No. 25	                        April 21, 2016	147

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                      Jennifer J. BAKER,
                   Personal Representative of
                  the Estate of Tyler R. Baker,
                     Respondent on Review,
                                v.
                    Matthew A. CROSLIN,
                      Petitioner on Review,
                               and
                     Tyler Gregory SMITH,
                            Defendant.
           (CC 1106-07278; CA A151932; SC S062571)

    On review from the Court of Appeals.*
    Argued and submitted March 13, 2015.
   James L. Hiller, Hitt Hiller Monfils Williams LLP,
Portland, argued the cause and filed the brief for petitioner
on review.
   Jan K. Kitchel, Cable Huston, LLP, Portland, argued the
cause and filed the brief for respondent on review. With him
on the brief was Casey M. Nokes.
  Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, Brewer, and Nakamoto, Justices.**
    LANDAU, J.
   The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.



______________
	**  Appeal from Multnomah County Circuit Court. Eric L. Dahlin, Judge pro
tempore. 264 Or App 196, 330 P3d 698 (2014).
	   **  Linder, J., retired December 31, 2015, and did not participate in the deci-
sion of this case.
148	                                                         Baker v. Croslin

    Case Summary: At a party with alcohol, two guests engaged in horseplay
with loaded handguns; one of the guests was killed. Plaintiff, the personal rep-
resentative of the guest who died, brought a civil action against (among others)
the party’s host. The host sought summary judgment on the ground that, under
ORS 471.565(2), he was not liable because he had not “served or provided” alco-
hol to the shooter “while” the shooter was “visibly intoxicated.” The circuit court
granted summary judgment for the host. The Court of Appeals reversed, holding
that a social host “serve[s] or provide[s]” alcohol under the statute when the host
controls the alcohol supply, and in this case the evidence permits an inference
that the host did that at a time when the shooter was visibly intoxicated. Held: (1)
the statutory requirement that the social host must have “provided” alcohol may
be met if the host controls the supply of alcohol; (2) the statutory requirement
that the host must have served or provided alcohol “while the patron or guest
was visibly intoxicated” requires that the patron or guest must have been visibly
intoxicated to the social host; and (3) plaintiff had presented sufficient evidence
to create genuine issues of material fact that the shooter had been visibly intoxi-
cated to the host at the time the shooter took a final drink of alcohol, and that the
host controlled the supply of alcohol from which that final drink came.
    The decision of the Court of Appeals is affirmed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
Cite as 359 Or 147 (2016)	149

	       LANDAU, J.
	         The issue in this case concerns the extent to which
a social host of a gathering at which alcohol is consumed is
liable for injuries that occur during the party. The defendant
hosted a party at which his guests drank alcohol. Two of
the guests engaged in horseplay with loaded handguns, and
one of the guests was killed. The personal representative of
the decedent sued defendant, who asserted that, under ORS
471.565(2), he was not liable because he had not “served or
provided” alcohol to the shooter “while” the shooter was “vis-
ibly intoxicated.” The trial court agreed and granted sum-
mary judgment in favor of defendant. The Court of Appeals
reversed, holding that, under ORS 471.545(2), a social host
“serve[s] or provide[s]” alcohol when the host controls the
alcohol supply, and in this case the evidence permits an
inference that defendant did that at a time when the shooter
was visibly intoxicated. Baker v. Croslin, 264 Or App 196,
330 P3d 698 (2014). On review, we agree with the Court of
Appeals and affirm.
	        Because the trial court granted summary judgment
for defendant, we state the facts in the light most favorable to
plaintiff. ORCP 47 C. Defendant hosted a party at his home
to watch a basketball game and play cards. Among those
attending the party were three friends, Johnson, Baker, and
Smith; Smith arrived at around 7:30 p.m. Five or six others
also attended the party, coming and going over the course of
the evening.
	       Both Baker and Smith had permits to carry con-
cealed handguns, and both of them brought handguns to
the party.
	        Defendant had alcohol in his home, including a
bottle of vodka in his freezer and a bottle of rum and other
hard liquor under his bar. Defendant also had purchased
a bottle of Cockspur rum. Baker later reimbursed him
for that purchase. Baker’s wife did not like her husband
drinking hard alcohol. So he had asked defendant to pur-
chase the rum. Meanwhile, Baker brought a 30-pack of
beer, and Smith brought six 16-ounce bottles of Coors light
beer.
150	                                                       Baker v. Croslin

	        There is no evidence that defendant personally
served any of the guests any alcohol, at least in the sense
that he did not personally pour anyone drinks. Rather, the
guests understood that they were expected to help them-
selves. Smith did just that. He later recalled that he drank
two of the light beers that he had brought to the party and
two mixed drinks with vodka and Squirt soda.
	        Defendant placed several guns that he possessed on
display for his guests on a table in the kitchen, including
a handgun that he had recently purchased. At some point
early in the evening, Smith and Baker also displayed their
handguns. Defendant gave Smith some hollow-point bul-
lets to replace the full-metal-jacket bullets then in Smith’s
weapon. Hollow-point bullets are designed to expand on
impact and inflict significantly more damage than ordinary
bullets. Smith loaded the hollow-point bullets.
	        Shortly before 9:00 p.m., defendant, Smith, Baker,
and Johnson had a shot of hard liquor. The record is not
entirely clear what that liquor was. Defendant later recalled
that it was the Cockspur rum. Johnson testified only that it
was rum. Smith later said that he could not recall if it had
been “whiskey or rum or what.” After the shots, Johnson left
the party. Defendant, Smith, and Baker talked about the
best options for carrying a concealed weapon. Shortly after
9:00 p.m., the three then began playacting self-defense sce-
narios for about 20 minutes.1 Defendant became concerned
about the combination of guns and alcohol and left to put his
gun away in his bedroom. While defendant was out of the
room, Smith and Baker continued to act out self-defense sce-
narios three or four more times. In the process, Smith drew
his pistol and accidentally shot Baker through the chest,
killing him.
	        Plaintiff, the personal representative of Baker’s
estate, initiated a civil action against Smith and defendant.
Plaintiff alleged that defendant had been negligent in three
ways:

	1
       Each of the three pretended to be held up and then drew their weapons on
each other from where they usually carried them—defendant, either in a side
holster or in a left back pocket; Smith, in his left back pocket; and Baker, in the
front waistband of his pants.
Cite as 359 Or 147 (2016)	151

   	 “1.  In [defendant] unreasonably serving Smith alcohol
   while Smith was in a visibly intoxicated state;
   	 “2.  In [defendant] unreasonably encouraging quick
   draw handgun activity while Smith was in a visibly intoxi-
   cated state;
   	 “3.  In [defendant] unreasonably encouraging Smith
   to load his unloaded handgun with Magtech hollow[-]
   point ammunition while Smith was in a visibly intoxicated
   state[.]”

	       Plaintiff ultimately settled with Smith. Meanwhile,
defendant moved for summary judgment on the ground that
ORS 471.565(2) shielded him from liability, because there
was no evidence that he had personally served or provided
Smith with alcohol while Smith was visibly intoxicated.
	        Plaintiff responded that there was, in fact, evidence
that defendant had provided Smith alcohol while Smith was
visibly intoxicated in that “Smith drank vodka from [defen-
dant’s] freezer, [defendant] had other alcohol, including
rum, available below his bar, and [defendant] testified that
his friends were welcome to help themselves to whatever he
had.” Plaintiff asserted that, although Smith recalled hav-
ing only four or five drinks over the course of the evening,
expert testimony would show that he had consumed much
more, and that “some or all of the additional alcohol that
he consumed was furnished by” defendant. Plaintiff pointed
out that, in addition to the vodka that defendant had in the
freezer, defendant had purchased the bottle of Cockspur
rum and kept another bottle of rum below his bar. According
to plaintiff, because defendant “supplied vodka and rum
and made available other alcohol,” summary judgment was
not appropriate. Alternatively, plaintiff argued that defen-
dant still was liable for encouraging gunplay and for giv-
ing Smith hollow-point ammunition while Smith had been
drinking, regardless of whether defendant had provided any
of the alcohol.
	       In reply, defendant contended that plaintiff’s asser-
tions were inadequate to avoid summary judgment under
ORS 471.565(2), because, even assuming that defendant
provided all the alcohol, “plaintiff cannot present evidence
152	                                        Baker v. Croslin

that Smith was visibly intoxicated” when he drank that
alcohol.
	        At the hearing on the summary judgment motion,
plaintiff asserted an additional theory of liability, namely,
premises liability. As to defendant’s motion, she reiterated
that her expert would testify that Smith was visibly intoxi-
cated after the fourth drink. That meant, she argued, that
he was visibly intoxicated when he had a final shot of hard
liquor. Because the hard liquor had been supplied by defen-
dant, she concluded, she met the conditions for imposing lia-
bility required by ORS 471.565(2).
	        In response, defendant agreed that “when Smith
had that last shot of rum, there’s evidence that he was
visibly intoxicated.” The key to the defense, he explained,
was that the last shot was rum and, more specifically, the
Cockspur rum that Baker had paid for. There was no evi-
dence that defendant had “served or provided” the final shot
to Smith, he argued, because that final shot was Baker’s
rum, not defendant’s.
	        In reply, plaintiff argued first that there was an
issue of fact about whether the final shot was the Cockspur
rum. Plaintiff pointed out that defendant had made avail-
able his own rum, and that Smith’s recollection that the
final shot might have been rum did not specify the source
of that rum. In any event, plaintiff argued, Smith recalled
that the final shot might have been whiskey as well, which
would have come from defendant’s supply. And finally, plain-
tiff argued that, even assuming that the final shot was the
Cockspur rum, the undisputed fact was that defendant had
purchased it and brought it to the party.
	        The trial court granted the summary judgment
motion. The court first concluded that, if defendant met the
conditions for the safe harbor from liability found in ORS
471.565(2), then the allegations of negligence as to the gun-
play and the provision of hollow-point ammunition also would
be barred, because both of those additional negligence spec-
ifications were predicated on Smith’s intoxication. The trial
court explained that the dispositive issue, then, was whether
there was evidence that defendant “served or provided” the
final shot to Smith. The court reasoned that the last drink
Cite as 359 Or 147 (2016)	153

could have been either whiskey or the Cockspur rum that
defendant had purchased for Baker. As to the former pos-
sibility, the trial court concluded that there was simply no
evidence that the last drink was, in fact, whiskey or that any
whiskey that he drank was defendant’s. As to the latter pos-
sibility, the court concluded that defendant had not “served or
provided” the rum because, having been reimbursed for his
purchase, the rum was at that point actually Baker’s. The
court did not address plaintiff’s argument that, at all events,
defendant is liable under a theory of premises liability.
	        Plaintiff appealed, arguing that, among other
things, the trial court concluded incorrectly that ORS
471.565(2) barred liability. She argued that the evidence,
properly viewed, permits a reasonable trier of fact to find
that defendant had “served or provided” Smith alcohol when
Smith was visibly intoxicated. Alternatively, plaintiff argued
that, even if ORS 471.565(2) barred her claim against defen-
dant for serving Smith while visibly intoxicated, it did not
bar her claims that defendant had been negligent in other
ways—that is, for giving Smith hollow-point ammunition
or for encouraging gunplay while Smith was visibly intox-
icated. In addition, plaintiff asserted that defendant was
liable under a theory of premises liability, regardless of the
applicability of ORS 471.565(2).
	         Defendant renewed his assertion that there was no
evidence that he had “served or provided” alcohol to Smith
when Smith was visibly intoxicated, as there was no evi-
dence either that defendant personally served Smith any
alcohol or that any of the alcohol that Smith imbibed while
visibly intoxicated was alcohol that defendant had provided.
Defendant argued that the only alcohol that he actually
made available to his guests was the vodka in the freezer.
The rest of the alcohol had been either brought by the guests
or, in the case of the Cockspur, eventually paid for by a guest.
According to defendant, a social host cannot be held liable
for injuries that result from a guest consuming alcohol pro-
vided by someone else.
	        The Court of Appeals agreed with plaintiff and
reversed. The court construed the phrase “served or pro-
vided,” as it is used in ORS 471.565(2), to turn on whether
154	                                            Baker v. Croslin

the social host has “control” over the “alcohol that was sup-
plied to the visibly intoxicated person.” Baker, 264 Or App at
199. Relying on this court’s decisions in Solberg v. Johnson,
306 Or 484, 760 P2d 867 (1988), and Wiener v. Gamma
Phi, ATO Frat., 258 Or 632, 485 P2d 18 (1971), the court
explained that,
   “the key factor in assessing whether a particular defendant
   should be considered to have provided alcohol to a visibly-
   intoxicated person so as to support the imposition of liabil-
   ity is the ‘amount of control’ that the defendant had over
   the alcohol that was supplied to the visibly-intoxicated per-
   son. * * * Where a defendant has no control over the supply
   of alcohol, the defendant cannot be liable for permitting a
   person to become dangerously intoxicated from that sup-
   ply. By contrast, if a defendant has control over the alcohol
   supply from which the visibly-intoxicated guest consumes
   alcohol, the defendant has ‘served or provided’ the guest
   with alcohol.”
Baker, 264 Or App at 199-200 (citations omitted). Turning to
the record on summary judgment, the court first addressed
whether there was evidence sufficient to permit a finding
that Smith was visibly intoxicated. The court noted that
plaintiff had retained an expert who was willing to testify
that, at the time that Smith took his final drink, shortly
before the shooting, he would have been visibly intoxicated.
Id. at 200-01. The court concluded that that evidence “would
permit a reasonable factfinder to find that Smith was exhib-
iting signs of visible intoxication * * * when he consumed his
final drink.” Id. at 201.
	        The court then addressed whether the record con-
tained evidence sufficient to permit a finding “that defendant
had control over the alcohol supply from which Smith con-
sumed that final drink.” Id. Answering in the affirmative,
the court relied on evidence that defendant hosted the party
at his house and that the Cockspur was available for others
to drink. Id. at 201-02. Because the court concluded that
ORS 471.565(2) did not bar defendant’s liability, it did not
need to reach plaintiff’s alternative arguments that, even
if that statute protected defendant from liability for over-
service, it did not bar the other negligence claims for giving
Smith hollow-point ammunition or encouraging gunplay.
Cite as 359 Or 147 (2016)	155

	        On review, defendant contends that the Court of
Appeals erred in equating “served or provided” alcohol,
under ORS 471.565(2), with having some sort of abstract
“control” over the availability of drinks based on the host
having made alcohol available. Defendant insists that
“served or provided” means to directly, personally serve
or provide alcohol to a guest while that guest is visibly
intoxicated.
	       Plaintiff does not contest that defendant did not
personally pour any of Smith’s drinks. Thus, she concedes,
he did not “serve” Smith. Plaintiff nevertheless argues that
defendant did indirectly “provide” Smith alcohol within the
meaning of the statute by making hard alcohol available to
him. According to plaintiff, expert testimony established
that Smith would have become visibly intoxicated after his
fourth drink. Thus, she argues, by the time that defendant,
Johnson, Baker, and Smith had their final shot of whiskey
or rum, Smith was visibly intoxicated, and defendant failed
to take steps to “cut [him] off.” In plaintiff’s view, defen-
dant controlled the alcohol supply and failed to exercise
that control at a time when he saw that Smith was visibly
intoxicated.
	        In the alternative, plaintiff asks the court to address
the issues that the Court of Appeals did not, namely, the trial
court’s conclusion that ORS 471.565(2) bars her claims for
negligently supplying the hollow-point bullets and encour-
aging gunplay while Smith was visibly intoxicated. She also
renews her contention—not addressed by either the trial
court or the Court of Appeals—that, regardless of whether
ORS 471.565(2) applies, defendant still may be liable under
a theory of premises liability.
	        Because the appeal comes to us by way of a sum-
mary judgment, we must consider whether the pleadings
and evidence, construed in the light most favorable to plain-
tiff, shows that there is no genuine issue of material fact and
that defendant is entitled to judgment as a matter of law.
ORCP 47 C. Answering that question, however, requires
that we first establish the statutory standard against which
the evidence must be evaluated. That standard is supplied
by ORS 471.565(2), which provides:
156	                                              Baker v. Croslin

   	 “(2)  A person licensed by the Oregon Liquor Control
   Commission, person holding a permit issued by the com-
   mission or social host 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 * * *.”
The statute thus provides a safe harbor to social hosts
against liability for damages caused by intoxicated patrons
or guests unless the plaintiff meets the requirements of
the statute. The requirements relevant to this appeal are
two: That the social host (1) “served or provided” alcohol to
a patron or guest (2) “while the patron or guest was visibly
intoxicated.” We take each of those requirements in turn.
	        The first requirement is that the social host have
“served or provided” alcohol to patrons or guests. The terms
are not statutorily defined. In such cases, we assume, in
the absence of evidence to the contrary, that the legislature
intended them to be given their ordinary meanings. State v.
Dickerson, 356 Or 822, 829, 345 P3d 447 (2015) (“When the
legislature does not provide a definition of a statutory term,
we ordinarily look to the plain meaning of the statute’s text
to determine what particular terms mean.”). Dictionaries
are a common source of possible ordinary meanings. State
v. Gonzalez-Valenzuela, 358 Or 451, 461, 365 P3d 116 (2015)
(“[T]his court frequently attempts to resolve disputes about
plain meaning by consulting dictionary definitions of the
relevant terms.”). And the actual usage of the terms, in con-
text, determines which of any listed definitional possibilities
is the one that applies. State v. Cloutier, 351 Or 68, 96, 261
P3d 1234 (2011).
	       As used in ORS 471.565(2), the word “served” is
a transitive verb, so the following definitions appear most
relevant:
   “6 a : to wait on (one) at table b : to bring (food) to a diner—
   often used with up  c : to
   place food on (the table) * * * 7 a : to furnish or supply (one)
   with something needed or desired Cite as 359 Or 147 (2016)	157

   one-room schools> b : to wait on (a customer) in a store
   c : to provide merchandise serviceable or desirable to (a
   buyer)[.]”
Webster’s Third New Int’l Dictionary 2075 (unabridged ed
2002); see also American Heritage Dictionary of the English
Language 1601 (5th ed 2011) (“[t]o prepare and offer (food,
for example) * * * [t]o place food before (someone); wait on”).
The word “provided” likewise is used as a transitive verb, so
the relevant definitions are:
   “2 a : to fit out or fit up : EQUIP—used with with   b : to supply for use : AFFORD, YIELD  [.]”
Webster’s at 1827; see also American Heritage at 1418 (“[t]o
make available (something needed or desired) * * * [t]o sup-
ply something needed or desired to”). Webster’s adds that the
term “provide” is synonymous with “supply” and “furnish.”
Webster’s at 1827.
	        On the surface, there appears to be quite a bit of
possible overlap between the two words. “Serve” means to
“furnish,” “supply,” or “provide” something, while “provide”
is synonymous with “furnish” or “supply.” Ordinarily, when
the legislature expresses itself in terms of alternatives—
“A or B”—we assume that the alternatives do not mean the
same things. Crystal Communications, Inc. v. Dept. of Rev.,
353 Or 300, 311, 297 P3d 1256 (2013) (“As a general rule,
we construe a statute in a manner that gives effect, if pos-
sible, to all its provisions.”); Blachana, LLC v. Bureau of
Labor and Industries, 354 Or 676, 692, 318 P3d 735 (2014)
(“[R]edundancy * * * is a consequence that this court must
avoid if possible.”). That is, of course, unless there is evi-
dence that that is precisely what the legislature intended.
Thomas Creek Lumber and Log Co. v. Dept. of Rev., 344 Or
131, 138, 178 P3d 217 (2008) (“nothing prohibits the legisla-
ture from saying the same thing twice.”).
	       In this case, we are aware of no such evidence that
the legislature intended “served” and “provided” to mean
essentially the same things. And, from the examples listed, it
appears that, while “served” tends to connote a more direct,
158	                                            Baker v. Croslin

personal action—actually pouring a drink, for example—
“provided” can be taken to include more general and less
direct action. We can see no reason, for example, why the
term would not apply to situations in which a social host
purchases alcohol and makes it available for guests, who
may help themselves.
	        That is consistent with this court’s prior decisions
on social-host liability, in which this court concluded that
such liability turns not just on whether the host personally
pours drinks but also on the extent to which the social host
less directly exercises, or fails to exercise, control over the
supply of alcohol to guests. In Wiener, for example, a minor
became intoxicated at a fraternity party. After leaving the
party, the minor drove home and was involved in an accident
that injured the plaintiff. The plaintiff brought common-law
negligence claims against, among others, Kienow, a member
of the fraternity who had purchased the alcohol that was
provided at the party. This court, affirming the trial court’s
dismissal of the complaint against Kienow, commented that
   “[o]rdinarily, a host who makes available intoxicating
   liquors to an adult guest is not liable for injuries to third
   persons resulting from the guest’s intoxication. There
   might be circumstances in which the host would have a
   duty to deny his guest further access to alcohol. This would
   be the case where the host has reason to know that he is
   dealing with persons whose characteristics make it espe-
   cially likely that they will do unreasonable things. Such
   persons could include those already severely intoxicated,
   or those whose behavior the host knows to be unusually
   affected by alcohol.”
258 Or at 639 (internal quotation marks and footnotes
omitted).
	Under Wiener, then, there may be circumstances
under which a social host may be liable for injuries resulting
from a guest’s intoxication because the social host, although
not directly serving alcohol to guests, nevertheless made
alcohol available to guests. Indeed, if the social host has
made alcohol available to guests, and the host knows that
a guest already has become intoxicated, the host may have
an obligation “to deny his [or her] guest further access to
alcohol.” Id. In other words, to the extent that the social host
Cite as 359 Or 147 (2016)	159

controls the supply of alcohol, he or she may be liable for the
way that control is exercised.
	        The court adopted that reasoning in Solberg, in
determining whether a social host “served or provided”
alcohol within the meaning of the predecessor to ORS
471.565(2).2 In that case, a stepfather took his stepson to
a tavern for drinks. He bought drinks even after his step-
son had become visibly intoxicated. The stepson drove home
intoxicated and caused an accident, injuring the plaintiff.
The plaintiff sued the tavern, and the tavern in turn sought
contribution from the stepfather, both for a violation of the
statute itself and for common-law negligence. The trial court
dismissed the tavern’s third-party contribution action for
failure to state a claim, and this court reversed. Solberg,
306 Or at 487-88.
	        Addressing the applicability of what is now ORS
471.565(2), the court cited Wiener in concluding that the
term “social host” applies to “one who has control of choosing
who will be served.” 306 Or at 489-90. A stepfather buying
drinks for his stepson, the court said, “sufficiently serves and
controls the furnishing of the drinks to constitute a social
host” within the meaning of the statute. Id. at 490. Thus,
whether one is a “social host” within the meaning of the stat-
ute depends on whether the person has “control of choosing
who will be served.” And liability for having “served or pro-
vided” a guest turns on how that control is exercised.
	        The court emphasized that point in turning to the
question of the stepfather’s common-law liability in negli-
gence. The court explained that, because the tavern had
alleged that the stepfather knew that his stepson had become
visibly intoxicated, the stepfather had “direct control” over
the stepson’s access to alcohol. That, the court explained,
distinguished the case from Weiner:
    	 “In contrast [to Wiener], in the present case, [the tav-
    ern] alleged that [the stepfather] ‘served and provided’
    alcoholic beverages to [the stepson], who ‘[the stepfather]
    knew or should have known * * * had a serious drinking

	2
       We have since disavowed Solberg to the extent that it could be read to have
recognized a statutory tort consisting of elements different from a common-law
negligence action. Deckard v. Bunch, 358 Or 754, 789 n 20, ___ P3d ___ (2016).
160	                                                        Baker v. Croslin

    problem.’ In this allegation [the tavern] paralleled this
    court’s description of a person ‘whose characteristics make
    it especially likely that they will do unreasonable things.’
    Wiener, 258 Or at 639. Wiener held that ‘there may be cir-
    cumstances under which a person could be held liable for
    allowing another to become dangerously intoxicated.’ Id. at
    640. The distinguishing circumstance is the amount of con-
    trol. In Wiener there was no control. In the present case it is
    alleged that there was direct control. The decision as to the
    amount of actual control rests with the trier of fact, not the
    court.”

Solberg, 306 Or at 492 (emphasis and omission in original).3
	        We turn to the second statutory requirement, that
the social host have served or provided a patron or guest
“while the patron or guest was visibly intoxicated.” That
phrasing suggests a temporal sequence of events. It is not
sufficient that a social host or guest merely have served or
provided alcohol to patrons or guests; rather, the social host
must be shown to have done so while—that is, during a time
when—the patron or guest was visibly intoxicated. That
much necessarily follows from the ordinary meaning of the
word “while,” which, when used as a conjunction, means:
    “1 a : during the time that 150
NM 97, 257 P3d 917 (2011) (it is “the degree of control” by the host over the alco-
hol supply that determines liability under state Liquor Liability Act); Kellogg v.
Ohler, 825 P2d 1346, 1348 (Okla 1992) (citing Solberg, concluding that defen-
dants were not liable as social hosts, because they “had absolutely no control over
the alcohol served”); Knight v. Rower, 170 Vt 96, 101, 742 A2d 1237, 1241 (1999)
(“furnishing” alcohol within the meaning of state Dram Shop Act “connotes pos-
session or control of the alcoholic beverage by the furnisher” (internal quotation
marks and citation omitted)).
Cite as 359 Or 147 (2016)	161

    –Alexander Cowie>  b : until the end of the time that : as long
    as  c : during which time : and
    during the same time : and meanwhile [.]”
Webster’s at 2604; see also American Heritage at 1973 (“[a]s
long as; during the time that”).
	        ORS 471.565(2) does not explicitly identify precisely
to whom the patron or guest must be visibly intoxicated.
But, in context, we think it is sufficiently clear that the
focus is whether the patron or guest is visibly intoxicated
to the social host. The very point of the statute is that, at a
time when the social host is confronted with a visibly intoxi-
cated guest, the social host has a decision to make—namely,
whether, in light of that information, to serve or provide the
visibly intoxicated patron or guest with additional alcohol.
	        The legislative history is sparse on that particular
point. But the little that exists fully supports what we have
said the text of the statute appears to state.
	        The relevant phrasing first appeared in a 1979
bill, HB 3152. See Or Laws 1979, ch 801, §§ 1, 2.4 As orig-
inally proposed, the bill would have required not only that
	4
      The 1979 legislation was codified in two separate statutes, former ORS
30.950 and former ORS 30.955. Both of those statutes applied if a person had
been “served or provided” alcohol when that person was “visibly intoxicated.”
Former ORS 30.950, which applied only to a “licensee or permittee,” originally
provided:
    	 “No licensee or permittee is liable for damages incurred or caused by
    intoxicated patrons off the licensee’s or permittee’s business premises unless
    the licensee or permittee has served or provided the patron alcoholic bever-
    ages when such patron was visibly intoxicated.”
See Or Laws 1979, ch 801, § 1. Similarly, former ORS 30.955 applied to a “private
host,” and stated:
    	   “No private host is liable for damages incurred or caused by an intoxi-
    cated social guest unless the private host has served or provided alcoholic
    beverages to a social guest when such guest was visibly intoxicated.”
See Or Laws 1979, ch 801, § 2.
	   The 1987 legislature later merged those two statutes into former ORS 30.950,
at that time substituting the term “social host” for the original “private host.”
See Or Laws 1987, ch 774, §§ 13, 14 (amending former ORS 30.950 to add “social
host,” and repealing former ORS 30.955). That statute was amended several
times again in ways not pertinent here before being renumbered as ORS 471.565
in 2001.
162	                                            Baker v. Croslin

the licensee or social host had “served or provided” a visi-
bly intoxicated person, but also that the provider had been
grossly negligent in doing so. Dave Dietz appeared as a wit-
ness on behalf of Restaurants of Oregon in support of the
bill and stated:
  	 “The reason for that, for the standard of visibly intox-
  icated, that is in the law now, we recognize that that is a
  subjective standard. It is difficult very often to determine
  when a person is visibly intoxicated. * * * But at least it
  provides a standard that our operators can understand to
  some extent. They then have the ability to make the choice
  as to whether or not an individual is visibly intoxicated. If
  they step over the bounds, and serve someone that either
  by a witness’s own viewing of that person or by a waitress
  or waiter’s own viewing of that person is visibly intoxicated,
  then the owner or manager of that establishment should be
  liable, and they should understand when and where that
  liability begins to exist.”
Tape Recording, House Committee on Judiciary, HB 3152,
June 11, 1979, Tape 85, Side 2 (statement of Dave Dietz)
(emphases added). Later, Chairman Frohnmayer asked
Dietz to explain when a provider would have been negligent
but not grossly negligent:
  	 Chairman Frohnmayer: “*        * 
                                    * A licensee—a person
  who is injured later—you’ve established the person is vis-
  ibly intoxicated. That means, knocked down, fall down, or
  whatever. But that means visible, words slurred, whatever,
  something to prove that—you’re going to have to prove
  something. But then you go on and say that the serving or
  providing in light of those factors has to have been gross
  negligence. Now, what conduct is negligent but not grossly
  negligent?  * * *
  	 Dave Dietz: “In those circumstances, I think you almost
  have to conclude, if the bartender, for example, knew the
  person to be visibly intoxicated at the time the person or
  patron requested a drink, I think that that almost equates
  to gross negligence. * * * Any indices of what is in fact some
  visible intoxication is going to then lead you to believe that
  if the bartender served that patron and did so without pur-
  suing the patron’s status, to any degree, then you have gross
  negligence.”
Id. (emphases added).
Cite as 359 Or 147 (2016)	163

	        The upshot of those excerpts from the legislative
history is clear: If the patron or guest is not visibly intox-
icated to the social host, then the social host may serve or
provide alcohol without fear of liability. But, if the patron or
guest is visibly intoxicated to the social host, and the social
host nevertheless serves or provides alcohol, then the social
host may face liability.

	         The question then arises whether the social host
must be subjectively aware of the guest’s intoxicated status.
The wording of the statute makes clear that the test is an
objective one. ORS 471.565(2) requires proof that a patron
or guest is “visibly” intoxicated. Ordinarily, the adverb
“visibly” means “in a visible manner,” and the word “visi-
ble,” in turn, means “capable of being seen : perceptible by
vision * * * easily seen * * * CONSPICUOUS.” Webster’s at
2557; see also American Heritage at 1936 (“[p]ossible to see;
perceptible to the eye * * * [o]bvious to the eye”). The point of
the statute, then, is whether the patron or guest is in such a
state that his or her intoxication may be said to be conspic-
uous to, or readily observable by, the social host, whether
or not the host has the subjective belief that the patron or
guest in fact is intoxicated.

	        In that regard, however, it is important to note that
nothing in the wording of ORS 471.565(2) suggests that a
social host is under an obligation to continuously monitor all
patrons or guests to determine whether they become intoxi-
cated. The statute refers only to the consequences of a social
host serving or providing alcohol to a patron or guest who
already has become visibly intoxicated. On the other hand, if
a patron or guest is visibly intoxicated to the social host, the
wording of the statute seems to suggest that it may become
necessary for the host to prevent the guest from taking fur-
ther drinks. As we have noted, the statutory reference to
“provid[ing]” alcohol to guests is broad enough to encompass
purchasing the alcohol and making it available to guests. It
would seem to follow, then, that once a social host becomes
aware that a guest has become visibly intoxicated, the host
is not entitled to the protections of the statute to the extent
that he or she continues to make alcohol available to that
visibly intoxicated guest.
164	                                          Baker v. Croslin

	         This court’s decisions in Wiener and Solberg are not
to the contrary. As we have noted, in the former decision,
the court suggested that “[t]here might be circumstances”
in which the host could have a duty to deny a guest further
access to alcohol. 258 Or at 639. But the existence of that
duty would depend on whether “the host has reason to know”
that, for example, the guest is “already severely intoxicated.”
Thus, even under Weiner, the liability of a host turns on the
social host’s knowledge that a guest “already” has become
intoxicated, not on some duty to monitor guests as a result
of being the supplier of the alcohol. Solberg likewise empha-
sized that the key to the stepfather’s liability was the fact
that he was already aware of his stepson’s intoxicated state
when he continued to buy him drinks. 306 Or at 491.
	        With the foregoing principles in mind, we turn to
the record in this case to determine whether plaintiff sub-
mitted evidence that creates a genuine issue of material
fact about whether defendant “served or provided” alcohol to
Smith “while” Smith was “visibly intoxicated.” As we have
noted, plaintiff has retained an expert who will testify that
Smith was visibly intoxicated after consuming his fourth
drink. Thus, Smith would have been visibly intoxicated at
the time that he, along with defendant, Johnson, and Baker
took a final shot. It can be reasonably inferred that, defen-
dant being there, he would have seen that Smith was visibly
intoxicated at the time that he took that last shot. And it is
undisputed that defendant took no steps to stop Smith from
taking that last shot, even though Smith was visibly intoxi-
cated to him.
	        Defendant’s sole argument is that, because Smith’s last
shot was of the Cockspur rum, and because Baker had reim-
bursed him for the cost of that rum, the rum was Baker’s and
not defendant’s. Because the Cockspur rum belonged to Baker,
defendant argues, he did not “serve or provide” it to Smith.
	        We find defendant’s argument unpersuasive. At the
outset, it bears emphasis that the question whether defen-
dant exercised the sort of control over the alcohol supply
that he could be said to have “served or provided” alcohol
to Smith while Smith was visibly intoxicated is one of fact.
As the court explained in Solberg, “[t]he decision as to the
Cite as 359 Or 147 (2016)	165

amount of actual control rests with the trier of fact, not the
court.” 306 Or at 492. In that regard, defendant’s argument
that, as a matter of law, he cannot be said to have “served or
provided” Baker’s Cockspur rum to Smith is problematic for
at least two reasons.
	        First, the argument assumes that, in fact, the last
shot of rum was the Cockspur rum. Although that certainly
is what defendant said that he recalled, Smith testified that
the last shot could have been rum—without saying whether
it was the Cockspur rum or the rum that defendant had
in his cabinet—or whiskey; he could not remember which.
Johnson likewise testified that he recalled the shot was
rum, but did not state whether it was the Cockspur. If the
last shot was whiskey, there is evidence from which it could
be inferred that it was defendant’s. Defendant testified that
he had a supply of hard liquor, and there is no testimony
that anyone else brought anything but beer to the party.
	        Second, even if the last shot was Cockspur rum,
the evidence that Baker paid defendant for it at some point
during the party does not necessary establish, as a matter of
law, that defendant did not “serve or provide” it. There is evi-
dence that defendant purchased it for the party at his house
and that it was available for others to consume at the party.
If a social host were to purchase a supply of various types
of alcohol for a party and then make that alcohol available
to the guests, the fact that the host leaves a jar into which
guests can contribute for the costs of the alcohol does not
necessarily mean that, as a matter of law, the host did not
still control the supply of alcohol to the guests. At the least,
on the record before us, there is a genuine issue of material
fact about the extent to which defendant controlled the sup-
ply of alcohol to his party, including the hard liquor that
was the last shot that he and his friends consumed before
the accident. Accordingly, the Court of Appeals correctly
concluded that the trial court erred in granting defendant’s
motion for summary judgment as to the safe-harbor provi-
sion of ORS 471.565(2).
	       The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.