Miller v. City of Portland

• Jurisdiction: Oregon
• Parties: Darlene M. MILLER, Plaintiff, v. CITY OF PORTLAND and Donald R. Lind, Defendants. CITY OF PORTLAND and Donald R. Lind, Third-Party Plaintiffs-Appellants, v. David ALHADEFF and Carolyn Alhadeff, d/b/a Dave's Rallye, Third-Party Defendants-Respondents. 7602-02459; CA 10332.
• Citation: 592 P.2d 276,39 Or.App. 389
• Docket Number: No. A,A
• Court: Oregon Court of Appeals
• Decision Date: 19 March 1979

Page 276

592 P.2d 276

39 Or.App. 389

Darlene M. MILLER, Plaintiff, v. CITY OF PORTLAND and Donald R. Lind, Defendants.

CITY OF PORTLAND and Donald R. Lind, Third-Party Plaintiffs-Appellants, v. David ALHADEFF and Carolyn Alhadeff, d/b/a Dave's Rallye,

Third-Party Defendants-Respondents.

No. A 7602-02459; CA 10332.

Court of Appeals of Oregon.

Argued and Submitted Sept. 19, 1978.

Decided March 19, 1979.

John S. Cavanagh, Portland, argued the cause for appellants. With him on the briefs were C. Anderson Griffith, and Jones, Lang, Klein, Wolf & Smith, Portland.

Ridgway K. Foley, Jr., Portland, argued the cause for respondents. With him on the brief were Steven H. Pratt, and Souther, Spaulding, Kinsey, Williamson & Pratt, Portland.

Before TANZER, P. J., and GILLETTE and ROBERTS, JJ.

ROBERTS, Judge.

Third-party plaintiffs (hereinafter City) appeal from the striking by the trial court of all allegations of negligence from their first and second amended complaints and from an order of the trial court allowing a motion for judgment on the pleadings and entering judgment in favor of the third-party defendants (hereinafter Alhadeffs).

The facts, as alleged by the various pleadings, are as follows. On the night of November 3, 1974 Darlene Miller and Brian Kolibaba, both minors, were served liquor at Dave's Rallye Tavern. After drinking, the two left on Kolibaba's motorcycle, he driving and she riding on the back, and collided with a police car driven by third-party plaintiff Donald Lind. As a result of the collision Miller was injured.

Miller brought an action against Lind and the City, alleging various acts of negligence in the operation of the police car. The parties settled upon a payment of $23,000 by the City to Miller and a stipulated order was entered dismissing the primary case.

The City then sued the Alhadeffs, who were the tavern owners, for contribution. The City filed two amended complaints, the first containing six allegations of negligence and the second reworded to contain four as follows:

"1. In selling or making available alcoholic liquor to Darlene M. Miller, when they knew or should have known she was a person under the age of twenty-one years, and when they knew or should have known that she would ride on a motorcycle;

"2. In selling or making available alcoholic liquor to Brian R. Kolibaba, when they knew or should have known he was a person under the age of twenty-one years, and when they knew or should have known that he would operate a motorcycle;

"3. In selling or making available alcoholic liquor to Darlene M. Miller at a time when they knew or should have known she was visibly intoxicated, and when they knew or should have known that she would ride on a motorcycle;

"4. In selling or making available alcoholic liquor to Brian R. Kolibaba at a time when they knew or should have known he was visibly intoxicated, and when they knew or should have known that he would operate a motorcycle." (Emphasis supplied.)

In making its allegations the City relied upon Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977), which held that a tavern owner is liable at common law for injuries caused to a third party where the tavern has served a visibly intoxicated person and the tavern's negligence in so serving is a substantial factor in bringing about the injuries of the third person.

The trial court allowed the Alhadeffs' motions to strike the allegations of negligence, apparently persuaded by the Alhadeffs' argument that Campbell only applied to situations where the person injured was an innocent third party. The Alhadeffs contended that Campbell was not applicable to the serving of liquor to Miller because no third party was injured, nor to the serving of liquor to Kolibaba because, although Miller was a third party allegedly injured by the serving of liquor to him, she was not "innocent" because she had been drinking.

The City declined to plead further and the trial judge entered judgment for the Alhadeffs. We examine the pleadings to determine whether, as a matter of law, any of the four particulars is a sufficient allegation of negligence. We determine that all four were erroneously stricken by the trial judge and we reverse.

We look first at the two allegations contending the Alhadeffs were negligent in serving Miller and Kolibaba when they knew or should have known each was a person under the age of 21. Because of the Supreme Court's recent decision in Davis v. Billy's Con-Teena, Inc., 284 Or. 351, 587 P.2d 75 (1978), we do not consider whether these two allegations state legally sufficient causes of action in common law negligence.

In Davis, The Supreme Court declined to decide whether the selling of liquor to a minor, who in turn drove an automobile recklessly and caused a death, constituted negligence at common law, but held that it did constitute negligence per se under ORS 471.130(1), which makes it unlawful to sell liquor to any person "about whom there is any reasonable doubt of his having reached 21 years of age" without first requiring proof of age.

Although the City filed its complaint without benefit of the Davis decision, ¹ we find the first two allegations to be sufficient statements of negligence per se under Davis. The allegations state that the Alhadeffs knew or should have known that Miller and Kolibaba were persons under the age of twenty-one. Although not couched in the language of ORS 471.130(1), these allegations set forth the essence of the statute, which is the tavern keeper's knowledge that the persons served were minors. Therefore, the City should have the opportunity to present evidence tending to show violation of the statute, which, if accepted by the jury, would constitute negligence per se under Davis.

The remaining two allegations of negligence must be examined in light of the common law rules set forth in Campbell since they do not fall within the negligence per se rule of the Davis opinion. We hold that the trial judge erred in striking the fourth allegation which contends that the...