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Wilda v. Roe

Court of Appeals of Oregon

March 7, 2018

Charles WILDA, Plaintiff,
v.
Steven D. ROE, Defendant. Steven D. ROE, Third Party Plaintiff-Appellant,
v.
B & B WACHTER, INC., dba Round Butte Inn, and L & K SEMM, Inc., dba Desert Inn Bar & Grill, Inc., Third Party Defendants-Respondents.

          Argued and submitted December 21, 2017

         Jefferson County Circuit Court 15CV05812 Annette C. Hillman, Judge.

          Thomas M. Christ argued the cause for appellant. With him on the briefs was Cosgrave Vergeer Kester LLP.

          Jonathan W. Henderson argued the cause for respondent L & K Semm, Inc. On the brief was Barry J. Goehler.

          Anna S. Raman and Preg O'Donnell & Gillett PLLC fled the brief for respondent B & B Wachter, Inc.

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

         Case Summary:

         Defendant Roe appeals from a limited judgment that dismissed his third-party complaint that sought to implead two taverns into plaintiff Wilda's action against Roe for plaintiff's personal injury claim. Wilda alleged that Roe had spent the night drinking at a tavern, fallen asleep while driving, lost control of the pickup, and negligently caused Wilda serious injuries. Roe [290 Or.App. 600] admitted negligence and asserted a third-party complaint against two taverns. He alleged that the taverns had served him while he was visibly intoxicated and that if Wilda should recover against Roe, the taverns should contribute to payment of those damages in proportion to their share of fault. The taverns fled a motion to dismiss the third-party claim on the ground that ORS 471.565(1) broadly prohibits an intoxicated patron from bringing any cause of action, including third-party claims, against the server of alcohol, when the claim is based on service of alcoholic beverages. Held: The trial court erred in dismissing the third-party complaint and entering a limited judgment in favor of the taverns. ORS 471.565(1) does not prohibit a patron's third-party claim that seeks contribution for payment of the damages of the plaintiff injured by the intoxicated patron.

         [290 Or.App. 601] DeVORE, P. J.

         This appeal decides the reach of a statute, ORS 471.565(1), that prohibits a patron from bringing a liquor liability claim against the establishment that overserved the patron. This appeal presents the question whether that statute prohibits a patron from impleading a tavern into the claim brought by a person injured by the intoxicated patron. Defendant Roe appeals from a limited judgment that dismissed his third-party complaint that sought to implead two taverns into plaintiff Wilda's action against Roe for plaintiff's personal injuries. We conclude that ORS 471.565(1), which we quote and explore later, does not prohibit a defendant patron from impleading a tavern into a plaintiff's personal injury claim.[1]

         In reviewing the order granting the motion to dismiss, we assume the truth of the allegations of Roe's third-party complaint and any inferences that may reasonably be drawn from those allegations. We view the facts in the light most favorable to the non-moving party. Mitchell v. The Timbers, 163 Or.App. 312, 317, 987 P.2d 1236 (1999).

         Plaintiff Wilda alleged that he was in bed asleep at home when a pickup truck, driven by Roe, crashed through a wall and came to rest on top of him. Wilda alleged that Roe had spent the night drinking at a tavern, fallen asleep while driving, lost control of the pickup, and negligently caused Wilda serious injuries. He alleged $570, 898 in economic and noneconomic injuries.

         Roe admitted negligence and asserted a third-party complaint against B & B Wachter, Inc., doing business as Round Butte Inn (Round Butte), and L & K SEMM, Inc., doing business as Desert Inn Bar and Grill, Inc. (Desert [290 Or.App. 602] Inn). Roe alleged, among other things, that the taverns had served him while he was visibly intoxicated. His third-party complaint alleged that, if plaintiff Wilda should recover against Roe, the taverns should contribute to payment of those damages in proportion to their share of fault.

         Desert Inn filed a motion to dismiss the third-party claim for failure to state facts sufficient to constitute a claim for relief. Round Butte joined the motion. Both argued that ORS 471.565(1) broadly prohibits an intoxicated patron from bringing any cause of action, including third-party claims, against the server of alcohol, when the claim is based on service of alcoholic beverages, regardless whether the claim involves the personal injuries of the intoxicated patron or a person injured by the intoxicated patron. Roe responded that the statute prohibits an intoxicated patron from bringing a liquor liability claim for the ...


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