376 P.3d 267
Or.2016Background
- Host (Croslin) held a party at his home where guests supplied and consumed alcohol; two guests (Baker and Smith) brought guns and later engaged in horseplay, during which Smith fatally shot Baker.
- Defendant had various alcohol at his house (vodka in freezer; rum under bar; purchased Cockspur rum that Baker reimbursed) but did not personally pour drinks; guests helped themselves.
- Plaintiff (personal representative of Baker) sued Croslin alleging he was negligent by (1) serving/providing alcohol while Smith was visibly intoxicated, (2) encouraging gunplay, and (3) giving hollow-point bullets while Smith was intoxicated; plaintiff settled with Smith.
- Croslin moved for summary judgment invoking ORS 471.565(2) safe harbor: no liability unless plaintiff proves by clear and convincing evidence the host “served or provided” alcohol to a guest “while” the guest was “visibly intoxicated.” Trial court granted summary judgment; Court of Appeals reversed.
- On review, Oregon Supreme Court affirmed Court of Appeals: whether a host “served or provided” alcohol can turn on the host’s control over the alcohol supply, and whether a guest was visibly intoxicated is judged by whether intoxication was observable to the host.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of “served or provided” under ORS 471.565(2) | “Provided” includes making alcohol available (host purchased/placed liquor at house) so host can be liable even if not pouring | Must mean direct, personal service; absent pouring to guest, host did not “serve or provide” | “Served” suggests direct service; “provided” broadly includes supplying or making alcohol available — control over supply can satisfy the term |
| Temporal phrase “while the guest was visibly intoxicated” — who must perceive intoxication? | Host is liable if guest was visibly intoxicated at the time of additional service; plaintiff’s expert says Smith was visibly intoxicated at final drink | No evidence Smith was visibly intoxicated when he consumed alcohol provided by defendant | “While” means during same time; visible intoxication is to the social host (objective observable standard), not a subjective belief requirement |
| Whether evidence created triable issue on control and visible intoxication | Evidence that defendant hosted, had hard liquor available, did not stop Smith, and expert testimony on intoxication creates factual disputes about control and timing | Final shot may have been Cockspur rum owned by Baker, so defendant did not provide that last drink as a matter of law | Court: genuine issues of material fact exist about (a) whether defendant controlled the alcohol supply (thus “provided”), and (b) whether Smith was visibly intoxicated at the time of a final drink he failed to prevent |
| Scope of ORS 471.565(2) re: other negligence claims (encouraging gunplay; supplying ammunition) | Even if safe harbor applies to service claims, other negligence/premises liability claims may survive | If safe harbor protects defendant from alcohol-related liability, related negligence claims predicated on intoxication are barred | Court remanded; because summary judgment on statute was improper, remaining negligence/premises claims were not resolved and should be addressed on remand |
Key Cases Cited
- Wiener v. Gamma Phi, ATO Frat., 258 Or. 632, 485 P.2d 18 (Or. 1971) (host liability may arise where host knows guest is intoxicated and controls access to alcohol)
- Solberg v. Johnson, 306 Or. 484, 760 P.2d 867 (Or. 1988) (whether person is a social host and whether they served/provided turns on control over who is served and access to drinks)
- State v. Dickerson, 356 Or. 822, 345 P.3d 447 (Or. 2015) (use plain-meaning/dictionary approach when statute does not define terms)
- Deckard v. Bunch, 358 Or. 754 (Or. 2016) (discusses limits on recognizing statutory tort elements distinct from common-law negligence)