Balzer v. Moore

• Citation: 427 P.3d 193,293 Or.App. 157
• Decision Date: 01 August 2018
• Docket Number: A159201
• Parties: Barbara BALZER, Personal Representative of the Estate of Mitchell B. Johnson, deceased, Plaintiff-Appellant, v. Byron MOORE; and EMR, Inc., dba Washington Street Steakhouse & Pub, Defendants, and Clifford D. Carpenter; and Bobby Sharon Carpenter, dba The Roundup Pub, Defendants-Respondents.
• Court: Court of Appeals of Oregon

293 Or.App. 157

427 P.3d 193

Barbara BALZER, Personal Representative of the Estate of Mitchell B. Johnson, deceased, Plaintiff-Appellant,

v.Byron MOORE; and EMR, Inc., dba Washington Street Steakhouse & Pub, Defendants,andClifford D. Carpenter; and Bobby Sharon Carpenter, dba The Roundup Pub, Defendants-Respondents.

A159201

Court of Appeals of Oregon.

Argued and submitted August 18, 2016.

August 1, 2018

J. Randolph Pickett, Portland, argued the cause for appellant. Also on the briefs were R. Brendan Dummigan, Kimberly O. Weingart, Ron K. Cheng, and Pickett Dummigan LLP.

Jeffrey D. Eberhard, Portland, argued the cause for respondents. Also on the brief were Jeremy R. Reeves and Smith Fred & Eberhard P.C.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

ORTEGA, P. J.

Mitchell Johnson died in a single car accident while riding as a passenger with his friend Byron Moore, who was driving while intoxicated after the two spent several hours drinking together. As relevant here, plaintiff, Johnson’s estate, filed a wrongful death action against defendant, The Roundup Pub—the establishment where Johnson and Moore had been drinking immediately prior to the accident—alleging that defendant had negligently served Moore alcoholic beverages when he was visibly intoxicated.¹ The trial court granted summary judgment to defendant, concluding that, under ORS 471.565(2)(b), plaintiff failed to show a genuine issue of material fact that Johnson did not substantially contribute to Moore’s intoxication by "encouraging" or "facilitating" Moore’s consumption or purchase of alcoholic beverages. Plaintiff appeals the resulting judgment dismissing the estate’s claims, assigning error to the trial court’s grant of summary judgment. Given the summary judgment record in this case and our interpretation of ORS 471.565(2)(b) in Mason v. BCK Corp. , 292 Or. App. 580, 426 P.3d 206 (2018), we conclude that the trial court did not err in granting summary judgment to defendant because plaintiff failed to come forward with evidence from which a reasonable factfinder could find that Johnson did not substantially contribute to Moore’s intoxication during the hours that Johnson and Moore spent together on the night of the accident. Accordingly, we affirm.

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." Id. To determine whether a genuine issue of material fact exists in this case, we review the summary judgment record in the light most favorable to plaintiff—the nonmoving party—and draw all reasonable inferences in plaintiff’s favor. Jones v. General Motors Corp. , 325 Or. 404, 939 P.2d 608 (1997). We state the facts consistently with that standard.

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.

Plaintiff filed a wrongful death action. Defendant moved for summary judgment, arguing that the claim was barred under ORS 471.565(2)(b) because plaintiff could not prove that Johnson had not "substantially contributed to the alleged intoxication of" Moore. ORS 471.565 provides, in relevant part:

"(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; 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 alcohol. As for whether summary judgment was appropriate on the record, the trial court explained that the uncontroverted evidence showed that "Johnson accompanied Moore throughout the evening, that they drank together over the course of about six hours, that they jointly decided to return to the Roundup after going back to Moore’s apartment, and that Johnson successfully persuaded Moore to drive back instead of taking a cab." The trial court determined that there was

"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 was appropriate in this case given the record and the answers to the first and second issues. After the parties briefed and argued this case, we resolved the first two issues in Mason . Accordingly, we explore that decision in detail before applying the legal framework announced in that case to the summary judgment record in this case.

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. 292 Or. App. at 581-82, 426 P.3d 206. The uncontroverted evidence in that case showed that the plaintiff and the patron drank for several hours at the same bar and that the plaintiff had bought rounds of drinks for the group during that time and had purchased between one and three beers for the driver. Id. at 581, 426 P.3d 206. The parties briefed the same issues that are in play in this case.

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." Id. at 584-85, 426 P.3d 206. The defendant asserted that the clear and convincing standard of proof "must be considered at the summary judgment stage and requires courts to consider the quantum of proof when ruling on the motion." Id. at 585, 426 P.3d 206...