dissenting.
In our recent decision in Fulmer v. Timber Inn Restaurant and Lounge, Inc., 152 Or App 334, 339-43, 954 P2d 201 (1998), we discussed the relevant case law and reiterated what it consistently holds — that a person can have no statutory or common-law right of action against a provider of alcohol for injuries that result from the person’s own alcohol consumption and intoxication. Rather, only an “innocent third party” who suffers resulting injuries, e.g., a pedestrian whom the intoxicated person runs over, is entitled to recover from the provider. Smith v. Harms, 125 Or App 494, 499, 865 P2d 486 (1993), rev dismissed 320 Or 268, 880 P2d 934 (1994). Defendants argue that plaintiffs claim is barred under those principles. I agree with them and, therefore, dissent from the majority’s contrary holding.
Summarily stated, plaintiff and Elliott participated in a joint drinking binge. Plaintiff provided or purchased all of the alcohol that they consumed. As a direct result, both were injured in an automobile accident. The majority holds that, because Elliott was the driver and plaintiff the passenger in the vehicle, plaintiff is a “third party” and his action is *634not barred under the principles described above. In my view, plaintiff comes squarely within those principles, and the fortuity of which of the two participants in the drinking spree was the driver and which was the passenger does not remove plaintiff from their application.
The majority and I agree, in general terms, that the distinction drawn in both the Supreme Court’s decisions and ours is between persons injured as a result of their own alcohol involvement or intoxication, and “third parties” who are injured as a consequence of the alcohol use or intoxication of others. Our disagreement is over how sharp a line has been drawn between the two and where the line is located.
The majority concludes, after discussing Miller v. City of Portland, 288 Or 271, 604 P2d 1261 (1980), and Smith:
“In short, in Miller, the Supreme Court held that an action may be maintained against a provider of alcohol by an intoxicated person so long as he or she claims damages for injuries resulting from the provision of alcohol to another person. * * * In contrast, in Smith, we held that an action may not be maintained against a provider of alcohol by an intoxicated person if he or she claims damages for injuries resulting from his or her own purchase of alcohol.
“In this case, plaintiffs theory of the case is that defendants are liable because they served Elliott alcohol when he was visibly intoxicated, and plaintiff was injured as a result. Thus framed, plaintiff clearly is a third party who is entitled to maintain his action against defendants for their negligence in serving a visibly intoxicated patron other than plaintiff himself. In fact, plaintiffs claim in this case closely parallels the allegations of the plaintiff in Miller, which the court held stated a claim for relief. In contrast, it is plainly distinguishable from the facts of Smith, in which the plaintiff alleged a right to recover based on his own purchase of alcoholic beverages from the defendant.” 154 Or App at 628.
I read Miller differently from the way that the majority does. There were two kinds of claims and, correspondingly, two different issues in that case:1 First, whether *635Miller could proceed against the providers on the basis of their sales to Miller herself, and second, whether she had a right of action against them arising out of their sales of alcohol to Kolibaba, who was the driver of the motorcycle on which Miller was later injured. It was in connection with Miller’s claims for the direct sales to her that the court concluded that her own complicity in the illegal purchases, inter alia, barred her from proceeding. However, the court held that, at least at the pleading stage, Miller’s claims against the providers based on their service and sales to Kolibaba were viable. In so holding with respect to the latter claims, the court noted but left open the question that this case presents. It said:
“Defendants contend that plaintiff should not be allowed to recover because she participated with Kolibaba in his drinking and inebriation, and she is therefore not in the position of an innocent third party. The court is not in a position to address this question because the issue is not raised by the pleadings. The complaint alleges only that they were both patrons of the tavern and that after both had been drinking beer, Kolibaba gave Miller a ride on his motorcycle. There are no allegations from which it must necessarily be concluded that they were partying together.” Miller, 288 Or at 275-76.
I do not agree with the majority that the situation here “closely parallels the allegations of the plaintiff in Miller, which the court held stated a claim for relief.” Rather, in my view, this case presents the question that the court expressly left open in Miller: Whether a plaintiff who has “partied with” and become intoxicated in the company of another person stands in “the position of an innocent third party” who may bring an action against the alcohol provider for injuries sustained as a result of his or her drinking companion’s intoxicated driving.
I also disagree with the majority that there is anything tautological about defendants’ argument that the answer to that question should be no. 154 Or App at 629.2 *636The point of defendant’s arguments, as I read them, is that a putative “third party” who “participates in” the drinking activities of the person whose intoxication later leads to the party’s injury is not in a materially different position, vis-avis the provider of the alcohol, from one who is injured as a result of his own intoxication.
It is true that terms such as “party with” and “participated in” are fuzzy, in that they could refer to incidental forms of mutual imbibance, as well as extensive and extended shared consumption. I am not suggesting, however, that the same rule must apply under facts of the kind in this case and facts at the other end of the spectrum, e.g., where two people have one drink together, go their separate ways and one of them later becomes drunk and, by complete coincidence, is involved in an accident that injures the other. By contrast, there was nothing random or ambiguous about plaintiffs connection with Elliott’s drinking here. They drank and drove together for a period of more than ten hours. The only difference between plaintiff — who the majority holds may bring this action, and Elliott — who clearly could not — is that one of the two incoherently drunk men made his way to the driver’s side of the vehicle and the other found himself on the passenger’s side.
The majority describes the question in this case as being “[wjhether an intoxicated person who is injured as a result of the actions of another intoxicated person is barred from recovering against the alcohol provider[.J” 154 Or App at 626. However, I do not think that the question can correctly be parsed into those parts. The alcohol consumption and the resulting intoxication of both participants were the “actions” of both. The drinking binge that culminated in the accident was a joint activity. In sum, plaintiffs injury was as much the result of his own alcohol consumption as that of Elliott, for purposes of the principle barring actions against the purveyor that has been repeatedly stated in the case law and is embodied in ORS 30.950. Correspondingly, plaintiff is not a “third party” within the meaning of those cases. He is part of a first person plural.
For the foregoing reasons, I would affirm the trial court’s judgment, and f respectfully dissent.
*637Linder, J., joins in this dissent.The claims against the providers in Miller were asserted in a third-party contribution action, rather than by Miller (the injured passenger) herself. However, the third-party plaintiffs right to proceed on those claims was co-extensive with *635the right of action that Miller would have had in a direct action against the sellers. For ease of reference, I will refer to the claims in the remainder of this opinion as Miller’s.
I do agree with the majority, however, that Smith does not resolve the question and that defendants find more assistance in that case than I think it gives them.