Bonner v. American Golf Corp. of California

814 October 31, 2024 No. 37

IN THE SUPREME COURT OF THE

STATE OF OREGON

Kerrie BONNER,

Personal Representative of the

Estate of David W. Bonner, Deceased,

Plaintiff,

v.

AMERICAN GOLF CORPORATION

OF CALIFORNIA, INC.,

dba Oregon Golf Club,

fdba The Oregon Golf Club, a foreign corporation;

and American Golf Corporation,

dba Oregon Golf Club, fdba The Oregon Golf Club,

a foreign corporation,

Defendants.

(United States District Court for the District of Oregon

No. 322cv01582SI)(SC S070183)

En Banc

On certified question from the United States District

Court for the District of Oregon; certified order dated April

25, 2023, certification accepted May 18, 2023.

Argued and submitted September 14, 2023.

Rachel M. Jennings, Pickett Dummigan Weingart, LLP,

Portland, argued the cause and filed the brief for plaintiff.

Also on the briefs were J. Randolph Pickett, Shangar S.

Meman, and Kyle T. Sharp.

Andrew J. Lee, Schwabe, Williamson & Wyatt, P.C.,

Portland, argued the cause and filed the brief for defen-

dants. Also on the brief were Jeffrey S. Eden, Sara Kobak,

and Mario E. Delegato.

Lisa T. Hunt, Law Office of Lisa T. Hunt, LLC., Lake

Oswego, filed the brief for amicus curiae Oregon Trial

Lawyers Association.

Cite as 372 Or 814 (2024) 815

Alice S. Newlin, Lindsay Hart, LLP, Portland, filed

the brief for amicus curiae Oregon Association of Defense

Counsel. Also on the brief was Michael J. Estok.

MASIH, J.

The certified question is answered.

816 Bonner v. American Golf Corp. of California

MASIH, J.

Servers of alcohol in Oregon have a duty not to

serve alcohol to “visibly intoxicated” persons, but ORS

471.565(1) limits servers’ liability in some circumstances

even if the person is visibly intoxicated. Under that stat-

ute, “[a] patron or guest who voluntarily consumes alcoholic

beverages served by [a licensed server or 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.” In

this case, which comes before us on a certified question of

Oregon law from the United States District Court for the

District of Oregon, we are asked to determine to what

extent, if any, ORS 471.565(1) violates the remedy clause of

Article I, section 10, of the Oregon Constitution. As we will

explain, Oregon’s common law has long held that a person

has a remedy against the server of alcohol for injuries that

the person suffered as a result of consuming alcohol involun-

tarily, meaning after the point that the person has lost the

“sense of reason and volition.” See Ibach v. Jackson, 148 Or

92, 35 P2d 672 (1934) (setting that standard). A statute that

precluded such a recovery would violate the remedy clause.

However, ORS 471.565(1), by its terms, does not reach that

far. On the contrary, it bars a claim only by a person who

“voluntarily consumes” alcohol. Accordingly, application of

ORS 471.565(1) to bar a plaintiff’s claim against a licensed

server or social host does not violate the remedy clause of

Article I, section 10, because it does not bar a claim by a per-

son who involuntarily consumed alcohol served by a licensed

server or social host.

I. CERTIFIED QUESTION

In this case, plaintiff, a patron of a golf club that

was hosting a golf championship, brought suit against defen-

dants, the owners of the golf club, for, among other things,

common-law negligence, based on allegations that he was

served alcohol when he was visibly intoxicated and then fell

off a golf cart and was seriously injured.1 Defendants moved

1

The case was originally filed by plaintiff’s guardian ad litem in the

Multnomah County Circuit Court in August 2022. In October 2022, defendants

Cite as 372 Or 814 (2024) 817

to dismiss the complaint under FRCP 12(b)(6) for failure to

state a claim, on the ground that plaintiff’s claim is barred

by ORS 471.565(1). Plaintiff responded that, to the extent

that that statute barred his claim,2 it deprived him of a rem-

edy in violation of Article I, section 10.

With the consent of the parties, the district court

certified the following question to this court:

“Does ORS 471.565(1) violate the Remedy Clause of the

Oregon Constitution, Article I, § 10, by denying a remedy

to a plaintiff who sustains injury due to his or her own vol-

untary intoxication and who sues a licensed server or social

host in their role as such?”

In its certification order, the district court noted

that the Court of Appeals had held in 2017, in Schutz v. La

Costita III, Inc., 288 Or App 476, 478, 406 P3d 66 (2017)

(Schutz II), aff’d on other grounds, 364 Or 536, 436 P3d 776

(2019) (Schutz III), that ORS 471.565(1) violated the plain-

tiff’s constitutional right to a remedy.3 In reaching that

conclusion, the Court of Appeals relied on this court’s then-

recent decision in Horton v. OHSU, 359 Or 168, 218-19, 376

P3d 998 (2016). According to the Court of Appeals, the court

in Horton held that a statute deprives a person of a remedy

if the common law at the time that the statute was enacted

removed the complaint to the United States District Court for the District of

Oregon. Shortly thereafter, plaintiff died. In February 2023, plaintiff’s ex-wife

became the personal representative of plaintiff’s estate, and, in that role, she was

substituted as plaintiff in this case.

2

Plaintiff’s complaint also included a claim of negligence based on premises

liability, a theory of liability that rests on a defendant’s negligent conduct as a

premises owner and operator. At oral argument, defendants agreed that a claim

for premises liability would not fall within the scope of the immunity provided by

ORS 471.565(1), which only bars claims based on the service of alcohol to a patron

or guest.

3

Four years earlier, in a case involving the same plaintiff but different defen-

dants, the Court of Appeals held that ORS 471.565(1) did not violate the plain-

tiff’s constitutional right to a remedy, because the plaintiff in that case would

not have had a viable common-law negligence claim against the defendants when

the Oregon Constitution was adopted. Schutz v. La Costita III, Inc., 256 Or App

573, 302 P3d 460, rev den¸ 354 Or 148 (2013) (Schutz I). In Schutz I, the Court

of Appeals relied on the remedy clause analysis set out in Smothers v. Gresham

Transfer, Inc., 332 Or 83, 23 P3d 333 (2001) (concluding that a statute deprives

a person of a remedy under Article I, section 10, only if the common law would

have provided a remedy for the same type of claim in 1857, when the Oregon

Constitution was adopted). This court overruled Smothers in part in Horton v.

Oregon Health & Sci. Univ., 359 Or 168, 376 P3d 998 (2016).

818 Bonner v. American Golf Corp. of California

would have provided a remedy for the same type of claim.

Schutz II, 288 Or at 485-88. The district court further noted

that this court affirmed the Court of Appeals’ decision in

Schutz II, but on a different ground: We held that, given

that the plaintiff’s allegations of negligence against the

defendants arose out of their roles as employer and supervi-

sor and not out of their roles as servers or social hosts, the

defendants were not entitled to statutory immunity under

ORS 471.565(1) and, thus, it was unnecessary to resolve the

constitutional question. Schutz III, 364 Or at 537.

Based on its reading of those cases, the district

court certified the question to this court, stating:

“Because the Oregon Supreme Court interpreted ORS

471.565 more narrowly in Schutz [III], it is ambiguous,

at best, whether the constitutional analysis in Schutz [II]

still applies. Thus, the precedential value of Schutz [II] is

unclear and likely leaves this important question with-

out controlling precedent from either the Oregon Court of

Appeals or the Oregon Supreme Court. Final resolution by

the Oregon Supreme Court would be helpful in resolving

both counts of plaintiff’s negligence claim and have broad

legal consequence in the state and federal systems.”

We accepted the certified question under ORS

28.200. However, we observe that the district court’s ques-

tion does not reflect the terms of ORS 471.565(1). The dis-

trict court’s question asks whether the statute is unconsti-

tutional as applied to a “plaintiff who sustains injury due

to his or her own voluntary intoxication and who sues a

licensed server or social host in their role as such.” However,

ORS 471.565(1) does not use the term “voluntary intoxica-

tion”; it bars a claim by a patron who “voluntarily consumes

alcoholic beverages” against a server for “injury, death, or

damages caused by intoxication,” “even though the alcoholic

beverages are served to the patron or guest while the patron

or guest is visibly intoxicated.”

This court has discretion to reframe a certified

question. Western Helicopter Services v. Rogerson Aircraft,

311 Or 361, 370, 811 P2d 627 (1991); McFadden v. Dryvit

Sys., Inc., 338 Or 528, 532-33, 112 P3d 1191 (2005). The con-

cepts of the voluntary consumption of alcohol and visible

Cite as 372 Or 814 (2024) 819

intoxication are both found in the statute. Because both are

necessary to our constitutional analysis but are distinct, we

think it appropriate to slightly reframe the district court’s

question. We therefore exercise our discretion to modify the

certified question as follows:

“Does ORS 471.565(1) violate the Remedy Clause of the

Oregon Constitution, Article I, section 10, by preventing

a plaintiff who voluntarily consumes alcoholic beverages

served to the plaintiff by a licensed server or social host

when the plaintiff was visibly intoxicated and who sustains

injury as a result from suing the licensed server or social

host in their role as such?”

II. ANALYSIS

Before we commence our analysis of the consti-

tutionality of ORS 471.565(1), we address a more general

issue that defendants have raised in their brief to this court.

Namely, defendants invite the court to revisit the meaning of

the remedy clause. Defendants explain that, in Horton, this

court considered itself constrained by its earlier decisions

interpreting the remedy clause, and, therefore, it declined to

“decide how we would interpret Oregon’s remedy clause if we

were considering it for the first time.” Horton, 359 Or at 218.

In a concurring opinion, Justice Landau urged the court to

undertake a wholesale review of its remedy clause jurispru-

dence. Id. at 254-86 (Landau, J., concurring). Defendants

now ask this court to align itself with Justice Landau’s con-

currence and hold that the remedy clause serves to “pro-

tect[ ] against executive and legislative interference with

judicial independence and access to the courts”4 and, con-

versely, that it was not intended to limit “the otherwise ple-

nary authority of the legislature to determine rights and

remedies.” Id. at 286.

Although we appreciate defendants’ thorough and

thoughtful explication of the origins and history of the

remedy clause, we decline their request to reconsider our

4

Defendants ask us only to revisit the Article I, section 10, remedy clause

analysis in Horton. Defendants do not advance any argument that the remedy

clause analysis and the right to a jury trial may be interdependent and that,

therefore, the court should also reassess Horton’s analysis under Article I, section

17, of the Oregon Constitution, along the lines proposed by Justice Landau in

Busch v. McInnis Waste Systems, Inc., 366 Or 628, 652, 468 P3d 419 (2020).

820 Bonner v. American Golf Corp. of California

decision in Horton. In that case, the court took into account

both the legislature’s right to refine public policy set out

in Article IV, section 1, and Article VIII, section 7, of the

Oregon Constitution, and the right of injured Oregonians

to access the courts under Article I, section 10, to obtain a

remedy for an injury done them in their person, property,

or reputation through a civil jury trial under Article I, sec-

tion 17. Horton, 359 Or at 218-19. We find no fault with that

approach.

In addition, defendants acknowledge that the path

that they urge us to take necessarily would involve overrul-

ing all of our remedy clause cases decided before 2001. It is

defendants’ burden to establish that we must disavow our

earlier cases. See State v. Ciancanelli, 339 Or 282, 290, 121

P3d 613 (2005) (“[T]he party seeking to change a precedent

must assume responsibility for affirmatively persuading us

that we should abandon that precedent.”). Defendants have

not met that burden here.

In State v. Owen, 369 Or 288, 302, 505 P3d 953

(2022), the court set out the various considerations that may

lead the court to overrule precedent in statutory, common

law, and constitutional cases. The court stated that litigants

urging the court to overturn a case must consider stare deci-

sis and the competing interests at stake; they must identify

a deficit in the analytical process that the court used in that

case to interpret the statute, common law, or constitutional

provision at issue; they must show that, under a correct inter-

pretation, the holding in that case was incorrect; and they

must convince us that abandoning the holding in that case is

prudent. Id. Defendants have not explained how those factors

establish that the change in precedent that they urge is war-

ranted. Moreover, we agree with Justice Balmer’s statement

in his concurring opinion in Busch v. McInnis Waste Systems,

Inc., 366 Or 628, 660-61, 468 P3d 419 (2020) (Balmer, J., con-

curring): “Oregon courts for more than 150 years have held

* * * that the remedy clause imposes some kind of substantive

limit on the extent to which the legislature may modify or

abolish existing rights and remedies” and “[t]here is simply

too much water under the bridge * * * to ignore or overturn so

many of our cases.” (Emphasis in original.)

Cite as 372 Or 814 (2024) 821

For those reasons, we decline defendants’ invitation

to revisit the history and intent of the remedy clause in the

manner requested, and we proceed to consider the consti-

tutionality of ORS 471.565(1) in light of the Horton remedy

clause analysis.

A. Remedy Clause Analysis Under Horton

The “remedy clause” is part of Article I, section 10,

of the Oregon Constitution, which provides:

“No court shall be secret, but justice shall be adminis-

tered openly and without purchase, completely and without

delay, and every man shall have remedy by due course of law

for injury done him in his person, property, or reputation.”

(Emphasis added.)

As discussed, in 2016, in Horton, this court recon-

sidered its approach to determining when a statute vio-

lates the remedy clause. The court overruled its decision in

Smothers and adopted a paradigm for analyzing asserted

remedy clause violations that focuses on the state of the

common law at the time that the statute in question was

enacted, not when the constitution was adopted. In so

doing, the court explained that the text of the remedy

clause “is as much about the availability of a remedy as

it is about the ‘due course of law’ by which the remedy is

to be administered.” Horton, 359 Or at 180. And, the court

stated, there is “no basis in the text of the remedy clause,

its context, or its history from which we can conclude that

the framers intended to limit the meaning of that clause

to the concept of injury as it was defined in 1857.”5 Id. at

183. To the contrary, the court stated, “when the framers

drafted the Oregon Constitution in 1857, they would have

understood that the common law was not tied to a partic-

ular point in time but instead continued to evolve to meet

changing needs.” Id. Thus, the court stated, “common-law

causes of action and remedies provide a baseline for mea-

suring the extent to which subsequent legislation conforms

5

In Horton, we traced the history of the remedy clause to the constitution

of Indiana and back further through Blackstone’s Commentaries on the Laws of

England to Edward Coke’s The Second Part of the Institutes of the Laws of England

concerning Chapter 29 of the Magna Carta of 1225, which, in turn, derived from

Chapter 40 of the 1215 version of the Magna Carta. 359 Or at 189-205.

822 Bonner v. American Golf Corp. of California

to the basic principles of the remedy clause—ensuring the

availability of a remedy for persons injured in their person,

property, and reputation.” Id. at 218.

The court in Horton recognized that legislation can

affect a person’s constitutional right to a remedy in different

ways. It explained that, sometimes, legislation does not alter

a duty that one person owes to another, but it eliminates an

existing remedy for a person injured as a result of a breach

of that duty or it provides only an insubstantial remedy for a

breach of a recognized duty. Id. at 219. Statutes that fall into

that category violate the remedy clause. Id. Sometimes, the

legislation does not alter or eliminate an existing duty, but

it adjusts a person’s rights and remedies as part of a larger

statutory scheme in which a quid pro quo may or may not be

present for the altered right and remedy. Id. We have held

that statutes that fall into that category may or may not

violate the remedy clause depending on whether the alter-

native remedy is “substantial” in light of the overall statu-

tory scheme and other factors, including but not limited to

the existence of a quid pro quo to counterbalance the plain-

tiff’s loss of a common-law remedy. Id. And finally, there

may be situations where legislation modifies common-law

duties or eliminates common-law causes of action, but the

circumstances that required the imposition of those duties

and the recognition of those causes of action have changed

to such an extent that the interests that fueled the court’s

concern no longer require protection. Id. at 219-20. Statutes

that fall into that category do not violate the remedy clause.6

Id. The court stated that the court’s grouping of legislation

into those categories cannot be applied mechanically for

purposes of a remedy clause analysis. Id. at 220. Rather, to

determine whether “the legislature’s actions impair a per-

son’s right to a remedy under Article I, section 10, we must

consider the extent to which the legislature has departed

from the common-law model measured against its reasons

for doing so.” 359 Or at 220.

6

See Horton, 359 Or at 182 (citing as examples legislative abolishment of the

common-law torts of criminal conversation and alienation of affections because

those “actions for invasion of the family relationship were considered outmoded

by changing views of marriage, divorce, and sexual relations” (citation and inter-

nal quotation marks omitted)).

Cite as 372 Or 814 (2024) 823

Nothing in ORS 471.565(1) eliminates the duty

that has existed since at least the early twentieth century

not to serve alcohol to a “visibly intoxicated” person. That

duty continues to exist and is currently reflected in multiple

statutes, including ORS 471.315(1)(a)(H),7 which subjects an

Oregon Liquor and Cannabis Commission (OLCC) licensee

who allows a visibly intoxicated person to consume alcohol

on the licensed premises to various administrative conse-

quences and penalties; ORS 471.410(1), which generally pro-

hibits the provision of alcohol to a visibly intoxicated per-

son; ORS 471.412(1), which prohibits an OLCC licensee from

permitting a visibly intoxicated person to consume alcohol

on the licenses premises; and ORS 471.565(2)(a), which pro-

vides that an OLCC licensee may be liable for damages

caused by intoxicated patrons to third parties if the licensee

served the patron when the patron was visibly intoxi-

cated. In addition, there has been no suggestion that ORS

471.565(1) adjusts a person’s rights and remedies as part of

a larger statutory scheme or that the policy underlying the

duty has no continuing purpose.8 Thus, if ORS 471.565(1)

falls into any Horton category, it is the first. Consequently,

whether the legislature’s enactment of that statute impairs

a person’s right to a remedy under Article I, section 10, the

7

ORS 471.315 was amended during the 2024 regular legislative session. Or

Laws 2024, ch 40, § 9. Because those amendments do not affect our analysis, we

refer to the current version of the statute in this opinion.

8

The legislation would not fall into the quid pro quo, comprehensive scheme

category, because the legislature has not provided some alternative remedy or

quid pro quo. The inclusion of the second sentence in ORS 471.565(1)—stating

that the statute is inapplicable to claims for relief based on negligent or inten-

tional acts other than the service of alcohol—adds nothing that a plaintiff other-

wise would not have had at common law. That sentence simply affirms that the

legislation does not alter the common law of premises liability, which requires a

proprietor to make its premises reasonably safe for its invitees. It has nothing to

do with a proprietor’s liability to a patron who suffers injury after having been

served alcohol while visibly intoxicated.

The legislation also would not fall into the category in which the policy under-

lying the duty has no continuing purpose. To the contrary, the dangers inherent

in over-service of alcohol were recognized by legislators during the process of

enacting ORS 471.565(1), as demonstrated by the colloquy between certain legis-

lators that we discuss below. Although the bill that became ORS 471.565(1) was

ostensibly designed to procure some measure of personal responsibility on the

part of the patron or guest whose voluntary conduct contributes to the injury,

that interest was being served by the state’s comparative fault system. That sys-

tem allows a jury to compare the relative fault of a server and a patron in its

apportionment of responsibility for a plaintiff’s injuries.

824 Bonner v. American Golf Corp. of California

issue boils down to whether ORS 471.565(1) eliminated an

existing remedy for a person injured as a result of a breach

of the server’s duty not to serve alcohol to a “visibly intoxi-

cated” person.

That, in turn, begs the question: How do we deter-

mine whether the “common-law model” provided a remedy

for a breach of that duty at the time when the legislation

was enacted? The Court of Appeals in Schutz II understood

Horton to hold that, if a person would have had a common-law

cause of action for negligence on the date that the statute

eliminating that cause of action was enacted, then the stat-

ute would fall into the first category identified by the court

in Horton, and it would be unconstitutional. 288 Or App at

485 (explaining that “it is the common-law causes of action

and remedies that exist at the time legislation is enacted”

that provide the baseline for measuring whether legisla-

tion unconstitutionally eliminates a common-law remedy

(emphasis in original)). Defendants disagree with that inter-

pretation. They point out that, in Horton, this court held

that the Smothers court had “erred in holding that the rem-

edy clause locks the courts and the legislature into a static

conception of the common law as it existed in 1857.” 359 Or

at 218-19. Moreover, they argue that the court recognized

that the remedy clause does not prevent the legislature from

eliminating common-law actions or conditioning recovery on

proof of new elements or avoidance of new defenses. Horton,

359 Or at 193-94, 209-10, 219. For those reasons, defendants

argue that the legislature could, consistent with the remedy

clause, eliminate an existing remedy that was not deeply

rooted in the common law—meaning a remedy that had not

traditionally been available to an injured person but rather

had been more recently recognized by the court. According

to defendants, in that circumstance, the statute should be

seen as simply restoring the “traditional” common law.

Defendants further argue that that analysis

applies to ORS 471.565(1). As we will explain in more detail

below, what is now ORS 471.565(1) was enacted in 2001, in

response to this court’s decision in Fulmer v. Timber Inn

Restaurant and Lounge, Inc., 330 Or 413, 427, 9 P3d 710

(2000), in which the court held that a “plaintiff may bring

Cite as 372 Or 814 (2024) 825

a common-law negligence action against a person or entity

that negligently supplied alcohol to the plaintiff when he or

she already was visibly intoxicated and the plaintiff suf-

fered injuries caused by that negligent conduct.” Defendants

contend that the court’s holding in Fulmer does not repre-

sent the “common-law model,” because, according to defen-

dants, the court in that case allowed a claim that had never

previously been recognized: a common-law negligence claim

on behalf of a person who “voluntarily consumed” alcohol.

Because Fulmer had been decided only a year before the

legislature enacted ORS 471.565(1), defendants assert, the

legislature’s action should be seen as merely restoring the

historic common-law prohibition on such claims.

Defendants are correct that, in rejecting the

Smothers conception of the remedy clause, the court in

Horton stated that the framers of our constitution would

have understood that the common law is not tied to a par-

ticular point in time, “but instead continued to evolve to

meet changing needs.” 359 Or at 183. But beyond that, the

court did not express a view about whether the constitution-

ality of the legislative change should be measured by con-

sidering only a single moment in time—whether a plaintiff

had a cause of action for a similar injury at the time that

the statute eliminating the cause of action was enacted—or

whether the full sweep of the common law, from the found-

ing of the state through the date of the legislation, must

be considered to determine whether the right to a remedy

was firmly rooted in the common law when the statute was

enacted.

We do not need to resolve that issue in this case

because, as we will explain, we conclude that ORS 471.565(1),

as we interpret it here, is consistent with the common law

as it had existed for decades prior to the statute’s enact-

ment. We begin our analysis by examining that statute to

understand the types of causes of action that the statute

precludes. See State v. Ausmus, 336 Or 493, 499, 85 P3d

864 (2004) (“Because we cannot address [the] constitutional

challenges until we first discern the conduct that [the chal-

lenged statute] proscribes, we begin our analysis by constru-

ing that statute.”). That analysis includes consideration of

826 Bonner v. American Golf Corp. of California

the legislative history of the statute, which, in turn, necessi-

tates a close examination of the state of the common law at

the time, because, as noted, the statute was enacted in part

in reaction to this court’s decision in Fulmer.

B. Scope of ORS 471.565(1)

To construe ORS 471.565(1), we apply the methodol-

ogy set forth in State v. Gaines, 346 Or 160, 171-72, 206 P3d

1042 (2009): We consider the text of the statute, its context,

including other provisions of the same statute and related

statutes, and any useful legislative history. Id.

1. Text and context of ORS 471.565(1)

To repeat, ORS 471.565(1) provides, in relevant

part:

“A patron or guest who voluntarily consumes alco-

holic beverages served by a person licensed by the Oregon

Liquor and Cannabis Commission, a person holding a per-

mit issued by the commission or 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[.]”

The plain words of that statute preclude a remedy for injury,

death, or damages caused by intoxication only for those who

have “voluntarily” consumed alcohol. Neither the word “vol-

untarily” nor “voluntary” is defined in the statute. The dic-

tionary defines “voluntary,” as relevant here, as “proceeding

from the will : produced in or by an act of choice” and “of

or relating to the will : subject to or regulated by the will.”

Webster’s Third New Int’l Dictionary 2564 (unabridged ed

2002). In other words, a person acts voluntarily when the

person makes a deliberate choice to perform an act, which,

in turn, presumes that the person is capable of making a

choice. Thus, a person who is injured as a result of choosing

to consume alcohol is barred from suing the server of the

alcohol. However, a patron or guest whose consumption of

alcohol is involuntary is incapable of making a choice and

continues to have a cause of action against the server.

Cite as 372 Or 814 (2024) 827

In addition, the statute provides that a patron or

guest whose intoxication was voluntary does not have a

cause of action for injury, death, or damages even if the

person was “visibly intoxicated” when being served. Thus,

the legislature has expressly differentiated between visi-

ble intoxication and involuntary intoxication, meaning that

the former does not necessarily imply the latter. Although

the legislature has not defined “visibly intoxicated,” stat-

utes began using that term in 1933, when the legislature

enacted a Special Session law that provided, among other

things, that the Oregon Liquor Commission could cancel or

suspend a liquor license if the licensee “knowingly has sold

alcoholic liquor to persons * * * known to be drunkards, to

interdicted persons, or to persons visibly intoxicated at the

time of sale.” Or Laws 1933, ch 17, § 18 (2nd Spec Sess).9

Similar wording eventually was incorporated into ORS

chapter 471, regulating alcoholic liquors generally. As noted,

those statutes impose a duty on providers of alcohol not to

serve visibly intoxicated persons. See, e.g., ORS 471.315(1)

(a)(H); ORS 471.410(1); ORS 471.412(1); ORS 471.565(2)(a).

But, again, none of those statutes defines the phrase “visibly

intoxicated.” Likewise, we are aware of no administrative

rule that defines that term, although OAR 845-009-0135

requires servers to be trained to recognize visibly intoxi-

cated persons.

As a matter of common parlance, “visible intoxica-

tion” can mean anything from appearing slightly tipsy to

appearing incoherent or even immobilized. The OLCC has

produced a list of 50 common signs of visible intoxication,

which include disheveled clothing and boasting as well as

9

As early as 1876, criminal statutes made it a crime to furnish alcohol to an

“intoxicated person.” See, e.g., The Codes and General Laws of Oregon, ch VIII,

title II, §1914 (Hill 1887) (“It shall be unlawful for any person to knowingly sell

* * * any spirituous or other intoxicating liquors * * * to any intoxicated person, or

to any person who is in the habit of becoming intoxicated[.]”). In 1913, the legis-

lature enacted the first Dram Shop Act, imposing civil liability in some circum-

stances for serving or selling alcohol to minors and intoxicated persons. Oregon

Laws 1913, ch 51 §1. Section 1 of the 1913 statute provided that a person who

served alcohol to an “intoxicated person or habitual drunkard” was liable to the

spouse, parent, and child of that person for damages resulting from the service of

alcohol to that person. Id. § 1. Dram Shop Acts in various iterations continued to

exist until 1979, when former ORS 30.730 (1977) was repealed by Or Laws 1979,

ch 801, section 4. None of those statutes defined “intoxicated” or described the

level of intoxication that would trigger a server’s criminal or civil liability.

828 Bonner v. American Golf Corp. of California

disorientation and falling off chairs.10 At one end of the

spectrum, a visibly intoxicated person may be consuming

alcohol “voluntarily.” At the other end, the patron or guest

may no longer be capable of making reasoned decisions, and

further consumption of alcohol beyond that point may not

be truly voluntary. The wording of ORS 471.565(1) reflects

that the fact that a person is “visibly intoxicated” does not

necessarily mean that that person’s consumption of alcohol

was involuntary.

We have stated that context includes this court’s

interpretations of the statute at issue. Liberty Northwest

Ins. Corp. v. Watkins, 347 Or 687, 692, 227 P3d 1134 (2010).

This court has not previously considered the precise ques-

tion before us today. As discussed, in Schutz II, the Court of

Appeals held that ORS 471.565(1) denied the plaintiff there

a remedy in violation of Article I, section 10, but on review,

this court affirmed for a different reason. Schutz III, 364 Or

at 538. We held that ORS 471.565(1) provides immunity for

servers and social hosts only for their conduct in their roles

as servers and social hosts and that, although the defen-

dants in Schutz III were social hosts, the plaintiff’s specifi-

cations of negligence were based on the defendants’ alleged

roles as the plaintiff’s employer and supervisor and not on

their roles as servers of alcohol. The court therefore con-

cluded that the defendants were not immune from liability

for their tortious conduct, if any, in those roles. Id. at 556. In

so holding, this court did not endorse the Court of Appeals’

conclusions in Schutz v. La Costita III, Inc., 256 Or App 573,

302 P3d 460, rev den¸ 354 Or 148 (2013) (Schutz I), and in

Schutz II that the plaintiff’s consumption of alcohol had

been voluntary. In fact, it did not consider or interpret the

terms “voluntarily” or “visibly intoxicated” as they are used

in ORS 471.565(1).11

10

Oregon Liquor and Cannabis Commission, 50 Signs of Visible Intoxication

(Rev 2022), https://www.oregon.gov/olcc/docs/publications/50_signs_visible_

intoxication.pdf (accessed October 22, 2024).

11

To the contrary, the court expressly noted that, if the bar “had a duty to act

affirmatively to protect [the] plaintiff from harm, a question we do not address,

that duty, as alleged, could arise only from its role in having served alcoholic bev-

erages to [the] plaintiff after she became visibly intoxicated.” Id. at 555 (emphasis

added).

Cite as 372 Or 814 (2024) 829

2. Legislative history

We turn to the legislative history. As we have noted,

the history of the enactment of ORS 471.565(1) starts in

2000, with this court’s decision in Fulmer, because the fol-

lowing year, in response to that decision, the legislature pro-

posed Senate Bill (SB) 925 (2001), which eventually became

ORS 471.565(1).

a. This court’s decision in Fulmer and the cases on

which Fulmer was based

In Fulmer, the plaintiffs, husband and wife, sought

recovery from the defendants, the owners of a bar, for inju-

ries that the husband sustained in a fall on the defendants’

premises after having been served alcohol when he was

intoxicated. 330 Or at 416. The plaintiffs alleged eight claims

for relief, including, among others, common-law negligence

based on the defendants’ service of alcohol to the husband.

Id. The complaint alleged that the defendants “caus[ed]

plaintiff * * * to become poisoned with alcohol, to lose his

sense of reason and volition; and * * * knowing plaintiff * * *

was in such condition and visibly intoxicated, continu[ed] to

ply plaintiff * * * with alcohol * * *.” Id. at 419 (internal quo-

tation marks omitted). The defendants in that case argued

that Oregon law did not recognize a common-law claim in

favor of a person whose injury results from the person’s own

consumption of alcohol. Id. In support of that argument, the

defendants cited Miller v. City of Portland, 288 Or 271, 279,

604 P2d 1261 (1980) (so stating), and Sager v. McClenden,

296 Or 33, 35, 672 P2d 697 (1983) (same). In response, the

plaintiffs contended that the court had recognized such a

claim in 1934, in Ibach. The court agreed with the plain-

tiffs, concluding that Ibach controlled and that the court’s

reasoning in Miller and Sager was not persuasive. Fulmer,

330 Or at 425-26.

Ibach was a wrongful death action in which the

plaintiff, the administrator of the decedent’s estate, filed

a complaint alleging that the defendant had enticed the

decedent to go to his hotel room and then “wrongfully and

unlawfully served [the decedent] large quantities of intoxi-

cating alcoholic liquors * * * and induced her, * * * to drink

830 Bonner v. American Golf Corp. of California

the same in large quantities sufficient to and which did

cause her to become ill and to suffer from acute alcoholism,”

causing her death. 148 Or at 94-95. The plaintiff later filed

an amended complaint that repeated the allegations in the

original complaint and further alleged that defendant:

“wilfully, unlawfully, and wrongfully forced [the decedent]

to partake of intoxicating liquors to such an extent that

she lost her sense of reason and volition * * * and while in

a state of intoxication and unable to control her own action

and movements * * * [she sustained various injuries], and

thereafter, the defendant carelessly and negligently left

[the decedent] while she was in said condition in said hotel

room alone, where she died sometime during the night, as

a direct and proximate result thereof.”

Id. at 95-96. The trial court granted the defendant’s motion

to strike the amended complaint, and it issued a judgment

in favor of the defendant.

On the plaintiff’s appeal, this court held that the

trial court had erred in striking the amended complaint.

The court stated:

“[I]t is wrongful for any person repeatedly and continuously

to ply another person with intoxicating liquor until intox-

ication is produced. An action by a woman so mistreated

could be maintained unless by voluntary participation

therein she could herself be said to be at fault. It is alleged

in the amended complaint, as it may be inferred from the

original complaint, that after decedent lost her sense of

reason and volition, defendant continued to administer

liquor to her. If decedent had survived such an indignity,

she would have had a right of action against defendant for

such damages as she sustained thereby.”

Id. at 102-03.

The defendant petitioned for a rehearing, object-

ing to one of the inferences that the court drew from the

allegations in the complaint: namely, that, “after decedent

lost her sense of reason and volition, defendant continued

to administer liquor to her.” Id. at 107. On rehearing, this

court adhered to its previous decision. The court explained

that, given the procedural posture of the case—defendant

having filed an answer to the complaint months earlier—the

Cite as 372 Or 814 (2024) 831

court was required to draw inferences favorable to the plain-

tiff and “it [was] clearly inferable from the language of the

complaint quoted in the original opinion herein that part

of the liquor was given decedent before, and part of it after,

she had passed the crucial period of transition from con-

scious volition” to a loss of reason and volition. Id. at 108.

Ultimately, the court held:

“To say that the administration of liquor in such large quan-

tities as to cause death is not a breach of the duty which one

human being owes to every other human being with whom

he comes in contact, namely, the duty to observe ordinary

care to prevent injury, is to shock the fundamental and

rudimentary principles of decency and order. For this rea-

son[,] we hold that a breach of duty was so pleaded in the

original complaint. The same breach of duty is alleged in

the amended complaint.”

Id. at 112.

After summarizing the court’s decision in Ibach,

the court in Fulmer concluded:

“Thus, in Ibach, this court recognized the claim that plain-

tiffs bring in this case, namely, a common-law claim in favor

of an intoxicated person on the theory that the defendant

negligently had served alcohol to the person. Defendants’

argument that there is no prior case law holding that a

common-law negligence claim exists in favor of an intoxi-

cated person under such circumstances is incorrect.”

330 Or at 421. The court rejected the defendants’ argu-

ment that Ibach was distinguishable because the plain-

tiff in Ibach was “forced” to consume alcohol, whereas the

plaintiff in Fulmer “voluntarily” participated in his alco-

hol consumption. Id. The court observed that, in Ibach, the

court had clarified that the allegation in the amended com-

plaint concerning the defendant’s use of force was imma-

terial: “ ‘Whether constructive force or actual force, or no

force at all was employed, the violation of duty is shown by

the facts alleged[.]’ ” Id. (quoting Ibach, 148 Or at 111). The

court stated that, similarly, the fact that the defendants in

Fulmer did not “force” the plaintiff to consume alcohol did

not mean that the plaintiff had not alleged facts sufficient

to state a claim for negligence. Id. In other words, the fact

832 Bonner v. American Golf Corp. of California

that the plaintiff had not been forced to consume alcohol

did not mean that the plaintiff’s consumption of alcohol was

voluntary.

The court then turned to its earlier decisions in

Miller, in which the court stated that this court had “never

previously recognized a common-law cause of action in favor

of a person who suffers injury resulting from his or her own

consumption of alcohol,” 288 Or at 279, and Sager, in which

the court repeated that statement, Sager, 296 Or at 35.

In Miller, one of the issues presented was whether

the defendant tavern owners could be held liable to a minor

who was injured as a result of having been served alcohol

when she was visibly intoxicated. 288 Or at 273. In that

case, the defendants had served alcohol to two minors

without requiring proof of their age and continued serving

them alcohol after both minors were visibly intoxicated.

The minors left the tavern on a motorcycle and were struck

by a City of Portland police car. Id. at 273. One of the two

minors—the passenger—was injured in the collision and

sued the City of Portland for personal injuries. Id. After the

city settled with the plaintiff, the city impleaded the tav-

ern owners as third-party defendants, seeking contribution

from them on the ground that they were also responsible for

the accident. Id. Among other things, the complaint against

the tavern owners alleged a common-law negligence cause of

action based on allegations that the defendants had served

the plaintiff alcohol when she was visibly intoxicated and

that she was injured as a result. Id.

On review, this court declined to recognize a

common-law negligence claim for physical injury to a person

caused by the person’s own illegal purchase and consump-

tion of alcohol. Id. at 279. In so doing, the court did not cite

Ibach. Rather, the court stated that “[t]his court has never

previously recognized a common law cause of action in favor

of a person who suffers injury from his or her own consump-

tion of alcohol.” Id.

The court then stated that it would be inappropri-

ate to create such a cause of action for two reasons. First,

recognizing a negligence claim “for physical injury to minors

Cite as 372 Or 814 (2024) 833

caused by their illegal purchase of alcoholic liquor” would be

“contrary to apparent legislative policy.”12 Id. And second, the

court stated that, at the time of the collision, the Dram Shop

Act, former ORS 30.730 (1977), repealed by Or Laws 1979,

ch 801, § 4, was in effect in Oregon, and that statute provided

that a person who served alcohol to “any intoxicated person

or habitual drunkard” was liable for resulting damages in

an action brought by the wife, husband, or child of the intoxi-

cated person. Miller, 288 Or at 280. The court explained that

that statute did not include the intoxicated person among

the individuals legislatively entitled to relief, and, because

the legislature had “considered the liability to the inebriate’s

immediate family * * * but [had] refrained from giving [the

intoxicated person] a cause of action, we conclude it is proba-

ble it must have considered the matter and rejected any cause

of action for [the intoxicated person].” Id.

In Fulmer, the court dismissed Miller’s reliance

on the Dram Shop Act as a basis for refusing to “create” a

common-law claim. 330 Or at 422. Among other things, the

court noted that it had previously held, in Wiener v. Gamma

Phi, ATO Frat., 258 Or 632, 638 n 2, 485 P2d 18 (1971), that

the legislature did not intend for the Dram Shop Act to be

the sole remedy against persons who had provided alcohol

to others. Fulmer, 330 Or at 424. The court recognized that

Miller and Ibach had reached different results with respect

to first party negligence claims, but it noted that Miller did

not expressly overrule Ibach. Id. at 424. The court also con-

cluded that Miller did not overrule Ibach sub silentio:

“We acknowledge, at the outset, that the court in Miller

went further than simply failing to mention Ibach—it affir-

matively asserted that this court never had recognized a

first-party claim in these circumstances—an assertion

that patently was inaccurate. Second, not only was Miller

incorrect in its characterization of the state of the law, the

court based its entire analysis concerning the plaintiff’s

first-party negligence claim on that faulty premise. Third,

12

Context suggests that, by “apparent legislative policy,” the court was refer-

ring to ORS 471.430 (1979) (making purchase and consumption of alcohol by

minors illegal) and the notion that it would be “inconsistent with apparent legis-

lative policy to reward the violator with a cause of action based upon [the] conduct

which the legislature has chosen to prohibit and penalize.” Miller, 288 Or at 279

(applying similar reasoning to reject the plaintiff’s negligence per se claim).

834 Bonner v. American Golf Corp. of California

and finally, we note that the court in Miller predicated its

refusal to ‘create * * * a common law cause of action for the

benefit of the intoxicated person’ solely on its mistakenly

narrow reading of the Dram Shop Act [former ORS 30.730

(1977)]. * * * Accordingly, absent legislative or judicial abro-

gation, the common-law rule established in Ibach was in

effect when this court decided Miller.”

Id. (emphasis in original).13

The court then turned to Sager, where the court

cited Miller and again stated that “ ‘Oregon never has rec-

ognized a common law claim against alcohol providers in

favor of a person who suffers injury resulting from his or her

own intoxication.’ ” Fulmer, 330 Or at 425 (quoting Sager,

296 Or at 35). The Fulmer court explained that not only

was that statement inaccurate in light of the court’s ear-

lier decision in Ibach, it also was a dictum, because the sole

issue presented in Sager was whether former ORS 30.950

(1983), renumbered as ORS 471.565 (2001) (providing that

licensee who served alcohol to a visibly intoxicated patron

was liable for damages caused by that patron off the licens-

ee’s business premises) authorized a claim by an intoxicated

person against a person who served the person alcohol when

the person was visibly intoxicated. Id. In other words, the

plaintiff’s claim in Sager was based on negligence per se,

and therefore, the court stated, the court’s holding in that

case had no bearing on the issue presented in Fulmer. Id.

Finally, the court rejected the defendant’s argu-

ment that the court should not “create”14 a negligence claim

13

The court in Fulmer did not remark on Miller’s apparent reliance on the fact

that the minor was engaged in illegal activity when she was injured or the fact that

the plaintiff in Miller had not alleged that she was served alcohol after she had

lost her sense of reason and volition. Those considerations distinguish Miller from

Ibach, and, thus, the court in Fulmer was incorrect to suggest that the court had

reached different results under similar circumstances in those cases. Nonetheless,

we agree with the court in Fulmer that the Miller court’s assertion that this court

“never previously recognized a common law cause of action in favor of a person who

suffers injury resulting from his or her own consumption of alcohol” was inaccu-

rate, because the plaintiff in Ibach was injured as a result of “her own consumption

of alcohol” and the court recognized her common-law cause of action in that case.

14

The court did not accept the defendants’ characterization of its recognition

of a common-law negligence cause of action in the circumstances of the case as

the “creation” of such a cause of action. Rather, as discussed, it understood that

such a common-law cause of action already existed, and, when referring to the

defendants’ arguments against the creation of a claim on behalf of an injured

Cite as 372 Or 814 (2024) 835

on behalf of an intoxicated patron because a person whose

voluntary act resulted in injury should be responsible for

that injury. Id. at 426. The court stated that defendants, “in

effect ask us to rule that plaintiff’s ‘participation’ in the ‘con-

dition’ that led to his injuries should lead to the dismissal

of a common-law claim in his favor—a ruling that would

revive by court decision the doctrines of contributory fault

and assumption of the risk that the legislature has abol-

ished.” Id. The court rejected that invitation, stating that

its decision did “not relieve intoxicated patrons of their own

responsibility to act reasonably to take care of themselves.”

Id. at 427. Rather, the court explained, “[u]nder the compar-

ative fault statute, a properly instructed jury may reduce

significantly or negate any recovery when the plaintiff’s

own unreasonable conduct has contributed to the plaintiff’s

injuries.”15 Id.

intoxicated person, it put the words “create” and “creation” in quotation marks.

Fulmer,330 Or at 421, 422, 426.

15

The court was referring to the 1971 legislative adoption of the stat-

utory defense now referred to as “comparative fault,” under which the amount

of damages that a plaintiff can recover in a negligence action is reduced based

upon the degree to which the plaintiff’s own negligence contributed to cause the

injury. Or Laws 1971, ch 668, § 1 (enacting what is now ORS 31.600). Notably, the

year before the legislature’s adoption of comparative fault, this court was urged

to judicially abolish the common-law rule of contributory negligence and adopt

the doctrine of comparative fault. The court declined; it concluded that the issue

whether to abandon contributory negligence and adopt a form of comparative

fault was one of public policy and was the type of determination best made by

the legislature. Peterson v. Culp, 255 Or 269, 270, 465 P2d 876 (1970). With the

enactment of former ORS 18.470 (1971), renumbered as ORS 31.600 (2003), the

legislature made that determination.

Plaintiff in this case raises an argument that is the inverse of the defen-

dants’ argument in Fulmer, which the court rejected; he argues that applying

ORS 471.565(1) to bar an injured person’s claims when they are caused at least in

part by voluntary intoxication effectively bars recovery based on the person’s con-

tributory negligence. Plaintiff argues that interpreting ORS 471.565(1) in that

way effectively resurrects the doctrine of contributory negligence, which, as we

have explained, the legislature abandoned in 1971, and is contrary to the intent

of the legislature in enacting ORS 471.565(1). See Testimony, House Committee

on Judiciary, Subcommittee on Civil Law, SB 925, May 14, 2001, Ex E (writ-

ten statement of Bill Perry, Director of Government Relations for the Oregon

Restaurant Association)(“SB 925 is not a bill that changes Oregon’s compara-

tive negligence laws or revives a contributory negligence or assumption of risk

standard.”). However, the question whether our interpretation of ORS 471.565(1)

is consistent with the doctrine of comparative fault is outside the scope of our

inquiry here, which is concerned with whether that statute deprives a person of a

remedy in violation of Article I, section 10, and we leave that question for another

day.

836 Bonner v. American Golf Corp. of California

Ultimately, the court in Fulmer held that “absent

legislative or judicial abrogation, the common-law rule

established in Ibach was in effect when this court decided

Miller” and that “Ibach remain[ed] an accurate statement

of the common-law rule in Oregon.” Fulmer, 330 Or at 424,

425. It allowed the plaintiffs’ negligence claim to proceed.

b. Legislative reaction to Fulmer

The following year, in 2001, the Oregon Restaurant

Association sponsored SB 925 in reaction to the court’s deci-

sion in Fulmer. The association described the bill, in rele-

vant part, as “legislation to ensure that an establishment is

not liable if customers who consume alcohol under their own

free-will injure themselves.” Testimony, Senate Committee

on Judiciary, SB 925, Mar 13, 2001, Ex A (written state-

ment of Bill Perry, Director of Government Relations for the

Oregon Restaurant Association). Among other things, SB

925 provided that a person who voluntarily consumes alco-

hol does not have a common-law cause of action in negligence

or negligence per se against the server of the alcohol, even if

the person was visibly intoxicated when served.16 That part

of SB 925 was codified at ORS 471.565(1).

16

SB 925 also was prompted, in part, by this court’s decision in Grady

v. Cedar Side Inn, Inc., 330 Or 42, 997 P2d 197 (2000), abrogated in part by

Deckard v. Bunch, 358 Or 754, 370 P3d 478 (2016), which was decided four months

before the court decided Fulmer. In Grady, the court held that a plaintiff who

was injured by the actions of an intoxicated person may bring a common-law

negligence action against the person or entity who furnished the alcohol to the

intoxicated person, even if the plaintiff contributed to the intoxication by pur-

chasing the alcohol for the intoxicated person. Id. at 50. The bill abrogated the

court’s decision in Grady by providing that a plaintiff does not have a cause of

action against a person who served alcohol to a visibly intoxicated person for

injuries caused by the intoxicated person unless the plaintiff proves by clear and

convincing evidence, that, among other things, the plaintiff did not contribute

to the person’s intoxication. That provision was codified at ORS 471.565(2). In

addition, during the legislative process, legislators amended SB 925 to add a

second sentence to the provision addressing the court’s decision in Fulmer, which

was designed to leave intact the part of the court’s holding in Fulmer address-

ing premises liability. Tape Recording, House Committee on Judiciary, SB 925A,

May 23, 2001, Tape 69, Side A (statement of Bill Perry, Director of Government

Relations for the Oregon Restaurant Association). In Fulmer, the court had found

that the plaintiff had pleaded facts sufficient to establish a common-law claim for

premises liability because, “it is well-established in Oregon that a proprietor’s

obligation to make its premises reasonably safe for its invitees includes taking

into account the use to which the premises are put” and “one of the primary pur-

poses of defendants’ invitation to their tavern is the consumption of alcohol by

customers, [so] defendants [are] obligated to make their premises reasonably safe

Cite as 372 Or 814 (2024) 837

The legislative history of ORS 471.565(1) reveals

that the legislature’s express purpose in enacting that pro-

vision was to eliminate the common-law cause of action

that it understood the court to have recognized in Fulmer.

In testimony before the House Judiciary Committee, a rep-

resentative of the Oregon Restaurant Association told the

committee that “[t]he court in [Fulmer] recognized that the

legislature has the power to abolish rules of the common law

by statute and that is what SB 925 seeks to do.”17 Testimony,

House Committee on Judiciary, SB 925, May 14, 2001, Ex

E (written statement of Bill Perry, Director of Government

Relations for the Oregon Restaurant Association). During a

hearing of the House Judiciary Committee, members of the

committee discussed the effect of the proposed statute on

first-party claims:

“REPRESENTATIVE V. WALKER: * * * [S]o here’s

the scenario that I’ve got in my mind. You’re in a bar drink-

ing. The bartender does not cut you off and you are visibly

intoxicated, which I think there is some liability there. But

anyway, you get in your own car and you drive home and

you smash your car and you die. Is—your estate cannot sue

the bar.

“REPRESENTATIVE SHETTERLY: Right.

“REPRESENTATIVE V. WALKER: Is that what this

bill would be?

“REPRESENTATIVE SHETTERLY: That would be

the effect of it.

“REPRESENTATIVE V. WALKER: So there’s no lia-

bility on the part of the bartender to stop serving you alco-

hol at some point?

“REPRESENTATIVE SHETTERLY: Mr. Chair?

“CHAIR WILLIAMS: Yes.

in light of that purpose.” Id. at 429. The second sentence of ORS 471.565(1) thus

clarifies that that provision does not apply to claims for relief that are based on

negligent or intentional acts other than the service of alcohol to a visibly intoxi-

cated patron or guest.

17

See Fulmer, 330 Or at 424 (noting that “the legislature may abrogate rules

of the common law by statute”). Of course, those changes must still comply with

Article I, section 10.

838 Bonner v. American Golf Corp. of California

“REPRESENTATIVE SHETTERLY: I would bet that

in most cases this is not a problem, because I would expect

that the bar owner is going to be a lot more concerned about

your risk of harm to * * * third persons. So this is not going

to * * * to create an incentive for bar owners to serve people

in an intoxicated state.

“REPRESENTATIVE V. WALKER: Right.

“REPRESENTATIVE SHETTERLY: And clearly it’s

not, because the greater risk is they’re going to go out and

hurt somebody else, in which case then the bar owner is

still going to be liable. But I think to the extent that this

recognizes some element of personal responsibility for dam-

ages that you cause to yourself through your own voluntary

intoxication, I think it’s a fair balancing.”

Tape Recording, House Committee on Judiciary, SB 925,

May 23, 2001, Tape 69, Side A. The staff measure summaries

for the bill and a legal analysis accompanying the Oregon

Restaurant Association’s statement support the committee

members’ understanding of the bill’s purpose and effect. See

Exhibit A, Senate Committee on Judiciary, SB 925, Mar 13,

2001 (legal analysis by Mills & McMillin, PC, accompanying

statement of Bill Perry, Director of Government Relations

for the Oregon Restaurant Association); Staff Measure

Summary, House Committee on Judiciary, SB 925, May

25, 2001; Staff Measure Summary, Senate Committee on

Judiciary, SB 925, Mar 19, 2001.

Thus, the legislative history shows that ORS

471.565(1) was intended to eliminate a cause of action in

negligence that the legislature understood to have been cre-

ated by Fulmer, a claim by or on behalf of a person who was

injured as a result of the person’s voluntary consumption

of alcohol, against the person or entity who served the per-

son the alcohol, even if the person was served when visibly

intoxicated.

C. Did the Legislature, in Enacting ORS 471.565(1),

Eliminate a Remedy That the Common Law Had

Recognized?

In deciding whether a statute violates the rem-

edy clause, Horton asks us to “consider the extent to which

the legislature has departed from the common-law model,

Cite as 372 Or 814 (2024) 839

measured against its reasons for doing so.” 359 Or at 220.

As we have demonstrated, the legislature believed that it

was departing from the common-law model set out in Fulmer

when it enacted ORS 471.565(1), and its reason for doing so

was a concern that bar and restaurant owners and servers

were bearing liability for patrons’ and guests’ voluntary con-

sumption of alcohol. We turn to examine whether and to what

extent ORS 471.565(1) departed from the common-law model.

1. Defendants’ argument that the court in Fulmer cre-

ated a new cause of action

As we have stated, ORS 471.565(1) was intended to

and does bar a negligence claim against a server of alcohol

based on a person’s voluntary consumption of alcohol, even if

the person was visibly intoxicated when served. Defendants,

like the legislature that enacted ORS 471.565(1), under-

stand Fulmer to have created a first-party negligence claim

based on a person’s voluntary consumption of alcohol, and

they argue that this court should not treat that claim as

part of the “common-law model” in determining whether the

statute eliminating such a claim violates the remedy clause,

because the right to a remedy for such a claim was not firmly

rooted in the common law when the statute was enacted.

Specifically, defendants argue that, notwithstand-

ing the court’s conclusion to the contrary in Fulmer, the

court had never recognized a cause of action based on the

plaintiff’s voluntary intoxication before it decided Fulmer.

They contend that, in Ibach, the court recognized that, if a

plaintiff “voluntarily participates in the wrongful act and

by such participation contributes to the cause of the damage

sustained, an action cannot be maintained.” 148 Or at 98.

Similarly, they note that the court in Ibach had stated that

a woman who had been plied with alcohol “until intoxication

is produced” could maintain an action against the person

who furnished the alcohol, “unless by voluntary participa-

tion therein she could herself be said to be at fault.” Id. at

102-103. But, according to defendants, that is not how the

court described what happened in Ibach:

“It is alleged in the amended complaint * * * that after dece-

dent lost her sense of reason and volition, defendant contin-

ued to administer liquor to her. If decedent had survived

840 Bonner v. American Golf Corp. of California

such an indignity, she would have had a right of action

against defendant for such damages as she sustained

thereby.”

Id. at 103 (emphasis added). In other words, defendants

contend that the court in Ibach held that a plaintiff had

a common-law cause of action for injuries sustained as a

result of intoxication only if the plaintiff’s consumption of

alcohol was involuntary. Only in such a case must the person

“imposing the draught upon him * * * answer in damages

for the injury that ensues.” Id. at 104 (citation and internal

quotation marks omitted).

Defendants argue that, unlike in Ibach, the plain-

tiff’s consumption of alcohol in Fulmer was voluntary, and,

thus, in allowing a person harmed by his or her own vol-

untary intoxication to pursue claims for injuries caused by

that intoxication, the court in Fulmer recognized a cause

of action that had not previously existed. It follows, they

argue, that the remedy that the court in Fulmer recognized

was not deeply rooted in the common law, and, in enacting

ORS 471.565(1) to eliminate that remedy only a year later,

the legislature merely restored the “traditional” common

law. For that reason, defendant’s contend, that statute does

not violate the remedy clause of Article I, section 10, of the

Oregon Constitution.

Defendants are correct that the court in Ibach

recognized a cause of action against a server of alcohol for

injuries sustained as a result of intoxication only when the

plaintiff’s conduct was involuntary, but defendant’s argu-

ment that Fulmer involved the plaintiff’s voluntary intoxica-

tion is incorrect. As noted, the court in Fulmer stated that

the plaintiffs’ common-law negligence claim alleged that

the defendants were negligent in “causing plaintiff * * * to

become poisoned with alcohol, to lose his sense of reason and

volition; and * * * knowing plaintiff * * * was in such condition

and visibly intoxicated, continu[ing] to ply plaintiff * * * with

alcohol[.]” 330 Or at 419 (emphasis added; internal quotation

marks omitted). In other words, the plaintiffs’ allegation of

negligence in Fulmer was identical in material respect to

the allegation that the court in Ibach found to have stated

a cause of action. Thus, as in Ibach, the plaintiffs in Fulmer

Cite as 372 Or 814 (2024) 841

alleged that the husband’s consumption of alcohol, leading

to his injury, was involuntary.

Nonetheless, we recognize that the court in Fulmer

described the issue presented in the case as “whether a

common-law negligence claim exists in favor of an intoxicated

person who suffered injury on the premises of an establish-

ment against the server or establishment that supplied alcohol

to the injured person when the person was visibly intoxicated.”

Id. at 419 (emphasis added). Likewise, in conclusion, the court

stated, “We hold that a plaintiff may bring a common-law

negligence action against a person or entity that negligently

supplied alcohol to the plaintiff when he or she already was

visibly intoxicated and the plaintiff suffered injuries caused

by that negligent conduct.” Id. at 427 (emphasis added). As we

will explain, those statements sweep more broadly than was

required of the court given the facts of the case.

The court in Fulmer had expressly emphasized (1)

that the court’s holding in Ibach was based on its finding

that the defendant had served the plaintiff alcohol after she

had “lost her sense of reason and volition” and (2) that the

plaintiffs in Fulmer had alleged that the husband also had

been served alcohol after he had “los[t] his sense of reason

and volition.” Thus, Ibach required, and the complaint in

Fulmer alleged, that the plaintiff’s consumption of alcohol

was not voluntary; the plaintiff in Fulmer had been served

alcohol after he had, in the words of the court in Ibach,

“passed the crucial period of transition from conscious voli-

tion” to a loss of reason and volition. Ibach, 148 Or at 108.

The plaintiff in Fulmer therefore had a cause of action in

negligence against the server under Ibach.

However, in discussing its reasoning, Fulmer,

rather than referring to the voluntariness of a person’s con-

sumption of alcohol, referred to the person’s “visible intoxi-

cation.” As we have stated, neither the legislature nor this

court has ever defined the term “visible intoxication,” and,

in common parlance, that term does not necessarily encom-

pass the loss of a sense of reason and volition that the court

described in Ibach.18 Thus, in stating that liability could be

18

However, it should go without saying that a person who has lost the sense

of reason and volition will show signs of visible intoxication.

842 Bonner v. American Golf Corp. of California

imposed based solely on the service of alcohol to a “visibly

intoxicated” person—and thereby including circumstances

in which the person’s consumption of alcohol may be volun-

tary—the Fulmer court’s description of its holding encom-

passes circumstances not presented by the facts of the case

or justified by the court’s earlier case law.19

Nonetheless, we do not see Fulmer as announcing a

new common-law standard. Indeed, as noted, the court pur-

ported to be following Ibach. Rather, it appears to us that the

court was attempting to accommodate the fact that, since

Ibach had been decided, the legislature had abrogated the

doctrines of contributory negligence and assumption of risk

and replaced them with a comparative fault scheme that

weighed the extent to which a person’s own negligence con-

tributed to the injury. Thus, in referring to “visible” rather

than “voluntary” intoxication, the court in Fulmer seemed to

be suggesting that, with the adoption of comparative fault,

the distinction between voluntary and involuntary intoxica-

tion was less important. For those reasons, we understand

Fulmer simply as recognizing that the statutory landscape

had changed since the court first recognized a first-party

negligence claim based on a plaintiff’s consumption of alco-

hol, rather than as breaking new ground and creating a new

common-law cause of action.

2. Application of Horton to ORS 471.565(1)

As we mentioned earlier, the court explained in

Horton that legislation that affects a person’s right to a rem-

edy under Article I, section 10, generally falls into one of

three categories, and the constitutionality of the legislation

in each category depends on the extent to which the legisla-

tion alters an existing duty, eliminates an existing remedy,

provides a substantial alternative remedy including, among

other things, by providing a quid pro quo, or was intended

19

We also note that, in concluding that the plaintiffs had alleged facts that

stated a viable negligence claim, this court did not necessarily endorse all of the

plaintiff’s allegations of negligence. Rather, the court held that the trial court

erred in granting the defendant’s motion to dismiss because the plaintiffs had

alleged that the defendant’s service of alcohol to the plaintiff “caus[ed the] plain-

tiff * * * to lose his sense of reason and volition; and [that,] * * * knowing plaintiff

* * * was in such condition * * * [the defendant] continu[ed] to ply [the] plaintiff

* * * with alcohol,” an allegation that gave rise to a viable claim under Ibach.

Fulmer, 330 Or at 419 (internal quotation marks omitted).

Cite as 372 Or 814 (2024) 843

to protect an interest that no longer needs to be protected.

The court stated in Horton that those categories cannot be

applied mechanically; rather, we must consider the extent

to which the legislature has departed from the common law.

359 Or at 220.

We turn to consider whether or how Horton applies

to ORS 471.565(1). Once again, that statute bars a claim

by a person who is injured as a result of the voluntary con-

sumption of alcohol, even if the person was visibly intoxi-

cated when served, and nothing in that statute eliminates

the duty that has existed since at least the early twenti-

eth century not to serve alcohol to a visibly intoxicated per-

son. Thus, the question before the court is whether ORS

471.565(1) eliminated a common-law remedy for a violation

of that duty in that circumstance.

As we have explained, this court has never held

that a person who contributes to their own intoxication by

voluntarily consuming alcohol, and is injured as a result,

has a common-law right to recover in negligence from the

person who served the alcohol. Therefore, to the extent that

the term “visibly intoxicated” in ORS 471.565(1) encom-

passes something less than having lost the sense of reason

and volition, which would render the person’s intoxication

involuntary, that statute does not eliminate a remedy for a

breach of an existing duty. It follows that, in that situation,

the statute does not fall into any of the three categories that

the court identified in Horton, and it does not violate the

remedy clause of Article I, section 10.

However, a different question would be presented

with respect to a server who serves alcohol to a “visibly

intoxicated” person who has reached the point at which

further consumption is involuntary because the person has

lost the sense of reason and volition. That is so because a

server continues to have a legal duty not to serve alcohol to

visibly intoxicated patrons or guests, and, at the time that

ORS 471.565(1) was enacted, a person whose consumption

of alcohol can be said to be involuntary did have an existing

common-law negligence claim against the server who pro-

vided the alcohol, for injuries sustained as a result of the

person’s intoxication. For that reason, if ORS 471.565(1)

844 Bonner v. American Golf Corp. of California

were to be applied to preclude a cause of action in negligence

on behalf of an injured, intoxicated patron or guest in such a

situation, it would fall into the first category that the court

in Horton identified—encompassing statutes that deny

a remedy to a person injured as a result of a breach of an

existing common-law duty—and it would violate Article I,

section 10, of the Oregon Constitution.

It is a maxim of statutory construction that, when

a statute is capable of more than one plausible interpre-

tation, the court will avoid an interpretation that raises a

constitutional problem. State v. Stoneman, 323 Or 536, 540

n 5, 920 P2d 535 (1996). We therefore hold that, for pur-

poses of ORS 471.565(1), when a person has lost the “sense

of reason and volition,” the person does not “voluntarily con-

sume[ ] alcoholic beverages.” So interpreted, the statute is

constitutional.

III. CONCLUSION

For the foregoing reasons, we conclude that ORS

471.565(1) does not deny a remedy in violation of Article I,

section 10, of the Oregon Constitution, to a plaintiff who has

voluntarily consumed alcohol, for injuries sustained by the

plaintiff resulting from the plaintiff’s intoxication, even if

the plaintiff was visibly intoxicated when served the alcohol,

so long as the server did not provide alcohol to the plaintiff

after the point at which the plaintiff had lost the sense of

reason and volition and the plaintiff’s consumption of alco-

hol can no longer be said to be voluntary.

The certified question is answered.