Mason v. BCK Corp.

Citation426 P.3d 206,292 Or.App. 580
Decision Date05 July 2018
Docket NumberA161175
Parties Matthew J. MASON, Plaintiff-Appellant, v. BCK CORPORATION, dba Duffy's Irish Pub, Defendant-Respondent, and Jolene R. Mullenix, Defendant.
CourtCourt of Appeals of Oregon

292 Or.App. 580
426 P.3d 206

Matthew J. MASON, Plaintiff-Appellant,
v.
BCK CORPORATION, dba Duffy's Irish Pub, Defendant-Respondent,
and
Jolene R. Mullenix, Defendant.

A161175

Court of Appeals of Oregon.

Argued and submitted September 26, 2017.
July 5, 2018


Kathryn H. Clarke argued the cause for appellant. Also on the briefs was Daniel A. Rayfield.

Jeffrey D. Eberhard, Portland, argued the cause for respondent. Also on the brief was Smith Freed & Eberhard P.C.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

DeVORE, J.

292 Or.App. 581

Plaintiff appeals from a limited judgment that, on a motion for summary judgment, dismissed his liquor liability claim against defendant BCK Corporation, the operator of Duffy's Irish Pub. Plaintiff had alleged that defendant had overserved Mullenix while she was visibly intoxicated and that he was later injured while a passenger in a car that Mullenix drove. Defendant sought summary judgment, asserting that plaintiff had "substantially contributed" to the intoxication of Mullenix, within the meaning of ORS 471.565(2). That statute, which we quote and explore later, imposes a burden on plaintiff to prove that he did not substantially contribute to her intoxication. We conclude that the trial court did not err in granting summary judgment for defendant.

426 P.3d 211

I. FACTS

We view the facts and accept reasonable inferences in the light most favorable to plaintiff, the nonmoving party. Vaughn v. First Transit, Inc. , 346 Or. 128, 132, 206 P.3d 181 (2009). Plaintiff and Mullenix had been acquainted but had not planned to meet on March 29, 2014. That evening about 9:00 p.m., Mullenix and her fiancé, Hidaro, went to Duffy's Irish Pub, because Mullenix knew it had a karaoke machine with a song that she wanted to sing. According to her, they had originally planned to leave after one song. After about 15 minutes, plaintiff arrived, and he joined them. The three bought rounds of drinks for each other, and they stayed until about 2:00 a.m. Mullenix recalls that plaintiff bought at least two rounds for her, possibly more. Hidaro recalls that plaintiff bought between three and five rounds for the group, but some rounds did not include Mullenix. He was "pretty confident" that plaintiff bought Mullenix between one and three beers. Mullenix estimated that she had a 16-ounce beer every 30 minutes or about 10 beers during the five hours at Duffy's that evening. After the "last call," plaintiff asked Mullenix for a ride home. On the way home with plaintiff in her car, Mullenix lost control, and her car struck a tree. Plaintiff suffered severe injuries. About two hours after the accident, Mullenix was found to have blood alcohol content (BAC) of .205 percent.

292 Or.App. 582

Plaintiff brought claims against Mullenix for negligent driving and against defendant, the operator of Duffy's, for serving Mullenix alcohol when she was visibly intoxicated.1 Defendant moved for summary judgment based on the statute that makes plaintiff's contribution to Mullenix's intoxication an issue in plaintiff's case. As relevant here, ORS 471.565(2) provides:

"A person licensed by the Oregon Liquor Commission * * * 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."

(Emphasis added.) Defendant argued that plaintiff could not meet his burden to show that he had not substantially contributed to Mullenix's intoxication. Defendant argued that, if plaintiff had substantially contributed in any one of the three ways listed in the statute, then he could not recover. Defendant concluded that, because the undisputed facts showed plaintiff did furnish, encourage, or facilitate the consumption of alcohol, plaintiff could not satisfy an element of his claim, as a matter of law.

Plaintiff responded that there was a genuine issue of material fact whether he substantially contributed to Mullenix's intoxication. He argued that the question whether he "substantially contributed to the intoxication" was a

292 Or.App. 583

question that "requires a quantitative analysis." To that end, plaintiff focused on the amount of alcohol plaintiff bought Mullenix. Plaintiff offered the affidavit of Schreiner, a former police officer who was familiar with BAC testing. He opined, based on Mullenix's weight and gender, that a single 16-ounce Bud Light, consumed in 10 minutes on an empty stomach, would produce a BAC of .028 percent. Under the same circumstances, two such beers would produce a BAC of .057 percent. Three would produce a BAC of .085 percent. He calculated that, at her rate of consumption, three 16-ounce Bud Lights would produce a BAC between .048 and .070 percent. He concluded that, with that understanding, three such beers would not have caused Mullenix's level of intoxication

426 P.3d 212

to be above the legal standard to drive—BAC of .08 percent.2 "Using a quantitative analysis," with which he had considered only the effect of the beers from plaintiff in isolation and without regard for the combined effect with other alcohol, Schreiner opined that beers from plaintiff "did not substantially contribute to Ms. Mullenix's intoxication." Based on that affidavit, plaintiff argued that the evidence showed that he had only bought 10, 20, or 30 percent of the alcohol Mullenix consumed. He argued, "At best, plaintiff's purchase of alcohol minimally contributed to her level of intoxication." Therefore, he urged that a jury could conclude that one, two, or three beers did not "substantially contribute" to her intoxication.

Plaintiff has no memory of the evening. In his affidavit, he offered no disagreement with the particular facts in the witnesses' account of the evening, but, he attested, "I do not make a habit of encouraging social acquaintances to drink, play drinking games, take shots, or compel them to drink when they do not want to."

Responding to plaintiff's "quantitative" emphasis, the trial court observed that the ways in which a plaintiff might "substantially contribute" to intoxication are not as narrow as plaintiff assumes. The court recognized that the legislature allowed that, in addition to buying alcohol,

292 Or.App. 584

a plaintiff could contribute in other ways. As a result, the question was "whether or not the indisputable facts constitute clear and convincing evidence that plaintiff did not encourage Mullenix to consume or purchase alcohol ‘in any other manner,’ or whether plaintiff facilitated Mullenix['s] consumption of alcohol ‘in any manner.’ " The trial court concluded that there was no genuine issue of material fact that could permit a reasonable juror to find by clear and convincing evidence that plaintiff did not substantially contribute to Mullenix's intoxication. The court allowed summary judgment and granted a limited judgment dismissing the claims against defendant.

II. LAW

A. Standards for Decision

Like the trial court, we begin our review with an appreciation of the several standards that govern an assessment of the ultimate issue. When one party moves for summary judgment, "[t]he adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at trial." ORCP 47 C. The court should grant the motion if the pleadings and various filings "show that there is no genuine issue as to any material fact." Id . "No genuine issue as to a material fact exists if, based on the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party * * *." Id . In short, summary judgment is appropriate if undisputed facts would compel a jury to return a verdict for the moving party. Jones v. General Motors Corp ., 325 Or. 404, 414, 939 P.2d 608 (1997).

After noting those familiar standards, we recognize that, in this case, ORS 471.565(2)(b) imposes a burden on plaintiff to prove, as part of his claim, that he did not substantially contribute to the intoxication of the person who caused his injury. That burden is unusual because, in effect, plaintiff must prove a negative, and because plaintiff must do so by clear and convincing evidence.

As a preliminary matter, defendant raises a question concerning the role that the "clear and convincing" standard

292 Or.App. 585

of proof plays in our assessment of whether the case presents a genuine issue of fact...

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