Fulmer v. Timber Inn Restaurant and Lounge, Inc.

Filed: July 27, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

GARY FULMER

and LOTTIE ANN FULMER,

husband and wife,

Petitioners on Review,

v.

TIMBER INN RESTAURANT AND LOUNGE, INC.,

an Oregon corporation;

GORDON JOELSON, and M. ELAINE JOELSON,

Respondents on Review.

(CC 94 CV 1184; CA A88358; SC S45323)

En Banc

On review from the Court of Appeals.*

Argued and submitted May 11, 1999.

Maureen Leonard, Portland, argued the cause for petitioners

on review. With her on the briefs was Lawrence Baron.

Ronald B. Terzenbach, of Loomis & Holland, Eugene, argued

the cause for respondents on review. With him on the briefs was

Daniel M. Holland.

Kevin N. Keaney, of Willner Keaney Mata & U'Ren, LLP,

Portland, and Meagan A. Flynn, of Pozzi Wilson Atchison, LLP,

Portland, filed briefs for amicus curiae Oregon Trial Lawyers

Association.

Thomas W. Brown, of Cosgrave, Vergeer & Kester, LLP,

Portland, filed a brief for amicus curiae Oregon Association of

Defense Counsel.

KULONGOSKI, J.

The decision of the Court of Appeals is affirmed in part and

reversed in part. The judgment of the circuit court is affirmed

in part and reversed in part, and the case is remanded to the

circuit court for further proceedings.

* Appeal from Coos County Circuit Court, Michael J. Gillespie, Judge. 152 Or App 334 , 954 P2d 201 (1998).

KULONGOSKI, J.

This is a civil proceeding in which plaintiffs seek

recovery from defendants for injuries that plaintiff (1) sustained in

a fall on defendants' premises after defendants allegedly served

alcohol to plaintiff while plaintiff was visibly intoxicated.

Plaintiffs' second amended complaint (hereinafter complaint)

alleged eight claims for relief, including negligence per se ,

common-law negligence, premises liability, and loss of

consortium. The trial court dismissed the complaint for failure

to state a claim. ORCP 21 A(8). Plaintiffs appealed, and the

Court of Appeals affirmed. Fulmer v. Timber Inn Restaurant and

Lounge, Inc. , 152 Or App 334 , 954 P2d 201 (1998). We allowed

plaintiffs' petition for review. We hold that plaintiffs'

complaint stated ultimate facts sufficient to constitute claims

for common-law negligence, premises liability, and loss of

consortium. Accordingly, we affirm in part and reverse in part.

In reviewing a dismissal for failure to state a claim

under ORCP 21 A(8), we accept as true all well-pleaded

allegations of fact and all reasonable inferences that may be

drawn from them. Scovill v. City of Astoria , 324 Or 159, 164 ,

921 P2d 1312 (1996). We examine those facts to determine only

whether plaintiffs have alleged facts sufficient to constitute a

claim. Id.

Plaintiffs' complaint alleged the following: In

February 1993, plaintiffs went to the Timber Inn for a social

evening with their family. Defendant Timber Inn Restaurant and

Lounge, Inc., owns and operates that establishment. (2) Gordon A. and M. Elaine Joelson, the owners, operators, and officers of that corporation, also were named as defendents. The Timber Inn is a two-story restaurant and lounge. The only means of

access to the lounge, located on the second level, is by way of

stairs.

During the evening, defendants served a substantial

quantity of alcohol to plaintiff. At some point, plaintiff

became visibly intoxicated, but defendants continued to serve him

alcohol, causing him "to become poisoned with alcohol, [and] to

lose his sense of reason and volition * * *." Ultimately,

plaintiff lost consciousness and fell down the stairs, sustaining

serious injuries.

Plaintiffs' first seven claims sought an award of

damages for the injuries that plaintiff suffered. The eighth

claim sought damages on behalf of Lottie Ann Fulmer for loss of

consortium. We begin with plaintiffs' first three claims, each

of which alleged negligence per se .

Plaintiffs alleged that, by continuing to serve alcohol

to plaintiff after he was visibly intoxicated, defendants violated

ORS 471.410(1), (3) ORS 471.412(1), (4) and former ORS 472.310(3)

(1993). (5) All three statutes prohibit serving alcohol to persons

who are visibly intoxicated. Plaintiffs alleged that defendants'

violation of those statutes was negligence per se , i.e. , that

defendants negligently failed to exercise the level of care

allegedly specified in those statutes.

This court has held that ORS 471.410(1) does not create

a standard of care the violation of which would constitute

negligence per se . See Stachniewicz v. Mar-Cam Corporation , 259

Or 583, 586-87 , 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) ("visible intoxication" standard under former

ORS 471.410(3) (1975), renumbered and amended as ORS 471.410(1)

(1977), is inappropriate in negligence per se context); Hawkins

v. Conklin , 307 Or 262, 265 , 768 P2d 66 (1988) (same).

Plaintiffs acknowledge that the court held in

Stachniewicz that ORS 471.410(1) does not afford a basis for a

claim of negligence per se and further acknowledge that ORS

471.412(1) and former ORS 472.310(3) (1993) are identical to ORS

471.410(1) in all respects relevant to this case. Plaintiffs

contend, however, that the holding in Stachniewicz was incorrect

and should be overruled. Plaintiffs also assert that the court

should not extend that holding to the interpretation of ORS

471.412(1) and former ORS 472.310(3) (1993).

In Hawkins , the Court of Appeals had determined,

contrary to Stachniewicz , that the plaintiff had stated a

negligence per se claim on the basis of ORS 471.410(1). Hawkins

v. Conklin , 87 Or App 392, 395 , 742 P2d 672 (1987). This court

reversed, stating:

"This court has held that ORS 471.410(1) is not an

appropriate standard for establishing negligence per

se . Stachniewicz v. Mar-Cam Corporation , 259 Or 583,

586-87 , 488 P2d 436 (1971), overruled in part on other

grounds Davis v. Billy's Con-Teena, Inc. , 284 Or 351 ,

356 n 4, 587 P2d 75 (1978). Whether or not we would so

hold if the effect of ORS 471.410(1) were before us for

the first time today, we follow our practice of giving

a prior interpretation of a statute the effect of stare

decisis . We reverse the Court of Appeals' holding that

the plaintiff stated a claim of negligence per se based

on ORS 471.410."

Hawkins , 307 Or at 265 .

At this point, plaintiffs' argument would require the

court not only to reverse the statutory construction adopted in

Stachniewicz , but also to abandon the decision in Hawkins to

accord the effect of stare decisis to the holding in

Stachniewicz . Plaintiffs submit nothing that would justify those

actions. Under the circumstances, we follow Hawkins . Thus, in

construing ORS 471.412(1) and former ORS 472.310(3) (1993), we

accord stare decisis effect to this court's construction in

Stachniewicz of the materially identical wording of ORS

471.410(1). Because none of those statutes afford a basis for a

claim of negligence per se , the trial court did not err in

dismissing plaintiffs' first three claims for relief.

Plaintiffs do not seek review of the dismissal of their

fourth claim for relief, which alleged negligence per se based on

violations of ORS 471.425(2) and former 472.310(6) (1993).

Therefore, we proceed to consider plaintiffs' fifth claim for

relief, based on common-law negligence.

Plaintiffs' fifth claim for relief alleged that

defendants were liable, under a common-law negligence theory, for

"causing plaintiff * * * to become poisoned with alcohol, to lose

his sense of reason and volition; and * * * knowing plaintiff * * * was in such condition and visibly intoxicated, continu[ing]

to ply plaintiff * * * with alcohol * * *." At issue is whether

a common-law negligence claim exists in favor of an intoxicated

person who suffered injury on the premises of an establishment

against the server or establishment that supplied alcohol to the

injured person when the person was visibly intoxicated.

Defendants assert that Oregon does not recognize such a common-law claim in favor of a person who suffers injury resulting from

his or her own consumption of alcohol, citing Miller v. City of

Portland , 288 Or 271, 279 , 604 P2d 1261 (1980), and Sager v.

McClenden , 296 Or 33, 35 , 672 P2d 697 (1983). Plaintiffs respond

that defendants' assertion is incorrect, citing Ibach v. Jackson ,

148 Or 92, 102-3 , 35 P2d 672 (1934). As we explain below,

plaintiffs are correct.

In Oregon, criminal penalties for the sale of alcohol

to intoxicated persons first were enacted in 1876. See Annotated

Laws of Oregon, v I, ch VIII, title II, § 1914, p 965 (Hill 1887)

("It shall be unlawful for any person to knowingly sell * * * any

spirituous or other intoxicating liquors * * * to any intoxicated

person, or to any person who is in the habit of becoming

intoxicated[.]"). Legislation passed in 1913, known as the Dram

Shop Act, created limited statutory civil liability for the same

acts. General Laws of Oregon, ch 51, § 1, pp 82-83 (1913); see,

e.g. , Gattman v. Favro , 306 Or 11, 16-17 , 757 P2d 402 (1988)

(discussing origins of statutory tort liability for service of

alcohol). Before 1934, neither an intoxicated first party nor a

third party injured as a result of an intoxicated person's

actions could bring a claim for common-law negligence against an

alcohol provider. Hawkins , 307 Or at 266 . In 1934, however,

this court in Ibach departed from the historical rule disallowing

common-law claims against alcohol providers and recognized for

the first time a common-law claim in favor of an intoxicated

person on the theory that the defendant negligently had furnished

the person alcohol. Ibach , 148 Or at 102-3 .

Ibach was a wrongful death action premised on an

allegation that the defendant's negligent acts had caused the

death of Genevieve Callahan (Callahan). The plaintiff,

administratrix of Callahan's estate, filed a complaint alleging

that the defendant "wrongfully and unlawfully gave and served * * * Callahan large quantities of intoxicating alcoholic liquors

for beverage purposes, and induced her * * * to drink the same in

large quantities * * *," thereby causing her to become ill and

die. Id . at 94-95.

Subsequently, the plaintiff filed an amended complaint

that repeated the allegations contained in the original complaint

and further alleged that the defendant had "wrongfully forced"

Callahan to consume alcoholic liquors "to such an extent that she

lost her sense of reason and volition * * *" and that the

defendant had left Callahan alone in a hotel room after she had

become ill and had injured herself. Id . at 96-97. The defendant

filed a motion to strike the amended complaint, which the trial

court granted. The trial court then entered judgment in favor of

the defendant and dismissed the case.

On the plaintiff's appeal, this court held, among other

things, that the trial court had erred in sustaining the

defendant's motion to strike the amended complaint. Id . at 100.

The court reasoned:

"[I]t is wrongful for any person repeatedly and

continuously to ply another person with intoxicating

liquor until intoxication is produced. * * * It is

alleged in the amended complaint, as it may be

inferred from the original complaint, that after

[Callahan] lost her sense of reason and volition,

defendant continued to administer liquor to her. If

[Callahan] had survived such an indignity, she would

have had a right of action against defendant for such

damages as she sustained thereby. "

Id . at 102-3 (emphasis added).

Thus, in Ibach , this court recognized the claim that

plaintiffs bring in this case, namely, a common-law claim in

favor of an intoxicated person on the theory that the defendant

negligently had served alcohol to the person. Defendants'

argument that there is no prior case law holding that a common-law negligence claim exists in favor of an intoxicated person

under such circumstances is incorrect.

Defendants assert, in the alternative, that Ibach is

inapplicable to this case, because in Ibach Callahan allegedly

was "forced" to consume alcohol, whereas plaintiff in this case

"voluntarily" participated in his alcohol consumption. That

distinction does not provide support for defendants' position.

In Ibach , on the defendant's petition for rehearing, this court

clarified that the allegation in the amended complaint concerning

the use of force by the defendant in that case was immaterial:

"Whether constructive force or actual force, or no

force at all was employed, the violation of duty is

shown by the facts alleged[.]"

Id . at 111. Similarly, the lack of forcible conduct on

defendants' part in this case does not determine whether

plaintiff has alleged facts sufficient to state a claim for

negligence.

Defendants also contend, based on their reading of

several cases later from this court, that it would be

"inconsistent with legislative policy" to "create" a liquor

liability claim based on a theory of common-law negligence in

favor of an intoxicated person. We reiterate that this court

already has recognized such a claim in Ibach . In addition, for

the reasons that follow, we do not agree that the cases defendants

rely on support a contrary holding.

Defendants rely, in part, on the following statement

that this court made in Miller , 288 Or at 279 :

"This court has never previously recognized a

common-law cause of action in favor of a person who

suffers injury resulting from his or her own

consumption of alcohol."

Miller was a third-party action brought by the City of Portland

and one of its police officers (collectively the City) against

the operators of a tavern. Miller had sued the City as a result

of personal injuries that she and her companion, Kolibaba, had

sustained as a result of a traffic accident involving a police

car and Kolibaba's motorcycle, on which Miller was a passenger.

Both Miller and Kolibaba were minors, and the complaint alleged

that both were "visibly intoxicated" when the tavern operators

provided them with alcohol. The City settled Miller's claims and

sought contribution from the tavern operators, the third party

defendants. Id . at 273.

One of the allegations in the City's complaint was a

first-party negligence claim, (6) like plaintiffs' claim in this

case, that alleged that the tavern owners were liable to Miller

because they negligently had served alcohol to Miller while she

was visibly intoxicated. Id . at 274. In its decision, the court

did not cite Ibach and refused to "create" such a common-law

claim, relying solely on the Oregon Dram Shop Act as a basis for

that refusal. Id . at 280, citing former ORS 30.730 (1977). (7)

That act provided for a cause of action brought by the "wife,

husband, parent or child" of an intoxicated patron, but did not

provide for an action by a person injured as a result of his or

her own intoxication. Based on the wording of former ORS 30.730

(1977), the Miller court reasoned:

"When the legislature has considered the liability to

the inebriate's immediate family which should result

from the giving of alcoholic liquor to him but has

refrained from giving him a cause of action, we

conclude it is probable [that the legislature] must

have considered the matter and rejected any cause of

action for him. We, therefore, consider a cause of

action for his benefit inappropriate."

Id . (footnote omitted).

Notably, Miller was not the only case in which the

court has considered whether the Dram Shop Act contained the

exclusive list of those people who could maintain a negligence

action against a supplier of liquor. In Wiener v. Gamma Phi, ATO

Frat. , 258 Or 632 , 638-39 n 2, 485 P2d 18 (1971), the court

specifically rejected that proposition and permitted a third-party negligence claim against a social host to proceed to trial.

The court in Wiener reasoned that the legislature did not intend

for the Dram Shop Act to be the sole civil remedy against persons

who furnish alcohol to others, because the Act provided a remedy

for such a limited class of plaintiffs. Id . Both Ibach and

Wiener predated Miller . Both established that the court's view

in Miller of the scope of the Dram Shop Act was incorrect.

The court in Miller , although it never discussed

Ibach , (8) acknowledged the footnote in Wiener and reasoned as

follows:

"In Wiener * * * we said the dram shop statute did

not prescribe the sole civil remedy against persons who

furnish liquor to others because it provided a remedy

for a very limited class of plaintiffs. We agree with

this statement as it applied to the facts of that case

in which the plaintiff was an unrelated third party who

was injured by the intoxicated person. We do not

believe the statement is applicable in a situation in

which the intoxicated person himself is the claimant

because of his close relationship to the named class.

It would have been the natural thing to include him as

a beneficiary of the statute with the rest of his

immediate family had the legislature desired to do so."

Miller , 288 Or at 280 n 13.

The footnote in Miller proposes that, if the

legislature had intended to permit an intoxicated person to

recover damages in a first-party claim (as in this case), then

the legislature would have included the intoxicated person as a

beneficiary under the Dram Shop Act with the rest of his or her

immediate family. That proposition is not historically accurate,

however. In 1913, when the legislature enacted the Dram Shop

Act, no person in the intoxicated person's position could have

recovered in a negligence action, because such a claim would have

been defeated by the (then) well-recognized doctrines of

contributory negligence and assumption of the risk. Contrary to

the footnote in the Miller opinion, and given the persuasive

status of those doctrines when the legislature enacted the Dram

Shop Act, it would have been contradictory for the legislature to

include a person who voluntarily consumes alcohol -- thus

excluding the intoxicated person from those doctrines. It is not

the exclusion of the intoxicated person that is remarkable;

inclusion would have been remarkable. It follows from the

foregoing that the narrow reading of the Dram Shop Act in Miller

was mistaken.

Although we recognize that Miller and Ibach reached

different results with regard to first-party negligence claims,

Miller did not overrule Ibach expressly. Moreover, for three

reasons, we conclude that Miller did not overrule Ibach sub

silentio . We acknowledge, at the outset, that the court in

Miller went further than simply failing to mention Ibach -- it

affirmatively asserted that this court never had recognized a

first-party claim in these circumstances -- an assertion that

patently was inaccurate. Second, not only was Miller incorrect

in its characterization of the state of the law, the court based

its entire analysis concerning the plaintiff's first-party

negligence claim on that faulty premise. Third, and finally, we

note that the court in Miller predicated its refusal to "create * * * a common law cause of action for the benefit of the

intoxicated person" solely on its mistakenly narrow reading of

the Dram Shop Act. Although the legislature may abrogate rules

of the common law by statute, the Ibach court's recognition of a

common-law negligence claim on behalf of a first-party plaintiff

occurred after the enactment of the Dram Shop Act relied on in

Miller . (9) Accordingly, absent legislative or judicial abrogation,

the common-law rule established in Ibach was in effect when this

court decided Miller . See State v. Black , 193 Or 295, 301 , 236

P2d 326 (1951) (rules of common law that have not been modified

or abrogated are binding on courts). However, for reasons that

are not clear from the text of that decision, the Miller court

neither acknowledged nor discussed Ibach and, instead, chose to

analyze the City's common-law negligence exposure under the Dram

Shop Act, in effect stating that "our hands are tied."

This court ordinarily considers itself bound by a

previous holding of this court regarding the content of the

common law. But it does not consider itself to be bound by an

inaccurate statement of that law. Defendants do not separately

advance any principled argument to show that Ibach -- as opposed

to Miller -- was wrong when decided. See G.L. v. Kaiser

Foundation Hospitals , Inc., 306 Or 54, 59 , 757 P2d 1347 (1988)

(court may reconsider court-created common-law rule when earlier

case was "wrong when it was decided"). That is not an inquiry

that we deem appropriate to make on our own. Accordingly, we

conclude that Ibach remains an accurate statement of the common-law rule in Oregon.

Sager is the second case that defendants rely on for

the proposition that it would be inconsistent with legislative

policy to "recognize" an intoxicated patron's common-law claim in

negligence for damages resulting from the patron's own

intoxication. Relying on Miller , the court in Sager repeated the

inaccurate assertion made in Miller , stating: "Oregon never has

recognized a common law claim against alcohol providers in favor

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

intoxication." Sager , 296 Or at 35 .

Apart from its inaccuracy, that comment was dictum .

The sole issue in Sager was whether ORS 30.950 (1983) created a

claim in favor of an intoxicated person against a liquor licensee

for off-premises injuries. (10) Id . at 35. Sager held that alcohol

providers were liable under ORS 30.950 (1983) only for injuries

suffered off premises by third parties. Id . at 40. That holding

has no bearing on this case -- plaintiffs in this case do not

allege a claim under ORS 30.950. See, e.g. , Chartrand v. Coos

Bay Tavern , 298 Or 689, 695-96 , 696 P2d 513 (1985) (recognizing

third party's statutory liability claim under ORS 30.950 and

common-law negligence claim as separate and distinct theories of

liability). Furthermore, plaintiff suffered his injuries on

defendants' premises. Consequently, like Miller , Sager provides

no support for defendants.

Defendants also argue against the "creation" of a claim

on behalf of an intoxicated patron, because "[r]esponsibility for

injuries incurred by the intoxicated person [should] remain[]

with the person whose voluntary act resulted in the injury."

Defendants recognize that the legislature has abolished both

contributory negligence and implied assumption of the risk as

defenses and has replaced them with comparative fault. See ORS

18.470 (abolishing contributory negligence standard and replacing

it with comparative fault system); ORS 18.475 (abolishing

doctrine of implied assumption of the risk). Nevertheless,

defendants argue that comparative negligence principles should

not apply in a case brought as a first-party action by an

intoxicated person. Instead, defendants in effect ask us to rule

that plaintiff's "participation" in the "condition" that led to

his injuries should lead to the dismissal of a common-law claim

in his favor -- a ruling that would revive by court decision the

doctrines of contributory fault and assumption of the risk that

the legislature has abolished.

In Grady v. Cedar Side Inn, Inc. , 330 Or 42 , 997 P2d

197 (2000), this court held that a third-party plaintiff who

allegedly had participated in the intoxication of the driver of a

car in which the plaintiff was injured was not barred by that

participation from bringing a common-law negligence claim against

the alcohol provider who allegedly had served the driver while

the driver was visibly intoxicated. The court stated:

"Any complicity on the part of [the] plaintiff in [his

driver's] intoxication and any consequent apportionment

of fault attributable to plaintiff for his own injuries

are issues to be addressed by the trier of fact under

Oregon's comparative fault regime."

Id . at 50.

Those same principles apply in this case. Under

Oregon's comparative fault regime, a comparison of the relative

fault of defendant-alcohol server and plaintiff-alcohol consumer

is a matter for the trier of fact to weigh in its apportionment

of responsibility for plaintiff's injuries. If this court were

to hold that a plaintiff's consumption of alcoholic beverages

constitutes negligence that bars a claim for injuries suffered as

a result of the plaintiff's own intoxication, that would revive

the concept of contributory negligence in those circumstances.

The legislature, however, has made a contrary choice in the

comparative fault statute, and we are bound by it. Similarly,

any decision by this court declaring that the consumption of

alcoholic beverages is a form of implied assumption of the risk

that bars a claim by a plaintiff for injuries suffered as a

result of his or her own intoxication would revive a defense

which also has been abolished. We decline defendants' invitation

to undermine the legislature's policy choices in this area.

Our decision today does not relieve intoxicated patrons

of their own responsibility to act reasonably to take care of

themselves. Under the comparative fault statute, a properly-instructed jury may reduce significantly or negate any recovery

when the plaintiff's own unreasonable conduct has contributed to

the plaintiff's injuries. As this court stated in Dahl v. BMW ,

304 Or 558, 566 , 748 P2d 77 (1987):

"The test of reasonableness is properly left for

the factfinder, because it usually involves an

assessment of all the facts leading up to the injury

and a determination which factors played some role in

causing the injuries suffered by a plaintiff. Whether

the plaintiff, as an individual, acted reasonably[,] * * * whether this action contributed to the

plaintiff's injuries, and what portion of plaintiff's

injuries were caused by [the plaintiff's conduct] are

factual questions, better answered by the trier of fact

after hearing the evidence than decided as a matter of

law by a judge prior to trial."

We hold that a plaintiff may bring a common-law

negligence action against a person or entity that negligently

supplied alcohol to the plaintiff when he or she already was

visibly intoxicated and the plaintiff suffered injuries caused by

that negligent conduct. Plaintiffs' fifth claim for relief

alleges that defendants are liable, under a theory of common-law

negligence, for continuing to serve alcohol to plaintiff after he

was visibly intoxicated "when it knew, or should have known * * *

that further service of alcohol to plaintiff * * * was likely to

cause injury to him." In Campbell v. Carpenter , 279 Or 237, 243-44 , 566 P2d 893 (1977), this court recognized a common-law

negligence claim against a tavern keeper who serves a visibly

intoxicated patron who then causes injury to a third person in an

automobile accident. The court in Campbell quoted with approval

from Rappaport v. Nichols , 31 NJ 188, 156 A2d 1, 9 , 75 ALR2d 821

(1959), a New Jersey case, which stated:

"When alcoholic beverages are sold by a tavern

keeper * * * to an intoxicated person, the unreasonable

risk of harm * * * to * * * the intoxicated person * * * may readily be recognized and foreseen[.]"

Campbell , 279 Or at 240 . Plaintiffs have alleged those necessary

facts in this case. Consequently, we hold that the trial court

erred in dismissing plaintiffs' fifth claim for relief.

Plaintiffs do not seek review of the dismissal of their

sixth claim for relief, which alleged that defendants undertook a

special duty to protect intoxicated patrons from injuring

themselves and that it was negligent in violating that duty.

Therefore, we proceed to consider plaintiffs' seventh claim for

relief, which is based on a theory of premises liability.

Plaintiffs' seventh claim for relief alleges that

defendants are liable for failing to make their premises reasonably

safe for plaintiff, an invitee, in one or more of the following

ways:

"a. In providing a lengthy set of stairs as the

only means of egress for plaintiff * * *.

"b. In failing to provide an elevator as an

alternative to the stairs for descending from the

second level.

"c. In failing to warn plaintiff * * * of the

dangers inherent in walking down the steps while in an

intoxicated condition.

"d. In failing to carpet the landing at the

bottom of the stairs.

"e. In having a vending machine on the landing at

the bottom of the stairs."

Under Oregon law, a property owner must make its

property reasonably safe for an invitee's visit, exercise

reasonable care to discover risks, and eliminate those risks or

warn the invitee about those risks, to enable the invitee to

avoid the harm. Woolston v. Wells , 297 Or 548, 557-58 , 687 P2d

144 (1984). Furthermore, it is well established in Oregon that a

proprietor's obligation to make its premises reasonably safe for

its invitees includes taking into account the use to which the

premises are put. See, e.g. , Ragnone v. Portland School Dist.

No. 1J , 291 Or 617 , 621 n 3, 633 P2d 1287 (1981) (so stating);

Mickel v. Haines Enterprises, Inc. , 240 Or 369, 371-72 , 400 P2d

518 (1965) (landowner must "take reasonable precautions to

protect the invitee from dangers which are foreseeable from the

arrangement or use of the premises.").

Because one of the primary purposes of defendants'

invitation to their tavern is the consumption of alcohol by

customers, defendants were obligated to make their premises

reasonably safe in light of that purpose. Plaintiffs have

alleged that defendants failed to do so. As part of their

allegation that defendants failed to make their premises reasonably

safe, plaintiffs alleged that defendants knew "the use the

premises would be put to [ sic ] -- i.e. , a lounge in which large

amounts of alcohol would be served -- and [knew] that intoxicated

patrons would have to use a lengthy set of steps to descend from

the lounge, and further [knew], or should have known, that such

use of the steps by intoxicated patrons would be likely to cause

injury to the patron." In other words, plaintiffs have alleged

that defendants failed to take reasonable precautions to protect

their invitees from dangers that they could foresee from the use of

their premises. Those allegations state a valid premises liability

claim.

We note that the degree to which plaintiff's

intoxication contributed to his injuries has no bearing on

whether plaintiffs' complaint sufficiently stated a claim for

premises liability . As with plaintiffs' common-law negligence

claim, a comparison of the relative fault of defendant-tavern

owner and plaintiff-invitee is a matter for the trier of fact to

weigh in its apportionment of responsibility for plaintiff's

injuries. See, e.g. , Woolston , 297 Or at 556 (error to instruct

jury that defendant is liable only if reasonable person entering

defendant's land would not realize danger or would protect

himself against it; such an instruction frustrates purpose of

comparative fault).

We conclude, in light of the foregoing discussion, that

plaintiffs have alleged facts sufficient to constitute a claim

for premises liability. Accordingly, we hold that the trial

court erred in dismissing plaintiffs' seventh claim for relief.

Finally, plaintiffs' eighth claim for relief is for

damages stemming from plaintiff Lottie Ann Fulmer's loss of

consortium. The Court of Appeals reasoned that, because the

trial court properly had dismissed plaintiffs' seven other claims

for relief, "it necessarily follows that [Lottie Ann] has failed

to state a claim for loss of consortium * * *." Fulmer , 152 Or

App at 344 . Because we hold that plaintiffs' complaint states

valid claims for negligence (fifth claim for relief) and for

premises liability (seventh claim for relief), we conclude that

that ground for dismissal of plaintiffs' loss of consortium claim

does not apply. We know of no other ground that would justify

dismissal of that claim. Consequently, we conclude that

plaintiffs have alleged facts sufficient to state a claim for

loss of consortium and, therefore, that the trial court erred in

dismissing plaintiffs' eighth claim for relief.

In summary, we hold that the facts alleged in

plaintiffs' complaint support claims for negligence and for

premises liability (counts five and seven), and a valid claim by

Lottie Ann Fulmer for loss of consortium (count eight). We

therefore reverse that part of the trial court's judgment

dismissing those claims. As to plaintiffs' remaining claims, we

affirm the trial court's judgment.

The decision of the Court of Appeals is affirmed in

part and reversed in part. The judgment of the circuit court is

affirmed in part and reversed in part, and the case is remanded

to the circuit court for further proceedings.

1. Except when noted, all references to "plaintiff" are to

Gary Fulmer. All references to "plaintiffs" are to Gary and

Lottie Ann Fulmer.

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2. All references to defendants are to the corporation and to the Joelsons, collectively.

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3. ORS 471.410(1) provides:

"No person shall sell, give or otherwise make

available any alcoholic liquor to any person who is

visibly intoxicated."

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4. ORS 471.412(1) provides:

"No licensee or permittee shall knowingly allow a

person to consume or to continue to consume alcoholic

beverages on the licensed premises after observing that

the person is visibly intoxicated."

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5. Former ORS 472.310 (1993) provided, in part:

"It shall be unlawful:

"* * * * *

"(3) For any person to serve, sell or dispense

alcoholic liquor to any person * * * who is visibly

intoxicated. However, nothing in this subsection

prohibits any licensee from allowing a person who is

visibly intoxicated from remaining on the licensed

premises so long as the person is not sold or served

any alcoholic liquor."

The legislature repealed ORS 472.310 in 1995. Or Laws 1995, ch

301, § 74.

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6. The City was subrogated in favor of Miller, with whom

it had settled. The tavern owners were liable to the City only

if they would have been liable to Miller had she brought an

action against them. Id . at 274.

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7. The legislature repealed former ORS 30.730 (1977) in

1979, replacing it with ORS 30.950. Or Laws 1979, ch 801, § 4.

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8. For reasons that we cannot understand, the case was not

cited to the Miller court by any of the parties.

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9. As noted, Oregon enacted its original Dram Shop Act in

1913. General Laws of Oregon, ch 51, § 1, pp 82-83 (1913). The

original statutory wording survived almost unchanged until 1979,

when the legislature repealed the Dram Shop Act, replacing it

with ORS 30.950. Or Laws 1979, ch 801, § 4. Although the Dram

Shop Act existed at the time Ibach was decided in 1934, the court

in Ibach expressly rejected the defendant's contention that the

plaintiff's complaint was based on that act. Ibach , 148 Or at

99 .

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10. ORS 30.950 (1983) provided:

"No licensee or permittee is liable for damages

incurred or caused by intoxicated patrons off the

licensee's or permittee's business premises unless the

licensee or permittee served or provided the patron

alcoholic beverages when such patron was visibly

intoxicated."

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