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Grady v. Cedar Side Inn Inc.6/24/1998
t the day of August 29 drinking together. Both Angie Peterson and Rochelle Ray, the women with whom plaintiff and Elliott drank approximately a case of beer, stated that plaintiff and Elliott appeared intoxicated before they entered the Cedar Side Inn. Crabtree bartender Debbie Makepeace, who observed both men before they entered the Cedar Side Inn, attested in her affidavit to her recollection that they were visibly intoxicated when they left the Crabtree Bar to walk across the street to the Cedar Side Inn. Plaintiff recalls drinking four shots of whiskey at the Cedar Side Inn, and Elliott's father, who had gone into the bar looking for his son, testified that he saw Elliott drinking alcohol there. That evidence creates a genuine issue of material fact about whether defendant Cedar Side Inn provided alcoholic beverages to Elliott while he was visibly intoxicated.
Similarly, there is evidence in the record that raises genuine issues of fact about whether Elliott was sold beer at the Mini-Mart of Vernonia while visibly intoxicated and about causation. Although the store clerks testified that they did not sell alcohol to either plaintiff or Elliott, witnesses saw the men leave the Mini-Mart with a 12-pack of beer. The police officers who investigated the crash scene saw a 12-pack of beer lying a few feet from the car, with only one bottle of beer left in the carton. That bottle was cool to the touch. It is for the trier of fact to resolve the conflicts in the evidence about whether Elliott was provided alcohol at the Cedar Side Inn or at the Mini-Mart while visibly intoxicated. See Hamilton Properties, Inc. v. Associated Grocers, 144 Or App 171, 178, 925 P2d 1237 (1996) (conflicting factual evidence precludes summary judgment). Plaintiff, the nonmoving party, is not required to prove the elements of his claim at the summary judgment stage; he is required only to raise a genuine issue as to any material fact. ORCP 47 C; Jones, 325 Or at 419. On this record, we conclude that plaintiff has raised genuine issues of material fact.
For the foregoing reasons, we conclude that the trial court erred in granting defendant's motion for summary judgment.
Reversed and remanded.
DEITS, C. J., Dissenting.
In our recent decision in Fulmer v. Timber Inn Restaurant and Lounge, Inc., 152 Or App 334, 339-43, 954 P2d 201 (1998), we discussed the relevant case law and reiterated what it consistently holds--that a person can have no statutory or common law right of action against a provider of alcohol for injuries that result from the person's own alcohol consumption and intoxication. Rather, only an "innocent third party" who suffers resulting injuries, e.g., a pedestrian whom the intoxicated person runs over, is entitled to recover from the provider. Smith v. Harms, 125 Or App 494, 499, 865 P2d 486 (1993), rev dismissed 320 Or 268, 880 P2d 934 (1994). Defendants argue that plaintiff's claim is barred under those principles. I agree with them and, therefore, Dissent from the majority's contrary holding.
Summarily stated, plaintiff and Elliott participated in a joint drinking binge. Plaintiff provided or purchased all of the alcohol that they consumed. As a direct result, both were injured in an automobile accident. The majority holds that, because Elliott was the driver and plaintiff the passenger in the vehicle, plaintiff is a "third party" and his action is not barred under the principles described above. In my view, plaintiff comes squarely within those principles, and the fortuity of which of the two participants in the drinking spree was the driver and which was the passenger does not remove plaintiff from their application.
The majority and I ag
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