Opinion
90-CV-0302-MS; CA A67893
Argued and submitted February 7, 1992
Affirmed April 22, 1992 Reconsideration denied July 15, 1992 Petition for review denied August 25, 1992 ( 314 Or. 175)
Appeal from Circuit Court, Deschutes County.
Michael C. Sullivan, Judge.
L. Ross Brown, Bend, filed the brief for appellants.
John F. Kilcullen, Eugene, argued the cause for respondents. With him on the brief were Larry A. Brown and Brown, Roseta, Long McConville, Eugene.
Before Richardson, Presiding Judge, and Deits and Durham, Judges.
PER CURIAM
Affirmed.
Plaintiffs, the wife and children of Jody Thomas Hunt, brought this action against the defendant alcohol purveyors, contending that they served liquor to Hunt while he was visibly intoxicated and that, as a result, he drove while intoxicated and was killed in a one-car accident. Plaintiffs do not call their action one for wrongful death, but rather seek damages that they maintain that they suffered personally because of Hunt's death. The trial court granted defendants' motion to dismiss.
Although plaintiffs do not call this a wrongful death action, that is the only kind of action that they could bring on the facts alleged, and their complaint does not comply with the requirements of the wrongful death statute. See Horwell v. Oregon Episcopal School, 100 Or. App. 571, 787 P.2d 502 (1990). A wrongful death action may be maintained only under circumstances in which "the decedent might have maintained an action, had the decedent lived." ORS 30.020(1). Under Sager v. McClenden, 296 Or. 33, 672 P.2d 697 (1983), Hunt could not have pursued an action against defendants for injuries resulting from their serving intoxicants to him. See also Plattner v. VIP's Industries, Inc., 95 Or. App. 351, 768 P.2d 440, rev den 308 Or. 79 (1989). Plaintiffs advance a lucid argument to the effect that Sager either does not say what it says or was wrong in saying it, at least as it bears inferentially on potential recovery by an inebriate's family members. That argument must be addressed to the Supreme Court or the legislature. See ORS 30.950.
Affirmed.