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Grady v. Cedar Side Inn Inc.6/24/1998
C9508-47CV
In Banc
Appeal from Circuit Court, Washington County.
Jon B. Lund, Judge.
Argued and submitted November 5, 1997; resubmitted in banc May 6, 1998.
LANDAU, J.
Reversed and remanded.
Deits, C.J., Dissenting.
Edmonds, J., Dissenting.
Plaintiff appeals a judgment entered after the trial court granted defendants' motions for summary judgment on plaintiff's 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 non-moving 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 plaintiff's 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 plaintiff's 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.
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.
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
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