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Grady v. Cedar Side Inn Inc.6/24/1998
ree, in general terms, that the distinction drawn in both the Supreme Court's decisions and ours is between persons injured as a result of their own alcohol involvement or intoxication, and "third parties" who are injured as a consequence of the alcohol use or intoxication of others. Our disagreement is over how sharp a line has been drawn between the two and where the line is located.
The majority concludes, after discussing Miller v. City of Portland, 288 Or 271, 604 P2d 1261 (1980), and Smith:
"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. * * * In contrast, 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." ___ Or App at ___ (slip opinion at 7-8).
I read Miller differently from the way that the majority does. There were two kinds of claims and, correspondingly, two different issues in that case: First, whether Miller could proceed against the providers on the basis of their sales to Miller herself, and second, whether she had a right of action against them arising out of their sales of alcohol to Kolibaba, who was the driver of the motorcycle on which Miller was later injured. It was in connection with Miller's claims for the direct sales to her that the court concluded that her own complicity in the illegal purchases, inter alia, barred her from proceeding. However, the court held that, at least at the pleading stage, Miller's claims against the providers based on their service and sales to Kolibaba were viable. In so holding with respect to the latter claims, the court noted but left open the question that this case presents. It said:
"Defendants contend that plaintiff should not be allowed to recover because she participated with Kolibaba in his drinking and inebriation, and she is therefore not in the position of an innocent third party. The court is not in a position to address this question because the issue is not raised by the pleadings. The complaint alleges only that they were both patrons of the tavern and that after both had been drinking beer, Kolibaba gave Miller a ride on his motorcycle. There are no allegations from which it must necessarily be concluded that they were partying together." Miller, 288 Or at 275-76.
I do not agree with the majority that the situation here "closely parallels the allegations of the plaintiff in Miller, which the court held stated a claim for relief." Rather, in my view, this case presents the question that the court expressly left open in Miller: Whether a plaintiff who has "partied with" and become intoxicated in the company of another person stands in "the position of an innocent third party" who may bring an action against the alcohol provider for
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