Battles v. Cough
| Decision Date | 05 May 1997 |
| Docket Number | No. 86645,No. 3,86645,3 |
| Citation | 947 P.2d 600,1997 OK CIV APP 62 |
| Parties | 1997 OK CIV APP 62 Jeffrey BATTLES, as Personal Representative of the Estate of Carna Ann Battles, Deceased, Plaintiff/Appellant, v. Michelle Lynn COUGH, Jeffrey Andrew Lawmaster, and Jerry Fultz, Defendants, and Dick Goetz, and Steam Roller, Inc., d/b/a Blue Rose Cafe, Defendants/Appellees. Court of Civil Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
¶1 After a birthday party at the home of Defendant Jerry Fultz, also attended by Defendants Jeffrey Lawmaster and Dick Goetz, Decedent Carna Battles accompanied Fultz, Goetz and Lawmaster to the Blue Rose Cafe, which was owned and operated by Defendant Steam Roller, Inc. (SRI). Battles left the Blue Rose riding on the back of a motorcycle driven by Lawmaster. Tragically, Battles was killed as a result of a collision between that motorcycle and a vehicle driven by Defendant Michelle Cough. As personal representative of Battles' estate, Plaintiff Jeffery Battles filed this wrongful death action alleging that Cough and Lawmaster were liable because of the way they drove their respective vehicles and that Fultz, Goetz and SRI were liable for furnishing alcoholic beverages to Lawmaster at a time when they knew or should have known that he was intoxicated.
¶2 Goetz and SRI filed separate motions for summary judgment, attaching relevant evidentiary materials, and Plaintiff responded. The trial court sustained those motions granting judgment to Goetz and SRI on Plaintiff's claims. In addition, the trial court made the findings required by 12 O.S.Supp.1995 § 994(A) in order to make these orders final and immediately subject to appeal. Plaintiff appeals, contending summary judgment was inappropriate. 1
¶3 In addressing Plaintiff's claim that summary adjudication was inappropriate, we must examine the pleadings, depositions, affidavits and other evidentiary materials submitted by the parties and affirm if there is no genuine issue as to any material fact and Goetz and/or SRI was entitled to judgment as a matter of law. Perry v. Green, 468 P.2d 483 (Okla.1970). All inferences and conclusions to be drawn from the evidentiary materials must be viewed in a light most favorable to Plaintiff. Ross v. City of Shawnee, 683 P.2d 535 (Okla.1984). We are limited to the issues actually presented below, as reflected by the record which was before the trial court rather than one that could have been assembled. Frey v. Independence Fire and Cas. Co., 698 P.2d 17 (Okla.1985).
¶4 Although the evidentiary materials provided by Goetz and Plaintiff might reveal several questions concerning the events of that evening, including whether Goetz had a sufficient "degree of control" over the serving of the alcoholic beverages to be considered a "social host," one undisputed fact renders any other questions irrelevant to the question of Goetz's liability: Goetz was not a vendor of alcoholic beverages. Plaintiff sued Goetz on the theory that he was liable as a "social host" for providing alcoholic beverages to Lawmaster when Goetz knew or had reason to know that Lawmaster was intoxicated. Oklahoma has not adopted "social host" liability.
¶5 According to McClelland v. Harvie Kothe-Ed Rieman, Post No. 1201, Veterans of the Foreign Wars of U.S., Inc., 770 P.2d 569 (Okla.1989), until 1986 and the decision in Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300 (Okla.1986), Oklahoma followed the common law rule which held a vendor of alcoholic beverages was not liable for injuries caused to third persons as a result of the vendees' consumption of the alcoholic beverages. This rule was based on the view that "it is the drink's voluntary consumption rather than its sale that constitutes the proximate cause of the injuries sought to be redressed." McClelland, 770 P.2d at 572. (Emphasis in original). We perceive no reason this causation-based rule, at common law, would not be equally applicable when the supplier of the alcoholic beverage did not sell the beverage but merely furnished it.
¶6 In McClelland, the Oklahoma Supreme Court held injuries occurring prior to the Brigance mandate, and thus not covered by its modification of the common law rule, gave rise to no liability. In other words, the common law causation-based rule is the law in Oklahoma except as it has been abrogated in Brigance or its progeny. McClelland teaches us then, that even if Goetz supplied alcoholic beverages to Lawmaster as a "social host," he has no liability to third persons such as Plaintiff, unless the cause of action recognized in Brigance or some later case applies.
¶7 Brigance involved the seller of alcoholic beverages, and provides no authority for liability under these circumstances by a "social host." The Court expressly noted that "[w]e do not by this opinion address the issue of a social host's civil liability." Brigance, 725 P.2d at 306, n. 12. The Court has not addressed the issue of "social host" liability in any subsequent decision. 2 We are not free to extend the reach of Brigance, because of the causation-based common law rule applicable to "social hosts," a Brigance-type cause of action is not available against individuals like Goetz, who are alleged to have been "social hosts." Goetz was entitled to judgment as a matter of law, and the trial court's judgment in his favor is affirmed.
¶8 SRI premised its motion for summary judgment on the theory that it was uncontroverted that no employee of the Blue Rose served alcoholic beverages to Lawmaster at a time when he was visibly or noticeably intoxicated. SRI relied upon affidavits and deposition testimony from the waitress who served the group including Lawmaster and the bartender on duty that evening, along with an affidavit from the manager on duty that evening. According to all of these witnesses, none of whom remembered serving any drink to Lawmaster that evening, each of them did not, on the evening in question, "serve any drinks to any person who I either knew was intoxicated or who in any way appeared to me to be intoxicated." They each further testified he or she did not observe any waitress or bartender serve drinks to anyone whom the witness knew was intoxicated or who appeared intoxicated in any way to the witness. In addition, SRI relied upon deposition testimony from Goetz that he did not observe Lawmaster to be visibly intoxicated that evening and deposition testimony of other participants in the birthday party, who did not accompany the group to the Blue Rose, that Lawmaster did not appear to be intoxicated at the birthday party.
¶9 Plaintiff did not produce any evidentiary material which directly contradicted this evidence, i.e., testimony from a witness that some Blue Rose employee served Lawmaster an alcoholic beverage at a time when he was noticeably or visibly intoxicated. However, Plaintiff did submit evidentiary material which he says created a fact question on this pivotal issue. A portion of that evidentiary material merits special attention to determine whether it may be properly considered under Rule 13, Rules for District Courts, 12 O.S. Ch. 2, App.
¶10 Plaintiff submitted a transcription of a recording of a statement made by Lawmaster under questioning by one of Plaintiff's attorneys. This statement was not given in any court proceeding and was not under oath. The transcript was verified by an affidavit by the attorney who took the statement, who testified that he was present when Lawmaster made the statements contained in the recording and that the transcript was an accurate report of the statements he heard Lawmaster make at that time. The law firm employee who transcribed the recording also provided an affidavit attesting to the accuracy of the transcript made from the recording.
¶11 Plaintiff relies upon this statement for many of the "facts" which he says should have alerted Blue Rose employees to Lawmaster's intoxication and therefore made him visibly and noticeably intoxicated. However,...
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