Schutz v. La Costita III, Inc.

288 Or.App. 476

406 P.3d 66

Ashley SCHUTZ, Plaintiff-Appellant,

v. LA COSTITA III, INC., Defendant,andO'Brien Constructors, LLC ; and Keeley O'Brien, Defendants-Respondents.

A157621

Court of Appeals of Oregon.

Argued and submitted November 25, 2015.

November 1, 2017

J. Randolph Pickett, Portland, argued the cause for appellant. With him on the briefs were R. Brendan Dummigan, Kimberly O. Weingart, Ron K. Cheng, and Pickett Dummigan LLP; Brian R. Whitehead, and Law Offices of Brian R. Whitehead, P.C.

John R. Barhoum, Portland, argued the cause for respondent O'Brien Constructors, LLC. With him on the brief were Jay R. Chock and Chock Barhoum LLP.

Andrew D. Glascock, Portland, argued the cause for respondent Keeley O'Brien. With him on the brief were Curtis M. Burns and Hiefield Foster & Glascock LLP.

Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

HADLOCK, C. J.

Plaintiff appeals from a judgment of the trial court dismissing her claims for personal injuries against defendants, her employer and supervisor, after granting defendants' motion for summary judgment. We conclude that the trial court erred in granting defendants' motion and therefore reverse and remand.

In reviewing the trial court's ruling on defendants' motion for summary judgment, we view the record in the light most favorable to plaintiff to determine whether there is a genuine issue of material fact and, if not, whether defendants are entitled to judgment as a matter of law. ORCP 47 C. We summarize the largely undisputed relevant facts from the record on summary judgment. Plaintiff worked for defendant O'Brien Constructors, LLC, as a temporary office assistant. After declining invitations on four or five occasions to join her supervisor, defendant O'Brien, and other employees for drinks after work, plaintiff reluctantly agreed to attend a gathering, feeling pressured to do so to advance in her job. O'Brien, plaintiff, and other employees left work a bit early on the day in question and went to a restaurant, La Costita, where O'Brien paid for drinks and plaintiff drank to the point of intoxication. After leaving La Costita, plaintiff drove her car the wrong way on a freeway exit ramp and was seriously injured in a head-on collision.

Plaintiff brought this action against O'Brien and O'Brien Constructors, LLC (defendants).¹ As against O'Brien individually, plaintiff's first amended complaint alleged that O'Brien was negligent:

"a) In organizing, arranging, and supervising an employee function [at La Costita] knowing that excessive amounts of alcoholic beverages would be purchased for, served to, and consumed by the employees attending the function;

"b) In pressuring plaintiff to attend the function, in spite of her previous refusals of previous invitations, by creating the impression that her advancement in the company depended on [O'Brien] liking her, and that if she refused this invitation, after refusing prior invitations, that she would be less likely to retain her position or obtain desired promotions within the company;

"c) In failing to warn plaintiff that excessive amounts of alcoholic beverages would be purchased for, served to, and expected to be consumed by the employees attending the function."

As against O'Brien Constructors, LLC, plaintiff's allegations were based on vicarious liability and also alleged that O'Brien Constructors, LLC, was directly liable in negligence:

"a) In permitting [O'Brien] to organize, arrange, and supervise work-related activities away from the work site at establishments where alcoholic beverages were served * * * when defendant O'Brien Constructors knew, or in the exercise of reasonable care should have known, that excessive amounts of alcoholic beverages would be consumed;

"b) In failing to adequately train [O'Brien] in terms of proper methods of enhancing and improving work and employee relationships, and that such methods should not involve leaving work early, proceeding to establishments where alcoholic beverages would be served, purchasing excessive amounts of alcoholic beverages for employees, and encouraging employees to actively participate in those types of activities."

Thus, the alleged negligence with respect to defendant O'Brien, individually, was in organizing and pressuring plaintiff to attend an event where excessive amounts of alcohol would be served and consumed, and failing to warn plaintiff that excessive alcoholic beverages would be served and expected to be consumed; the alleged negligence with respect to defendant O'Brien Constructors was based on vicarious liability for defendant O'Brien's negligence, as well as direct liability for negligence in the training and supervision of O'Brien.

Defendants moved for summary judgment, contending, among other arguments, that plaintiff's claims are barred by ORS 471.565(1), as interpreted in Schutz v. La Costita III, Inc., 256 Or. App. 573, 302 P.3d 460, rev. den., 354 Or. 148, 311 P.3d 525 (2013) ( Schutz ), which involved this same plaintiff's negligence claims against La Costita. ORS 471.565(1) provides:

"A patron or guest who voluntarily consumes alcoholic beverages served by a * * * social host does not have a cause of action, based on statute or common law, against the person serving the alcoholic beverages, even though the alcoholic beverages are served to the patron or guest while the patron or guest is visibly intoxicated. The provisions of this subsection apply only to claims for relief based on injury, death or damages caused by intoxication and do not apply to claims for relief based on injury, death or damages caused by negligent or intentional acts other than the service of alcoholic beverages to a visibly intoxicated patron or guest."

(Emphases added.) In Schutz, which we discuss in greater detail below, we held that ORS 471.565(1) provided immunity to La Costita for, after the serving of alcohol, allowing plaintiff to leave La Costita in an intoxicated state. 256 Or. App. at 585, 302 P.3d 460.

It is undisputed that in this case defendants were "social hosts" within the meaning of ORS 471.565(1). In granting defendants' motion for summary judgment, the trial court reasoned that it was bound by our interpretation of ORS 471.565(1) in Schutz, in which we concluded that the statute provides immunity to a social host for any claim for damages that are caused by the voluntary consumption of alcohol.²

On appeal, plaintiff asserts that her claims fall within an exception to immunity described in the second sentence of ORS 471.565(1), for claims "based on injury, death or damages caused by negligent or intentional acts other than the service of alcoholic beverages." Plaintiff notes that the complaint does not allege that defendants were negligent in the serving of alcohol. Rather, defendants' negligence is alleged to have occurred before the serving of alcohol, in training and in permitting, planning, and authorizing the event at La Costita. Plaintiff further asserts that, if ORS 471.565(1) bars this action, it violates Article I, sections 10 and 17, of the Oregon Constitution.

We begin our analysis with a discussion of the statute's text, as construed in Schutz. The first sentence of ORS 471.565(1) states a broad prohibition of any action, based either on statute or the common law, against a person serving alcoholic beverages, by a patron or guest who voluntarily consumes alcoholic beverages. The patron or guest "does not have a cause of action" against the server, even if the patron or guest was served while visibly intoxicated. The second sentence of ORS 471.565(1) explains when the statutory immunity will exist, specifying that it applies only to claims for relief that are based on injury, death, or damages caused by intoxication, and not to claims for relief for injury, death or damages caused by negligent or intentional acts "other than the service of alcoholic beverages."

In Schutz, we addressed the application of ORS 471.565(1) in the context of this same plaintiff's negligence claims against La Costita. As relevant here, plaintiff alleged, among other specifications, that the restaurant was negligent (1) in serving plaintiff while she was visibly intoxicated; (2) in abandoning plaintiff in an acute state of intoxication and alcohol poisoning by permitting her to leave the restaurant; and (3) in failing to arrange safe transportation for plaintiff when it knew or should have known that she was acutely intoxicated and incapable of driving. On the restaurant's motion to dismiss under ORCP 21 A(8), the trial court ruled that ORS 471.565(1) bars any claim against a server of alcohol by the person who is served for injuries caused by the person's intoxication. 256 Or. App. at 577, 302 P.3d 460.

On appeal, we affirmed the dismissal. We explained that the legislative history of ORS 471.565(1) indicated "a legislative understanding that the statute would bar claims against alcohol servers by intoxicated patrons who injure themselves as a result of their own actions." Id. at 582, 302 P.3d 460.

Plaintiff contended that her consumption of alcohol became involuntary after she became too intoxicated to appreciate her condition. Id. at 578-79, 302 P.3d 460. Based on our understanding of the undisputed facts and the statutory text, as illuminated by the legislative history, we held that plaintiff's consumption of alcohol was "voluntary" within the meaning of the statute and the cause of her injuries. Id. at 583, 302 P.3d 460. We therefore upheld the trial court's dismissal of the specification of negligence based on the negligent serving of alcohol.³

We then addressed the specifications of negligence that plaintiff asserted did not depend on the service of alcohol: the abandonment of plaintiff and the failure to provide her with transportation home. We acknowledged that the second sentence of ORS 471.565(1)"permits causes of action that are not caused by the service of alcoholic beverages." Id. at 583, 302 P.3d 460 (emphasis in original)....