Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity

• Decision Date: 19 May 1971
• Citation: 485 P.2d 18,258 Or. 632,92 Or. Adv.Sh. 1027
• Parties: , 53 A.L.R.3d 1276 Jane L. WIENER, Appellant, v. GAMMA PHI CHAPTER OF ALPHA TAU OMEGA FRATERNITY, an Oregon Corporation, et al., Respondents.
• Court: Oregon Supreme Court

Page 18

485 P.2d 18

258 Or. 632, 53 A.L.R.3d 1276

Jane L. WIENER, Appellant, v. GAMMA PHI CHAPTER OF ALPHA TAU OMEGA FRATERNITY, an Oregon Corporation, et al., Respondents.

Supreme Court of Oregon, In Banc.

Argued and submitted March 5, 1970.

Reargued April 5, 1971.

Decided May 19, 1971.

William G. Wheatley, Eugene, argued and reargued and John E. Jaqua, Eugene, argued the cause for appellant. On the briefs were Jaqua, Wheatley & Gardner, Eugene.

Paul D. Clayton, Eugene, argued and reargued the cause for respondent Gamma Phi Chapter of Alpha Tau Omega Fraternity. With him on the brief were Luvaas, Cobb, Richards & Fraser, Eugene.

Darst B. Atherly, Eugene, argued and reargued the cause for respondents Robert O. Davis, Charles F. Larson, Jr., Calvin L. Schmidt and Robert H. Smith, individually and doing business as Country Squire Tree Farm. On the brief were Thwing, Atherly & Butler and Robert G. Dickinson, Eugene.

Richard Bryson, Eugene, argued and reargued the cause for respondent Vira Corp. With him on the brief was Windsor Calkins, Eugene.

Edward V. O'Reilly, Eugene, argued and reargued the cause for respondents Kenneth Bruhn and Opal Bruhn. With him on the brief were O'Reilly, Anderson, Richmond & Adkins, Eugene.

Wayne W. Williamson, Portland, argued and reargued the cause for respondent Daniel Hamilton Kienow, III. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson and Thomas M. Triplett, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL, BRYSON and SCHWAB, JJ.

O'CONNELL, Chief Justice.

This is an action to recover damages for personal injuries resulting from an automobile accident. The trial court entered an order allowing a motion to quash service of summons as to defendant Gamma Phi Chapter of Alpha Tau Omega Fraternity, an unincorporated association, and sustained the demurrers filed by each of the other defendants. Plaintiff appeals from a judgment entered in favor of each of those defendants.

Defendants Vira Corp., Larson, Schmidt, Smith (doing business as the Country Squire Tree Farm), and defendants Bruhn were the owners and operators of the Country Squire Recreation Ranch which was located about ten miles north of Eugene, Oregon. Defendant Gamma Phi Chapter of Alpha Tau Omega Fraternity, an Oregon corporation, ¹ is alleged to be a fraternity at the University of Oregon.

The allegations of the complaint may be summarized as follows. It is alleged that defendants The County Squire Motel, Inc. and Country Squire Tree Farm, and Kenneth Bruhn and Opal Bruhn, for valuable consideration agreed with defendant fraternity that they would furnish to the fraternity the Country Squire Recreation Ranch for use by the fraternity and its guests; that defendants knew that beer and other alcoholic drinks would be served or made available to minors, and that minors, or some of them, would leave the premises by automobile and drive toward Eugene, thereby creating an unreasonable hazard and risk of harm to the occupants of the vehicles and to guests invited by and transported to the premises by the defendant fraternity.

It is alleged that defendant Kienow, a member of the fraternity, knew of the agreement and arrangement for the party and knew that some of the members of his fraternity and other college students in attendance would be minors, and having that knowledge, purchased alcoholic beverages for the purpose of making them available to the party and that he had these alcoholic beverages delivered to the Ranch with the knowledge and consent of all of the defendants.

It is alleged that the party was held on October 10, 1964; and among those attending were plaintiff and David Michael Blair, a minor; that with the full knowledge, consent and permission of the owners and operators of the Ranch the fraternity caused beer and other alcoholic drinks supplied by Kienow to be served or made available to David Michael Blair; that about 11:00 p.m. on that date, Blair, after consuming a large quantity of beer or other alcoholic beverages, departed for Eugene, driving a Rambler automobile, transporting plaintiff and other guests on behalf of the fraternity. It is then alleged that Blair drove into a building on the way to Eugene, thereby causing injuries to plaintiff.

The complaint charges defendant fraternity with negligence in the following and other particulars:

(1) In causing and permitting intoxicating beverages to be served to Blair, a minor, when defendant knew or should have known Blair was a minor; that defendant knew that Blair had driven an automobile to the premises, that he would necessarily be required to return to Eugene, and that after consuming quantities of alcoholic beverages his driving upon the highways would constitute an unreasonable hazard and risk of harm to plaintiff.

(2) In failing to ascertain and to warn plaintiff of the intoxicated condition of Blair.

(3) In failing to properly supervise the function being held at The Country Squire Recreation Ranch so as to have prevented minors from being permitted to consume alcoholic beverages and so as to have prevented guests at that function from being transported by persons with whom it would be unsafe to ride.

(4) In failing to provide a safe means of transportation from the party when defendant knew, or in the exercise of reasonable care should have known, that such transportation was necessary.

The defendants operating the Country Squire Tree Farm are charged with negligence and with knowingly maintaining a place where alcoholic beverages were served to minors in violation of the laws of Oregon, thereby creating and maintaining a common nuisance.

Defendant Kienow is charged with negligence in that he purchased and delivered alcoholic beverages to the Ranch and that he knew or should have known that the guests would include minors who would drink alcoholic beverages. Defendants Kienow and the fraternity are also charged with assisting in maintaining a common nuisance.

We shall first consider the liability of defendant Kienow, Plaintiff predicates defendant Kienow's negligence liability upon two grounds: (1) the violation of ORS 471.410(2) providing that 'no person other than his parent or guardian shall give or otherwise make available any alcoholic liquor to any person under the age of 21 years,' and (2) common law negligence.

We think the design of ORS 471.410(2) was to protect minors from the vice of drinking alcoholic beverages; it was not the purpose of the statute to protect third persons from injury resulting from the conduct of inebriated minors or of imposing liability upon a person contributing to the minor's delinquency by furnishing him with alcohol. ²

The second ground urged by plaintiff presents a different and more difficult question. Ordinarily, a host who makes avaialble intoxicating liquors to an adult guest is not liable for injuries to third persons resulting from the guest's intoxication. ³ There might be circumstances in which the host would have a duty to deny his guest further access to alcohol. This would be the case where the host 'has reason to know that he is dealing with persons whose characteristics make it especially likely that they will do unreasonable things.' ⁴ Such persons could include those already severely intoxicated, or those whose behavior the host knows to be unusually affected by alcohol. Also included might be young people, if their ages were such that they could be expected, by virtue of their youth alone or in connection with other circumstances, to behave in a dangerous fashion under the ifnluence of alcohol.

We think that each case must be decided on its own facts, ⁵ and we reject the rule suggested by the defendants that furnishing alcohol to others in a social setting, even if the host acts unreasonably, can never give rise to liability for acts of the guest whose intoxication results.

Considering, then the allegations of the complaint as they apply to defendant Kienow, it is our opinion that they are not sufficient to express a breach of duty to plaintiff in this case. 'Duty' in the sense we use it here is, as Prosser has described it, 'an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' Prosser, The Law of Torts 333 (3d ed. 1964). We are faced with such a problem of policy formulation in this case.

As we have already indicated, there may be circumstances under which a person could be held liable for allowing another to become dangerously intoxicated. However, we feel that liability should not be extended to one who acts only as a conduit in providing alcohol to those who directly serve it to others. A host has a choice of serving alcohol to whomsoever he pleases. In making that choice he may decide to serve the alcohol illegally or under circumstances which create an unreasonable rick of harm to others. We do not think that the harmful consequences of that choice should be visited upon another who has no part in making it. And we take this view even where the one supplying the alcohol might have reason to believe that the host is likely to make an unwise choice in dispensing it to others. The complaint does not allege that Kienow had any control over the direct dispensation of the alcohol at the party. We hold, therefore, that the demurrer to the complaint insofar as it relates to defendant Kienow was properly sustained.

We turn next to the allegations of negligence on the part of the owners and operators of the Ranch. It is alleged that they agreed to furnish the premises for the use of the fraternity, knowing that at the party alcohol would be made available to minors and that some of the minors would leave the premises by automobile. It is also alleged that the fraternity served alcohol to Blair with the knowledge, consent and permission of these defendants. They are charged with negligence in allowing minors to...