Deckard v. Bunch

754 March 10, 2016 No. 15

IN THE SUPREME COURT OF THE

STATE OF OREGON

Casey J. DECKARD,

Respondent on Review,

v.

Diana L. BUNCH,

Defendant,

and

Jeffrey N. KING,

as Personal Representative of

the Estate of Roland King, Deceased,

Petitioner on Review.

(CC 102298; CA A151792; SC S062948)

On review from the Court of Appeals.*

Argued and submitted September 10, 2015.

Thomas M. Christ, Cosgrave Vergeer Kester, LLP,

Portland, argued the cause and filed the brief for petitioner

on review.

Brent W. Barton, The Barton Law Firm PC, Newport,

argued the cause and filed the brief for respondent on review.

With him on the brief was William A. Barton.

Jeffrey D. Eberhard, Smith Freed & Eberhard, P.C.,

Portland, filed a brief on behalf of amicus curiae Smith

Freed & Eberhard, PC.

Kristian Roggendorf, Roggendorf Law LLC, Lake

Oswego, filed a brief on behalf of amicus curiae Oregon Trial

Lawyers Association.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Baldwin, Brewer, and Nakamoto, Justices.**

______________

**  Appeal from Lincoln County Circuit Court, Charles P. Littlehales, Judge.

267 Or App 41, 340 P3d 655 (2014).

**  Linder, J., retired December 31, 2015, and did not participate in the deci-

sion of this case.

Cite as 358 Or 754 (2016) 755

BREWER, J.

The decision of the Court of Appeals is reversed, and the

judgment of the circuit court is affirmed.

Case Summary: After sustaining serious injuries from a collision with

an intoxicated motorist, plaintiff brought a statutory liability claim against

defendant for serving alcohol to a visibly intoxicated guest, in violation of ORS

471.565(2). The trial court determined that ORS 471.565 does not create an inde-

pendent claim, but, instead, limits common-law liability. The court dismissed

plaintiff’s statutory liability claim. Plaintiff appealed, alleging that this court

has interpreted ORS 471.565 and its predecessors as providing a statutory right

of action against commercial alcohol providers and social hosts who over-serve

patrons and guests. The Court of Appeals disagreed with that conclusion and

reversed. Held: (1) ORS 471.565(2) does not provide an independent statutory

right of action against a host who furnishes alcohol to a visibly intoxicated per-

son; and (2) the legislature enacted the predecessors to ORS 471.565 to approve a

common-law negligence standard, which includes the requirement to show that a

defendant knew or should have known of an unreasonable risk of harm to a third

party at the time that he or she served a visibly intoxicated person.

The decision of the Court of Appeals is reversed, and the judgment of the

circuit court is affirmed.

756 Deckard v. Bunch

BREWER, J.

This case presents the issue of whether ORS

471.565(2) provides an independent statutory right of action

against a social host who served alcohol to a visibly intox-

icated guest, who in turn caused injuries to a third party.

Plaintiff, who was injured in a motor vehicle accident,

brought this action against the driver of the other vehicle,

Bunch, and the social host who served that driver.1 Plaintiff

asserted two claims against the social host, King: One for

common-law negligence, and the second, which is our pri-

mary focus here, for statutory liability. In the common-law

negligence claim, plaintiff alleged that King (defendant) was

negligent in serving alcohol to his visibly intoxicated guest

at his home when it was reasonably foreseeable that she

would drive her vehicle and cause injury to persons on the

roadway.2 In his statutory liability claim, plaintiff alleged

that defendant was statutorily liable for serving alcohol to

the guest in violation of ORS 471.565(2).3

Defendant filed a pretrial motion to dismiss plain-

tiff’s statutory liability claim under ORCP 21 A(8) for fail-

ure to allege ultimate facts sufficient to state a claim for

relief. The trial court granted the motion to dismiss, and the

case was tried solely on the common-law negligence claim,

1

The other driver, Bunch, is not a party to this appeal.

2

After the accident, King passed away. This action was brought against the

personal representative of King’s estate. We refer to both King and the personal

representative as “defendant.”

3

ORS 471.565(2) provides:

“A person licensed by the Oregon Liquor Control Commission, person

holding a permit issued by the commission 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 intoxi-

cated; and

“(b)  The plaintiff did not substantially contribute to the intoxication of

the patron or guest by:

“(A)  Providing or furnishing alcoholic beverages to the patron or guest;

“(B)  Encouraging the patron or guest to consume or purchase alcoholic

beverages or in any other manner; or

“(C)  Facilitating the consumption of alcoholic beverages by the patron or

guest in any manner.”

Cite as 358 Or 754 (2016) 757

resulting in a jury verdict for defendant.4 Plaintiff appealed,

assigning error to the dismissal of the statutory liability

claim. The Court of Appeals reversed. Deckard v. Bunch,

267 Or App 41, 340 P3d 655 (2014). That court concluded

that, in enacting ORS 471.565(2), the legislature intended

to impose statutory liability on social hosts for serving vis-

ibly intoxicated guests; the court also rejected defendant’s

argument that any error in dismissing the statutory liabil-

ity claim was rendered harmless by the jury instructions

that the trial court gave. Id. at 51-54. We granted review

to determine whether ORS 471.565(2) provides a statutory

liability claim against alcohol providers that exists inde-

pendently of a claim for common-law negligence. For the rea-

sons that follow, we conclude that it does not. We therefore

reverse the decision of the Court of Appeals and affirm the

judgment of the circuit court.

I.  FACTS AND PROCEDURAL HISTORY

On review of the trial court’s dismissal of plaintiff’s

statutory liability claim pursuant to ORCP 21 A(8), “we

accept all well-pleaded allegations of the complaint as true

and give plaintiff[ ] the benefit of all favorable inferences

that may be drawn from the facts alleged.” Stringer v. Car

Data Systems, Inc., 314 Or 576, 584, 841 P2d 1183 (1992),

recons den, 315 Or 308 (1993). Plaintiff alleged in his com-

plaint that, shortly before the accident, Bunch was at defen-

dant’s house, where she consumed a number of alcoholic

drinks. Plaintiff further alleged that Bunch was intoxicated

when her vehicle subsequently crossed the center lane of

traffic and collided head-on with plaintiff’s vehicle, causing

plaintiff to sustain serious injuries. In his statutory liabil-

ity claim, plaintiff alleged that defendant was negligent “in

serving and/or providing alcohol to [Bunch] when she was

visibly intoxicated in violation of ORS 471.565.”

In his motion to dismiss, defendant argued that

ORS 471.565 did not create an independent statutory lia-

bility claim, but, rather, operated as a “shield” imposing

limitations on common-law claims against commercial and

4

The jury found Bunch liable and awarded damages to plaintiff.

758 Deckard v. Bunch

social providers of alcohol.5 The trial court agreed with that

proposition and granted the motion to dismiss.

On appeal after the jury rendered a verdict for

defendant on the common-law negligence claim, plaintiff

argued that the trial court erred in dismissing the statu-

tory liability claim on the ground that this court previously

has interpreted ORS 471.565 and its predecessor statutes

as providing a statutory right of action to protect motorists

who are injured by intoxicated drivers. Defendant responded

that the statute does not create statutory liability but,

instead, limits liability by placing conditions on the right

to recover at common law. Alternatively, defendant argued

that, even if the trial court erred in dismissing the statu-

tory liability claim, the error was harmless because the jury

was instructed that defendant was liable for common-law

negligence if he served alcohol to Bunch while she was

intoxicated—the same instruction that plaintiff would have

been entitled to on the statutory liability claim.

The Court of Appeals reversed the trial court’s dis-

missal of the statutory liability claim. Deckard, 267 Or App

at 43. After discussing the legislature’s enactment of former

ORS 30.950 (1979), renumbered as ORS 471.565 (2001), sub-

sequent amendments to the statute, and this court’s case

law on the subject, the Court of Appeals concluded that “the

legislature intended to create statutory liability” and that

plaintiff’s claim arose from the particular risk that the leg-

islature addressed—the risk of injury to a third party by a

drunk driver who was served alcohol while visibly intoxi-

cated. Id. at 51-52. Accordingly, the court held that the trial

court had erred in dismissing the statutory liability claim;

the court further concluded that the error was not harmless.

Id. at 52, 54.

On review, the parties renew their arguments before

the trial court and the Court of Appeals. In this case, plain-

tiff already had a common-law negligence claim; a host may

be liable for serving a visibly intoxicated guest who drives

a car and injures a third person. See Campbell v. Carpenter,

5

King also moved to dismiss any claim for negligence per se. Plaintiff

responded that he had not alleged a claim for negligence per se and conceded that

such a claim did not exist.

Cite as 358 Or 754 (2016) 759

279 Or 237, 243-44, 566 P2d 893 (1977) (serving alcohol to

visibly intoxicated patron amounted to common law negli-

gence where tavern owner reasonably could have foreseen

that intoxicated patron would drive from tavern and injure

others off of premises). Nevertheless, plaintiff contends that

he also has a statutory claim that permits him to hold defen-

dant liable for that same conduct. Plaintiff seeks the bene-

fit of a statutory claim because he understands that, in a

statutory claim, he need not prove foreseeability. Plaintiff

asserts that the text, context, and legislative history of ORS

471.565 indicate that the legislature intended to create a

statutory liability claim that does not require proof of fore-

seeability. Defendant responds that, when viewed through

the proper interpretive lens, the statute does not create such

a statutory liability claim against providers of alcohol.

As explained below, we conclude that, when it

enacted former ORS 30.950 (1979), the predecessor statute

to ORS 471.565, the 1979 legislature intended to approve

the common-law negligence standard for alcohol provider

liability previously established by this court. We further

conclude that there is no basis to infer that that legislative

assembly impliedly intended to create a separate statutory

right of action with elements different from the common-law

negligence standard. Finally, we conclude that no subse-

quent amendments to the statute altered that intent.

II. ANALYSIS

A.  Statutory Liability

Statutory liability “arises when a statute either

expressly or impliedly creates a private right of action for the

violation of a statutory duty.” Doyle v. City of Medford, 356

Or 336, 344, 337 P3d 797 (2014) (citing Nearing v. Weaver,

295 Or 702, 670 P2d 137 (1983)). A statutory liability claim

“allows recovery of damages if the plaintiff can show that

the damages suffered came about as a result of the viola-

tion of a statute which the legislature passed intending to

give recourse to a group of plaintiffs, which includes the

plaintiff then seeking redress under the terms of the stat-

ute.” Bellikka v. Green, 306 Or 630, 636, 762 P2d 997 (1988).

In synthesis, to prove a claim for statutory liability, the

plaintiff must establish that: (1) a statute imposed a duty

760 Deckard v. Bunch

on the defendant; (2) the legislature expressly or impliedly

intended to create a private right of action for violation of

the duty; (3) the defendant violated the duty; (4) the plaintiff

is a member of the group that the legislature intended to

protect by imposing the duty; and (5) the plaintiff suffered

an injury that the legislature intended to prevent by creat-

ing the duty.

Because the issue is one of legislative intent, the

determination of whether an enactment created statutory

liability is a matter of statutory interpretation; thus, when

a statute prescribing a duty does not expressly indicate

whether the legislature intended to create statutory lia-

bility to enforce the duty, we consider whether such intent

is implied by examining “the text, context, or legislative

history of the statute creating the duty.” Doyle, 356 Or at

344-45; see also State v. Gaines, 346 Or 160, 171-73, 206 P3d

1042 (2009) (setting out methodology).

In its earlier decisions—especially in decisions

pre-dating the adoption of our current statutory interpre-

tation methodology—this court sometimes emphasized two

factors that it deemed significant to the implied legislative

intent inquiry: (1) whether the statute refers to civil lia-

bility in some way, Chartrand v. Coos Bay Tavern, 298 Or

689, 696, 696 P2d 513 (1985); Nearing, 295 Or at 707; and

(2) whether the statute provides no express remedy, civil or

otherwise, for its violation and, therefore, there would be no

remedy of any sort unless the court determined that the leg-

islature impliedly created one or the court itself provided

one, Chartrand, 298 Or at 696; Nearing, 295 Or at 708-11.

However, those factors are neither exclusive nor talismanic,

and, in some instances—including, as we shall see, in this

case—they may not advance the analysis very far. Instead,

it bears reiteration that the proper methodology for deter-

mining whether the legislature (either expressly or by impli-

cation) intended to create a right of action for enforcement of

a statutory duty is the familiar holistic framework applica-

ble to all statutory interpretation problems—careful exam-

ination of the statutory text, context, and legislative history.

To further set the stage for our analysis, we briefly

compare the roles that the concept of foreseeability plays

Cite as 358 Or 754 (2016) 761

in statutory liability claims and common law negligence

claims.6 To impose liability in a common law negligence

claim, a court must conclude that the conduct at issue

“unreasonably created a foreseeable risk to a protected inter-

est of the kind of harm that befell the plaintiff.” Fazzolari v.

Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326

(1987). In that formulation, foreseeability plays at least two

roles—it determines (1) whether the conduct created a fore-

seeable risk to a protected interest such that the defendant

may be held liable for that conduct—a concept that has been

referred to as “duty”; and (2) whether the defendant may be

held liable to plaintiff for the particular harm that befell

the plaintiff—a concept that has been referred to as “legal”

or “proximate” cause. The roles that foreseeability plays are

not always distinct and they may overlap.

As noted, statutory liability arises from the enact-

ment of a statute that effectuates a legislative intent to cre-

ate a right of action to enforce a statutory duty. It need not

include particular elements of a negligence claim; thus, for

example, if a violation is proven, it ordinarily does not mat-

ter whether the defendant acted reasonably under the cir-

cumstances. Bellikka, 306 Or at 650; Gattman v. Favro, 306

Or 11, 15, 757 P2d 402 (1988).7 The role that foreseeability

6

“Negligence per se” is different still. It is a shorthand descriptor “for a neg-

ligence claim in which the standard of care is expressed by a statute or rule.”

Abraham v. T. Henry Construction, Inc., 350 Or 29, 35 n 5, 249 P3d 534 (2011)

(citing Shahtout v. Emco Garbage Co., 298 Or 598, 601, 695 P2d 897 (1985)).

When a negligence claim otherwise exists, and a statute or rule defines the stan-

dard of care expected of a reasonably prudent person under the circumstances, a

violation of that statute or rule establishes a presumption of negligence. Barnum

v. Williams, 264 Or 71, 74-79, 504 P2d 122 (1972). Once a violation is proven, the

burden shifts to the violator to prove that he or she acted reasonably under the

circumstances. Resser v. Boise-Cascade Corporation, 284 Or 385, 392, 587 P2d

80 (1978). A statute that sets a standard of care addresses only one element of a

negligence claim; other elements remain unaffected and must be established.

7

In fact, a claim created by the legislature is not necessarily even a tort

claim. In Bellikka, the court discussed the statutory claim for violations of the

Oregon Residential Landlord and Tenant Act (ORLTA) recognized in Brewer v.

Erwin, 287 Or 435, 600 P2d 398 (1979), abrogated by McGanty v. Staudenraus,

321 Or 532, 901 P2d 841 (1995). Bellikka, 306 Or at 634-35. In Brewer, the court

concluded, from the fact that the ORLTA provided that it “shall be so admin-

istered that an aggrieved party may recover appropriate damages,” that the

legislature intended to create a civil claim for damages. In Bellikka, the court

observed that “[s]tatutory liability is not necessarily ‘tort’ liability,” 306 Or at

635, and explained that the claim permitted in Brewer “allows recovery of dam-

ages if the plaintiff can show that the damages suffered came about as a result of

762 Deckard v. Bunch

will play in a statutory liability claim, if any, will depend

on legislative intent; that is, whether foreseeability is an

element of a statutory claim depends not on the fact that

the claim is established by statute, but on whether the leg-

islature intended that foreseeability be an element of the

claim that it creates. If, for instance, the legislature imposes

a duty to engage in conduct or refrain from conduct and

intends to create a statutory claim for breach of that duty,

then the legislature also may intend not to require that the

plaintiff prove foreseeability as a concept that establishes

a duty. The legislature already may have determined that,

when a defendant’s conduct violates the statute, that con-

duct creates a foreseeable risk to persons in the plaintiff’s

position, or that foreseeability is not an element of the stat-

utory claim. See Gattman, 306 Or at 15 (so holding).

A conclusion that the legislature intended to dis-

pense with foreseeability as a concept that establishes duty

does not, however, necessarily mean that the legislature

also intended to dispense with foreseeability as a concept

that establishes the limits of a defendant’s liability. Whether

a plaintiff must allege and prove that the harm that befell

the plaintiff was foreseeable will depend on the statute in

question. For instance, if a statute indicates a particular

harm that the statute is intended to prevent, and the plain-

tiff alleges that she suffered harm of that type, there may be

no need for the plaintiff to allege and prove that that harm

was foreseeable. In contrast, where a statute does not indi-

cate the type of harm that it is intended to remedy or where

the harm that the plaintiff alleges is attenuated, then the

plaintiff may be required to allege and prove that the harm

that the plaintiff suffered was reasonably foreseeable.

With the foregoing principles in mind, we turn to

the statute at hand.

B.  ORS 471.565

As discussed in greater detail below, this court

has examined ORS 471.565 and its predecessor statutes

the violation of a statute which the legislature passed intending to give recourse

to a group of plaintiffs, which includes the plaintiff then seeking redress under

the terms of the statute.” Id. at 636. Thus, the court looked to the statute that

created the claim to determine its elements.

Cite as 358 Or 754 (2016) 763

on several previous occasions. We have not, however, con-

strued the statute to resolve the issue before us under our

statutory interpretation methodology described in Gaines.

Accordingly, we turn to that task; we begin with the stat-

ute’s text and context, and then consider the legislative

history.

1.  Text and Context

ORS 471.565 provides:

“(1)  A patron or guest who voluntarily consumes alco-

holic beverages served by a person licensed by the Oregon

Liquor Control Commission, a person holding a permit

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. * * *

“(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; and

“(b)  The plaintiff did not substantially contribute to

the intoxication of the patron or guest by:

“(A)  Providing or furnishing alcoholic beverages to the

patron or guest;

“(B)  Encouraging the patron or guest to consume or

purchase alcoholic beverages or in any other manner; or

“(C)  Facilitating the consumption of alcoholic bever-

ages by the patron or guest in any manner.”

According to defendant, the statutory text does

not indicate when an alcohol provider is liable for serving

alcohol to a guest who then injures third parties; instead,

it indicates when an alcohol provider is not liable. In defen-

dant’s view, subsection (1) provides that a patron or guest

who voluntarily drinks “does not have a cause of action”

against an alcohol provider “even though” the patron or

764 Deckard v. Bunch

guest was served while visibly intoxicated, and subsection

(2) states that an alcohol provider is “not liable” for injuries

that a patron or guest inflicts on a third party off-premises

“unless” the patron or guest was served while visibly intox-

icated. Defendant argues that, instead of creating liability,

those subsections impose restrictions on whatever liabil-

ity an alcohol provider may have apart from ORS 471.565,

including under the common law.

With regard to the context of the statute, defendant

observes that ORS 471.565 does not impose a duty on alcohol

providers not to serve alcohol to visibly intoxicated patrons

and guests. Instead, that duty is imposed by another stat-

ute, ORS 471.410(1), which provides that a “person may not

sell, give or otherwise make available any alcoholic liquor

to any person who is visibly intoxicated.” Moreover, defen-

dant notes that this court previously has held that the duty

imposed by ORS 471.410(1) 8 not to serve alcohol to visibly

intoxicated persons does not create an appropriate standard

of care for imposing liability based on negligence per se. See

Stachniewicz v. Mar-Cam Corporation, 259 Or 583, 585-88,

488 P2d 436 (1971), overruled in part on other grounds by

Davis v. Billy’s Con-Teena, Inc., 284 Or 351, 356 n 4, 587 P2d

75 (1978).

In response, plaintiff argues that both the text and

context of ORS 471.565 indicate that the legislature intended

to create statutory liability. According to plaintiff, the stat-

ute’s text contemplates liability twice, albeit in reverse form,

in that subsection (1) states when a patron or guest “does

not have a cause of action, based on statute or common law,”

and subsection (2) states when an alcohol provider will be

“liable for damages” by setting out the criteria for when they

will not be liable. Plaintiff notes that “[s]uch reasoning by

negative implication frequently has been a focal point of this

court’s statutory liability decisions.” See Doyle, 356 Or at

357 n 10 (citing Scovill v. City of Astoria, 324 Or 159, 169,

8

When the court issued several of the relevant decisions cited in this opin-

ion, the statute was numbered ORS 471.410(3). To avoid confusion, we cite and

quote to the current version of the statute, ORS 471.410(1) (2015), throughout

this opinion because the renumbering effected by the 1977 amendment does not

affect our analysis. See Or Laws 1977, ch 814, § 1.

Cite as 358 Or 754 (2016) 765

921 P2d 1312 (1996); Chartrand, 298 Or at 695-96; Nearing,

295 Or at 708-10).

With respect to the statute’s context, plaintiff

argues that subsection (1) bars all claims arising from a

person’s voluntary intoxication, whether “based on statute

or common law.” In plaintiff’s view, the fact that subsection

(2) does not contain similar wording suggests that the legis-

lature intended to preserve both common-law and statutory

claims. In response to defendant’s argument that the duty

not to serve visibly intoxicated persons is imposed by ORS

471.410(1), not ORS 471.565, plaintiff argues that both stat-

utes impose such a duty, but the scope of that duty—and

whether its violation imposes liability—is different depend-

ing on the presenting circumstances.

We observe, initially, that ORS 471.565 does not

expressly create a private right of action, and plaintiff does

not contend otherwise. Compare ORS 471.565 with e.g., ORS

30.780 (“Any person violating [the anti-gambling statutes]

shall be liable in a civil suit for all damages occasioned

thereby.” (Emphasis added.)), ORS 30.825 (“Any person who

is damaged by an act prohibited in ORS 164.886(1) to (3)

[tree spiking] may bring a civil action to recover damages

sustained.” (Emphasis added.)). The issue thus reduces to

whether the statute impliedly creates statutory liability. The

threshold inquiry in that determination, as noted above, is

whether the statute imposed a duty on defendant.

A duty is a “legal obligation that is owed or due to

another and that needs to be satisfied; that which one is

bound to do, and for which somebody else has a correspond-

ing right.” Black’s Law Dictionary 615 (10th ed 2014). When

a statute mandates a course of action, a duty is created.

Scovill, 324 Or at 167. Viewed in those terms, the text of

ORS 471.565 does not directly impose a legal obligation not

to serve alcohol to visibly intoxicated persons. To complicate

things further, ORS 471.410(1), not ORS 471.565, directly

imposes a legal obligation on hosts and commercial serv-

ers not to serve alcohol to visibly intoxicated persons.9 In

9

Plaintiff does not argue that ORS 471.565 and ORS 471.410(1) jointly

impose such an obligation. Instead, plaintiff asserts that the two statutes operate

independently. As noted, this court has held that ORS 471.410(1) does not provide

766 Deckard v. Bunch

this unusual set of circumstances, what is clear is that ORS

471.565 refers to a duty not to serve visibly intoxicated per-

sons. What is less clear from its text and context is whether

the statute itself imposes the duty or whether the duty to

which it refers has a different source.

We need not resolve that issue in this case, however,

because even if a duty not to serve alcohol to visibly intoxi-

cated persons could be inferred from ORS 471.565, nothing

in the text or context of the statute indicates that the leg-

islature impliedly intended to create an independent statu-

tory right of action to enforce such a duty. Although plaintiff

correctly observes that ORS 471.565 refers to civil liability,

a common-law claim against alcohol providers for serving

visibly intoxicated persons who then injure third parties in

drunk driving accidents already existed when the statute

was enacted. See Campbell, 279 Or at 243-44 (so noting). In

light of Campbell, and the additional fact that the statute

is phrased in terms of a limitation of a right of action, it is

equally reasonable to infer that, when it referred to civil lia-

bility, the legislature meant to regulate common-law negli-

gence actions, as it is reasonable to infer that the legislature

meant to create an additional statutory right of action.

The fact that the statute does not provide an

express remedy for the violation of a duty also is not partic-

ularly illuminating where, as here, a private right of action

for negligently serving visibly intoxicated persons already

existed at common law. A more pertinent question in such

circumstances is whether there is any indication that, by

enacting former ORS 30.950 (1979), the legislature intended

an appropriate standard for establishing negligence per se liability. Stachniewicz,

259 Or at 587. In that case, the court stated:

“The statute in question prevents making available alcohol to a person who

is already visibly intoxicated. This makes the standard particularly inappro-

priate for the awarding of civil damages because of the extreme difficulty, if

not impossibility, of determining whether a third party’s injuries would have

been caused, in any event, by the already inebriated person. Unless we are

prepared to say that an alcoholic drink given after visible intoxication is the

cause of a third party’s injuries as a matter of law, a concept not advanced

by anyone, the standard would be one almost impossible of application by a

factfinder in most circumstances.”

Id. at 586-87 (emphasis omitted). We have no occasion in this case to revisit that

aspect of the holding in Stachniewicz.

Cite as 358 Or 754 (2016) 767

to impose an additional or separate standard of liability for

serving visibly intoxicated persons than already existed for

common-law negligence claims. The answer to that question

is “no.” The “visibly intoxicated” standard that the legisla-

ture enacted in former ORS 30.950(1) (1979) was incorpo-

rated in this court’s statement of the common-law negligence

standard of liability for overservice of alcohol in Campbell.

279 Or at 243-44. There simply is no indication in the text

or context of former ORS 30.950 (1979) that the legislature

intended to create a statutory right of action with the same

elements or different elements from a common-law negli-

gence claim. Indeed, the legislative history of ORS 471.565

confirms that conclusion.

2.  Legislative History

The substance of ORS 471.565 originally was

enacted in 1979 as former ORS 30.950 (1979), renumbered as

ORS 471.565 (2001), and former ORS 30.955 (1979), repealed

by Or Laws 1987, ch 774, § 14 . The bill that resulted in the

enactment of those statutes, House Bill (HB) 3152 (1979),

was proposed by the Oregon restaurant and beverage indus-

try in response to three decisions by this court—Wiener

v. Gamma Phi, ATO Frat., 258 Or 632, 485 P2d 18 (1971),

Campbell, and Davis.

a.  The Common Law Backdrop

In Wiener, the plaintiff was injured in a car accident

as she was riding home from an off-site fraternity party,

where the vehicle’s underage driver had consumed alco-

hol. The plaintiff brought common-law negligence claims

against the fraternity, the owner of the off-site venue, and

the fraternity member who had purchased the alcohol that

was provided at the party. The trial court dismissed those

claims.

On review, this court observed:

“Ordinarily, 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 cir-

cumstances 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

768 Deckard v. Bunch

persons whose characteristics make it especially 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 alco-

hol. Also included might be young people, if their ages were

such that they could be expected, by virtue of their youth

alone or in connection with other circumstances, to behave

in a dangerous fashion under the influence of alcohol.”

Wiener, 258 Or 639 (citing Rappaport v. Nichols, 31 NJ 188,

156 A2d 1, 9 (1959) (footnotes omitted). With regard to the

fraternity member who supplied the alcohol and the owners

of the venue, this court acknowledged that, under the circum-

stances described above, a person could be liable to a third

person for allowing another person to become intoxicated.

258 Or at 640. However, the court concluded that the allega-

tions against the fraternity member and the venue owners

were insufficient to assert a breach of duty to the plaintiff,

because: (1) the fraternity member acted only as a conduit

in providing alcohol to the people who served it to others;

and (2) the venue owners furnished the premises, but they

had no duty to protect the guests or others from the actions

of those who were allowed to become intoxicated. Id. at

640-42. Turning to the fraternity, this court concluded that

its status as host and its direct service of alcohol to the driver

were sufficient to create a duty “to refuse to serve alcohol to

a guest when it would be unreasonable under the circum-

stances to permit him to drink.” Id. at 643. Accordingly, this

court reversed the dismissal of the common law negligence

claim against the fraternity. Id. at 643-44.

Six years later, in Campbell, the plaintiff alleged

that the defendant tavern owners were liable for injuries

that the plaintiff sustained in a car accident caused by a

customer to whom the owners had served alcohol while

she was “perceptibly” intoxicated. The plaintiff further

alleged that the tavern owners knew or should have known

that the customer would leave the tavern by driving a car,

thereby creating an unreasonable risk of harm to others.

Campbell, 279 Or at 239. The case was tried to the court,

which entered a judgment for the plaintiff. The tavern own-

ers appealed, arguing that the evidence was insufficient to

support the court’s verdict; the defendants did not contend

Cite as 358 Or 754 (2016) 769

that the allegations of the complaint failed to state a claim.

Id.

On review, this court reiterated its previous state-

ment in Wiener that a person who negligently furnishes

alcohol to a person who already is severely intoxicated may

be held liable for damages to a third person who suffers inju-

ries as a consequence. Id. at 239-40 (citing Wiener, 258 Or at

639). The court then discussed Rappaport again, and ulti-

mately adopted the following reasoning from that case:

“When alcoholic beverages are sold by a tavern keeper to

a minor or to an intoxicated person, the unreasonable risk

of harm not only to the minor or the intoxicated person but

also to members of the traveling public may readily be rec-

ognized and foreseen; this is particularly evident in cur-

rent times when traveling by car to and from the tavern is

so commonplace and accidents resulting from drinking are

so frequent.”

Id. at 240 (citing Rappaport, 156 A2d at 8-9). The court in

Campbell also noted that Oregon statutory law prohibited

the service of alcohol to “visibly” intoxicated persons and

was similar in that regard to New Jersey law, which prohib-

ited serving alcohol to “apparently” intoxicated persons. Id.

at 241 n 2 (citing former ORS 471.410(3) (1971), renumbered

as ORS 471.410(1) (1977) (“No person shall give or other-

wise make available any alcoholic liquor to a person visibly

intoxicated.”); former ORS 472.310(3) (1977), repealed by Or

Laws 1995, ch 301, § 74; Oregon Liquor Control Regulations

No. 10-065(2)). However, this court adopted the reasoning of

Rappaport as a matter of common-law negligence, not based

on or because of a statute.10 Campbell, 279 Or at 241 n 2.

This court in Campbell held that there was suf-

ficient evidence to support an inference that, in serving

alcohol to the patron while she was visibly intoxicated, the

tavern owners had reason to know that, upon leaving the

10

The court adopted the “visibly intoxicated” standard as a common-law

negligence standard, although, in the context of a negligence per se claim, this

court previously had held in Stachniewicz that the visibly-intoxicated standard

was “particularly inappropriate for the awarding of civil damages because of the

extreme difficulty, if not impossibility, of determining whether a third party’s

injuries would have been caused, in any event, by the already inebriated person.”

Stachniewicz, 259 Or at 586-87.

770 Deckard v. Bunch

tavern, she would drive away in a car. Id. at 243. The court

reasoned that,

“[u]nder the rule of Rappaport, however, which we now

adopt for application in such cases, a tavern keeper is neg-

ligent if, at the time of serving drinks to a customer, that

customer is ‘visibly’ intoxicated because at that time it is

reasonably foreseeable that when such a customer leaves

the tavern he or she will drive an automobile.”

Id. at 243-44.

This court in Campbell therefore concluded, as a

matter of first impression, that a tavern owner may be liable

in common-law negligence for damages inflicted off-premises

on a third party by a patron who had been served while vis-

ibly intoxicated. Id. at 239, 243-44.11 The court’s statement

that a tavern owner who serves a visibly intoxicated patron

is negligent should not be understood to suggest that the

issue of foreseeability has been conclusively established by

judicial notice in such circumstances. As this court stated in

Chartrand:

“In Campbell, when we took judicial notice of the facts

discussed above, we did not remove from the definition of

negligence the ‘knew or should have known’ element; nor

did we suggest by our language that the ‘knew or should

have known’ element need not be proved at all but may be

supplied by judicial notice. The facts that in current times

traveling by car to and from a tavern is commonplace and

car accidents resulting from drinking are frequent are not

the type of indisputable facts that qualify for judicial notice

under OEC 201. Judicial notice cannot replace the need for

proof of an essential element of the tort claim as alleged

in this case, i.e., proof that the defendant knew or should

have known that the customer would drive a vehicle from

the tavern.”

Chartrand, 298 Or at 694-95.

The third case leading to the 1979 legislation was

Davis. In that case, two taverns sold kegs of beer to minors

without requiring proof of age. Another minor drank some

of the beer and, after becoming intoxicated, drove his car

11

The court expressly noted that it had not reached that issue in Wiener. Id.

at 238.

Cite as 358 Or 754 (2016) 771

negligently, causing an accident that resulted in the death of

another person. This court held that the taverns were negli-

gent per se in violating ORS 471.130(1) (1975), “which [made]

it unlawful to sell [alcohol] to any person ‘about whom there

is any reasonable doubt of his having reached 21 years of

age,’ without first requiring [identification or other] proof of

age[.]” Davis, 284 Or at 355-57.

It was in that setting that the 1979 legislature con-

sidered the matter of the liability of social hosts and com-

mercial providers to third parties for overservice of alcohol.

b.  The 1979 legislation

Section 1 of HB 3152, as originally introduced,

stated:

“The Legislative Assembly recognizes the need to

restrict the liability of licensees and private hosts for dam-

ages incurred or caused by intoxicated patrons or social

guests they have served. While there is a clear desire to

hold responsible those licensees and private hosts who con-

sciously or recklessly serve visibly intoxicated patrons or

social guests, the Legislative Assembly believes that a per-

son must be held responsible and accountable for the per-

son’s voluntary actions when such actions are undertaken

with a knowledge of possible, although not specifically fore-

seeable, consequences.”

HB 3152 § 1 (1979). Section 2 of the bill provided that a

licensee was not liable for damages caused or incurred by

intoxicated patrons off the licensee’s business premises,

unless the licensee served the patron while visibly intoxi-

cated and the service was grossly negligent under the cir-

cumstances. HB 3152 § 2 (1979). Similarly, section 3 of the

bill provided that “[n]o private host is liable for damages

incurred or caused by an intoxicated social guest, unless the

private host served or provided alcohol to the guest while

visibly intoxicated and the service was grossly negligent

under the circumstances.” HB 3152 § 3 (1979).

The bill was first considered in the House Judiciary

Committee. At its initial hearing, a representative from

the Oregon Restaurant and Beverage Association (ORBA)

testified that, in ORBA’s view, recent court decisions had

gone beyond the “intent of the law.” Tape Recording, House

772 Deckard v. Bunch

Committee on Judiciary, HB 3152, June 11, 1979, Tape 85,

Side 2 (statement of Legislative Chairman John Van Horn,

Oregon Restaurant & Beverage Association). According to

ORBA, HB 3152 would reduce insurance costs, which had

significantly increased as a result of those decisions. Id.

Van Horn told committee members that ORBA wanted all

parties to be held responsible for their actions, including

patrons and licensees. See id. (“[I]f a licensee is negligent in

serving a visibly intoxicated person, he or she should suffer

the consequences of violating the law, including payment of

a fine, suspension, or revocation of the license.”). However,

ORBA disagreed with “the theory expressed by the supreme

court—that a violation of the statute prohibiting the sale of

liquor to minors or visibly intoxicated persons should consti-

tute negligence per se—is sound public policy, as [that] act is

not always necessarily the proximate cause of the plaintiff’s

injuries.” Id.

According to Van Horn, ORBA’s members were will-

ing to bear part of the burden of risks of injuries to third par-

ties, but they wanted that burden limited to circumstances

where a licensee was grossly negligent. Id. In ORBA’s view,

“[i]n the Campbell case, the court shifted the burden of evi-

dence from the plaintiff to the defendant, so that in order to

escape liability, the defendant must show that he had some

specific knowledge that the particular individual in ques-

tion was not going to be driving from the establishment.”

Id. In ORBA’s estimation, a negligence standard reflected

better public policy, because responsibility would be shared

by licensees and social hosts, on the one hand, and patrons

and guests who consume the alcohol, on the other, rather

than placing the entire burden on the alcohol server, as, in

ORBA’s view, the recent case law suggested. Id.

At the same committee hearing, a representative

from the restaurant industry, Dave Dietz, also testified.

Dietz said that recent case law had led to problems for

licensees in acquiring insurance; he noted that, in Wiener,

the court concluded that there was no statutory presump-

tion that a licensee would be liable, whereas in Campbell,

common-law negligence liability was upheld based on the

same types of laws as Wiener, and then extended to negli-

gence per se in Davis. Tape Recording, House Committee on

Cite as 358 Or 754 (2016) 773

Judiciary, HB 3152, June 11, 1979, Tape 85, Side 2 (state-

ment of Dave Dietz). HB 3152 was the industry’s attempt

to address its concerns about how far that liability ought to

extend. Id.

Dietz agreed with Van Horn that the burden of the

risk of injuries needed to be better balanced between provid-

ers and consumers of alcohol. Dietz stated that

“[s]ections 2 and 3 address directly the requirement of the

proof of liability for the licensee and social hosts. In both

cases, we are asking that a licensee or social host be held

liable only in the case where they have served alcoholic bev-

erages to a visibly intoxicated person and that server was

grossly negligent under the circumstances then existing at

the time of the service.”

Id. Dietz noted that the visibly intoxicated standard reflected

current law and, although potentially difficult to apply, it

was a standard that servers understand. Id. Dietz stated

that, if a server provides alcohol to a visibly intoxicated

patron, the owner of the establishment “should be liable,

and they should understand when and where that liability

begins to exist.” Id.

At the same hearing, Representative Frohnmayer

took issue with the proponents’ position that recent case law

had shifted the burden of risk of injury away from intoxi-

cated patrons and guests. Tape Recording, House Committee

on Judiciary, HB 3152, June 11, 1979, Tape 85, Side 2 (com-

ments of Rep Dave Frohnmayer). He described the effect of

recent court decisions as adding an additional category of

potential plaintiffs, not limiting the liability of the intox-

icated driver in any way. Id. In addition, Representative

Frohnmayer expressed concern about the bill’s proposed

gross negligence standard, which he described as impossible

to administer. Id. The following exchange is informative:

FROHNMAYER:  “[I]sn’t it true that this bill doesn’t

merely restore the status quo prior to the supreme court’s

recent decision, but in fact rolls back the law as it has been

understood for a decade or so to a point where third party

liability is very difficult to obtain at all?

DIETZ:  “There’s an argument that could be made that

it rolls it back much before the ’78 decision in Campbell.

774 Deckard v. Bunch

And, of course, that’s exactly what we’re attempting to do.

I think it takes it back very nearly to the 1971 decisions, in

both Wiener and Stachniewicz, both of which spoke more to

the issue of what the common law had at that point in time

determined. We think this is something that should be

determined statutorily. And therefore we need a statutory

standard that addresses this issue specifically. We never

have had a statute in this state that precisely and definitely

addresses this very point. And because of that, the courts

have had to do a great deal of shifting and changing to try

to arrive at the responsibilities of the parties involved. I

don’t think it rolls it back so much as it finally establishes a

standard that will be consistently applied.

FROHNMAYER:  “Well, let me see if I can spell out, what

I’m thinking. The supreme court decided a case on the basis

of a statute that some people feel shouldn’t have established

a statutory standard but was taken to be. Therefore, the

legal effect of it is, once you’ve violated the statute, then

that’s negligence per se. That’s the first clear holding of the

supreme court on that and that was, in the minds of many,

including my own, an extension of the law beyond that that

I think the legislature intended. Now, and again, speaking

for myself, if you came and just said to us, ‘we don’t believe

that violation of statute in this context ought to be negli-

gence per se,’ I think I could buy it. To go back from that

and say that not only is it not negligence per se, but that

instead you now have to establish gross negligence, even

after you meet the requirement that shows that the guest

is visibly intoxicated, then I think that maybe rolls it back

into the ’50s or the ’40s, not just the 1970s.

DIETZ:  “Well, don’t forget, when the court held precisely

that the violation was negligence per se, the court was not

looking at 471.410. It looked at 471.130 which held that the

negligence per se occurred when you served a minor. Now,

that we think was an unintended interpretation, at least

in terms of why the legislature passed that particular stat-

ute. And the courts had held in 1971 that 410, 471.410 were

intended as protection statutes—protection of minor stat-

utes. For the court then in 1978 to turn around and say to

our licensees that service to a minor was negligence per se

for the actions that that minor later engaged in, and which

ultimately led to the injury of a third party or a third par-

ty’s property, we think entirely unintended by the enact-

ment of 471.130 and a gross extension of the statute beyond

Cite as 358 Or 754 (2016) 775

any reason. And, yes, we want to roll it back to make very

clear exactly what legislative intent is. Maybe it’s not pre-

cisely this language, but we hope it will be something that

once and for all establishes a standard that the court can

use in deciding the cases that are brought to it.”

Tape Recording, House Committee on Judiciary, HB 3152,

June 11, 1979, Tape 85, Side 2 (statements of Dave Dietz and

Rep Dave Frohnmayer). It is apparent from the foregoing

exchange that both Representative Frohnmayer and Dietz

were primarily concerned about the reach of Davis, where

this court had held that a violation of former ORS 471.130(1)

constituted negligence per se.

At a later work session on HB 3152, Dietz proposed

amendments to remove the gross negligence standards for

both licensees and social hosts in response to the committee’s

concerns. Tape Recording, House Committee on Judiciary,

HB 3152, June 26, 1979, Tape 96, Side 1 (statement of Dave

Dietz). “In other words, we would go back to what is essen-

tially the pre-[Davis] standard of common law negligence

for finding third party liability that was expressed in the

Wiener case in 1971.” Id. Dietz stated that the amendments

to delete the gross negligence standard were “to get back

towards the common law negligence test, not necessarily

that we want to go all the way back to a point where licens-

ees could be unfairly or inequitably held liable for service

to patrons.” Id. The amendments to remove the gross negli-

gence standard from HB 3152 were then adopted. Id.

Representative Rutherford then expressed con-

cern about the preamble of the bill, section 1, which, as

noted, provided, in part: “While there is a clear desire to

hold responsible those licensees and private hosts who con-

sciously or recklessly serve visibly intoxicated patrons or

social guests, the Legislative Assembly believes that a per-

son must be held responsible and accountable for the per-

son’s voluntary actions when such actions are undertaken

with a knowledge of possible, although not specifically fore-

seeable, consequences.” Representative Rutherford opined

that section 1 was redundant and could muddy the water.

Tape Recording, House Committee on Judiciary, HB 3152,

June 26, 1979, Tape 96, Side 1 (comment of Rep Rutherford).

776 Deckard v. Bunch

He was concerned that “if we write the statute to say what we

intend it to say, we don’t need someplace else saying, ‘what

we really mean is this.’ And it has a number of words that

can appear to add another layer of meaning to the words

in the document.” Id. A discussion ensued regarding incon-

sistencies in section 1 of the bill after the gross negligence

standard had been removed and a “common-law negligence

standard” was retained, and the committee subsequently

deleted section 1. Id.

Afterwards, Representative Frohnmayer stated

that perhaps a more informal expression, such as a state-

ment of legislative history, could replace the editorial state-

ment in section 1. Tape Recording, House Committee on

Judiciary, HB 3152, June 26, 1979, Tape 96, Side 1 (com-

ments of Rep Dave Frohnmayer). He then said,

“I think it is clear that it’s the agreement of the committee,

if the bill passes, that the liability situation with respect

to persons who innocently serve liquor in their home or

in some instances has gotten out of hand creating serious

problems with respect to the availability of insurance and

so forth and that the committee is doing its best to address

that question by retreating at least somewhat from the

implications of certain court decisions which have been the

subject of the committee’s discussions. That is my under-

standing of what the bill is doing.”

Id.12

As pertinent here, the discussion next centered on

section 5, concerning minors. Section 5, as initially pro-

posed, would have amended ORS 417.130(1) to provide that

a licensee shall not be liable for failure to require proof of

age for persons about whom there is reasonable doubt as to

whether they had reach the age of 21. HB 3152 § 5 (1979).

12

Nobody present disputed Representative Frohnmayer’s statement. At the

same time, it is apparent that other legislators, if left to their own devices, would

have preferred either more relaxed or more rigid standards for over-service lia-

bility claims. For example, Representative Rutherford commented, “Since we are

talking about legislative [intent], it seems to me that people who serve liquor to

other people should be responsible for their negligence, if any, and that term is

commonly understood[.]” Id. On the other side, Representative Bugas stated that

he did not like third party liability and would vote for all the restrictions that

could be placed on it. Id.

Cite as 358 Or 754 (2016) 777

Framing the issue, Representative Lombard contrasted this

court’s decisions in Wiener and Davis:

“[I]n 1971, in the case of Wiener v. Gamma Phi ATO

Fraternity at the University of Oregon, we had a situation

in which the suit was based simply on common law neg-

ligence and foreseeability of that against an individual

that had sold liquor to, not an intoxicated minor, but an

un-intoxicated minor, and the liquor was thereafter con-

veyed to a party. * * * And the court in that kind of situation

looked at the foreseeability on the part of the defendants

selling the alcohol, as to whether or not that the alcohol

being purchased would be distributed unwisely and so on

and so forth. Now what those who support the [Davis] case,

I think, want to say as a matter of public policy that it shall

be presumed that sale of any alcoholic liquor to a minor will

be consumed unwisely.”

Tape Recording, House Committee on Judiciary, HB 3152,

June 26, 1979, Tape 96, Side 1 (statement of Rep Lombard).

According to Representative Lombard, section 5 stated the

legislature’s true intent with regard to ORS 471.130(1). Id.

Representative Rutherford then moved to delete section 5 in

order to retain existing case law with respect to minors, that

is, the holding in Davis. Id.

Representative Frohnmayer then suggested that a

middle ground between Wiener and Davis could be found; he

was content with Wiener but thought that Davis went too far.

Id. At an ensuing work session, the committee approved an

amendment stating that no alcohol provider shall be liable

for damages caused by persons under the age of 21, “unless it

is demonstrated that a reasonable person would have deter-

mined that [proof of age] should have been requested or that

the identification [provided] was altered” or otherwise false.

HB 3152 (1979), Amendments, A-Engrossed bill (June 29,

1979). With that amendment, the committee approved HB

3152, and sent it to the House floor, where it subsequently

passed without further amendment.

Before the Senate Committee on State and Federal

Affairs and Rules, Dietz again testified that HB 3152 was

meant to retreat from recent court decisions which the

restaurant and beverage industry believed had gone too far

in interpreting then-existing statutes on the issue of third

778 Deckard v. Bunch

party liability. Tape Recording, Senate Committee on State

and Federal Affairs and Rules, HB 3152, June 30, 1979,

Tape 9, Side 1 (statement of Dave Dietz). Dietz stated,

“We believe [HB] 3152 is a reasonable response to the court’s

recent efforts. We believe it would bring good balance, both

for protecting the rights of people that are injured, as well

as protecting the ability of a licensee or permittee to con-

duct business in a responsible manner. * * * Matter of fact,

we regard this bill as a measure that increase the respon-

sibility of our permitiees and our licensees. The bill, very

simply, protects both licensees, permittees, and social hosts

in sections one and two of the measure, and indicates that

a licensee, permittee, or social host would only be liable for

damages incurred or caused by an intoxicated patron or

guest in the event that beverages were provided to a visibly

intoxicated patron or guest.”

Without significant discussion, HB 3152 then passed

through committee and the Senate floor, and was enacted

as Oregon Laws 1979, chapter 801, sections 1 to 6.

To summarize, as enacted, the pertinent statutes

provided:

Former ORS 30.950 (1979). “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 beverages when such patron was visibly

intoxicated.”

Former ORS 30.955 (1979). “No private host is liable for

damages incurred or caused by an intoxicated social guest

unless the private host has served or provided alcoholic

beverages to a social guest when such guest was visibly

intoxicated.”

Former ORS 30.960 (1979), renumbered as ORS 471.567

(2001). “Notwithstanding ORS 30.950, 30.955 and 471.130,

no licensee, permittee or social host shall be liable to third

persons injured by or through persons not having reached

21 years of age who obtained alcoholic beverages from the

licensee, permittee or social host unless it is demonstrated

that a reasonable person would have determined that identi-

fication should have been requested or that the identification

exhibited was altered or did not accurately describe the per-

son to whom the alcoholic liquor was sold or served.”

Cite as 358 Or 754 (2016) 779

c.  Case law concerning the 1979 legislation

This court has reviewed the legislative history of

the 1979 legislation on several previous occasions in an

effort to determine the legislative intent with respect to

its various provisions. In Sager v. McClenden, 296 Or 33,

672 P2d 697 (1983), the question was whether former ORS

30.950 (1979) created a claim for the estate of an intoxicated

patron against a tavern for fatal injuries that the decedent

had sustained in a fall after being served alcohol while he

was visibly intoxicated. Id. at 35. After reviewing the com-

mittee hearing minutes concerning HB 3152, this court

determined that the purpose of former ORS 30.950 (1979)

was to limit the liability of taverns and other commercial

alcohol providers to third parties. Id. at 37. The court stated

that section 1 of HB 3152 initially “was proposed to limit

the holding in Campbell”; the court described Campbell as

holding that “a tavern keeper is liable to third parties who

are injured in an automobile accident that results from serv-

ing a visibly intoxicated customer because it is reasonably

foreseeable that when the customer leaves the premises,

he or she will drive an automobile.” Sager, 296 Or at 38.

According to the court, once the gross negligence standard

was removed from HB 3152, section 1 of the bill, as finally

approved, “codified the holding in Campbell.” Id. at 38-39.

The court further stated that a “thorough reading of

the minutes of the committee hearings on HB 3152 fail[ed]

to reveal a single mention of creating a [new] claim in favor

of injured patrons[,]” and, in fact, the discussion through-

out the hearings centered on limiting a licensee’s liability to

third parties. Id. at 39. Moreover, because the text of former

ORS 30.950 (1979) was written in a way that logically lim-

ited liability rather than expanding it, the court held that

former ORS 30.950 (1979) did not create a claim in favor

of injured patrons against a tavern who served them when

visibly intoxicated. Id. at 39-40 (citation omitted) (“[Former]

ORS 30.950 only provides the condition under which a com-

mercial alcoholic beverage server becomes liable to one who

already has a claim. In light of the legislative history, we

[ ] read [former] ORS 30.950 as imposing a limitation on

the liability originally created by judicial decision.”). The

court in Sager also stated that section 3 of HB 3152, the

780 Deckard v. Bunch

section concerning service to minors, “was proposed to limit

the holding in Davis” and, as finally approved, it restricted

third party liability for licensees and social hosts who serve

alcohol to minors “by replacing the negligence per se rule of

Davis with a reasonable person standard.” Id. at 39.

Two years later, this court again examined former

ORS 30.950 (1979) in Chartrand, a common-law negligence

action against a tavern for serving alcohol to a visibly intox-

icated patron who injured the plaintiff in a head-on vehicle

collision. Chartrand, 298 Or at 691. In that case, the jury

returned a verdict for the plaintiff, and the tavern appealed.

Id. This court reversed the judgment for the plaintiff based

on instructional error. Id. at 695.

In dictum, the court went on to say that, on remand,

the plaintiff could proceed under one or more of three theo-

ries: (1) common-law negligence, as recognized in Campbell;

(2) negligence per se for violation of ORS Chapter 471, as

recognized in Davis; and (3) statutory liability under former

ORS 30.950 (1979), as recognized in Nearing. Chartrand,

298 Or at 695. Elaborating on the statutory liability theory,

the court said,

“The legislature by stating, or implying in reverse lan-

guage, that a tavern owner will be held liable for the acts of

a person who has been served alcoholic liquor while visibly

intoxicated, resolved the foreseeability issue as a matter of

law. Thus, a plaintiff protected by such a statute need not

resort to any concepts of negligence. Negligence is irrele-

vant. The sole question is whether the defendant engaged

in acts prohibited by the statute and whether the violation

of the statute resulted in injury.”

Id. at 696.

The court then discussed the historical process

that had resulted in the enactment of former ORS 30.950

(1979). In contrast to this court’s description of the legisla-

tive history in Sager, the court in Chartrand described the

legislation as expanding the liability of commercial alcohol

providers beyond the limits established by Campbell and

Davis. Chartrand, 298 Or at 696. Quoting an analysis of the

legislative history from a student law review comment, the

court stated that, after HB 3152 was amended to remove the

Cite as 358 Or 754 (2016) 781

gross negligence standard, the purpose of the bill changed

from limiting liability to third parties to expanding it. Id.

at 696-97 (quoting Comment, Review of Oregon Legislation,

16 Willamette L Rev 191, 192-93 (1979) (“After numerous

amendments by the House Judiciary Committee, the bill

lost its liability reducing impact, yet retained the support

of commercial host lobbyists.”).13 The court then stated

that the final version of the bill resulted in two sections—

former ORS 30.950 (1979) and former ORS 30.955 (1979)—

that created liability for commercial and social hosts for

injuries caused by intoxicated persons that are served while

visibly intoxicated, “with no reference to proof of any form of

negligence.” Id. at 697.

After Chartrand, this court considered former ORS

30.950 (1979) or former ORS 30.955 (1979) on four more occa-

sions. In Gattman, the question was whether former ORS

30.950 (1979) provided a remedy to a third party against

a tavern that served alcohol to a visibly intoxicated patron

who later stabbed the plaintiff off-premises. To answer

that question, this court reviewed the decisions that led

13

In support of that conclusion, the comment cited statements made by

Representative Rutherford at a work session on June 28, 1979. Elizabeth

Lee Fancher, Commercial and Social Host Liability for Dispensing Alcoholic

Beverages, 16 Willamette L Rev 191, 192 n 10 (1979) (citing Tape Recording, House

Committee on Judiciary, HB 3152, June 28, 1979, Tape 98, Side 1 (statement of

Rep Rutherford)). We find no support for that conclusion in the comments of any

legislator, including Representative Rutherford, at the June 28 work session. As

noted, the subject of that work session was an amendment to limit the holding of

Davis by prohibiting recovery against an alcohol provider for damages caused by

a minor in the absence of proof that a reasonable person would have requested

proof of age or would have determined that the identification provided was false.

House Committee on Judiciary, HB 3152, June 28, 1979, Tape 98, Side 1.

Representative Rutherford’s position is best captured in the following state-

ment that he made at the June 26 hearing:

“Since we are talking about legislative [intent], it seems to me that people

who serve liquor certainly should be responsible for their negligence, if any,

as that term is commonly understood.”

Tape Recording, House Committee on Judiciary, HB 3152, June 26, 1979, Tape

98, Side 1.

The actual substantive basis for the law review comment’s conclusion may

have been the author’s belief that, in adopting “the rule of law formulated * * *

in Campbell[,]” the legislature provided a statutory standard of care in HB 3152

that would support a negligence per se claim. See Fancher, 16 Willamette L Rev

at 198-99. Whatever may be the merit of that proposition, it does not support this

court’s dictum in Chartrand that former ORS 30.950 (1979) created a statutory

liability claim against persons who serve visibly intoxicated patrons or guests.

782 Deckard v. Bunch

to the enactment of the 1979 legislation, and then exten-

sively quoted this court’s review in Sager of the history of

that legislation. Gattman, 306 Or at 16-22. The court stated

that “[m]embers of the 1979 legislature would be surprised

to hear that in attempting to limit the liability of servers

of alcoholic beverages to the standard stated in Campbell,

they instead created licensee and permittee liability for all

actions of an intoxicated customer” after service to a visi-

bly intoxicated person. Id. at 22 (emphasis added). Noting

that it would be unusual to create statutory liability by pro-

viding that “no person is liable unless,” id. at 23 n 11, the

court reiterated that the legislative history set out in Sager

established that former ORS 30.950 (1979) may have been

proposed as a limitation on server liability, but it became “a

legislative codification of this court’s decision in Campbell

* * *.” Gattman, 306 Or at 23.

The court in Gattman acknowledged that Chartrand

provided “some support” for the assertion that the statute did

provide a statutory liability claim for the plaintiff’s situation

in Gattman. Gattman, 306 Or at 23. However, the court

distinguished Chartrand as involving the exact situation

that the legislature was concerned with—drunk driving—

and declined to hold that former ORS 30.950 (1979) created

statutory liability in an assault case. Id. at 23-24. The court

also noted that the statement in Chartrand that the plain-

tiff there could proceed on a statutory liability theory was

dictum, id. at 23, and that that dictum had been the subject

of academic criticism. Id. at 24 n 12 (citing Caroline Forell,

The Interrelationships of Statutes and Tort Actions, 66 Or

L Rev 219, 266-67 (1987) (noting that Chartrand court did

not consider wisdom of creating additional statutory action

where common law claim existed or whether legislature

intended statutory action to preempt common law claim)).

Later the same year, this court considered whether,

under former ORS 30.955 (1979), a tavern could maintain

a third party claim based on statutory liability against a

private host who bought his visibly intoxicated friend drinks

at the tavern before the friend drove negligently and injured

the plaintiff in an automobile accident. Solberg v. Johnson,

306 Or 484, 487-88, 760 P2d 867 (1988). Noting that former

ORS 30.955 (1979) also originated in HB 3152, the court

Cite as 358 Or 754 (2016) 783

reasoned that, if former ORS 30.950 (1979) “was designed to

hold liable for damages licensees who serve liquor to visibly

intoxicated patrons[,]” then former ORS 30.955 (1979) was

designed to hold private hosts liable for serving alcohol to

visibly intoxicated guests. Solberg, 306 Or at 489. The court

concluded that the statute was “specifically adopted to pro-

vide a remedy” against private hosts. Id.

We note that the third-party plaintiff tavern in

Solberg pleaded a single claim in which it alleged that the

host was “negligent” in serving alcoholic beverage[s] to

someone who was visibly intoxicated in violation of [former]

ORS 30.955. In Solberg, the court did not cite Chartrand,

nor did it indicate whether foreseeability was material to a

statutory liability claim under former ORS 30.955 (1979). In

short, neither the court nor the parties addressed whether,

and if so, how, the elements of a statutory liability claim dif-

fered from those of a negligence claim.

In a case involving an off-premises assault similar

to Gattman, the plaintiff asserted claims based on common-

law negligence, negligence per se under ORS 471.410(1),

and statutory liability under former ORS 30.950 (1979).

Hawkins v. Conklin, 307 Or 262, 264-65, 768 P2d 66 (1988).

In Hawkins, this court affirmed its holding in Gattman that

former ORS 30.950 (1979) does not provide a statutory rem-

edy in favor of plaintiffs injured in an assault.14 Id. at 265.

The court then discussed the “operation of [former] ORS

30.950 in common law negligence actions[.]” Id. at 266.

As background for its discussion of how the statute

affected common-law claims, the court in Hawkins again

reviewed the legislative history of former ORS 30.950 (1979).

Id. at 267-68. Citing Sager, the court stated that, despite the

restaurant and beverage industry’s desire to “roll back” the

law to its status before Campbell, “the statute as enacted

codified the holding of Campbell.” Id. The court also con-

cluded that “the legislative history did [not] indicate an

intent to distinguish between the types of risks associated

with intoxication.” Id. at 268 n 6. Noting that the “purpose

14

The court also reaffirmed its decision in Stachniewicz that former ORS

471.410(3) (1971), renumbered as ORS 471.410(1) (1977) is not an appropriate

standard for establishing negligence per se. Hawkins, 307 Or at 265.

784 Deckard v. Bunch

of [former] ORS 30.950 was to protect commercial alcohol

servers, not to protect a particular class of plaintiffs, such as

those who were injured by intoxicated drivers[,]” the court

stated that the statute did not limit common law recovery

to injuries caused by intoxicated drivers. Id. Because former

ORS 30.950 (1979) provided that “[n]o licensee or permit-

tee is liable * * * unless,” the court held that “in common

law negligence actions governed by [former] ORS 30.950,

serving alcohol to someone who is visibly intoxicated is the

only conduct for which tavern owners may be held liable for

off-premises injuries.” Therefore, the court held, “to state

a common law negligence claim that is not barred by [for-

mer] ORS 30.950, the plaintiff must allege that the licensee

or permittee served alcohol to the person who injured the

plaintiff when that person was visibly intoxicated.” Id. Thus,

the court in Hawkins essentially treated former ORS 30.950

(1979) as imposing a statutory limit on common-law negli-

gence claims.

Finally, in Grady v. Cedar Side Inn, Inc., 330 Or

42, 997 P2d 197 (2000), the plaintiff was a passenger in a

car that struck a power pole and overturned. The plaintiff

and the driver were both intoxicated, having spent the day

consuming alcoholic beverages, some purchased at an inn

and some at a convenience store. The plaintiff sued the inn

and convenience store for common-law negligence and stat-

utory liability under former ORS 30.950 (1987),15 alleging

that both defendants had served the driver while he was

visibly intoxicated. Id. at 45. The issue before this court was

whether the plaintiff could recover even though he had par-

ticipated in the driver’s intoxication by purchasing some of

the alcohol for him. Id. at 44. This court rejected the defen-

dants’ argument that the plaintiff’s complicity in the driv-

er’s intoxication precluded his recovery on the ground that

such a defense would be inconsistent with the legislature’s

decision to abolish contributory negligence as a defense. Id.

at 47. The court also concluded that the plaintiff was not

barred as a matter of law from recovery under his statutory

claim because nothing in the text or context of former ORS

15

As elaborated below, Grady involved a later version of former ORS 30.950

(1987) that did not vary, insofar as pertinent here, from the original version of the

statute.

Cite as 358 Or 754 (2016) 785

30.950 (1987) limited liability under the statute to “inno-

cent” third parties. Id. at 48-49. Nor was the plaintiff barred

from recovery as a matter of law because he was a “social

host” who had purchased alcohol for the driver. Id. at 49.

The court ultimately stated that the plaintiff’s possible sta-

tus as a “social host” may have affected the apportionment

of relative fault, but that status did not bar the plaintiff

from recovery under the statute. Id. (“[Former] ORS 30.950

subjects licensees, permittees, and social hosts to liability to

third parties for injuries caused by the intoxicated patron

or guest whom they served. * * * That is exactly the type of

claim that the statute permits.”).

d.  The intent of the 1979 legislation revisited

From our review of the legislative history of former

ORS 30.950 (1979) and former ORS 30.955 (1979), as well as

this court’s prior decisions examining that legislative his-

tory, it does not appear that this court has previously con-

sidered the recordings of the 1979 legislative hearings on

HB 3152 that we have discussed here. Instead, this court’s

previous consideration of the legislative history appears to

have been confined to committee minutes. See Sager, 296

Or at 37 n 2 (“legislative history” consisted of minutes

from committee hearings); id. at 39 (“A thorough reading

of the minutes of the committee hearings on HB 3152 fails

to reveal a single mention of creating a claim in favor of

injured patrons.” (Emphasis added.)). However, our review

of the recordings indicates that the conclusions that this

court drew from the legislative history before it in Sager,

296 Or at 38-39, Gattman, 306 Or at 23, and Hawkins, 307

Or at 267-68, were essentially accurate: In enacting former

ORS 30.950 (1979) and former 30.955 (1979), the legislature

ultimately approved the holding in Campbell and intended

to limit the holding in Davis. At no time during hearings on

HB 3152 did anyone suggest that its enactment would cre-

ate statutory liability that was different from common law

liability. On the contrary, the focus throughout the hearings

was on whether the perceived reach of the Campbell and

Davis decisions should be statutorily confined.16

16

See Tape Recording, House Committee on Judiciary, HB 3152, June 11,

1979, Tape 85, Side 2 (statement of Legislative Chairman John Van Horn, Oregon

786 Deckard v. Bunch

The legislative history of HB 3152, as amplified by

the full record of hearings on that bill, shows that its ulti-

mate purpose was to limit the liability of alcohol providers in

serving visibly intoxicated patrons. Comments made at the

committee hearings on the bill repeatedly stated preferences

for a common-law negligence standard and for rejecting a

gross negligence standard.17 It is true that the proponents of

HB 3152 and perhaps some legislators may have understood

this court’s decision in Campbell as having prescribed a neg-

ligence per se standard for alcohol providers who serve visi-

bly intoxicated persons.18 However, those statements do not

Restaurant & Beverage Association) (supporting concept of limited liability in

HB 3152 because recent court decisions had gone beyond law’s intent); id. (state-

ment of Dave Dietz) (stating that recent case law led to problems for licensees in

acquiring insurance and HB 3152 attempted to address concerns about extent of

liability); id. (statement of Rep Dave Frohnmayer) (stating that recent court deci-

sion based on statute resulted in negligence per se, which went too far in many

opinions, including his own); Tape Recording, House Committee on Judiciary,

HB 3152, June 26, 1979, Tape 96, Side 1 (comments of Rep Dave Frohnmayer)

(summarizing legislative intent by stating that liability situation had gotten out

of hand and committee was addressing problem by retreating from recent court

decisions; expressing desire for middle ground between Wiener and Davis because

Davis had gone too far); id. (comment of Rep Rutherford) (stating that section 1 of

HB 3152—expressing legislature’s acknowledgement of need to restrict liability

of licensees and hosts—was redundant); id. (comment of Rep Bugas) (expressing

displeasure with third party liability and desire to place restrictions on it); Tape

Recording, Senate Committee on State and Federal Affairs and Rules, HB 3152,

June 30, 1979, Tape 9, Side 1 (statement of Dave Dietz) (stating that HB 3152 was

designed to back away from recent court decisions).

17

Tape Recording, House Committee on Judiciary, HB 3152, June 11,

1979, Tape 85, Side 2 (statements of Van Horn and Dietz); id. (statement of Rep

Frohnmayer) (Negligence per se “was, in the minds of many, including my own,

an extension of the law beyond that that I think the legislature intended.”); Tape

Recording, House Committee on Judiciary, HB 3152, June 26, 1979, Tape 96,

Side 1 (statement of Rep Lombard) (“[T]he standard * * * in the bill is basically

negligence.”); id. (statement of Rep Rutherford) (“[W]e’ve adopted a negligence

standard[.]”).

18

For example, Van Horn described Campbell as shifting the burden of

producing evidence from the plaintiff to a defendant-licensee by requiring the

licensee to show some specific knowledge that the intoxicated patron was not

going to drive from the tavern. Tape Recording, House Committee on Judiciary,

HB 3152, June 11, 1979, Tape 85, Side 2 (statement of Legislative Chairman

John Van Horn, Oregon Restaurant & Beverage Association). Van Horn fur-

ther described Campbell as reflecting this court’s theory “that a violation of the

statute prohibiting the sale of liquor to * * * visibly intoxicated persons should

constitute negligence per se * * *.” Id. Similarly, Dietz described the industry’s

concern with the shift from Wiener—where no statutory presumption of liability

existed—to Campbell—where common law negligence was based on statutes and

OLCC regulations—to Davis—where common law negligence was extended to

negligence per se. Id. (statement of Dave Dietz).

Cite as 358 Or 754 (2016) 787

reflect a proper understanding of the holding of Campbell.

As noted, to prevail in a common-law negligence claim

based on overservice under Campbell, a plaintiff still had

to plead and prove that the defendant knew or should have

known that a visibly intoxicated patron would create an

unforeseeable and unreasonable risk of harm to others off

the defendant’s premises. See Chartrand, 298 Or at 694-95

(“Judicial notice cannot replace the need for proof of an

essential element of the tort claim as alleged in this case,

i.e., proof that the defendant knew or should have known

that the customer would drive a vehicle from the tavern.”).

In former ORS 30.950 (1979) and former ORS 30.955

(1979), the legislature effectively said that liability may go

as far as Campbell but no farther. The result was legislation

that limited liability for alcohol providers by describing the

only circumstances under which they could be liable in a

common-law negligence claim—i.e., for serving alcohol to a

visibly intoxicated person. Consistently with that purpose,

the legislation as enacted did not state that an alcohol pro-

vider is liable for serving visibly intoxicated persons, which

could indicate that one or more aspects of foreseeability

would not need to be shown; instead, the legislation pro-

vided that no alcohol server is liable unless, which indicates

a limitation on liability. Because, as the record shows, leg-

islative committee members expressed skepticism toward

even a negligence per se standard, it seems highly unlikely

that they would have consciously approved legislation cre-

ating statutory liability that would hold an alcohol provider

liable for overservice without regard to foreseeability.

Unfortunately, this court stated in dictum in

Chartrand that, after the gross negligence standard was

removed from HB 3152, the bill’s effect was not to limit alco-

hol provider liability but, rather, to expand it. Chartrand,

298 Or at 697. As discussed, there is no indication in the

legislative record that the rejection of the proposed gross

negligence standard signaled such a change in the bill’s

purpose. That standard was meant to “roll back the law”

from ORBA’s understanding of Campbell as setting a negli-

gence per se standard and to retreat to what ORBA under-

stood to be an earlier state of the law. See Tape Recording,

House Committee on Judiciary, HB 3152, June 11, 1979,

788 Deckard v. Bunch

Tape 85, Side 2 (comments of Rep Dave Frohnmayer). It is

illogical to infer that the legislature’s rejection of the gross

negligence standard was more than a partial retreat from

the proponents’ goals. After the gross negligence standard

was removed, committee members continued to state that

the bill was intended to limit liability for alcohol providers

who serve visibly intoxicated persons.19 Moreover, when the

amended bill was presented to the Senate committee, indus-

try representative Dietz still described the intent of HB 3152

as backing away from recent court decisions and protect-

ing alcohol providers. Tape Recording, Senate Committee

on State and Federal Affairs and Rules, HB 3152, June 30,

1979, Tape 9, Side 1 (statement of Dave Dietz).

In short, the 1979 legislature ultimately enacted

compromise legislation that rejected both a gross negli-

gence standard and a negligence per se standard for alco-

hol providers and, as a middle ground, endorsed this court’s

common-law negligence standard in Campbell. Because

that standard requires a plaintiff to show that the defen-

dant knew or should have known that its conduct created an

unreasonable and unforeseeable risk of harm to the plaintiff

and limits liability to reasonably foreseeable harm, there is

no basis to conclude that, by enacting HB 3152, the legis-

lature intended to create a form of statutory liability that

eliminated those foreseeability requirements. In fact, to so

conclude would directly contradict the legislative history

that this court has reviewed in its decisions since 1979.

Which brings us to back to Chartrand. In light

of the foregoing analysis, we must disavow the dictum in

Chartrand stating that, by enacting former ORS 30.950

(1979), the legislature intended to create statutory liability

for alcohol providers that effectively dispensed with a foresee-

ability requirement. See, e.g., ODOT v. Alderwoods (Oregon),

Inc., 358 Or 501, 520 n 8, __ P3d __ (2015) (disavowing

19

See id. (comments of Rep Dave Frohnmayer) (summarizing legislative

intent by stating that liability situation had gotten out of hand and committee

was addressing problem by retreating from recent court decisions); (comment

of Rep Rutherford) (stating that section 1 of HB 3152—expressing legislature’s

acknowledgement of need to restrict liability of licensees and hosts—was redun-

dant); (comment of Rep Bugas) (expressing displeasure with third party liability

and desire to place restrictions on it).

Cite as 358 Or 754 (2016) 789

dictum that was “not supported by any authority”); State

v. Christian, 354 Or 22, 40, 307 P3d 429 (2013) (overruling

prior decisions that extended, without explanation, over-

breadth analysis beyond free-speech cases). As noted, the

student comment on which the court relied to state that

the legislation ultimately expanded liability for alcohol pro-

viders did not support the court’s dictum. In addition, the

court’s reliance on Sager for that proposition was misplaced.

As discussed, this court in Sager held that the purpose of

HB 3152 was to approve the common-law negligence stan-

dard set out in Campbell, which, as this court stated in

Chartrand, retained a foreseeability requirement.20

e.  Later statutory amendments

Although we have determined that ORS 30.950

(1979) was not intended to create a statutory right of action

that exists independently of a common law negligence claim

for licensees or hosts who serve alcohol to visibly intoxicated

patrons or guests, our review would be incomplete without

considering whether any subsequent amendments to that

statute created such liability.

In 1987, the legislature combined former ORS

30.950 (1979) and former ORS 30.955 (1979) into one statue,

which continued as former ORS 30.950 (1987), renumbered

as ORS 471.565 (2001).21 Or Laws 1987, ch 774, § 13. That

legislation also added a requirement that plaintiffs prove

20

Unlike the dictum in Chartrand, this court’s statements in Solberg and

Grady that the plaintiffs there could maintain claims for statutory liability based

on former ORS 30.950 (1979) were actual holdings of those cases. However, in nei-

ther of those cases did the court actually decide that any such claim has different

elements than a common law negligence claim. Accordingly, we need not recon-

sider those cases here except to disavow any suggestion in them that, in enacting

HB 3152 (1979), the legislature intended to create an independent statutory right

of action with different elements from a common-law negligence claim.

We further conclude that we need not reconsider this court’s decision in

Gattman. As discussed, although the court in Gattman did acknowledge the dic-

tum in Chartrand, it also warily treated it as such and ultimately distinguished

Chartrand in concluding that the plaintiff was not entitled to recover on a statu-

tory liability theory. Gattman, 306 Or at 23-24.

21

Former ORS 30.950 (1987) provided:

“No licensee, permittee or social host is liable for damages incurred or

caused by intoxicated patrons or guests off the licensee, permittee or social

host’s premises unless:

790 Deckard v. Bunch

visible intoxication by “clear and convincing evidence.” Id.

In 1997, a pre-action notice requirement was added for any

action against a social host or commercial alcohol provider

for alcohol-related injury or damage. Or Laws 1997, ch 841,

§ 1. Then, in 2001, the statute was amended to read as it

does now, and it was renumbered as ORS 471.565. Or Laws

2001, ch 534, § 1.

The 2001 amendments were enacted in response to

two decisions by this court, Grady, which we already have

discussed, and Fulmer v. Timber Inn Restaurant and Lounge,

Inc., 330 Or 413, 9 P3d 710 (2000). In Fulmer, the plaintiffs

sought recovery from a restaurant that served one of the

plaintiffs while he was visibly intoxicated, after which he

had injured himself in a fall on the restaurant’s premises.

Id. at 416. The plaintiff asserted claims for common-law neg-

ligence and negligence per se based on ORS 471.410(1), but

did not allege statutory liability under former ORS 30.950

(1993). Id. at 417. This court affirmed dismissal of the neg-

ligence per se claim. Id. at 418-19 (citing Stachniewicz, 259

Or at 586-87; Hawkins, 307 Or at 265). On the common-law

negligence claim, the court concluded that an intoxicated

patron could assert a claim against an alcohol provider for

damages caused by the patron’s intoxication. Id. at 427.

In response to Grady and Fulmer, the 2001 legis-

lature amended former ORS 30.950 (1999), renumbered as

ORS 471.565 (2001). As a result, ORS 471.565 now provides,

in part:

“(1)  A patron or guest who voluntarily consumes alco-

holic beverages served by a person licensed by the Oregon

Liquor Control Commission, a person holding a permit

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

“(1) The licensee, permittee or social host has served or provided the

patron alcoholic beverages to the patron or guest, while the patron or guest

was visibly intoxicated; and

“(2)  The plaintiff proves by clear and convincing evidence that the patron

or guest was served alcoholic beverages while visibly intoxicated.”

Cite as 358 Or 754 (2016) 791

injury, death or damages caused by intoxication and do not

apply to claims for relief based on injury, death or damages

caused by negligent or intentional acts other than the ser-

vice of alcoholic beverages to a visibly intoxicated patron or

guest.

“(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; and

“(b)  The plaintiff did not substantially contribute to

the intoxication of the patron or guest by:

“(A)  Providing or furnishing alcoholic beverages to the

patron or guest;

“(B)  Encouraging the patron or guest to consume or

purchase alcoholic beverages or in any other manner; or

“(C)  Facilitating the consumption of alcoholic bever-

ages by the patron or guest in any manner.”

Or Laws 2001, ch 534, § 1. Subsection (1) was intended to

overturn this court’s holding in Fulmer, and subsection (2)

was intended to limit the holding in Grady. See, e.g., Minutes,

Senate Committee on the Judiciary, SB 925, Mar 13, 2001,

1 (stating that focus of bill is to eliminate claims for intox-

icated persons who injure themselves); Testimony, Senate

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

ment of Bill Perry describing bill as “legislation to ensure

than an establishment is not liable if customers who con-

sume alcohol under their own free-will injure themselves”).

Defendant and amicus curiae argue that the later

amendments to the 1979 legislation mark the legislature’s

continuing efforts to limit the liability of alcohol providers.

In their view, a plaintiff’s burden was increased by the addi-

tion of the clear and convincing evidence standard, and the

requirement that plaintiffs prove that they did not substan-

tially contribute to the intoxication of the person that caused

the injury.

792 Deckard v. Bunch

For his part, plaintiff focuses on the 2001 amend-

ments and argues that the phrase “does not have a cause

of action, based on statute or common law” indicates that

the legislature reaffirmed its previous provision of a stat-

utory liability claim for serving a visibly intoxicated per-

son. Plaintiff argues that, if a statutory liability claim did

not already exist, the legislature would not have prohibited

statutory claims for persons injured as a result of their

own voluntary intoxication. In support of that argument,

plaintiff cites the statement of the legislative counsel who

drafted that part of the amendment: “[I]t occurred to me

that perhaps it would be better to make it clear that this

law that—this change to the law—would in fact not allow

suits under theories, not only for common-law negligence,

which is what is specified in the bill, but also under any the-

ory.” Tape Recording, Senate Committee on Judiciary, SB

925, March 13, 2001, Tape 57, Side A (statement of Dave

Heynderickx). In plaintiff’s view, if the legislature had

never intended for ORS 471.565 or its predecessors to pro-

vide statutory rights of action, then it would not have been

necessary—when implementing the change in the law to

prohibit first party claims—to expressly deny a statutory

liability claim to future plaintiffs.

Defendant responds that plaintiff’s argument fails

for four reasons. First, defendant notes that subsection (1)

concerns first-party claims, not third-party claims, so there

was no reason for the legislature to refer to subsection (2) in

subsection (1). Second, defendant argues, legislative counsel

would have known that this court had previously held that

subsection (2) did not create liability in third-party cases.

Third, defendant asserts, when explaining the amendment,

legislative counsel did not refer to subsection (2), which he

likely would have done if that was the statute to which he

meant to refer. From defendant’s perspective, the purpose of

the “based on statute or common law” phrase was to make

clear that first-party claims could not be brought under any

theory, including liability under statutes not yet considered

by the courts. Finally, defendant argues that whatever the

2001 legislature may have thought about the originally

enacted version of the law could not have altered that law’s

actual effect; if former ORS 30.950 (1979) and former ORS

Cite as 358 Or 754 (2016) 793

30.955 (1979) did not create a statutory claim when enacted,

the 2001 legislature’s contrary belief would not matter.

In our view, the most that can be said for the provi-

sion in the 2001 amendment referring to liability based on

“statute” is that, in light of Chartrand, Solberg, and Grady,

the legislature was simply clarifying that the limits that it

imposed would apply to statutory as well as common law

claims. In short, that amendment is not pertinent to the

issue of whether the 1979 legislature intended to create

statutory liability or the elements that would be included in

such a claim, nor did it create new statutory liability itself.

III. CONCLUSION

In sum, we conclude that, in enacting former ORS

30.950 (1979) and former ORS 30.955 (1979), the legislature

did not intend to create a statutory right of action against

social hosts or commercial providers for overservice of alcohol

to visibly intoxicated guests or patrons that dispenses with

any elements of a common law negligence claim. Instead, as

enacted, the legislation limited this court’s holding in Davis

that a violation of ORS 471.130 (1975) constituted negligence

per se, and it approved the common law negligence standard

set out in this court’s decision in Campbell, including the

requirement that a plaintiff must establish that, when he or

she served a visibly intoxicated person, the defendant knew

or should have known of an unreasonable risk of harm to an

injured third party.

Because the later amendments to the statute

also did not create such a statutory right of action, ORS

471.565(2) does not provide a right of action against alcohol

providers that has elements independent of a claim for com-

mon law negligence. It follows that the circuit court prop-

erly dismissed plaintiff’s statutory liability claim and that

the Court of Appeals erred in reversing the judgment for

defendant.22

The decision of the Court of Appeals is reversed,

and the judgment of the circuit court is affirmed.

22

Because of our conclusion that the trial court did not err in dismissing

plaintiff’s statutory liability claim, we need not address defendant’s harmless

error argument.