Argued and Submitted May 8, 2013
Multnomah County Circuit Court. 101216919. Karin Johana Immergut, Judge.
J. Randolph Pickett argued the case for appellants. With him on the briefs were R. Brendan Dummigan, Kristen West, Kimberly O. Weingart, and Pickett Dummigan LLP.
Jonathan Henderson argued the cause for respondent. With him on the brief were Nicole M. Rhoades, Daniel S. Hasson, and Davis Rothwell Earle & Xochihua, P. C.
Before Nakamoto, Presiding Judge, and Egan, Judge, and Lagesen, Judge.[*] Egan, J., dissenting.
[263 Or.App. 530] LAGESEN, J.
Carroll Mayfield went on a drinking binge, which included a stop at the Eagles Lodge #2151 Gresham. There, he was served whiskey and beer over the course of several hours. Mayfield later visited the Gresham Players Club, where he shot and injured plaintiffs Jason Chapman and Richard Gilbertson. Plaintiffs sued Mayfield, the Eagles Lodge, the Gresham Players Club, and Mayfield's friend Grant Baughman, asserting claims for common-law negligence and seeking damages resulting from the shooting. With respect to the Eagles Lodge (hereinafter " defendant" ), plaintiffs alleged that defendant negligently served Mayfield while he was visibly intoxicated, leading to the shooting. The trial court granted summary judgment to defendant on the ground that plaintiffs had not presented evidence
sufficient to create a factual dispute as to whether Mayfield's act of shooting plaintiffs was the foreseeable result of defendant's act of serving alcohol to Mayfield while he was visibly intoxicated. We affirm.
On review of a trial court's grant of summary judgment, " we view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to * * * the party opposing the motion." Jones v. General Motors Corp., 325 Ore. 404, 408, 939 P.2d 608 (1997). Summary judgment is proper only " if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Outdoor Media Dimensions Inc. v. State of Oregon, 331 Ore. 634, 638, 20 P.3d 180 (2001) (citing ORCP 47 C). " A genuine issue of material fact is lacking when 'no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.'" Id. at 638-39 (quoting ORCP 47 C). Because plaintiffs would have had the burden of proof at trial, to withstand defendant's motion for summary judgment, plaintiffs had the burden of producing admissible evidence establishing " facts that by themselves or by their reasonable inferences could cause a reasonable juror" to find each element of plaintiffs' claim. O'Dee v. Tri-County [263 Or.App. 531] Metropolitan Trans. Dist, 212 Or.App. 456, 460-61, 463, 157 P.3d 1272 (2007); see Brant v. Tri-Met, 230 Or.App. 97, 103, 213 P.3d 869 (2009) (on a defendant's motion for summary judgment in a negligence case based on the standard of care, " the question is whether [the] plaintiff produced sufficient evidence to allow a jury to find that the [defendant] was negligent" ); see also Hagler v. Coastal Farm Holdings, Inc., 354 Ore. 132, 140, 144-47, 309 P.3d 1073 (2013) (discussing a plaintiff's evidentiary burden to avoid summary judgment in a negligence case).
Under Oregon law, a tavern owner that negligently serves alcohol to a visibly intoxicated person may be liable for injuries to a third party resulting from the visibly intoxicated person's violent conduct, if it was foreseeable to the tavern owner that serving the person would create an unreasonable risk of violent conduct. Moore v. Willis, 307 Ore. 254, 767 P.2d 62 (1988); Hawkins v. Conklin, 307 Ore. 262, 767 P.2d 66 (1988); Sparks v. Warren, 122 Or.App. 136, 856 P.2d 337 (1993). " The fact that someone is visibly intoxicated * * *, standing alone, does not make it foreseeable that serving alcohol to the person creates an unreasonable risk that the person will become violent." Moore, 307 Ore. at 260.
Rather, to establish foreseeability, a plaintiff must first plead and then prove specific facts--beyond the fact of visible intoxication--from which an objectively reasonable factfinder could find or reasonably infer that the tavern owner who served the visibly intoxicated person knew or had reason to know that serving that person created the unreasonable risk that that person would become violent. See id. at 260-61 (" [b]ecause there [were] no allegations of facts from which a factfinder could infer that [the particular] defendants had reason to know that serving alcohol to [the visibly intoxicated persons at issue] would cause them to become violent," the plaintiff's allegations were insufficient to establish foreseeability); Hawkins, 307 Ore. at 269 (the plaintiff's allegations were insufficient to establish foreseeability where the plaintiff did not allege facts showing " that the defendant knew about the [visibly intoxicated person's] threats and unruly conduct or that the defendant [263 Or.App. 532] otherwise had reason to know of [the visibly intoxicated person's] violent propensities at the time the defendant served alcohol to [the visibly intoxicated person]" ); Sparks, 122 Or.App. at 139-40 (the plaintiff's evidence was insufficient to establish foreseeability at the summary judgment stage of the case where the plaintiff presented " no evidence" showing that the defendants knew or should have known that if they negligently failed to prohibit consumption of alcohol by minors, " underage drinkers or [the underage drinker at issue] would become violent" ). As the Supreme Court recognized in Moore, a plaintiff can do that by proving facts showing that a tavern owner's general observations and experiences " in the business of serving alcohol" gave that tavern owner reason to know that violence would be a foreseeable result of serving alcohol
to a visibly intoxicated person. 307 Ore. at 260-61. Alternatively, a plaintiff can establish foreseeability by proving facts showing that the tavern owner knew or had reason to know that the visibly intoxicated person in question had a propensity for violence that could be incited by further drinking. Hawkins, 307 Ore. at 269.
Here, in opposing defendant's summary judgment motion, plaintiffs did not present evidence that would permit a reasonable factfinder to find or infer the facts that Moore requires. At this point, it is undisputed that defendant did not know or have reason to know any specific facts about Mayfield that would make his violent conduct foreseeable. Instead, plaintiffs' theory of foreseeability, as alleged in the complaint, is that defendant had reason to know that serving Mayfield while he was visibly intoxicated created an unreasonable risk of violence " because those who are in the business of serving alcohol know that visibly intoxicated drinkers frequently become violent." The only evidence that plaintiffs submitted in support of that " reason-to-know" theory of foreseeability consists of (1) a declaration from Dr. Brady--a medical doctor with expertise in " alcohol physiology and effects" --stating that he could testify to " a degree of reasonable medical certainty" to, among other things, the facts that " [i]ntoxicated drinkers frequently become violent," and " [t]he link between visible intoxication and increased levels of violence has been well-established in the medical, scientific, and lay literature for decades, if not [263 Or.App. 533] more than a century" ;  and (2) the deposition testimony of a bartender from a different bar down the street that, when a bar patron becomes violent, " [t]hat's the alcohol talking." But that evidence is insufficient to permit a rational factfinder to make the finding that Moore requires--in this instance, a finding that defendant, by virtue of the fact that it was in the business of serving alcohol, was on notice that serving a visibly intoxicated person created an unreasonable risk that the person would become violent. See, e.g., Stewart v. Kids Incorporated of Dallas, OR, 245 Or.App. 267, 283, 261 P.3d 1272 (2011), rev dismissed as improvidently allowed, 353 Ore. 104, 295 P.3d 51 (2012) (equating requirement that a plaintiff demonstrate that the defendant " knew or should have known" of a risk of harm with a requirement that a plaintiff demonstrate that the defendant was on notice of the risk of harm).
Viewing the evidence and the reasonable inferences therefrom in the light most favorable to plaintiffs, and resolving any conflicts in the evidence in favor of plaintiffs, the following story emerges from the summary judgment record in this case:
o Prior to the night in question, defendant had served visibly intoxicated patrons.
o Prior to the night in question, defendant had not experienced any incidents of violence involving persons to whom defendant served alcohol.
[263 Or.App. 534] o Defendant's clientele consists of " low-key, very friendly people."
o Mayfield had not been to defendant prior to the night in question.
o Defendant served Mayfield while he was visibly intoxicated.
o Medical professionals with expertise in alcohol physiology and effects have recognized a link between intoxication and violence, and are aware that " intoxicated drinkers frequently become violent."
o A variety of " medical, scientific, and lay literature" has long reported on " [t]he link between visible intoxication and increased levels of violence."
o A bartender in a different bar down the street from defendant has observed that violence occurs in his bar " once a month max" and that when it does, " [t]hat's the alcohol talking."
Those facts do not show directly that defendant knew that serving alcohol to Mayfield while he was visibly intoxicated created an unreasonable risk that he would behave violently. Accordingly, under Moore, the question is whether it rationally can be inferred from those facts that defendant should have known--that is, was on notice of the fact--that serving Mayfield while he was visibly intoxicated created the unreasonable risk that he would become violent. It cannot.
We have adopted the standard applied by the federal courts to determine whether a particular inference is a reasonable one or is, instead, impermissible speculation. See State v. Guckert, 260 Or.App. 50, 56, 316 P.3d 373 (2013), rev den, 354 Ore. 840, 326 P.3d 77 (2014); State v. Bivins, 191 Or.App. 460, 467, 83 P.3d 379 (2004). Under that standard:
" The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is [263 Or.App. 535] given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts."
Bivins, 191 Or.App. at 467 (quoting Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 895 (3rd Cir), cert den, 454 U.S. 893, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981)) (internal quotation marks omitted).
Here, the conclusion that defendant should have known that serving Mayfield while he was visibly intoxicated would lead to the unreasonable risk that Mayfield would act violently is not a rational inference because it does not follow, as a matter of logical probability, from those facts that the summary judgment record establishes. To reach that conclusion from those facts would require a factfinder to make too many intermediate inferences and assumptions, none of which logically follows from the facts established by the summary judgment record. See Bivins, 191 Or.App. at 468 (explaining that evidence is insufficient to support an inference if it " requires the stacking of inferences to the point of speculation" ). Specifically, a factfinder would have to infer that (1) persons in the business of serving alcohol generally know what medical doctors who are experts in alcohol physiology and effects know about the connection between intoxication and violence; (2) the unspecified " medical, scientific, and lay literature" documenting the connection between intoxication and violence is the type of literature that would be read by persons in the business of selling alcohol;  and (3) the operations and clientele of the bar where the other bartender observed a connection between intoxication
and violence were similar enough to the operations and [263 Or.App. 536] clientele of bars generally, or to the operations and clientele of defendant specifically, that that bartender's experiences and observations can be generalized to defendant and/or other bars.
On this record, those intermediate inferences represent guesswork. It is not logical to assume that people in the business of selling alcohol know what medical experts on alcohol physiology and effects know about the connection between alcohol and violence, especially on a record like this one, where the uncontroverted evidence shows that defendant did not previously have the opportunity to observe that connection firsthand. It also is not logical to assume that the mere existence of unidentified literature addressing the connection between alcohol and violence means that that literature is of the ilk that people in the business of selling alcohol ordinarily would read--especially when some of that literature is directed toward the fields of medicine and science, and the rest is unidentified, leaving the factfinder to speculate about what that literature is and who is ...