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Balzer v. Moore

Court of Appeals of Oregon

August 1, 2018

Barbara BALZER, Personal Representative of the Estate of Mitchell B. Johnson, deceased, Plaintiff-Appellant,
v.
Byron MOORE; and EMR, INC., dba Washington Street Steakhouse & Pub, Defendants, and Clifford D. CARPENTER; and Bobby Sharon Carpenter, dba The Roundup Pub, Defendants-Respondents.

          Argued and submitted August 18, 2016

          Marion County Circuit Court 13C20322; Cheryl A. Pellegrini, Judge.

          J. Randolph Pickett argued the cause for appellant. Also on the briefs were R. Brendan Dummigan, Kimberly O. Weingart, Ron K. Cheng, and Pickett Dummigan LLP.

          Jeffrey D. Eberhard argued the cause for respondents. Also on the brief were Jeremy R. Reeves and Smith Fred & E b erh a r d P.C.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case Summary:

         Plaintiff, Johnson's estate, appeals a general judgment dismissing its claims, assigning error to the trial court's grant of summary judgment in favor of defendant, The Roundup Pub. Johnson died in a single car accident while riding as a passenger with his friend Moore. Plaintiff had fled a wrongful death action against defendant alleging that defendant negligently [293 Or. 158] served Moore alcoholic beverages when he was visibly intoxicated. The trial court granted summary judgment to defendant, concluding that, under ORS 471.565(2)(b), plaintiff failed to show a genuine issue of material fact that Johnson did not substantially contribute to Moore's intoxication by “encouraging” or “facilitating” Moore's consumption or purchase of alcoholic beverages.

         Held:

         The trial court did not err. Given the summary judgment record in this case and the Court of Appeal's interpretation of ORS 471.565(2)(b) in Mason v. BCK Corp., 292 Or.App. 580, ___ P.3d ___ (2018), plaintiff failed to come forward with evidence from which a reasonable factfinder could find that Johnson did not substantially contribute to Moore's intoxication.

         Affirmed.

         [293 Or.App. 159] ORTEGA, P. J.

         Mitchell Johnson died in a single car accident while riding as a passenger with his friend Byron Moore, who was driving while intoxicated after the two spent several hours drinking together. As relevant here, plaintiff, Johnson's estate, filed a wrongful death action against defendant, The Roundup Pub-the establishment where Johnson and Moore had been drinking immediately prior to the accident-alleging that defendant had negligently served Moore alcoholic beverages when he was visibly intoxicated.[1]The trial court granted summary judgment to defendant, concluding that, under ORS 471.565(2)(b), plaintiff failed to show a genuine issue of material fact that Johnson did not substantially contribute to Moore's intoxication by "encouraging" or "facilitating" Moore's consumption or purchase of alcoholic beverages. Plaintiff appeals the resulting judgment dismissing the estate's claims, assigning error to the trial court's grant of summary judgment. Given the summary judgment record in this case and our interpretation of ORS 471.565(2)(b) in Mason v. BCK Corp., 292 Or.App. 580, ___ P.3d ___ (2018), we conclude that the trial court did not err in granting summary judgment to defendant because plaintiff failed to come forward with evidence from which a reasonable factfinder could find that Johnson did not substantially contribute to Moore's intoxication during the hours that Johnson and Moore spent together on the night of the accident. Accordingly, we affirm.

         Summary judgment is appropriate if there is no genuine issue of material fact for trial and the moving party is entitled to prevail as a matter of law. ORCP 47 C. There is no issue of material fact, if, based on the record, "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." Id. To determine whether a genuine issue [293 Or.App. 160] of material fact exists in this case, we review the summary judgment record in the light most favorable to plaintiff-the nonmoving party-and draw all reasonable inferences in plaintiffs favor. Jones v. General Motors Corp., 325 Or. 404, 939 P.2d 608 (1997). We state the facts consistently with that standard.

         Johnson and Moore were long-time friends who regularly socialized together. On the night of the accident, Moore invited Johnson to "spend the evening drinking and socializing." They met at Moore's house and consumed "one or two beers." Next, they went to Washington Street Steakhouse & Pub to play pool, where they also consumed "one or two beers" over the course of an hour or so. As they left Washington Street, Moore gave Johnson $40 to buy beer because Johnson did not have any money with him that night, and the two walked to The Roundup Pub, where they drank for a couple of hours. Moore paid for all the drinks. At about 10:00 p.m., a friend drove them back to Moore's apartment. On the way, Moore bought an 18-pack of beer because they "weren't planning on going back to the bar." At Moore's apartment, they each drank "maybe two apiece." After about 45 minutes, they decided to return to The Roundup Pub and, at Johnson's urging, Moore drove them in his truck back to the bar. After returning to The Roundup Pub, Johnson and Moore continued to drink beer to the point where Moore was visibly intoxicated. At some point, Moore argued with another patron about who had caused a drink to spill. The patron who had actually ...


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