330 P.3d 698
Or. Ct. App.2014Background
- Tyler Baker died in a shooting at Croslin's home during a game watch gathering after participants acted out self-defense scenarios with firearms they believed unloaded.
- Baker's widow filed a wrongful death action against Smith and Croslin, alleging negligent alcohol service, encouragement of gunplay, and loading hollow-point ammunition.
- The trial court granted Croslin summary judgment under ORS 471.565(2), finding insufficient evidence that Croslin served Smith while visibly intoxicated.
- The issue on appeal centered on whether Croslin ‘served or provided’ alcohol to a visibly intoxicated Smith and whether ORS 471.565 bars other negligence theories.
- The court discusses control over the alcohol supply as the key criterion for liability under ORS 471.565 and considers evidence about the final drink Smith consumed.
- The opinion clarifies Hawkins v. Conklin and indicates remand is necessary to address whether ORS 471.565 applies to gunplay-related claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Croslin served alcohol to Smith while visibly intoxicated. | Baker contends Croslin had control over the alcohol supply and served Smith while intoxicated. | Croslin argues no evidence shows he served Smith while visibly intoxicated. | Genuine issue exists; trial court erred in granting summary judgment. |
| Whether ORS 471.565 bars the gunplay-related negligence claims. | Even if over-service is proven, Hawkins does not bar other negligence theories. | Hawkins bars all negligence claims except over-serving alcohol. | HawKins does not foreclose other negligence theories; remand warranted. |
| Whether evidence shows defendant had control over the alcohol supply to consider 'served or provided'. | Defendant controlled the final drink source (bar or Cockspur rum) and thus served alcohol. | Control over alcohol supply is not proven; reimbursement could negate control. | Record could support inference of control; not enough to grant summary judgment. |
Key Cases Cited
- Solberg v. Johnson, 306 Or 484 (Or. 1988) (control over alcohol supply determines liability)
- Wiener v. Gamma Phi, ATO Frat., 258 Or 632 (Or. 1971) (availability/control of alcohol to guests relevant to liability)
- Hawkins v. Conklin, 307 Or 262 (Or. 1988) (over-service prerequisite; does not bar other negligence claims absent over-service)
- Jones v. General Motors Corp., 325 Or 404 (Or. 1997) (summary judgment standard—genuine issue of material fact)