427 P.3d 193
Or. Ct. App.2018Background
- Mitchell Johnson died as a passenger when his friend Byron Moore, who had been drinking all evening with Johnson, drove intoxicated and crashed shortly before 1:00 a.m.
- That evening they drank at multiple locations, including The Roundup Pub; Moore paid for drinks, they "bar hopped," returned to Moore's apartment, and then, at Johnson's urging, Moore drove them back to The Roundup where Moore became visibly intoxicated and later blacked out after a shot.
- Johnson's estate sued The Roundup Pub under ORS 471.565 for negligently serving a visibly intoxicated patron, alleging the licensee overserved Moore.
- Defendant moved for summary judgment arguing ORS 471.565(2)(b) bars recovery because plaintiff could not prove Johnson did not "substantially contribute" to Moore's intoxication (by providing, encouraging, or facilitating alcohol).
- The trial court granted summary judgment, finding uncontroverted evidence that Johnson accompanied, drank with, encouraged, and facilitated Moore's drinking and that plaintiff failed to produce evidence from which a juror could find Johnson did not substantially contribute.
- On appeal, the court applied this court's decision in Mason v. BCK Corp. and affirmed summary judgment because plaintiff failed to produce non-speculative evidence that Johnson did not substantially contribute to Moore's intoxication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| How should the statute's "clear and convincing" evidentiary standard affect summary judgment? | The heightened trial standard should affect summary judgment consideration. | The clear-and-convincing requirement does not alter the summary judgment "some evidence" standard. | Court follows Mason: summary judgment uses ordinary "some/any evidence" standard; plaintiff need only produce some evidence to create a factual dispute. |
| What does "substantially contribute" mean under ORS 471.565(2)(b)? | "Substantially contribute" should not necessarily encompass mere companionship; plaintiff emphasizes limited conduct by Johnson. | The term mirrors "substantial factor" and includes significant and material causes, including indirect encouragement and facilitation. | Court adopts Mason: "substantially contribute" = significant and material factor; "encouraging" can include drinking together/bar-hopping; "facilitating" means knowingly making consumption easier. |
| What showing must plaintiff make at summary judgment to avoid dismissal under ORS 471.565(2)(b)? | A juror could reasonably find Johnson did not substantially contribute; summary judgment inappropriate. | Plaintiff must produce evidence allowing a nonspeculative finding that he did not substantially contribute; absence of such evidence supports summary judgment. | Court follows Mason: plaintiff bears burden to produce some non-speculative evidence that his conduct was not a significant and material factor; here plaintiff failed to do so, so summary judgment affirmed. |
| Whether trial court's application of the clear-and-convincing standard at summary judgment was reversible error? | The court erred by applying the heightened evidentiary standard at summary judgment. | Any error was harmless because record lacked evidence to create a genuine dispute even under correct standard. | Error in trial court's reasoning was not outcome-determinative; appellate court affirms on correct legal standard and record. |
Key Cases Cited
- Mason v. BCK Corp., 292 Or. App. 580, 426 P.3d 206 (interpreting ORS 471.565: summary judgment standard, statutory definitions of "substantially contribute," "encouraging," and "facilitating")
- Deckard v. Bunch, 358 Or. 754, 370 P.3d 478 (holding statutory-liability claim not available under ORS 471.565)
- Jones v. General Motors Corp., 325 Or. 404, 939 P.2d 608 (standard for reviewing summary judgment; view facts in light most favorable to nonmoving party)
- Schutz v. La Costita III, Inc., 288 Or. App. 476, 406 P.3d 66 (addressing constitutionality of provisions of ORS 471.565)