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Grady v. Cedar Side Inn Inc.6/24/1998
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) 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 plaintiff's 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 plaintiff's claims, arguing that, because plaintiff participated with Elliot 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, ___ P2d ___ (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 the 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
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