JENNIFER J. BAKER, Personal Representative of the Estate of Tyler R. Baker, Plaintiff-Appellant,
MATTHEW A. CROSLIN, Defendant-Respondent, and TYLER GREGORY SMITH, Defendant
Argued and Submitted February 12, 2014.
Multnomah County Circuit Court. 110607278. Eric L. Dahlin, Judge pro tempore.
Jan K. Kitchel argued the cause for appellant. With him on the briefs were Andrew J. Lee, Jordan R. Silk, and Schwabe, Williamson & Wyatt, P.C.
James L. Hiller argued the cause for respondent. With him on the brief was Hitt Hiller Monfils Williams LLP.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.
[264 Or.App. 197] LAGESEN, J.
This case arises out of a terrible accident. Tyler Baker, Tyler Smith, and Matthew Croslin, among others, gathered at Croslin's house to watch the fourth game of the 2010 National Basketball Association finals. The three, who had been friends since
childhood, all legally possessed handguns that they carried that evening. When the game was nearly over--having consumed a fair amount of alcohol--the men began acting out self-defense scenarios using their guns, which they thought were unloaded. Smith's gun was not unloaded. Instead, it was loaded with a Magtech hollow-point bullet that Smith had obtained from Croslin earlier in the evening. While Smith and Baker were acting out a robbery, Smith's gun discharged, killing Baker.
Plaintiff Jennifer Baker, Baker's widow and the personal representative of Baker's estate, initiated this wrongful death action against Smith and Croslin. The trial court granted summary judgment to Croslin (hereinafter, defendant) on the ground that ORS 471.565(2) barred the claims against defendant because there was insufficient evidence to permit a factfinder to find that defendant " served or provided alcoholic beverages" to Smith while Smith was visibly intoxicated. We conclude otherwise and reverse.
Plaintiff's complaint alleged that defendant was negligent (1) in " unreasonably serving Smith alcohol while Smith was in a visibly intoxicated state," (2) in " unreasonably encouraging quick draw handgun activity while Smith was in a visibly intoxicated state," and (3) in " unreasonably encouraging Smith to load his unloaded handgun with Magtech hollowpoint ammunition while Smith was in a visibly intoxicated state." Defendant moved for summary judgment on three grounds: (1) that under ORS 471.565, as construed in Hawkins v. Conklin, 307 Ore. 262, 767 P.2d 66 (1988), defendant can be liable to plaintiff only for serving [264 Or.App. 198] alcohol to Smith while Smith was visibly intoxicated and cannot be liable for negligently encouraging gunplay; (2) that ORS 471.565(2)(a) bars liability because there is insufficient evidence to permit a factfinder to find that defendant served or provided alcohol to Smith while Smith was visibly intoxicated; and (3) that the " complicity doctrine" codified at ORS 471.565(2)(b) bars the claims against defendant. The trial court granted the motion, concluding that all claims against defendant " rise and fall on the issue of whether or not Mr. Smith was served while he was visibly intoxicated," and that plaintiff presented insufficient evidence to permit a reasonable factfinder to find that defendant served or provided alcohol to Smith while Smith was visibly intoxicated. The trial court entered a limited judgment in favor of defendant.
On appeal, plaintiff asserts that the trial court erred in concluding that the evidence in the summary judgment record was insufficient to permit a factfinder to find that defendant served or provided alcohol to Smith while Smith was visibly intoxicated. Alternatively, she asserts that, even if the evidence is insufficient to permit a factfinder to find that defendant served or provided alcohol to Smith while Smith was visibly intoxicated, the trial court erred in concluding that ORS 471.565 bars her claims predicated on Smith's alleged negligence in encouraging gunplay.
On review of a trial court's grant of summary judgment, " we view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to * * * the party opposing the motion." Jones v. General Motors Corp., 325 Ore. 404, 408, 939 P.2d 608 (1997). Summary judgment is proper only " if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Outdoor Media Dimensions Inc. v. State of Oregon, 331 Ore. 634, 638, 20 ...