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Grady v. Cedar Side Inn Inc.6/24/1998
ntend 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 plaintiff's 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 injury 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 ca
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