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Grady v. Cedar Side Inn Inc.6/24/1998
injuries sustained as a result of his or her drinking companion's intoxicated driving.
I also disagree with the majority that there is anything tautological about defendants' argument that the answer to that question should be no. ___ Or App at ___ (slip opinion at 8). The point of defendant's arguments, as I read them, is that a putative "third party" who "participates in" the drinking activities of the person whose intoxication later leads to the party's injury is not in a materially different position, vis-i-vis the provider of the alcohol, from one who is injured as a result of his own intoxication.
It is true that terms such as "party with" and "participated in" are fuzzy, in that they could refer to incidental forms of mutual imbibance, as well as extensive and extended shared consumption. I am not suggesting, however, that the same rule must apply under facts of the kind in this case and facts at the other end of the spectrum, e.g., where two people have one drink together, go their separate ways and one of them later becomes drunk and, by complete coincidence, is involved in an accident that injures the other. By contrast, there was nothing random or ambiguous about plaintiff's connection with Elliott's drinking here. They drank and drove together for a period of more than ten hours. The only difference between plaintiff--who the majority holds may bring this action, and Elliott--who clearly could not--is that one of the two incoherently drunk men made his way to the driver's side of the vehicle and the other found himself on the passenger's side.
The majority describes the question in this case as being " hether an intoxicated person who is injured as a result of the actions of another intoxicated person is barred from recovering against the alcohol provider[.]" ___ Or App at ___ (slip opinion at 5). However, I do not think that the question can correctly be parsed into those parts. The alcohol consumption and the resulting intoxication of both participants were the "actions" of both. The drinking binge that culminated in the accident was a joint activity. In sum, plaintiff's injury was as much the result of his own alcohol consumption as that of Elliott, for purposes of the principle barring actions against the purveyor that has been repeatedly stated in the case law and is embodied in ORS 30.950. Correspondingly, plaintiff is not a "third party" within the meaning of those cases. He is part of a first person plural.
For the foregoing reasons, I would affirm the trial court's judgment, and I respectfully Dissent.
Linder, J., joins in this Dissent.
EDMONDS, J., Dissenting.
I Dissent because I believe that the trial court was correct when it ruled that defendants were entitled to summary judgment. The issue is whether plaintiff is a party who can bring an action against Cedar when plaintiff concedes that he purchased the alcoholic beverages from defendants for Elliott when Elliott was visibly intoxicated. Under ORS 30.950, the liability of alcohol providers and servers is limited to "third parties," who have been injured as a result of the providing of alcoholic beverages to visibly intoxicated persons. Sager v. McClenden, 296 Or 33, 37, 672 P2d 697 (1983). The legislature did not intend that alcohol providers, i.e., tortfeasors, could be plaintiffs under the statute.
ORS 30.950 (1993) provides:
"No licensee, permittee or social host is liable for damages incurred or caused by intoxicated patrons or guests off the licensee, permittee or social host's premises unless:
"(1) The licensee, permittee or social host has served or provided the patron alcoholic beverages to the patr
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