Plaintiff brought this action against the Red Steer Tavern to recover for personal injuries sustained when the vehicle he was driving collided head-on with Johnson’s vehicle, which had crossed the centerline. The complaint alleged that the accident was the result of Johnson’s negligence in operating a vehicle while under the influence of intoxicants. It also alleged that the tavern was liable under former ORS 30.955, 1 for serving alcoholic beverages to Johnson when he was visibly intoxicated. The tavern settled with plaintiff and filed a third-party complaint against Howard, Johnson’s stepfather, to collect the portion of the settlement payment allegedly attributable to Howard’s negligence. 2 The ability to recover contribution from Howard depends on whether plaintiff could have recovered from Howard. ORS 18.440(1) 3 .
The relevant complaint alleges: Howard knew or should have known that Johnson had a serious drinking problem, that he had been convicted of driving under the influence of intoxicants and that he had been involved in accidents when he had been drinking; Howard accompanied Johnson to three bars, including the Red Steer, and the two bought drinks for each other at each of the three bars; Howard “served” liquor to Johnson when he was visibly intoxicated; Howard was a “social host” under former ORS 30.955; he was negligent in serving alcoholic beverages to Johnson when he was visibly intoxicated, in violation of former ORS 30.955; and he was negligent in serving alcoholic beverages to Johnson when he knew or should have known that Johnson was visibly intoxicated and would operate a motor vehicle on a public highway. *93 The trial court dismissed the complaint for failure to state a claim.
The complaint is based on two theories of recovery: liability under former ORS 30.955 and common law negli gence.c.Former ORS 30.955 provided:
“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.”
The facts pled are that Howard and Johnson bought alcoholic beverages
for each other
at the tavern and that Howard bought alcoholic beverages for Johnson after he was visibly intoxicated. As a matter of law, those facts do not establish a guest-host relationship or that Howard “served” Johnson. They were “co-patrons” of the tavern.
See Aebischer v. Reidt,
Restatement (Second) Torts,
§ 876(b) (1979), the substance of which has been adopted by the Supreme Court,
see Sprinkle v. Lemley,
*94 Reversed and remanded for further proceedings not inconsistent with this opinion.
Notes
ORS 30.955 was repealed in 1987. Or Laws 1987, ch 774, § 14. Its substance was incorporated into ORS 30.950. Or Laws 1987, ch 774, § 13:
“No licensee, permittee or social host is liable for damages incurred or caused by intoxicated patrons or guests off the licensee, permittee or social host’s premises unless:
“(1) The licensee, permittee or social host has served or provided the patron alcoholic beverages to the patron or guest while the patron or guest was visibly intoxicated; and
“(2) The plaintiff proves by clear and convincing evidence that the patron or guest was served alcoholic beverages while visibly intoxicated.”
The second amended judgment disposes of all the claims between all the parties. This appeal involves only the third-party complaint.
ORS 18.440(1) provides, in part: “There is no right of contribution from a person who is not liable in tort to the claimant.”
We do not decide whether a claim could be stated against a private host under former ORS 30.955 merely because the place where the liquor is provided is a commercial liquor establishment.