WIENER, Appellant, v. GAMMA PHI CHAPTER OF ALPHA TAU OMEGA FRATERNITY ET AL, Respondents.
Supreme Court of Oregon
May 19, 1971
Argued March 5, 1970, reargued April 5, 1971
485 P.2d 18 | 258 Or. 632
485 P2d 18
Paul D. Clayton, Eugene, argued and reargued the cause for respondent Gamma Phi Chapter of Alpha Tau Omega Fraternity. With him on the brief were Luvaas, Cobb, Richards & Fraser, Eugene.
Darst B. Atherly, Eugene, argued and reargued the cause for respondents Robert O. Davis, Charles F. Larson, Jr., Calvin L. Schmidt and Robert H. Smith, individually and doing business as Country Squire Tree Farm. On the brief were Thwing, Atherly & Butler and Robert G. Dickinson, Eugene.
Richard Bryson, Eugene, argued and reargued the
Edward V. O‘Reilly, Eugene, argued and reargued the cause for respondents Kenneth Bruhn and Opal Bruhn. With him on the brief were O‘Reilly, Anderson, Richmond & Adkins, Eugene.
Wayne W. Williamson, Portland, argued and reargued the cause for respondent Daniel Hamilton Kienow, III. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson and Thomas M. Triplett, Portland.
Before O‘CONNELL, Chief Justice, and McALLISTER, DENECKE, HOLMAN, HOWELL, BRYSON and SCHWAB, Justices.
O‘CONNELL, C. J.
This is an action to recover damages for personal injuries resulting from an automobile accident. The trial court entered an order allowing a motion to quash service of summons as to defendant Gamma Phi Chapter of Alpha Tau Omega Fraternity, an unincorporated association, and sustained the demurrers filed by each of the other defendants. Plaintiff appeals from a judgment entered in favor of each of those defendants.
Defendants Vira Corp., Larson, Schmidt, Smith (doing business as the Country Squire Tree Farm), and defendants Bruhn were the owners and operators of the Country Squire Recreation Ranch which was located about ten miles north of Eugene, Oregon. Defendant Gamma Phi Chapter of Alpha Tau Omega Fraternity, an Oregon corporation,1 is alleged to be a fraternity at the University of Oregon.
It is alleged that defendant Kienow, a member of the fraternity, knew of the agreement and arrangement for the party and knew that some of the members of his fraternity and other college students in attendance would be minors, and having that knowledge, purchased alcoholic beverages for the purpose of making them available to the party and that he had these alcoholic beverages delivered to the Ranch with the knowledge and consent of all of the defendants.
It is alleged that the party was held on October 10, 1964; and among those attending were plaintiff and David Michael Blair, a minor; that with the full knowledge, consent and permission of the owners and operators of the Ranch the fraternity caused beer and other alcoholic drinks supplied by Kienow to be served or made available to David Michael Blair; that about
The complaint charges defendant fraternity with negligence in the following and other particulars:
(1) In causing and permitting intoxicating beverages to be served to Blair, a minor, when defendant knew or should have known Blair was a minor; that defendant knew that Blair had driven an automobile to the premises, that he would necessarily be required to return to Eugene, and that after consuming quantities of alcoholic beverages his driving upon the highways would constitute an unreasonable hazard and risk of harm to plaintiff.
(2) In failing to ascertain and to warn plaintiff of the intoxicated condition of Blair.
(3) In failing to properly supervise the function being held at The Country Squire Recreation Ranch so as to have prevented minors from being permitted to consume alcoholic beverages and so as to have prevented guests at that function from being transported by persons with whom it would be unsafe to ride.
(4) In failing to provide a safe means of transportation from the party when defendant knew, or in the exercise of reasonable care should have known, that such transportation was necessary.
The defendants operating the Country Squire Tree Farm are charged with negligence and with knowingly maintaining a place where alcoholic beverages were served to minors in violation of the laws of Oregon, thereby creating and maintaining a common nuisance.
We shall first consider the liability of defendant Kienow. Plaintiff predicates defendant Kienow‘s negligent liability upon two grounds: (1) the violation of
We think that the design of
We think that each case must be decided on its own facts,5 and we reject the rule suggested by the
Considering, then, the allegations of the complaint as they apply to defendant Kienow, it is our opinion that they are not sufficient to express a breach of duty to plaintiff in this case. “Duty” in the sense we use it here is, as Prosser has described it, “an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” Prosser, The Law of Torts 333 (3d ed 1964). We are faced with such a problem of policy formulation in this case.
As we have already indicated, there may be circumstances under which a person could be held liable for allowing another to become dangerously intoxicated. However, we feel that liability should not be extended to one who acts only as a conduit in providing alcohol to those who directly serve it to others. A host has a choice of serving alcohol to whomsoever he pleases. In making that choice he may decide to serve the alcohol illegally or under circumstances which create an unreasonable risk of harm to others. We do not think that the harmful consequences of that choice should be visited upon another who has no part in making it. And we take this view even where the one supplying the alcohol might have reason to believe that the host is likely to make an unwise choice in dispensing it to others. The complaint does not allege that Kienow had any control over the direct dispensation of the alcohol at the party. We hold, therefore, that the demurrer to the complaint insofar as it relates to defendant Kienow was properly sustained.
For reasons similar to those discussed in connection with defendant Kienow, the fact that these defendants furnished the premises for the party should not impose upon them a duty to protect the guests or others from the actions of persons who were allowed to become intoxicated. A failure to supervise would not be negligent because there was no duty to supervise. The premises were rented to the fraternity, and the fraternity gave the party; the fraternity, not the owners of the land, should bear the responsibility for activities of guests who were negligently allowed to become intoxicated.
The complaint also alleges that alcohol was made available or served to others, including Blair, with the knowledge, consent and permission of the defendants furnishing the premises. This allegation does not aid plaintiff‘s case. Defendants could leave to the judgment of the fraternity the manner in which it would serve alcohol to those who attended the party; defendants’ consent to the fraternity‘s decisions violated no duty. A host may have the responsibility under certain circumstances to prevent a guest from volun-
The second count of the complaint, charging the defendants with maintaining a public nuisance in violation of
The only grounds alleged for designating the Ranch a nuisance under the statute involve violations of
We hold, then, that the complaint stated a cause of action against defendant Gamma Phi Chapter of Alpha Tau Omega Fraternity, an Oregon corporation, and that the trial court erred in sustaining that defendant‘s demurrer. The demurrers of the other defendants were properly sustained.
Plaintiff has also attempted to appeal from the trial court‘s order quashing service of summons on Gamma Phi Chapter of Alpha Tau Omega Fraternity,
The decision of the trial court is reversed as to defendant Gamma Phi Chapter of Alpha Tau Omega Fraternity, an Oregon corporation. The judgments in favor of defendants Kienow and the owners and operators of the Ranch are affirmed. The appeal from the order quashing service on Gamma Phi Chapter of Alpha Tau Omega Fraternity, an unincorporated association, is dismissed.
McALLISTER, J., concurring in part; dissenting in part.
The majority, having adopted the rule that one who negligently furnishes alcohol to others may be liable for the consequences, then limits the scope of that liability by drawing a line which, in my opinion, is arbitrary and untenable.
I agree that the complaint states a cause of action against the fraternity. It alleges that the fraternity furnished alcohol to Blair, knowing that he was a minor and that he would be driving after the party. Proof of these allegations would justify a jury in finding that the fraternity, through its agents, acted unreasonably when it permitted Blair to drink. The allegations as to the other defendants, in my view, can not be distinguished on any logical basis. The complaint alleges that they knew that minors would be attending the party and would be allowed to drink, and that some of them would be driving back to Eugene.
The majority does not hold that the allegations do not charge unreasonable behavior on the part of all defendants. Rather, it holds that the well-established rules of negligence will simply not be applied in this situation except to a defendant who has directly served alcohol to a particular minor. I cannot agree with this approach. We have held that, even in the absence of concerted action, two or more persons whose negligence combines to produce a single injury are joint tortfeasors, and any or all may be held liable by the injured party. See Hills v. McGillvrey, 240 Or 476, 483, 402 P2d 722 (1965) and cases there cited; Murray v. Helfrich, 146 Or 602, 605-607, 30 P2d 1053 (1934). In my opinion, plaintiff has adequately charged negligence on the part of Kienow and of the owners and operators of the Ranch which combined with the negligence of the fraternity‘s agents at the party to cause plaintiff‘s injuries. Their demurrers ought to have been overruled.
BRYSON, J., dissenting.
I join in the above dissent. These questions should be decided after the evidence is before us and not on demurrer to the pleadings.
Notes
“Any person who shall bargain, sell, exchange or give to any intoxicated person or habitual drunkard spiritous, vinous, malt or intoxicating liquors shall be liable for all damage resulting in whole or in part therefrom, in an action brought by the wife, husband, parent or child of such intoxicated person or habitual drunkard. The act of any agent or employe shall be deemed the act of his principal or employer for the purposes of this section.”
Defendants argue that by enacting this statute, the legislature has prescribed the sole civil remedy against persons who furnish liquor to others. Some jurisdictions have given this effect to their Dram Shop Acts. See, e.g., Rogers v. Dwight, 145 F Supp 537 (E.D. Wis 1956); Beck v. Groe, 245 Minn 28, 70 NW2d 886, 52 ALR2d 875 (1955); Noonan v. Galick, 19 Conn Supp 308, 112 A2d 892 (1955).We do not think such an interpretation is warranted, at least where the statute, like ours, provides a remedy for a very limited class of plaintiffs. See Berkeley v. Park, 47 Misc2d 381, 262 NYS2d 290 (Sup Ct 1965).