Summary judgment is appropriate if there is no genuine issue of material fact for trial and the moving party is entitled to prevail as a matter of law. ORCP 47 C. There is no issue of material fact, if, based on the record, "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment."
Johnson and Moore were long-time friends who regularly socialized together. On the night of the accident, Moore invited Johnson to "spend the evening drinking and socializing." They met at Moore's house and consumed "one or two beers." Next, they went to Washington Street Steakhouse & Pub to play pool, where they also consumed "one or two beers" over the course of an hour or so. As they left Washington Street, Moore gave Johnson $40 to buy beer because Johnson did not have any money with him that night, and the two walked to The Roundup Pub, where they drank for a couple of hours. Moore paid for all the drinks. At about 10:00 p.m., a friend drove them back to Moore's apartment. On the way, Moore bought an 18-pack of beer because they "weren't planning on going back to the bar." At Moore's apartment, they each drank "maybe two apiece." After about 45 minutes, they decided to return to The Roundup Pub and, at Johnson's urging, Moore drove them in his truck back to the bar. After returning to The Roundup Pub, Johnson and Moore continued to drink beer to the point where Moore was visibly intoxicated. At some point, Moore argued with another patron about who had caused a drink to spill. The patron who had actually caused the spill eventually bought a "shot" of alcohol for Moore. Moore blacked out after taking that shot. Nevertheless, Moore drove his truck away from The Roundup Pub with Johnson as his passenger, crashing shortly before 1:00 a.m., causing Johnson's death.
"(2) A person licensed by the Oregon Liquor Control Commission, person holding a permit issued by thecommission 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; and
"(b) The plaintiff did not substantially contribute to the intoxication of the patron or guest by:
"(A) Providing or furnishing alcoholic beverages to the patron or guest;
"(B) Encouraging the patron or guest to consume or purchase alcoholic beverages or in any other manner; or
"(C) Facilitating the consumption of alcoholic beverages by the patron or guest in any manner."
At summary judgment, the parties briefed three issues that are relevant on appeal. First, they disputed how the "clear and convincing evidence" standard in ORS 471.565(2) affected the assessment of whether a genuine issue of material fact existed. Second, the parties offered competing interpretations of ORS 471.565(2)(b) -in particular, what it means to "substantially contribute" to the intoxication of the patron or guest. And third, they disputed whether summary judgment was appropriate when viewing the record in the light most favorable to plaintiff.
The trial court granted summary judgment, explaining its decision in a letter opinion. As to the first issue, the trial court decided that, in evaluating whether plaintiff had demonstrated a genuine issue of material fact, it had to view the evidence presented through the prism of the substantive evidentiary burden-that is, it had to account for the clear and convincing evidence standard when evaluating whether a genuine issue of material fact existed. As for the second issue, the court used dictionary definitions of "encouraging" and "facilitating" and the surrounding statutory text to conclude that the legislature intended a broad range of conduct to qualify under the statute-that is, a person could "substantially contribute" to intoxication if their conduct "helped," "spurred on," "incited," or made it "easier or less difficult" for the patron or guest to buy and consume
"no evidence to suggest that Johnson ever attempted to dissuade Moore from drinking, or that he chose not to accompany Moore while Moore continued to drink. In fact, the evidence is that Johnson went with Moore from bar to bar, that they bought rounds for each other and that Johnson went up to the bar with Moore to get another round."
The court concluded that those actions by Johnson "encouraged" and "facilitated" Moore's purchase and consumption of alcoholic beverages and noted that plaintiff had not advanced evidence sufficient to show that by engaging in that conduct Johnson did not substantially contribute to Moore's intoxication. Accordingly, the court granted summary judgment, concluding that no objectively reasonable juror could find that Johnson had not substantially contributed to Moore's intoxication by encouraging or facilitating his purchase and consumption of alcohol.
The parties reprise their arguments from below on appeal, disputing (1) how the "clear and convincing" evidentiary standard should be applied at summary judgment, (2) what it means to "substantially contribute" to intoxication, and (3) whether summary judgment
In Mason , the plaintiff alleged that the operator of a pub had overserved a visibly intoxicated patron, who crashed her car and injured the plaintiff after they left the pub together.
In Mason , we began by deciding "the role that the 'clear and convincing' standard of proof plays in our assessment of whether the case presents a genuine issue of fact for trial."
Next, we construed ORS 471.565(2)(b). First, we determined that, by using "substantially contribute" in the statute, the legislature intended that term to mimic the tort concept of "substantial factor."
Under subparagraph (B), "[e]ncouraging the patron or guest to consume or purchase alcoholic beverages or in any other manner" occurs when a plaintiff has "engaged in conduct that encouraged the patron or guest to purchase alcoholic beverages, drink alcoholic beverages, or otherwise engage in drinking activities, such as drinking with the person or 'bar hopping.' "
Finally, we determined that "facilitating the consumption of alcoholic beverages" in subparagraph (C) "connotes conduct undertaken with an awareness of making an outcome easier or less difficult, as opposed to conduct that unwittingly helps achieve that outcome."
Applying that understanding of ORS 471.565 (2)(b) to the summary judgment record, we concluded that the plaintiff's argument and evidence failed to account for the unusual burden of production and persuasion that ORS 471.565(2)(b) places on plaintiffs. We reiterated that
"an affirmative finding that any such conduct was not a significant and material factor in the patron or guest's intoxication will depend on the broader circumstances of the intoxication-namely, the existence of facts that make it more likely than not that the plaintiff's conduct, even if encouraging the purchase or consumption of alcohol or facilitating its consumption, was not a significant and material factor given the overall circumstances of the case."
Given that framework, we determined that the plaintiff in Mason had not produced evidence to allow a nonspeculative finding that his conduct was not a material and significant factor in the driver's intoxication. We explained that the plaintiff had acknowledged that he drank and socialized with the patron for several hours on the night of the accident and that he bought between three and five rounds of drinks for the group during that time and purchased between one and three beers for the patron before
"[w]here there is no evidence as to when the rounds were purchased; what, if anything, was said or implied about continued purchases or consumption; or the degree to which plaintiff's companionship and continued drinking influenced [the driver's] own decision to purchase or consume alcoholicbeverages, that hole in the record cuts against plaintiff with regard to whether he substantially contributed to her intoxication. Without additional evidence that would allow the jury to evaluate the specific nature and context of their drinking activities, a trier of fact would be required to speculate about whether plaintiff did anything to encourage or facilitate the purchase or consumption of alcohol within the meaning of ORS 471.565(2)(b)(B) and (C) and the role, if any, that conduct did or did not play in [the driver's] intoxication."
With that background in mind, we return to the case before us.
Here, it is undisputed that Johnson and Moore spent several hours on the night in question drinking and socializing together. Regardless of whether Johnson bought any of the alcohol, given our understanding of ORS 471.565 (2)(b)(B), socializing and drinking together could have encouraged Moore's purchase and consumption of alcohol within the meaning of subparagraph (B). See Mason ,
Affirmed.
Notes
Plaintiff voluntarily dismissed a negligence claim against Moore. In addition, plaintiff alleged a negligence per se claim and a claim for statutory liability under ORS 471.565 against defendant. The negligence per se claim was dismissed and is not at issue on appeal, and, although plaintiff asserted that the trial court erred in dismissing his statutory liability claim, he conceded in an additional memorandum of authorities that the Supreme Court held in Deckard v. Bunch ,
In Mason , we used the phrase "more likely than not" when describing the affirmative nature of the finding-that is, the evidence must allow a reasonable factfinder to affirmatively find a negative. However, as we emphasized at other points in Mason , a plaintiff ultimately has a clear and convincing burden of proof at trial under ORS 471.565(2) and will survive a motion for summary judgment by presenting any evidence from which a trier of fact reasonably could find that the plaintiff did not substantially contribute to the patron or guest's intoxication in the ways specified in subparagraphs (A) through (C) of the statute.
As noted, the trial court incorrectly determined that the existence of the "clear and convincing" standard of proof in ORS 471.565(2)(b) required it to view the summary judgment record through the prism of the substantive evidentiary burden-that is, it had to account for the clear and convincing evidence standard when evaluating whether a genuine issue of material fact existed. That mistake, however, does not impede our ability to apply ORCP 47 C to the record in this case and decide whether the court correctly granted summary judgment.
In an additional memorandum of authorities, plaintiff urges us to consider whether ORS 471.565(2) is constitutional under the remedy clause of Article I, section 10, of the Oregon Constitution. See Schutz v. La Costita III, Inc. ,