426 P.3d 206
Or. Ct. App.2018Background
- Plaintiff was injured as a passenger when driver Mullenix (later measured at BAC .205) crashed after five hours drinking at Duffy's Irish Pub. Plaintiff had no memory of the night.
- Plaintiff sued Duffy's operator under Oregon dram-shop/liability law for serving a visibly intoxicated patron; defendant moved for summary judgment under ORS 471.565(2), which requires a plaintiff to prove by clear and convincing evidence that the server served a visibly intoxicated patron and that the plaintiff did not "substantially contribute" to the patron's intoxication.
- Undisputed facts: plaintiff, Mullenix, and her fiancé drank together at the bar from ~9:00 p.m. to ~2:00 a.m.; plaintiff bought multiple rounds and likely purchased 1–3 beers for Mullenix.
- Plaintiff produced expert affidavit opining that plaintiff's 1–3 beers could not account for Mullenix's BAC and thus did not "substantially contribute" quantitatively; plaintiff offered no detailed evidence about what else occurred at the bar.
- Trial court granted summary judgment for defendant; the court of appeals affirmed, holding plaintiff failed to produce evidence from which a reasonable juror could find he did not substantially contribute under ORS 471.565(2)(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of "substantially contribute" in ORS 471.565(2)(b) | Means a plaintiff's conduct only bars recovery if it quantitatively played a material role (a limited, fact-specific inquiry) | Any conduct falling within subparts (A)–(C) (providing, encouraging, facilitating) constitutes per se substantial contribution | "Substantially contribute" means the plaintiff's conduct (as described in A–C) must be a significant and material causal factor in the patron's intoxication (not automatic) |
| Scope of "providing / encouraging / facilitating" (A–C) | Narrow: primarily about direct provision of alcohol | Broad: includes purchase, drinking together, social conduct that encourages or makes consumption easier | (A) "Provide/furnish" covers directly or indirectly supplying alcohol; (B) "encouraging" includes direct and indirect acts (e.g., drinking together, bar-hopping) tied to drinking activity; (C) "facilitating" covers knowingly making consumption easier (e.g., retrieving drinks, supplying fake ID) |
| Whether "clear and convincing" standard alters summary judgment analysis | Plaintiff contended the heightened trial burden should influence summary-judgment evaluation (quantitative prism) | Defendant argued the clear-and-convincing standard must be applied at summary judgment (per Anderson) | Court held Oregon law uses the ordinary "some/any evidence" standard at summary judgment; "clear and convincing" affects trial weighing, not the threshold for a triable issue |
| Sufficiency of plaintiff's evidence at summary judgment | Expert opinion that plaintiff's 1–3 beers could not account for BAC created triable issue | Plaintiff failed to produce evidence about what he said/did while drinking; given proximity and social drinking, reasonable juror could find substantial contribution as a matter of law | Plaintiff failed to present non-speculative evidence from which a jury could reasonably find he did not substantially contribute (summary judgment affirmed) |
Key Cases Cited
- Grady v. Cedar Side Inn, 330 Or. 42 (2000) (refused to adopt the complicity doctrine; background prompting statutory change)
- Fulmer v. Timber Inn Restaurant and Lounge, 330 Or. 413 (2000) (same reasoning as Grady regarding complicity)
- Deckard v. Bunch, 358 Or. 754 (2016) (discusses legislative history of ORS 471.565 and SB 925)
- Bolt v. Influence, Inc., 333 Or. 572 (2002) (clarifies that clear-and-convincing trial standard does not change the summary-judgment "some evidence" test)
- McEwen v. Ortho Pharmaceutical Corp., 270 Or. 375 (1974) (uses "substantially contributed" in tort causation / substantial-factor sense)
- Sandford v. Chevrolet Division of General Motors, 292 Or. 590 (1982) (describes causation in fact as whether conduct "played a role" in occurrence)