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Grady v. Cedar Side Inn Inc.6/24/1998
to limit common law liability to those circumstances only or whether plaintiff alleges a claim permitted by the statute. The statute contemplates three classes of parties: (1) alcohol providers, including social hosts, as torfeasors; (2) visibly intoxicated patrons who act negligently off the premises of the alcohol provider; and (3) injured third parties. It is clear under Sager that an "injured patron" cannot also be an "injured third party." It is also clear from Solberg that a person who purchases alcohol for a visibly intoxicated person at a tavern is a social host and an alcohol provider under the statute. In light of those holdings, it necessarily follows that a "third party" within the scheme of a statute that limits rather than creates or expands liability must be one who is not an intoxicated patron or an alcohol provider. Here, it is uncontroverted that plaintiff purchased all of Elliott's alcoholic beverage. As a social host, plaintiff cannot be a "third party" under the statute because he was an alcohol provider and a co-tortfeasor.
The majority opinion is devoid of any declaration about legislative intent in support of its position. It declares:
"In this case, plaintiff's 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." ___Or App at ___ (slip opinion at 7).
The majority's assertion do not coincide with the legislature's intent. The issue is one of statutory interpretation. Our obligation is to ascertain the legislature's intention and to apply it to the facts of this case. We exceed our authority if we impose our own policy decisions about what we think the law should be. As the procurer and provider of alcoholic beverages for consumption by Elliott, a visibly intoxicated person, plaintiff is the kind of defendant that the legislature had in mind when they enacted the statute. The fortuity that plaintiff was a passenger rather than a driver when he was injured does not relieve him of being a provider under the statute.
The majority reasons that the facts of this case simply present another species of comparative negligence for a jury to decide. However, the majority's holding is the antithesis of the very purpose that the legislature had in mind when it enacted ORS 30.950. The majority expands ORS 30.950 to permit a tortfeasor to become a "third party" rather than limiting the liability of alcohol providers to injured third parties. Moreover, had the legislature intended for the doctrine of comparative negligence to apply to tortfeasors to permit recovery by them, it would have not have promulgated ORS 30.950 at all or at least qualified its limitation in some manner. After all, ORS 30.950 was enacted to restrict common law actions against alcohol providers after the enactment of the comparative negligence statute, ORS 18.470, in 1971, and presumably, the legislature was well aware of the provisions of ORS 18.470 when it enacted ORS 30.950.
Because the majority's reasoning fails to engage with the intent of the legislature and frustrates the purpose of the statute, I Dissent.
Linder, J., joins in this Dissent.
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