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Grady v. Cedar Side Inn Inc.6/24/1998
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, 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. In fact, plaintiff's 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 co
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