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Grady v. Cedar Side Inn Inc.6/24/1998
used by the intoxicated patron or guest whom they served. Consequently, plaintiff is not barred as a matter of law from pursuing his claims for relief against defendants on the ground that he violated ORS 30.950 as a social host by providing alcohol to the visibly intoxicated Elliott. The trier of fact must assess the relative fault of the parties in causing plaintiff's damages.
Judge Edmonds echoes defendants' reliance on plaintiff's status as a social host, but finds different significance in it. According to Judge Edmonds, it is not the fact that plaintiff, as a social host, violated ORS 30.950 that precludes him from recovering in this case. It is the fact that plaintiff was a social host that itself precludes such recovery. Judge Edmonds reasons that ORS 30.950 was intended to limit recovery to injured third parties, and " s a social host, plaintiff cannot be a 'third party' under the statute because he was an alcohol provider and a co-tortfeasor." ___ Or App at ___ (dissenting slip opinion at 7). Judge Edmonds cites no authority for that proposition. He simply declares that our decision to the contrary "is the antithesis of the very purpose that the legislature had in mind when it enacted ORS 30.950." Id.
The purpose of the statute, as the Supreme Court and we have stated many times, was to limit the liability of social hosts and other servers of alcohol, see Fulmer, 152 Or App at 339-43 (citing cases), not to limit the extent to which a server can bring claims for negligence. It is thus Judge Edmonds's Dissent that would turn the statute on its proverbial head.
Moreover, Judge Edmonds's Dissent rests on a false premise that a single individual cannot be both a plaintiff and a defendant--or more precisely in this context, a server and a third party--in the same case. Such an occurrence is routine in multi-party litigation: A single individual may be a plaintiff as to some parties and a defendant as to others within the same case. ORCP 22 C. Similarly, in an alcohol liability case, merely because plaintiff could have been sued by Elliot does not mean that plaintiff cannot sue defendants. As to Elliot, plaintiff may be a social host. As to defendants, however, plaintiff is a party injured as a result of defendants' conduct in serving Elliott while visibly intoxicated. As we have stated, that is precisely the sort of action permitted under ORS 30.950.
In plaintiff's third assignment of error, he contends that the trial court erred in holding that, as a matter of law, the evidence in the record is sufficient to establish that neither of the defendants provided alcoholic beverages to Elliott while Elliott was visibly intoxicated. Defendants respond that the trial court ruled only that the case was controlled by Smith and that the trial court did not rule on the questions of whether defendants served Elliott while he was visibly intoxicated or whether any alcohol obtained by Elliott at either establishment caused plaintiff's injuries. Nonetheless, defendant Cedar Side Inn defends the trial court's grant of summary judgment on the ground that there is no evidence that it provided Elliott with alcohol while he was visibly intoxicated. Defendant Mini-Mart also defends the trial court's grant of summary judgment on the ground that plaintiff has not established that alcohol purchased at the Mini-Mart was causally related to the accident. If defendants were correct that the record is devoid of such evidence, we would affirm the trial court's grant of summary judgment. However, we agree with plaintiff that, based on the record before us, there are genuine issues of material fact that preclude summary judgment.
As explained at the outset, plaintiff and Elliott spen
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