Jennifer J. BAKER, Personal Representative of the Estate of Tyler R. Baker v. Matthew A. CROSLIN and Tyler Gregory SMITH
Supreme Court of Oregon
April 21, 2016
376 P.3d 267
Argued and submitted March 13, 2015, decision of Court of Appeals affirmed, judgment of circuit court reversed, and case remanded to circuit court for further proceedings April 21, 2016
James L. Hiller, Hitt Hiller Monfils Williams LLP, Portland, argued the cause and filed the brief for petitioner on review.
Jan K. Kitchel, Cable Huston, LLP, Portland, argued the cause and filed the brief for
Before Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin, Brewer, and Nakamoto, Justices.**
** Linder, J., retired December 31, 2015, and did not participate in the decision of this case.
LANDAU, J.
The issue in this case concerns the extent to which a social host of a gathering at which alcohol is consumed is liable for injuries that occur during the party. The defendant hosted a party at which his guests drank alcohol. Two of the guests engaged in horseplay with loaded handguns, and one of the guests was killed. The personal representative of the decedent sued defendant, who asserted that, under
Because the trial court granted summary judgment for defendant, we state the facts in the light most favorable to plaintiff.
Both Baker and Smith had permits to carry concealed handguns, and both of them brought handguns to the party.
Defendant had alcohol in his home, including a bottle of vodka in his freezer and a bottle of rum and other hard liquor under his bar. Defendant also had purchased a bottle of Cockspur rum. Baker later reimbursed him for that purchase. Baker‘s wife did not like her husband drinking hard alcohol. So he had asked defendant to purchase the rum. Meanwhile, Baker brought a 30-pack of beer, and Smith brought six 16-ounce bottles of Coors light beer.
There is no evidence that defendant personally served any of the guests any alcohol, at least in the sense that he did not personally pour anyone drinks. Rather, the guests understood that they were expected to help themselves. Smith did just that. He later recalled that he drank two of the light beers that he had brought to the party and two mixed drinks with vodka and Squirt soda.
Defendant placed several guns that he possessed on display for his guests on a table in the kitchen, including a handgun that he had recently purchased. At some point early in the evening, Smith and Baker also displayed their handguns. Defendant gave Smith some hollow-point bullets to replace the full-metal-jacket bullets then in Smith‘s weapon. Hollow-point bullets are designed to expand on impact and inflict significantly more damage than ordinary bullets. Smith loaded the hollow-point bullets.
Shortly before 9:00 p.m., defendant, Smith, Baker, and Johnson had a shot of hard liquor. The record is not entirely clear what that liquor was. Defendant later recalled that it was the Cockspur rum. Johnson testified only that it was rum. Smith later said that he could not recall if it had been “whiskey or rum or what.” After the shots, Johnson left the party. Defendant, Smith, and Baker talked about the best options for carrying a concealed weapon. Shortly after 9:00 p.m., the three then began playacting self-defense scenarios for about 20 minutes.1 Defendant became concerned about the combination of guns and alcohol and left to put his gun away in his bedroom. While defendant was out of the room, Smith and Baker continued
Plaintiff, the personal representative of Baker‘s estate, initiated a civil action against Smith and defendant. Plaintiff alleged that defendant had been negligent in three ways:
“1. In [defendant] unreasonably serving Smith alcohol while Smith was in a visibly intoxicated state;
“2. In [defendant] unreasonably encouraging quick draw handgun activity while Smith was in a visibly intoxicated state;
“3. In [defendant] unreasonably encouraging Smith to load his unloaded handgun with Magtech hollow[-] point ammunition while Smith was in a visibly intoxicated state[.]”
Plaintiff ultimately settled with Smith. Meanwhile, defendant moved for summary judgment on the ground that
Plaintiff responded that there was, in fact, evidence that defendant had provided Smith alcohol while Smith was visibly intoxicated in that “Smith drank vodka from [defendant‘s] freezer, [defendant] had other alcohol, including rum, available below his bar, and [defendant] testified that his friends were welcome to help themselves to whatever he had.” Plaintiff asserted that, although Smith recalled having only four or five drinks over the course of the evening, expert testimony would show that he had consumed much more, and that “some or all of the additional alcohol that he consumed was furnished by” defendant. Plaintiff pointed out that, in addition to the vodka that defendant had in the freezer, defendant had purchased the bottle of Cockspur rum and kept another bottle of rum below his bar. According to plaintiff, because defendant “supplied vodka and rum and made available other alcohol,” summary judgment was not appropriate. Alternatively, plaintiff argued that defendant still was liable for encouraging gunplay and for giving Smith hollow-point ammunition while Smith had been drinking, regardless of whether defendant had provided any of the alcohol.
In reply, defendant contended that plaintiff‘s assertions were inadequate to avoid summary judgment under
At the hearing on the summary judgment motion, plaintiff asserted an additional theory of liability, namely, premises liability. As to defendant‘s motion, she reiterated that her expert would testify that Smith was visibly intoxicated after the fourth drink. That meant, she argued, that he was visibly intoxicated when he had a final shot of hard liquor. Because the hard liquor had been supplied by defendant, she concluded, she met the conditions for imposing liability required by
In response, defendant agreed that “when Smith had that last shot of rum, there‘s evidence that he was visibly intoxicated.” The key to the defense, he explained, was that the last shot was rum and, more specifically, the Cockspur rum that Baker had paid for. There was no evidence that defendant had “served or provided” the final shot to Smith, he argued, because that final shot was Baker‘s rum, not defendant‘s.
In reply, plaintiff argued first that there was an issue of fact about whether the final shot was the Cockspur rum. Plaintiff pointed out that defendant had made available his own rum, and that Smith‘s recollection that the final shot might have been rum did not specify the source of that rum. In any event, plaintiff argued, Smith recalled that the final shot might have been whiskey as well, which would have come from defendant‘s supply. And finally, plaintiff argued that, even assuming that the final shot was the Cockspur rum, the undisputed fact was that defendant had purchased it and brought it to the party.
The trial court granted the summary judgment motion. The court first concluded that, if defendant met the conditions for the safe harbor from liability found in
Plaintiff appealed, arguing that, among other things, the trial court concluded incorrectly that
Defendant renewed his assertion that there was no evidence that he had “served or provided” alcohol to Smith when Smith was visibly intoxicated, as there was no evidence either that defendant personally served Smith any alcohol or that any of the alcohol that Smith imbibed while visibly intoxicated was alcohol that defendant had provided. Defendant argued that the only alcohol that he actually made available to his guests was the vodka in the freezer. The rest of the alcohol had been either brought by the guests or, in the case of the Cockspur, eventually paid for by a guest. According to defendant, a social host cannot be held liable for injuries that result from a guest consuming alcohol provided by someone else.
The Court of Appeals agreed with plaintiff and reversed. The court construed the phrase “served or provided,” as it is used in
“the key factor in assessing whether a particular defendant should be considered to have provided alcohol to a visibly-intoxicated person so as to support the imposition of liability is the ‘amount of control’ that the defendant had over the alcohol that was supplied to the visibly-intoxicated person. *** Where a defendant has no control over the supply of alcohol, the defendant cannot be liable for permitting a person to become dangerously intoxicated from that supply. By contrast, if a defendant has control over the alcohol supply from which the visibly-intoxicated guest consumes alcohol, the defendant has ‘served or provided’ the guest with alcohol.”
Baker, 264 Or App at 199-200 (citations omitted). Turning to the record on summary judgment, the court first addressed whether there was evidence sufficient to permit a finding that Smith was visibly intoxicated. The court noted that plaintiff had retained an expert who was willing to testify that, at the time that Smith took his final drink, shortly before the shooting, he would have been visibly intoxicated. Id. at 200-01. The court concluded that that evidence “would permit a reasonable factfinder to find that Smith was exhibiting signs of visible intoxication *** when he consumed his final drink.” Id. at 201.
The court then addressed whether the record contained evidence sufficient to permit a finding “that defendant had control over the
On review, defendant contends that the Court of Appeals erred in equating “served or provided” alcohol, under
Plaintiff does not contest that defendant did not personally pour any of Smith‘s drinks. Thus, she concedes, he did not “serve” Smith. Plaintiff nevertheless argues that defendant did indirectly “provide” Smith alcohol within the meaning of the statute by making hard alcohol available to him. According to plaintiff, expert testimony established that Smith would have become visibly intoxicated after his fourth drink. Thus, she argues, by the time that defendant, Johnson, Baker, and Smith had their final shot of whiskey or rum, Smith was visibly intoxicated, and defendant failed to take steps to “cut [him] off.” In plaintiff‘s view, defendant controlled the alcohol supply and failed to exercise that control at a time when he saw that Smith was visibly intoxicated.
In the alternative, plaintiff asks the court to address the issues that the Court of Appeals did not, namely, the trial court‘s conclusion that
Because the appeal comes to us by way of a summary judgment, we must consider whether the pleadings and evidence, construed in the light most favorable to plaintiff, shows that there is no genuine issue of material fact and that defendant is entitled to judgment as a matter of law.
“(2) A person licensed by the Oregon Liquor Control Commission, person holding a permit issued by the commission or social host is not liable for damages caused by intoxicated patrons or guests unless the plaintiff proves by clear and convincing evidence that:
“(a) The licensee, permittee or social host served or provided alcoholic beverages to the patron or guest while the patron or guest was visibly intoxicated ***”
The statute thus provides a safe harbor to social hosts against liability for damages caused by intoxicated patrons or guests unless the plaintiff meets the requirements of the statute. The requirements relevant to this appeal are two: That the social host (1) “served or provided” alcohol to a patron or guest (2) “while the patron or guest was visibly intoxicated.” We take each of those requirements in turn.
The first requirement is that the social host have “served or provided” alcohol to patrons or guests. The terms are not statutorily defined. In such cases, we assume, in the absence of evidence to the contrary, that the legislature intended them to be given their ordinary meanings. State v. Dickerson, 356 Or 822, 829, 345 P3d 447 (2015) (“When the legislature does not provide a definition of a statutory term, we ordinarily look to the plain meaning of the statute‘s text to determine what particular terms mean.“). Dictionaries are a common source of possible ordinary meanings. State v. Gonzalez-Valenzuela, 358 Or 451, 461, 365 P3d 116 (2015) (“[T]his court frequently attempts
As used in
“6 a : to wait on (one) at table b : to bring (food) to a diner—often used with up <served him up a hearty dinner> c : to place food on (the table) *** 7 a : to furnish or supply (one) with something needed or desired <a consolidated school served the children who had attended the several former
one-room schools> b : to wait on (a customer) in a store c : to provide merchandise serviceable or desirable to (a buyer)[.]”
Webster‘s Third New Int‘l Dictionary 2075 (unabridged ed 2002); see also American Heritage Dictionary of the English Language 1601 (5th ed 2011) (“[t]o prepare and offer (food, for example) *** [t]o place food before (someone); wait on“). The word “provided” likewise is used as a transitive verb, so the relevant definitions are:
“2 a : to fit out or fit up : EQUIP—used with with <provided the children with the books they needed> <~ the car with a radio> b : to supply for use : AFFORD, YIELD <olives ~ an important item of food —W. B. Fisher> <the preface ~s a hint —L.R. McColvin>[.]”
Webster‘s at 1827; see also American Heritage at 1418 (“[t]o make available (something needed or desired) *** [t]o supply something needed or desired to“). Webster‘s adds that the term “provide” is synonymous with “supply” and “furnish.” Webster‘s at 1827.
On the surface, there appears to be quite a bit of possible overlap between the two words. “Serve” means to “furnish,” “supply,” or “provide” something, while “provide” is synonymous with “furnish” or “supply.” Ordinarily, when the legislature expresses itself in terms of alternatives—“A or B“—we assume that the alternatives do not mean the same things. Crystal Communications, Inc. v. Dept. of Rev., 353 Or 300, 311, 297 P3d 1256 (2013) (“As a general rule, we construe a statute in a manner that gives effect, if possible, to all its provisions.“); Blachana, LLC v. Bureau of Labor and Industries, 354 Or 676, 692, 318 P3d 735 (2014) (“[R]edundancy *** is a consequence that this court must avoid if possible.“). That is, of course, unless there is evidence that that is precisely what the legislature intended. Thomas Creek Lumber and Log Co. v. Dept. of Rev., 344 Or 131, 138, 178 P3d 217 (2008) (“[N]othing prohibits the legislature from saying the same thing twice[.]“).
In this case, we are aware of no such evidence that the legislature intended “served” and “provided” to mean essentially the same things. And, from the examples listed, it appears that, while “served” tends to connote a more direct, personal action—actually pouring a drink, for example—“provided” can be taken to include more general and less direct action. We can see no reason, for example, why the term would not apply to situations in which a social host purchases alcohol and makes it available for guests, who may help themselves.
That is consistent with this court‘s prior decisions on social-host liability, in which this court concluded that such liability turns not just on whether the host personally pours drinks but also on the extent to which the social host less directly exercises, or fails to exercise, control over the supply of alcohol to guests. In Wiener, for example, a minor became intoxicated at a fraternity party. After leaving the party, the minor drove home and was involved in an accident that injured the plaintiff. The plaintiff brought common-law negligence claims against, among others, Kienow, a member of the fraternity who had purchased the alcohol that was provided at the party. This court, affirming the trial court‘s dismissal of the complaint against Kienow, commented that
“[o]rdinarily, a host who makes available intoxicating liquors to an adult guest is not liable for injuries to third persons resulting from the guest‘s intoxication. There might be circumstances in which the host would have a duty to deny his guest further access to alcohol. This would be the case
where the host has reason to know that he is dealing with persons whose characteristics make it especially likely that they will do unreasonable things. Such persons could include those already severely intoxicated, or those whose behavior the host knows to be unusually affected by alcohol.”
Id. at 639 (internal quotation marks and footnotes omitted).
Under Wiener, then, there may be circumstances under which a social host may be liable for injuries resulting from a guest‘s intoxication because the social host, although not directly serving alcohol to guests, nevertheless made alcohol available to guests. Indeed, if the social host has made alcohol available to guests, and the host knows that a guest already has become intoxicated, the host may have an obligation “to deny his [or her] guest further access to alcohol.” Id. In other words, to the extent that the social host controls the supply of alcohol, he or she may be liable for the way that control is exercised.
The court adopted that reasoning in Solberg, in determining whether a social host “served or provided” alcohol within the meaning of the predecessor to
Addressing the applicability of what is now
The court emphasized that point in turning to the question of the stepfather‘s common-law liability in negligence. The court explained that, because the tavern had alleged that the stepfather knew that his stepson had become visibly intoxicated, the stepfather had “direct control” over the stepson‘s access to alcohol. That, the court explained, distinguished the case from Wiener:
“In contrast [to Wiener], in the present case, [the tavern] alleged that [the stepfather] ‘served and provided’ alcoholic beverages to [the stepson], who ‘[the stepfather] knew or should have known *** had a serious drinking
problem.’ In this allegation [the tavern] paralleled this court‘s description of a person ‘whose characteristics make it especially likely that they will do unreasonable things.’ Wiener, 258 Or at 639. Wiener held that ‘there may be circumstances under which a person could be held liable for allowing another to become dangerously intoxicated.’ Id. at 640. The distinguishing circumstance is the amount of control. In Wiener there was no control. In the present case it is alleged that there was direct control. The decision as to the amount of actual control rests with the trier of fact, not the court.”
Solberg, 306 Or at 492 (emphasis and omission in original).3
“1 a : during the time that <instructed and encouraged the boy ~ he made an almost incredible . . . record of precocity
—Alexander Cowie> <were killed ~ attempting a burglary —A.F. Haslow> b : until the end of the time that : as long as <~ there‘s life there‘s hope> c : during which time : and during the same time : and meanwhile <hurried to get ready ~ the others just sat>[.]”
Webster‘s at 2604; see also American Heritage at 1973 (“[a]s long as; during the time that“).
The legislative history is sparse on that particular point. But the little that exists fully supports what we have said the text of the statute appears to state.
The relevant phrasing first appeared in a 1979 bill, HB 3152. See Or Laws 1979, ch 801, §§ 1, 2.4 As originally proposed, the bill would have required not only that
the licensee or social host had “served or provided” a visibly intoxicated person, but also that the provider had been grossly negligent in doing so. Dave Dietz appeared as a witness on behalf of Restaurants of Oregon in support of the bill and stated:
“The reason for that, for the standard of visibly intoxicated, that is in the law now, we recognize that that is a subjective standard. It is difficult very often to determine when a person is visibly intoxicated. *** But at least it provides a standard that our operators can understand to some extent. They then have the ability to make the choice as to whether or not an individual is visibly intoxicated. If they step over the bounds, and serve someone that either by a witness‘s own viewing of that person or by a waitress or waiter‘s own viewing of that person is visibly intoxicated, then the owner or manager of that establishment should be liable, and they should understand when and where that liability begins to exist.”
Tape Recording, House Committee on Judiciary, HB 3152, June 11, 1979, Tape 85, Side 2 (statement of Dave Dietz) (emphases added). Later, Chairman Frohnmayer asked Dietz to explain when a provider would have been negligent but not grossly negligent:
Chairman Frohnmayer: “*** A licensee—a person who is injured later—you‘ve established the person is visibly intoxicated. That means, knocked down, fall down, or whatever. But that means visible, words slurred, whatever, something to prove that—you‘re going to have to prove something. But then you go on and say that the serving or providing in light of those factors has to have been gross negligence. Now, what conduct is negligent but not grossly negligent? ***
Dave Dietz: “In those circumstances, I think you almost have to conclude, if the bartender, for example, knew the person to be visibly intoxicated at the time the person or patron requested a drink, I think that that almost equates to gross negligence. *** Any indices of what is in fact some visible intoxication is going to then lead you to believe that if the bartender served that patron and did so without pursuing the patron‘s status, to any degree, then you have gross negligence.”
Id. (emphases added).
The upshot of those excerpts from the legislative history is clear: If the patron or guest is not visibly intoxicated to the social host, then the social host may serve or provide alcohol without fear of liability. But, if the patron or guest is visibly intoxicated to the social host, and the social host nevertheless serves or provides alcohol, then the social host may face liability.
The question then arises whether the social host must be subjectively aware of the guest‘s intoxicated status. The wording of the statute makes clear that the test is an objective one.
In that regard, however, it is important to note that nothing in the wording of
With the foregoing principles in mind, we turn to the record in this case to determine whether plaintiff submitted evidence that creates a genuine issue of material fact about whether defendant “served or provided” alcohol to Smith “while” Smith was “visibly intoxicated.” As we have noted, plaintiff has retained an expert who will testify that Smith was visibly intoxicated after consuming his fourth drink. Thus, Smith would have been visibly intoxicated at the time that he, along with defendant, Johnson, and Baker took a final shot. It can be reasonably inferred that, defendant being there, he would have seen that Smith was visibly intoxicated at the time that he took that last shot. And it is undisputed that defendant took no steps to stop Smith from taking that last shot, even though Smith was visibly intoxicated to him.
Defendant‘s sole argument is that, because Smith‘s last shot was of the Cockspur rum, and because Baker had reimbursed him for the cost of that rum, the rum was Baker‘s and not defendant‘s. Because the Cockspur rum belonged to Baker, defendant argues, he did not “serve or provide” it to Smith.
We find defendant‘s argument unpersuasive. At the outset, it bears emphasis that the question whether defendant exercised the sort of control over the alcohol supply that he could be said to have “served or provided” alcohol to Smith while Smith was visibly intoxicated is one of fact. As the court explained in Solberg, “[t]he decision as to the amount of actual control rests with the trier of fact, not the court.” Id. at 492. In that regard, defendant‘s argument that, as a matter of law, he cannot be said to have “served or provided” Baker‘s Cockspur rum to Smith is problematic for at least two reasons.
First, the argument assumes that, in fact, the last shot of rum was the Cockspur rum. Although that certainly is what defendant said that he recalled, Smith testified that the last shot could have been rum----without saying whether it was the Cockspur rum or the rum that defendant had in his cabinet—or whiskey; he could not remember which. Johnson likewise testified that he recalled the shot was rum, but did not state whether it was the Cockspur. If the last shot was whiskey, there is evidence from which it could be inferred that it was defendant‘s. Defendant testified that he had a supply of hard liquor, and there is no testimony that anyone else brought anything but beer to the party.
Second, even if the last shot was Cockspur rum, the evidence that Baker paid defendant for it at some point during the party does not necessary establish, as a matter of law, that defendant did not “serve or provide” it. There is evidence that defendant purchased it for the party at his house and that it was available for others to consume at the party. If a social host were to purchase a supply of various types of alcohol for a party and then make that alcohol available to the guests, the fact that the host leaves a jar into which guests can contribute for the costs of the alcohol does not necessarily mean that, as a matter of law, the host did not still control the supply of alcohol to the guests. At the least, on the record before us, there is a genuine issue of material fact about the extent to which defendant controlled the supply of alcohol to his party, including the hard liquor that was the last shot that he and his friends consumed before the accident. Accordingly, the Court of Appeals correctly concluded that the trial court erred in granting defendant‘s motion for summary judgment
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Notes
“No licensee or permittee is liable for damages incurred or caused by intoxicated patrons off the licensee‘s or permittee‘s business premises unless the licensee or permittee has served or provided the patron alcoholic beverages when such patron was visibly intoxicated.”
See Or Laws 1979, ch 801, § 1. Similarly, former
“No private host is liable for damages incurred or caused by an intoxicated social guest unless the private host has served or provided alcoholic beverages to a social guest when such guest was visibly intoxicated.”
See Or Laws 1979, ch 801, § 2.
The 1987 legislature later merged those two statutes into former