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Mason v. BCK Corp.

Court of Appeals of Oregon

July 5, 2018

Matthew J. MASON, Plaintiff-Appellant,
v.
BCK CORPORATION, dba Duffy's Irish Pub, Defendant-Respondent, and Jolene R. MULLENIX, Defendant.

          Argued and submitted September 26, 2017

          Linn County Circuit Court 14CV19193; Thomas McHill, Judge.

          Kathryn H. Clarke argued the cause for appellant. Also on the briefs was Daniel A. Rayfeld.

          Jeffrey D. Eberhard argued the cause for respondent. Also on the brief was Smith Freed & Eberhard P.C.

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

         Case Summary:

         Plaintiff appeals from a limited judgment that, on a motion for summary judgment, dismissed his liquor liability claim against defendant, the operator of Duffy's Irish Pub. Plaintiff had alleged that defendant had overserved Mullenix while she was visibly intoxicated and that he was later injured while a passenger in a car that Mullenix drove. Defendant sought summary judgment, asserting that plaintiff had failed to present sufficient evidence from which a jury could find, by clear and convincing evidence, that he had not "substantially contributed" to the intoxication of Mullenix, within the meaning of ORS 471.565(2). Held: The trial court did not err in granting summary judgment. Although plaintiff would have had the "clear and convincing" burden of proof at trial under ORS 471.565(2)(b), plaintiff needed only show "some evidence" to raise a genuine issue of material fact at the summary judgment stage. Nonetheless, under the substantive requirements of ORS 471.565(2)(b), plaintiff had the burden to prove a negative -that his conduct, as described in subparagraphs (A) through (C) of the statute, was not a significant and material factor in Mullenix's intoxication. Under that standard, plaintiff failed to come forward with evidence from which a reasonable trier of fact could find that he did not substantially contribute to Mullenix's intoxication during the hours they spent drinking and socializing together.

         Affirmed.

         [292 Or.App. 581] DeVORE, J.

         Plaintiff appeals from a limited judgment that, on a motion for summary judgment, dismissed his liquor liability claim against defendant BCK Corporation, the operator of Duffy's Irish Pub. Plaintiff had alleged that defendant had overserved Mullenix while she was visibly intoxicated and that he was later injured while a passenger in a car that Mullenix drove. Defendant sought summary judgment, asserting that plaintiff had "substantially contributed" to the intoxication of Mullenix, within the meaning of ORS 471.565(2). That statute, which we quote and explore later, imposes a burden on plaintiff to prove that he did not substantially contribute to her intoxication. We conclude that the trial court did not err in granting summary judgment for defendant.

         I. FACTS

         We view the facts and accept reasonable inferences in the light most favorable to plaintiff, the nonmoving party. Vaughn v. First Transit, Inc., 346 Or. 128, 132, 206 P.3d 181 (2009). Plaintiff and Mullenix had been acquainted but had not planned to meet on March 29, 2014. That evening about 9:00 p.m., Mullenix and her fiance, Hidaro, went to Duffy's Irish Pub, because Mullenix knew it had a karaoke machine with a song that she wanted to sing. According to her, they had originally planned to leave after one song. After about 15 minutes, plaintiff arrived, and he joined them. The three bought rounds of drinks for each other, and they stayed until about 2:00 a.m. Mullenix recalls that plaintiff bought at least two rounds for her, possibly more. Hidaro recalls that plaintiff bought between three and five rounds for the group, but some rounds did not include Mullenix. He was "pretty confident" that plaintiff bought Mullenix between one and three beers. Mullenix estimated that she had a 16-ounce beer every 30 minutes or about 10 beers during the five hours at Duffy's that evening. After the "last call," plaintiff asked Mullenix for a ride home. On the way home with plaintiff in her car, Mullenix lost control, and her car struck a tree. Plaintiff suffered severe injuries. About two hours after the accident, Mullenix was found to have blood alcohol content (BAC) of .205 percent.

         [292 Or.App. 582] Plaintiff brought claims against Mullenix for negligent driving and against defendant, the operator of Duffy's, for serving Mullenix alcohol when she was visibly intoxicated.[1] Defendant moved for summary judgment based on the statute that makes plaintiffs contribution to Mullenix's intoxication an issue in plaintiff's case. As relevant here, ORS 471.565(2) provides:

"A person licensed by the Oregon Liquor Commission *** is not liable for damages caused by intoxicated patrons or guests unless the plaintiff proves by clear and convincing evidence that:
"(a) The licensee, permittee or social host served or provided alcoholic beverages to the patron or guest while the patron or guest was visibly intoxicated; and
"(b) The plaintiff did not substantially contribute to the intoxication of the patron or guest by:
"(A) Providing or furnishing alcoholic beverages to the patron or guest;
"(B) Encouraging the patron or guest to consume or purchase alcoholic beverages or in any other manner; or
"(C) Facilitating the consumption of alcoholic beverages by the patron or guest in any manner."

(Emphasis added.) Defendant argued that plaintiff could not meet his burden to show that he had not substantially contributed to Mullenix's intoxication. Defendant argued that, if plaintiff had substantially contributed in any one of the three ways listed in the statute, then he could not recover. Defendant concluded that, because the undisputed facts showed plaintiff did furnish, encourage, or facilitate the consumption of alcohol, plaintiff could not satisfy an element of his claim, as a matter of law.

         Plaintiff responded that there was a genuine issue of material fact whether he substantially contributed to Mullenix's intoxication. He argued that the question whether he "substantially contributed to the intoxication" was a [292 Or.App. 583] question that "requires a quantitative analysis." To that end, plaintiff focused on the amount of alcohol plaintiff bought Mullenix. Plaintiff offered the affidavit of Schreiner, a former police officer who was familiar with BAC testing. He opined, based on Mullenix's weight and gender, that a single 16-ounce Bud Light, consumed in 10 minutes on an empty stomach, would produce a BAC of .028 percent. Under the same circumstances, two such beers would produce a BAC of .057 percent. Three would produce a BAC of .085 percent. He calculated that, at her rate of consumption, three 16-ounce Bud Lights would produce a BAC between .048 and .070 percent. He concluded that, with that understanding, three such beers would not have caused Mullenix's level of intoxication to be above the legal standard to drive-BAC of .08 percent.[2] "Using a quantitative analysis," with which he had considered only the effect of the beers from plaintiff in isolation and without regard for the combined effect with other alcohol, Schreiner opined that beers from plaintiff "did not substantially contribute to Ms. Mullenix's intoxication." Based on that affidavit, plaintiff argued that the evidence showed that he had only bought 10, 20, or 30 percent of the alcohol Mullenix consumed. He argued, "At best, plaintiff's purchase of alcohol minimally contributed to her level of intoxication." Therefore, he urged that a jury could conclude that one, two, or three beers did not "substantially contribute" to her intoxication.

         Plaintiff has no memory of the evening. In his affidavit, he offered no disagreement with the particular facts in the witnesses' account of the evening, but, he attested, "I do not make a habit of encouraging social acquaintances to drink, play drinking games, take shots, or compel them to drink when they do not want to."

         Responding to plaintiff's "quantitative" emphasis, the trial court observed that the ways in which a plaintiff might "substantially contribute" to intoxication are not as narrow as plaintiff assumes. The court recognized that the legislature allowed that, in addition to buying alcohol, [292 Or.App. 584] a plaintiff could contribute in other ways. As a result, the question was "whether or not the indisputable facts constitute clear and convincing evidence that plaintiff did not encourage Mullenix to consume or purchase alcohol 'in any other manner,' or whether plaintiff facilitated Mullenix['s] consumption of alcohol 'in any manner.'" The trial court concluded that there was no genuine issue of material fact that could permit a reasonable juror to find by clear and convincing evidence that plaintiff did not substantially contribute to Mullenix's intoxication. The court allowed summary judgment and granted a limited judgment dismissing the claims against defendant.

         II. LAW

         A. Standards for Decision

         Like the trial court, we begin our review with an appreciation of the several standards that govern an assessment of the ultimate issue. When one party moves for summary judgment, "[t]he adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at trial." ORCP 47 C. The court should grant the motion if the pleadings and various filings "show that there is no genuine issue as to any material fact." Id. "No genuine issue as to a material fact exists if, based on the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party ***." Id. In short, summary judgment is appropriate if undisputed facts would compel a jury to return a verdict for the moving party. Jones v. General Motors Corp., 325 Or. 404, 414, 939 P.2d 608 (1997).

         After noting those familiar standards, we recognize that, in this case, ORS 471.565(2)(b) imposes a burden on plaintiff to prove, as part of his claim, that he did not substantially contribute to the intoxication of the person who caused his injury. That burden is unusual because, in effect, plaintiff must prove a negative, and because plaintiff must do so by clear and convincing evidence.

         As a preliminary matter, defendant raises a question concerning the role that the "clear and convincing" standard [292 Or.App. 585] of proof plays in our assessment of whether the case presents a genuine issue of fact for trial. According to defendant, that standard must be considered at the summary judgment stage and requires courts to consider the quantum of proof when ruling on the motion. Defendant argues that the legislature amended ORCP 47 in 1999 with the purpose of "federalizing" the rule. See Or Laws, ch 815, § 1 (amending ORCP 47). In doing so, defendant argues, the legislature adopted an approach to summary judgment endorsed by the United States Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), which determined that a judge ruling on a summary judgment motion under the federal rules of civil procedure must "view the evidence presented through the prism of the substantive evidentiary burden." The Anderson court held, in the context of a libel claim, that a clear-and-convincing standard of proof should be taken into account in ruling on summary judgment motions. Id. at 255.

         Although we agree that, in part, the legislature intended to "federalize" ORCP 47 with its 1999 amendments, we disagree with defendant that the legislature meant to "federalize" ORCP 47 in the additional way that defendant contends. As we observed in Davis v. County of Clackamas, 205 Or.App. 387, 394, 134 P.3d 1090, rev den, 341 Or. 244 (2006), the 1999 amendments were intended to "federalize" ORCP 47 with respect to burden shifting. The amendments placed the burden of producing evidence on the party who would have the burden of persuasion at trial. Id. ("According to the legislative history underlying the amendment, it was intended to implement a burden shifting process similar to the federal rule as defined in Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)"). However, defendant has not pointed us to legislative history that reflects legislative intention to "federalize" that would require Oregon courts to incorporate heightened evidentiary burdens on summary judgment when determining if a genuine issue of fact exists.

         On that point, Oregon law does not support defendant's argument. This court and the Supreme Court have explained that the "clear and convincing" standard, by [292 Or.App. 586] which the plaintiff ultimately must persuade a factfmder, is distinct from the "some evidence" or "any evidence" standard by which courts evaluate whether an issue must await a jury. That is to say, the "clear and convincing" standard does not change the standard of "some evidence" or "any evidence" when considering whether a party has produced evidence sufficient to show a genuine dispute of material fact. See Bolt v. Influence, Inc., 333 Or. 572, 579-80, 43 P.3d 425 (2002) (explaining, in the context of a statute that incorporated the "directed verdict" standard from Oregon law, that "the 'clear and convincing'burden of proof in [the statute], which refers to the ultimate burden of proof that a plaintiff must meet to recover punitive damages, has no relation to the burden associated with the 'directed verdict' standard used to review the sufficiency of evidence * * *" (emphasis added)); Hamlin v. Hampton Lumber Mills, Inc., 222 Or.App. 230, 236 n 3, 193 P.3d 46 (2008), rev'd on other grounds, 349 Or. 526, 246 P.3d 1121 (2011) (citing Bolt and explaining that "[t]he 'any evidence' standard is the appropriate standard of review for the denial of a directed verdict, regardless of whether the underlying claim requires a clear and convincing standard"); Knepper v. Brown, 213 Or.App. 598, 604 n 1, 162 P.3d 1026 (2007), affd, 345 Or. 320, 195 P.3d 383 (2008) ("We have stated that the clear and convincing standard of proof 'relates to how a jury weighs the evidence, not to how a trial court assesses the capability of the evidence to establish facts.' Faber v. Asplundh Tree Expert Co., 106 Or.App. 601, 606, 810 P.2d 384, rev den, 312 Or. 80 (1991)"); Faber, 106 Or.App. at 606 n 4 (stating the general rule that the clear and convincing standard does not relate to how a trial court assesses the capability of evidence to establish the facts, but noting that there "may be exceptions to this general proposition") (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)).

         Although the cases cited here have involved the "directed verdict" standard, we see no reason why a court's review at the summary judgment stage would be different. See generally Seeborg v. General Motors Corp., 284 Or. 695, 700, 588 P.2d 1100 (1978) ("In deciding whether a genuine issue of fact exists, courts generally read 'genuine issue' to mean 'triable issue.' Before a party has a triable issue, he [292 Or.App. 587] or she must have sufficient evidence to be entitled to a jury determination. This has led both courts and commentators to compare the motion for summary judgment to the motion for a directed verdict."); accord Staten v. Steel, 222 Or.App. 17, 34, 191 P.3d 778 (2008), rev den, 345 Or. 618 (2009) (observing, even after the 1999 amendments to ORCP 47, that "[i]n the federal system, the trial judge's role in assessing evidence adduced in a summary judgment proceeding is more 'evaluative' than the function of his or her counterpart in Oregon's courts").

         Contrary to defendant's argument for a fully "feder-alized" approach, Oregon courts do not determine summary judgment with the "clear and convincing" evidence standard in mind. Rather, the court determines whether there is "some evidence" or "any evidence" that presents a genuine issue of material fact for a jury to resolve. See ORCP 47 C (genuine issue of material fact); Bolt, 333 Or at 579-80 ("some evidence" or "any evidence" presents jury question). Although, in this case, plaintiff has a heightened burden of proof at trial and has a burden of coming forward on summary judgment, plaintiff need only show "some evidence" to raise a genuine issue of material fact.

         Nevertheless, the substantive requirement of ORS 471.565(2)(b) remains a serious issue for plaintiff on summary judgment, because it is made part of plaintiff's case, it requires proof of a negative, and, as we will explain, it is drafted in a way that encompasses a broad range of conduct. As noted, ORS 471.565(2)(b) imposes a burden on plaintiff to prove at trial that he did not "substantially contribute" to the intoxication of the person who caused his injury. Thus, summary judgment is required if the undisputed facts would compel a jury to conclude that plaintiff failed to prove that he did not "substantially contribute" to the wrongdoer's intoxication. See Jones, 325 Or at 414 (when summary judgment is appropriate); ORCP 47 C ("No genuine issue as to a material fact exists if * * * no objectively reasonable juror could return a verdict for the adverse party on the matter * * *."). Plaintiff must come forward with evidence sufficient to permit a jury to find that he did not substantially contribute to the intoxication in any of the ways listed in the [292 Or.App. 588] statute. ORCP 47 C. If plaintiff fails to do so, then the court must grant summary judgment.

         B. To "Substantially Contribute" to Intoxication

         As they did below, the parties offer fundamentally different understandings of what it means to "substantially contribute" to the intoxication of a patron or guest by "(A) Providing or furnishing alcoholic beverages to the patron or guest; (B) Encouraging the patron or guest to consume or purchase alcoholic beverages or in any other manner; or (C) Facilitating the consumption of alcoholic beverages by the patron or guest in any manner." ORS 471.565(2)(b). In plaintiffs view, subparagraphs (A), (B), and (C) of the statute identify ways that a plaintiff might contribute to a patron or guest's intoxication, but the conduct described in those sub-paragraphs will not bar the plaintiffs claim unless that conduct actually played a role in the intoxication. Defendant, on the other hand, argues that those subparagraphs eliminate that type of particularized inquiry into the role that a plaintiffs conduct played. Instead, in defendant's view, subparagraphs (A), (B), and (C) list conduct that by definition "substantially contributes" to the intoxication of the patron or guest. In other words, according to defendant, any provision or furnishing of alcohol, any encouragement, or any facilitating of the consumption of alcohol by the patron or guest not only contributes but substantially contributes so as to bar a plaintiffs claim under ORS 471.565(2)(b).

         The parties' competing contentions raise a question of statutory interpretation, which we resolve by examining the text of ORS 471.565(2)(b) in context along with any pertinent legislative history, relevant case law, and other aids to construction. See Unger v. Rosenblum, 362 Or. 210, 221, 407 P.3d 817 (2017) (summarizing the template for interpretation set forth in State v. Gaines, 346 Or. 160, 171-73, 206 P.3d 1042 (2009)).

         Starting with the text of ORS 471.565(2)(b), we observe that defendant's proposed interpretation-that sub-paragraphs (A) through (C) fully define the contours of "substantially contributes"-finds little support in the words or structure of the statute. The statute requires the plaintiff to [292 Or.App. 589] prove that he or she did not "substantially contribute" to the patron or guest's intoxication "by" the listed subparagraphs (A) through (C), which are set off by a colon. If, as defendant contends, those subparagraphs set forth conduct that automatically bars a plaintiff's claim, the word "substantially" is superfluous. As a general rule, we "assume that the legislature did not intend any portion of its enactments to be meaningless surplusage." State v. Clemente-Perez, 357 Or. 745, 755, 359 P.3d 232 (2015).

         Instead, when construing a statute, we attempt to give meaning to each of the statute's terms. See State v. Cloutier,351 Or. 68, 98, 261 P.3d 1234 (2011) ("[I]f possible, we give a statute with multiple parts a construction that will give effect to all of those parts." (Internal quotation marks omitted.)). Accordingly, where the legislature has expressed no contrary intent, we assume that it intended the ...


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