Miller v. City of Portland

• Citation: 604 P.2d 1261,288 Or. 271
• Decision Date: 08 January 1980
• Docket Number: No. A7602-02459,A7602-02459
• Parties: Darlene M. MILLER, Plaintiff, v. CITY OF PORTLAND and Donald R. Lind, Defendants. CITY OF PORTLAND and Donald R. Lind, Third Party Plaintiffs/Respondents, v. David L. ALHADEFF and Carolyn Alhadeff, dba Dave's Rallye, Third Party Defendants/Petitioners. ; CA 10332; SC 26194.
• Court: Supreme Court of Oregon

Page 1261

604 P.2d 1261

288 Or. 271

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

CITY OF PORTLAND and Donald R. Lind, Third Party Plaintiffs/Respondents, v. David L. ALHADEFF and Carolyn Alhadeff, dba Dave's Rallye,

Third Party Defendants/Petitioners.

No. A7602-02459; CA 10332; SC 26194.

Supreme Court of Oregon.

Argued and Submitted Oct. 1, 1979.

Decided Jan. 8, 1980.

Elizabeth K. Reeve, Portland, argued the cause for third party defendants/petitioners. With her on the petition were Wayne A. Williamson, Ridgway K. Foley, Jr., and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland. On the brief were Ridgway K. Foley, Jr., Steven H. Pratt, and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

John S. Cavanagh, Portland, argued the cause for third party plaintiffs/respondents. With him on the briefs were Andy Griffith, and Jones, Lang, Klein, Wolf & Smith, Portland.

Before DENECKE, C. J., and HOLMAN, HOWELL, LENT, LINDE and PETERSON, JJ.

HOLMAN, Justice.

This is a third party action brought by the City of Portland and one of its police officers against the operators of a tavern. The city and the officer (hereinafter the City) were sued for damages resulting from personal injuries arising out of a traffic accident in which a police car, driven by the officer, collided with a motorcycle operated by Brian Kolibaba and on which Darleen Miller was a passenger. Miller sued the City, and the City made the Alhadeffs, the tavern operators, third party defendants. The City settled with Miller and seeks contribution from the Alhadeffs on the basis that they were also responsible for the accident. The trial court struck all the allegations of negligence made by the City in its third party complaint against the Alhadeffs and, when it refused to plead further, entered judgment for the Alhadeffs. The City appealed and the Court of Appeals reversed the trial court, holding that all the allegations of negligence were proper. 39 Or.App. 389, 592 P.2d 276 (1979). This court allowed the Alhadeffs' petition for review.

The City's third party complaint is brought upon the basis that the Alhadeffs were negligent in selling liquor to Miller and Kolibaba when they were under age and visibly intoxicated, which negligence combined with that of the police officer in causing the accident in which Miller was injured. The allegations of negligence were, as follows:

"1. In selling or making available alcoholic liquor to Darlene M. Miller, when they knew or should have known that 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 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 a motorcycle;

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

In a suit for contribution, the third party defendant is liable to the original defendant-third party plaintiff for a portion of the total liability only if the original plaintiff could have recovered against the third party defendant. ORS 18.440(1). ¹ The Alhadeffs, then, can be liable to the City only if they would have been liable to Miller had she brought an action against them. Therefore, in determining the adequacy of the City's allegations of negligence, we must treat them as if Miller were alleging them against the Alhadeffs.

The second and fourth allegations of negligence relate to making available alcoholic liquor to Kolibaba. The second allegation is that alcoholic liquor was furnished to Kolibaba when defendants knew or should have known he was under the age of 21 years; the fourth allegation is that it was furnished to him when they knew or should have known he was visibly intoxicated. We agree with the Court of Appeals that these two allegations are sufficient to state a cause of action in favor of Miller against the tavern operators. In Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977), we held that the proprietors of a bar could be liable to third parties who were injured in an automobile accident resulting from the selling of alcoholic liquor to a customer who was visibly intoxicated when it was known or should have been known that the customer would leave the premises by operating a motor vehicle. The liability was based upon common law negligence and not as the result of the adoption of any statute.

In Davis v. Billy's Con-Teena, Inc., 284 Or. 351, 587 P.2d 75 (1978), we held that the proprietors of two taverns who allegedly each sold a keg of beer to persons under 21 years of age could be liable for the death of a third party who was killed as the result of an automobile accident caused by an intoxicated minor who consumed the beer. The liability was based upon negligence per se for the violation of ORS 471.130(1), ² which makes it unlawful for a licensee to sell alcoholic beverages without taking certain precautions regarding anyone about whom there is any doubt of his having reached 21 years of age. ³ Davis was decided subsequent to the ruling of the trial court in this case.

It is apparent from the two cases discussed above that allegations of negligence two and four of plaintiff's complaint are each sufficient to state a cause of action.

Defendants contend that plaintiff should not be allowed to recover because she participated with Kolibaba in his drinking and inebriation, and she is therefore not in the position of an innocent third party. The court is not in a position to address this question because the issue is not raised by the pleadings. The complaint alleges only that they were both patrons of the tavern and that after both had been drinking beer, Kolibaba gave Miller a ride on his motorcycle. There are no allegations from which it must necessarily be concluded that they were partying together.

The Court of Appeals concluded that the first allegation of negligence, asserting Miller's lack of age, if true, established negligence based upon the tavern's violation of ORS 471.130(1). ⁴ While we have held in Davis, supra, that an action may be maintained against a commercial purveyor of liquor for the death of a third party killed by a minor who received liquor in violation of ORS 471.130(1), ⁵ we have not held that a violation of the statute can be used as a basis for recovery by the underage customer. The two conventional tests for finding a right of action under the negligence per se doctrine are (1) whether the injured person is a member of the class intended by the legislature to be protected, and (2) whether the harm is of the kind which the statute was intended to prevent. Stachniewicz v. Mar-Cam Corporation, 259 Or. 583, 586, 488 P.2d 436 (1971). The holding in Davis indicates that the harm to be prevented includes injuries from traffic accidents caused by the minor's drunkenness, but we have not yet held that the inebriated minor is within the class of persons intended to be protected.

It is appropriate at this time to discuss in a broader context the effect which the enactment of statutes (and administrative regulations) has upon tort liability in negligence. Courts may, of course, recognize common law causes of action where they conclude that a defendant owes a duty of due care to plaintiff; in such cases, the standard of conduct is that of a reasonably prudent person under the same or similar circumstances. If courts believe in given circumstances there should be a common law cause of action, and there also are criminal or regulatory statutes which delineate the defendant's conduct under such circumstances, courts may adopt the conduct required by the statutes as that which would be expected of a reasonably prudent person providing courts believe the statutorily required conduct to be appropriate for establishing civil liability. When the statutes are not enacted for the purpose of determining civil liability, there is no requirement that courts do so. When courts thus adopt the statutory standard for a cause of action that would be common law negligence, the violation of the statute is said to be negligence per se. The test previously set forth in this opinion from Stachniewicz is the one usually used by courts to determine whether the criterion of the statute should be substituted for that of the reasonably prudent person. Its most common application is seen in automobile accident cases. Courts have decided that operators of vehicles owe a duty of due care to others in the operation of their vehicles. The legislature has enacted a code governing operation of vehicles and courts have adopted these statutes as being the required conduct of a reasonably prudent vehicle operator for the purpose of determining civil liability, even though the statutes were not enacted for that purpose.

However, criminal or regulatory statutes are frequently enacted to cover situations in which no common law right of action has ever been established by courts. ⁶ One of the most usual situations concerns injuries incurred by a person who has been given and has used alcohol. ⁷ The statutes may have express provisions for a tort right of action. When such statutes exist, courts must, of course, comply. On the other hand, regulatory and criminal statutes most often contain no express provision for a right of action and, where courts have established no common law rights under the circumstances governed by the statutes, a different kind of problem is posed from...