Wingett v. Silbernagel

379 P.3d 570, 279 Or. App. 245, 2016 Ore. App. LEXIS 853
CourtLinn County Circuit Court, Oregon
DecidedJune 29, 2016
Docket083505; A151510
StatusPublished
Cited by2 cases

This text of 379 P.3d 570 (Wingett v. Silbernagel) is published on Counsel Stack Legal Research, covering Linn County Circuit Court, Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wingett v. Silbernagel, 379 P.3d 570, 279 Or. App. 245, 2016 Ore. App. LEXIS 853 (Or. Super. Ct. 2016).

Opinion

EGAN, J.

Plaintiff, who was injured in a motor vehicle accident as a passenger, brought this action against the estate of the driver, Entrekin, and the social hosts who served Entrekin alcohol while he was visibly intoxicated, Eric and Lawrence Silbernagel.1 The jury returned a verdict for plaintiff and against Entrekin and the Silbernagels on plaintiffs claims for negligence and for statutory liability under ORS 471.565(2). The court, after refusing to make the Silbernagels jointly liable, entered a judgment imposing several liability against each defendant based on the jury’s fault allocation. Plaintiff appeals and the Silbernagels cross-appeal. For the reasons set out below, we affirm on appeal and, on cross-appeal, reverse the judgment on the statutory liability claim and otherwise affirm.

On cross-appeal, the Silbernagels seek reversal of the judgment for plaintiff on the statutory liability claim and a new trial on the negligence claim. Because the Supreme Court recently held in Deckard v. Bunch, 358 Or 754, 370 P3d 478 (2016), that ORS 471.565(2) does not provide an independent statutory right of action against a social host who serves alcohol to a visibly intoxicated person, we reverse the judgment for plaintiff on the statutory liability claim. That conclusion renders moot the Silbernagels’ second assignment of error on cross-appeal and plaintiffs third assignment of error on appeal. On the Silbernagels’ remaining assignment of error challenging the admission of evidence that minors were invited to the party and served alcohol, we affirm. Because we do not grant a new trial, we do not reach plaintiffs precautionary cross-assignments of error.

On appeal, plaintiff assigns error to the trial court’s refusal to combine, post-verdict, the allocated fault of Eric and Lawrence under ORS 31.605(4) based on a theory that they were acting “in concert” and should be jointly liable. We conclude that ORS 31.605(4) does not permit a trial court to [248]*248combine defendants’ allocated fault in the judgment when the jury has assessed that fault separately. We also reject plaintiffs remaining assignment of error because, contrary to plaintiffs argument, the trial court did make a post-verdict finding on vicarious liability as requested by plaintiff— the court found that Eric and Lawrence were not vicariously liable for each other’s conduct. Accordingly, we affirm on appeal.

“Because this case comes to us after a trial at which the jury found in plaintiffs favor, we view all the evidence, and the inferences that reasonably may be drawn from it, in the light most favorable to plaintiff.” Greist v. Phillips, 322 Or 281, 285, 906 P2d 789 (1995). In accordance with that standard, the pertinent facts are as follows.

Eric and Lawrence, who were both over 21 years old, threw an outdoor party on property owned by their father, Gary. For the party they supplied four kegs of beer. They also made it a “locked gate” party, which meant that the attendees’ cars were locked behind a gate on the property so that they could not drive away until the next morning. Eric let in people he or his brothers knew at the gate and told them their cars would be locked in. Eric locked the gate at approximately 11:30 p.m. and joined the party. Lawrence estimated that about 100 people were at the party, of which approximately 25 were minors.

Plaintiff, who was 18 years old, and Entrekin, who was 23 years old, arrived at the party around midnight, after the gate had been locked, to pick up Entrekin’s sister. Plaintiff parked the car outside of the gate. Entrekin had been drinking alcohol before they got to the party and was visibly intoxicated when they arrived. Once at the party, both plaintiff and Entrekin drank alcohol, although it was disputed whether it was alcohol supplied by the Silbernagels or alcohol that they or someone else had brought to the party. Part of the Silbernagels’ defense was their contention that plaintiff and Entrekin were party crashers — that is, they had not been invited and were not admitted to the party by the Silbernagels at the gate — and that the Silbernagels had not supplied alcohol to Entrekin because the kegs were dry before he arrived.

[249]*249At some point, Entrekin decided that he needed to leave the party quickly and got plaintiff. Entrekin drove away with plaintiff and crashed the car into a telephone pole. Plaintiff sustained serious injuries from the accident that required extensive hospitalization and rehabilitation. Entrekin died from his injuries. At the time of the accident, plaintiffs blood alcohol level was .17 to .18 percent and Entrekin’s blood alcohol level was .18 to .19 percent.

Plaintiff brought this action against Entrekin, Eric, and Lawrence based on claims of negligence and statutory liability under ORS 471.565(2). The claims against Eric and Lawrence were based on their status as social hosts that served Entrekin alcohol while he was visibly intoxicated.

The jury found for plaintiff on both the negligence and statutory liability claims. On the negligence claim, the jury assessed the comparative fault to each party as follows: Entrekin - 45 percent; Eric Silbernagel - 18 percent; Lawrence Silbernagel -13 percent; and plaintiff - 24 percent. On the statutory liability claim, the jury found that Eric and Lawrence had provided alcohol to Entrekin while he was visibly intoxicated, and allocated fault as follows: Entrekin - 60 percent; Eric Silbernagel -18 percent; Lawrence Silbernagel - 17 percent; and plaintiff - 5 percent. The jury awarded plaintiff $515,305 in economic damages, $1,250,000 in non-economic damages, and $50,000 in punitive damages each against Eric and Lawrence.

After receiving the jury’s verdict, plaintiff sought to have the trial court combine the fault of Eric and Lawrence as if they were a single person. Plaintiff did so by submitting a proposed form of judgment that included a finding not made by the jury — that Eric and Lawrence acted “in concert” in causing plaintiffs injuries and “therefore it is equitable to treat them as one [defendant” — combined Eric’s and Lawrence’s fault allocations into a single allocation, and held Eric and Lawrence jointly liable for $546,624 of plaintiffs damages. The court declined to combine Eric’s and Lawrence’s fault, concluding that it would be inequitable to do so:

“When I read those statutes I think it looks to me like the Court would have authority [to join defendants]. * * * [But] I wasn’t able to find a good answer.
[250]*250“So assuming that I do have the authority to do it, I think I also have the discretion, even if the Court were to make a finding that they were acting in concert, I think I have an equitable duty to make a determination that it can go one way or the other. I mean, I don’t think I’m bound, even if I were to make a finding that they acted in concert!,] that they need to be joined. I think it’s an equitable decision about what’s ultimately fair in this case based on the evidence that came in and the circumstances.

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Cite This Page — Counsel Stack

Bluebook (online)
379 P.3d 570, 279 Or. App. 245, 2016 Ore. App. LEXIS 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wingett-v-silbernagel-orcclinn-2016.