604 P2d 1261 (1980). Although decided on the basis of the law as it existed before the legislature enacted ORS 30.950, the case nevertheless bears close examination. The plaintiff was injured while riding on a motorcycle that was operated by Kolibaba. Defendants had served alcohol to both the plaintiff and Kolibaba, who were minors and intoxicated at the time. The plaintiff sued the defendants for negligently serving her and Kolibaba. The trial court struck the negligence claims. The Supreme Court held that the plaintiff had stated a claim against the defendants for injuries arising out of their provision of alcohol to Kolibaba. Id. at 274-75. The defendants insisted that the plaintiff should not be allowed to recover, because she had participated in the drinking and was not an “innocent party,” but the court declined to address that question in light of the fact that the complaint had not alleged that the plaintiff and Kolibaba “were partying together.” Id. at 276.

The court held, however, that the plaintiff had failed to state a claim against the defendants based on her own purchase of alcohol from defendants. Id. at 279. In that regard, the court explained that ORS 471.130(1) expressly prohibited minors from purchasing alcoholic beverages and that, because of that legislation, it would be “inappropriate to create a common law cause of action for physical injuries to minors caused by their illegal purchase of alcoholic liquor.” Id. at 279.

The second pertinent decision is Smith. In that case, the plaintiff was one of two minors who had purchased alcohol unlawfully. He shared the alcohol with his friends, became intoxicated and was injured in an automobile accident as a result. He sued the store that sold him the alcohol, but the trial court entered summary judgment dismissing the claims. We affirmed. After examining the Supreme Court’s decision in some detail, we explained our holding as follows:

“The Supreme Court’s holding in Miller denies a cause of action to one who illegally purchases alcohol and sustains injuries because of that purchase. That rule applies to plaintiff here.”

Smith, 125 Or App at 499. In dictum, we noted that the plaintiff asked us to adopt a rule that his complicity in purchasing the alcohol was simply a matter for the jury to consider in its assessment of comparative fault. We declined, commenting that the plaintiff — who had purchased alcohol and was injured as a result — was not an “innocent party” and was not therefore entitled to recover for his injuries as a matter of law. Id.

In short, in Miller, the Supreme Court held that an action may be maintained against a provider of alcohol by an intoxicated person so long as he or she claims damages for injuries resulting from the provision of alcohol to another person. Even though the court did not rely on the legislature’s then-recent enactment of ORS 30.950, its decision is perfectly consistent with that statute and cases such as Fulmer that since have construed and applied it. In Smith, we held that an action may not be maintained against a provider of alcohol by an intoxicated person if he or she claims damages for injuries resulting from his or her own purchase of alcohol.

In this case, plaintiffs theory of the case is that defendants are liable because they served Elliott alcohol when he was visibly intoxicated, and plaintiff was injured as a result. Thus framed, plaintiff clearly is a third party who is entitled to maintain his action against defendants for their negligence in serving a visibly intoxicated patron other than plaintiff himself. In fact, plaintiffs claim in this case closely parallels the allegations of the plaintiff in Miller, which the court held stated a claim for relief. In contrast, it is plainly distinguishable from the facts of Smith, in which the plaintiff alleged a right to recover based on his own purchase of alcoholic beverages from the defendant.

Defendants and Judge Deits insist that our reference to the fact that the plaintiff in Smith was not an “innocent” third party requires us to arrive at the same result that we reached in that case. However, they read too much into the use of a single word that appears in dictum in one of our opinions, which, in turn, relied on dictum in a Supreme Court opinion that was decided before the controlling statutes were enacted. Moreover, our reference to the plaintiff in Smith as “other than an innocent party” was explicitly couched in the context of a statute that makes it illegal for minors to purchase alcoholic beverages. In this case, although plaintiff was intoxicated at the time of the accident, he was not a minor and violated no law in becoming intoxicated.

Defendants and Judge Deits contend that, even if Smith cannot fairly be read as broadly as they suggest, it nevertheless should be read that broadly as a matter of “logical extension” or good policy. They argue that, because plaintiff and Elliott “partied together,” plaintiff should be barred from recovering against them as a matter of law. Precisely why lawfully “partying together” should preclude recovery for injuries suffered as a result of another person’s intoxication, however, defendants and Judge Deits do not make clear. They repeatedly assert that, “partying together” amounts to “participation in” the other person’s intoxication, but they never explain what “participation in” the other person’s intoxication means. The argument, in other words, reduces to a mere tautology.

Moreover, in addressing defendants’ and Judge Deits’s proposed rule of law, we do not write on a clean slate. As we have noted, since Miller the legislature enacted ORS 30.950, which acted to circumscribe the judicially created rule of liability of alcohol servers. That statute has been construed to limit liability of alcohol servers to third persons. Nothing in the statute, its history or the cases construing it suggests that the legislature intended ORS 30.950 to limit liability even further than that, to include only servers to “innocent” third persons. We conclude that plaintiff is not precluded from maintaining his claim against defendants as a matter of law.

Defendants respond that, even if Smith does not bar plaintiffs claim, plaintiff is nonetheless barred from recovery, because the facts demonstrate that plaintiff is a social host under ORS 30.950 and that he was “in violation” of that statute. It is uncontradicted that plaintiff paid for all of the alcohol consumed by Elliott on August 29. A social host is “one who receives guests, whether friends or associates, in a social or commercial setting, in which the host serves or directs the serving of alcohol to guests.” Solberg v. Johnson, 306 Or 484, 490, 760 P2d 867 (1988). The Supreme Court has held that a person can even “ante up per drink at a tavern and still be a [social] host.” Id. We have no difficulty holding that plaintiff is a social host under ORS 30.950. However, that holding does not compel the conclusion that plaintiff is barred as a matter of law from maintaining this action.

As noted above, ORS 30.950 is neither a penal nor a prohibitive law. Cf. Miller, 288 Or at 279 (inconsistent with apparent legislative policy to reward the violator with a cause of action based on conduct that the legislature has chosen to prohibit or penalize). ORS 30.950 codified the Supreme Court’s holding in Campbell v. Carpenter, 279 Or 237, 566 P2d 893 (1979), which was the first case in Oregon to recognize that a third party may pursue a cause of action against a tavern owner for serving alcohol to a visibly intoxicated person who thereafter is involved in a traffic accident that results in injuiy or death to a third party. ORS 30.950 limits liability; it does not create liability. Sager v. McClenden, 296 Or 33, 39, 672 P2d 697 (1983). The statute is designed to protect a licensee, permittee or social host from liability for damages incurred or caused by an intoxicated patron off the premises of the licensee, permittee or social host unless the licensee, permittee or social host served the patron while the patron was visibly intoxicated. The statute delineates the type of conduct — serving alcohol to visibly intoxicated patrons or guests — that will expose licensees, permittees and social hosts to liability. A “violation” of ORS 30.950 does not subject licensees, permittees or social hosts to criminal or regulatory sanctions. Rather, it subjects them to liability for damages incurred or caused by the intoxicated patron or guest whom they served. Consequently, plaintiff is not barred as a matter of law from pursuing his claims for relief against defendants on the ground that he violated ORS 30.950 as a social host by providing alcohol to the visibly intoxicated Elliott. The trier of fact must assess the relative fault of the parties in causing plaintiffs damages.

Judge Edmonds echoes defendants’ reliance on plaintiffs status as a social host, but finds different significance in it. According to Judge Edmonds, it is not the fact that plaintiff, as a social host, violated ORS 30.950 that precludes him from recovering in this case. It is the fact that plaintiff was a social host that itself precludes such recovery. Judge Edmonds reasons that ORS 30.950 was intended to limit recovery to injured third parties, and “[a]s a social host, plaintiff cannot be a ‘third party⁵ under the statute because he was an alcohol provider and a co-tortfeasor.” 154 Or App at 641. Judge Edmonds cites no authority for that proposition. He simply declares that our decision to the contrary “is the antithesis of the very purpose that the legislature had in mind when it enacted ORS 30.950.” Id.

The purpose of the statute, as the Supreme Court and we have stated many times, was to limit the liability of social hosts and other servers of alcohol, see Fulmer, 152 Or App at 339-43 (citing cases), not to limit the extent to which a server can bring claims for negligence. It is thus Judge Edmonds’s dissent that would turn the statute on its proverbial head.

Moreover, Judge Edmonds’s dissent rests on a false premise that a single individual cannot be both a plaintiff and a defendant — or more precisely in this context, a server and a third party — in the same case. Such an occurrence is routine in multi-party litigation: A single individual may be a plaintiff as to some parties and a defendant as to others within the same case. ORCP 22 C. Similarly, in an alcohol liability case, merely because plaintiff could have been sued by Elliott does not mean that plaintiff cannot sue defendants.⁴ As to Elliott, plaintiff may be a social host. As to defendants, however, plaintiff is a party injured as a result of defendants’ conduct in serving Elliott while visibly intoxicated. As we have stated, that is precisely the sort of action permitted under ORS 30.950.

In plaintiff’s third assignment of error, he contends that the trial court erred in holding that, as a matter of law, the evidence in the record is sufficient to establish that neither of the defendants provided alcoholic beverages to Elliott while Elliott was visibly intoxicated. Defendants respond that the trial court ruled only that the case was controlled by Smith and that the trial court did not rule on the questions of whether defendants served Elliott while he was visibly intoxicated or whether any alcohol obtained by Elliott at either establishment caused plaintiffs injuries. Nonetheless, defendant Cedar Side Inn defends the trial court’s grant of summary judgment on the ground that there is no evidence that it provided Elliott with alcohol while he was visibly intoxicated. Defendant Mini-Mart also defends the trial court’s grant of summary judgment on the ground that plaintiff has not established that alcohol purchased at the Mini-Mart was causally related to the accident. If defendants were correct that the record is devoid of such evidence, we would affirm the trial court’s grant of summary judgment. However, we agree with plaintiff that, based on the record before us, there are genuine issues of material fact that preclude summary judgment.

As explained at the outset, plaintiff and Elliott spent the day of August 29 drinking together. Both Angie Peterson and Rochelle Ray, the women with whom plaintiff and Elliott drank approximately a case of beer, stated that plaintiff and Elliott appeared intoxicated before they entered the Cedar Side Inn. Crabtree bartender Debbie Makepeace, who observed both men before they entered the Cedar Side Inn, attested in her affidavit to her recollection that they were visibly intoxicated when they left the Crabtree Bar to walk across the street to the Cedar Side Inn. Plaintiff recalls drinking four shots of whiskey at the Cedar Side Inn, and Elliott’s father, who had gone into the bar looking for his son, testified that he saw Elliott drinking alcohol there. That evidence creates a genuine issue of material fact about whether defendant Cedar Side Inn provided alcoholic beverages to Elliott while he was visibly intoxicated.

Similarly, there is evidence in the record that raises genuine issues of fact about whether Elliott was sold beer at the Mini-Mart of Vernonia while visibly intoxicated and about causation. Although the store clerks testified that they did not sell alcohol to either plaintiff or Elliott, witnesses saw the men leave the Mini-Mart with a 12-pack of beer. The police officers who investigated the crash scene saw a 12-pack of beer lying a few feet from the car, with only one bottle of beer left in the carton. That bottle was cool to the touch. It is for the trier of fact to resolve the conflicts in the evidence about whether Elliott was provided alcohol at the Cedar Side Inn or at the Mini-Mart while visibly intoxicated. See Hamilton Properties, Inc. v. Associated Grocers, 144 Or App 171, 178, 925 P2d 1237 (1996) (conflicting factual evidence precludes summary judgment). Plaintiff, the nonmoving party, is not required to prove the elements of his claim at the summary judgment stage; he is required only to raise a genuine issue as to any material fact. ORCP 47 C; Jones, 325 Or at 419. On this record, we conclude that plaintiff has raised genuine issues of material fact.

For the foregoing reasons, we conclude that the trial court erred in granting defendant’s motion for summary judgment.

Reversed and remanded.

1 One of the witnesses who saw plaintiff and Elliott drinking alcohol at the bar was Elliott’s father, who had gone in to look for his son when he saw his car parked nearby.

2 The store clerks testified that they did not sell alcohol to plaintiff or Elliott. They claim that they sold them an “industrial-sized” can of nacho cheese. However, the officers at the crash scene did not report seeing a can of nacho cheese.

3 ORS 30.950 (1993) provided:

“No licensee, permittee or social host is liable for damages incurred or caused by intoxicated patrons or guests off the licensee, permittee or social host’s premises unless:

“(1) The licensee, permittee or social host has served or provided the patron alcoholic beverages to the patron or guest while the patron or guest was visibly intoxicated; and

“(2) The plaintiff proves by clear and convincing evidence that the patron or guest was served alcoholic beverages while visibly intoxicated.”

ORS 30.950 was amended by the Oregon Legislature in 1997. Or Laws 1997, ch 841, § 1. The amendments apply only to claims arising after its effective date and, thus, do not apply to this case. Or Laws 1997, ch 841, §§ 2, 9.

4 In Solberg, for example, the Supreme Court held that the defendant, a tavern that had been sued for serving a visibly intoxicated patron, could cross-claim against the “social host” who bought the drinks. 306 Or at 490. Thus, in that case, the server was both defendant and plaintiff in the same case.

5 “Oregon has never recognized a common law action against an alcohol provider in favor of a person who suffers injury from his or her own intoxication.” Plattner v. VIP’s Industries, Inc., 95 Or App 351, 353, 768 P2d 440, rev den 308 Or 79 (1989). In Plattner, we rejected the argument that the plaintiffs decedent, an intoxicated patron, was entitled to bring a wrongful death claim for common-law negligence against an alcohol provider in light of the current law of comparative negligence. We said, “[tlhe legislative history of ORS 30.950 indicates that its purpose is to confine the judicially created liability of alcohol servers to third parties.” 95 Or App at 354 (emphasis in original).