Baker v. Croslin

• Decision Date: 21 April 2016
• Docket Number: CC 1106–07278,SC S062571.,CA A151932
• Citation: 376 P.3d 267,359 Or. 147
• Parties: Jennifer J. BAKER, Personal Representative of the Estate of Tyler R. Baker, Respondent on Review, v. Matthew A. CROSLIN, Petitioner on Review, and Tyler Gregory Smith, Defendant.
• Court: Oregon Supreme Court

359 Or. 147

376 P.3d 267

Jennifer J. BAKER, Personal Representative of the Estate of Tyler R. Baker, Respondent on Review,

v. Matthew A. CROSLIN, Petitioner on Review,andTyler Gregory Smith, Defendant.

CC 1106–07278

CA A151932

SC S062571.

Supreme Court of Oregon.

Argued and Submitted March 13, 2015.

Decided 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 respondent on review. With him on the brief was Casey M. Nokes.

Before BALMER, Chief Justice, and KISTLER, WALTERS, LANDAU, BALDWIN, BREWER, and NAKAMOTO, Justices.^**

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 ORS 471.565(2), he was not liable because he had not “served or provided” alcohol to the shooter “while” the shooter was “visibly intoxicated.” The trial court agreed and granted summary judgment in favor of defendant. The Court of Appeals reversed, holding that, under ORS 471.545(2), a social host “serve[s] or provide[s]” alcohol when the host controls the alcohol supply, and in this case the evidence permits an inference that defendant did that at a time when the shooter was visibly intoxicated. Baker v. Croslin, 264 Or.App. 196, 330 P.3d 698 (2014). On review, we agree with the Court of Appeals and affirm.

Because the trial court granted summary judgment for defendant, we state the facts in the light most favorable to plaintiff. ORCP 47 C. Defendant hosted a party at his home to watch a basketball game and play cards. Among those attending the party were three friends, Johnson, Baker, and Smith; Smith arrived at around 7:30 p.m. Five or six others also attended the party, coming and going over the course of the evening.

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 to act out self-defense scenarios three or four more times. In the process, Smith drew his pistol and accidentally shot Baker through the chest, killing him.

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 ORS 471.565(2) shielded him from liability, because there was no evidence that he had personally served or provided Smith with alcohol while Smith was visibly intoxicated.

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 ORS 471.565(2), because, even assuming that defendant provided all the alcohol, “plaintiff cannot present evidence that Smith was visibly intoxicated” when he drank that alcohol.

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 ORS 471.565(2).

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 ORS 471.565(2), then the allegations of negligence as to the gunplay and the provision of hollow- point ammunition also would be barred, because both of those additional negligence specifications were predicated on Smith's intoxication. The trial court explained that the dispositive issue, then, was whether there was evidence that defendant “served or provided” the final shot to Smith. The court reasoned that the last drink could have been either whiskey or the Cockspur rum that defendant had purchased for Baker. As to the former possibility, the trial court concluded that there was simply no evidence that the last drink was, in fact, whiskey or that any whiskey that he drank was defendant's. As to the latter possibility, the court concluded that defendant had not “served or provided” the rum because, having been reimbursed for his purchase, the rum was at that point actually Baker's. The court did not address plaintiff's argument that, at all events, defendant is liable under a theory of premises liability.

Plaintiff appealed, arguing that, among other things, the trial court concluded incorrectly that ORS 471.565(2) barred liability. She argued that the evidence, properly viewed, permits a reasonable trier of fact to find that defendant had “served or provided” Smith alcohol when Smith was visibly intoxicated. Alternatively, plaintiff argued that, even if ORS 471.565(2) barred her claim against defendant for serving Smith while visibly intoxicated, it did not bar her claims that defendan...