Johnson v. Paige, A7810-16768

• Decision Date: 25 August 1980
• Docket Number: No. A7810-16768,A7810-16768
• Citation: 615 P.2d 1185,47 Or.App. 1177
• Parties: Densber JOHNSON, Personal Representative of the Estate of Isaiah Johnson, Deceased, Appellant, v. Lewis PAIGE, Respondent. ; CA 15460.
• Court: Oregon Court of Appeals

Page 1185

615 P.2d 1185

47 Or.App. 1177

Densber JOHNSON, Personal Representative of the Estate of Isaiah Johnson, Deceased, Appellant, v. Lewis PAIGE, Respondent.

No. A7810-16768; CA 15460.

Court of Appeals of Oregon.

Argued and Submitted March 19, 1980.

Decided Aug. 25, 1980.

William B. Aitchison, Portland, argued the cause for appellant. With him on the brief was Jolles, Sokol & Bernstein, P. C., Portland.

Steven P. Jones, Portland, argued the cause for respondent. With him on the brief were Margaret H. Leek Leiberan, and Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland.

Before JOSEPH P. J., and WARDEN and WARREN, JJ.

WARREN, Judge.

Plaintiff is the personal representative of the Estate of Isaiah Johnson, who died after falling down the stairs of defendant's residence while a social guest there. Plaintiff's amended complaint charged the defendant with negligence:

"1. In wilfully providing and serving decedent intoxicating liquor when he knew or should have known of decedent's intoxicated state and then allowing decedent to attempt to negotiate the stairs from which decedent fell."

"2. In failing to warn decedent of the steepness and dim lighting on the steps of which decedent was unaware before allowing decedent to negotiate the stairs in a condition which defendant knew, or should have known, to be one of intoxication."

Defendant's motion to strike the allegations of negligence of plaintiff's complaint was allowed and upon plaintiff's declining to plead further, the trial court granted defendant's motion for judgment on the pleadings. Plaintiff appeals from that order. We affirm.

The apparent basis for the trial court's order was that under the circumstances alleged in the plaintiff's amended complaint the defendant owed no duty to plaintiff. Plaintiff argues that in so holding, the trial court ignored the mandate of ORS 471.410(1) of the Liquor Control Act which provides:

"No person shall sell, give or otherwise make available any alcoholic liquor to any person who is visibly intoxicated."

Plaintiff argues that ORS 471.410(1) imposes a duty on a social host not to serve alcoholic liquor to a person who is visibly intoxicated and that civil liability may be predicated upon the violation of that statute. However, in the context of the entire act and its stated purposes, ¹ it is apparent that this act was intended to regulate the commercial sale of liquor, not its furnishing in a social setting.

In Weiner v. Gamma Phi, ATO Frat., 258 Or. 632, 639-640, 643, 485 P.2d 18 (1971), the Oregon Supreme Court held that a social host could, under specified circumstances, be liable at common law to a third party for injury caused by an intoxicated person. But, whether in a commercial or social context, ² Oregon has never " * * * recognized a common law cause of action in favor of a person (or his estate ³) who suffers injury resulting from his or her own consumption of alcohol." City of Portland v Alhadeff, 288 Or. 271, 279, 604 P.2d 1261, 1265 (1980); see also Ibach v. Jackson, 148 Or. 92, 98, 35 P.2d 672 (1934).

While it does not appear from plaintiff's complaint whether the decedent was over or under age 21, whichever the case may be we conclude that Alhadeff is dispositive. In Alhadeff, the Supreme Court declined to recognize a common law cause of action against a commercial seller of intoxicating liquor in favor of a minor who sustained injuries as a result of having been sold intoxicants. The Supreme Court said:

" * * * (W)e believe it is inappropriate to create such a common law cause of action for the benefit of the intoxicated person because Oregon had at the time in question what was known as the 'Dram Shop Act,' ORS 30.730, which provided:

" '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.'

"When the legislature has considered the liability to the inebriate's immediate family which should result from the giving of alcoholic liquor to him but has refrained from giving him a cause of action, we conclude it is probable it must have considered the matter and rejected any cause of action for him. We, therefore, consider a cause of action for his benefit inappropriate."

Here, in a social setting, ...