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Deckard v. Bunch

Court of Appeals of Oregon

November 19, 2014

CASEY J. DECKARD, Plaintiff-Appellant,
DIANA L. BUNCH, Defendant, and JEFFREY N. KING, as Personal Representative of the Estate of Roland King, Deceased, Defendant-Respondent

Argued and Submitted January 16, 2014

Page 656

 Lincoln County Circuit Court 102298.. Charles P. Littlehales, Judge.

Brent A. Barton argued the cause for appellant. With him on the briefs were William A. Barton and The Barton Law Firm, P.C.

Thomas M. Christ argued the cause for respondent. With him on the brief was Cosgrave Vergeer Kester LLP.

DEVORE, J. Before Hadlock, Presiding Judge, and DeVore, Judge, and Schuman, Senior Judge.


Page 657

[267 Or.App. 43] DEVORE, J.

Plaintiff, Casey Deckard, appeals a judgment that dismissed his claim against defendant, the personal representative of the estate of Roland King, based on statutory liability for serving alcohol to a visibly intoxicated person.[1] The issue in this case is whether ORS 471.565 creates statutory liability by which a person injured in an automobile accident may bring a claim against the social host who provided alcohol to a visibly intoxicated person. In reviewing the trial court's ruling dismissing plaintiff's claim, " we assume that the facts alleged in the complaint are true and draw all reasonable inferences in plaintiff's favor." Bailey v. Lewis Farm, Inc., 343 Or 276, 278, 171 P.3d 336 (2007). We " determine whether [the] pleadings and reasonable inferences therefrom state a claim as a matter of law." State ex. rel. Glode v. Branford, 149 Or.App. 562, 565, 945 P.2d 1058 (1997), rev den, 326 Or 389, 952 P.2d 62 (1998). We reverse and remand.

The pertinent facts arose from an automobile accident that resulted in serious injuries to plaintiff. He was driving on Highway 101 when a heavily intoxicated driver, Diana Bunch, crossed into his lane and collided head-on into his car. Bunch had consumed a number of drinks at King's house shortly before she drove and had a blood-alcohol content of 0.22. An officer testified that she was so intoxicated that she could not perform field sobriety tests, and she was not able to speak comprehensibly.

Plaintiff brought an action against Bunch and King, alleging, as to each, common-law negligence and, as to King, statutory liability under ORS 471.565 for serving alcohol to a visibly intoxicated person. King sought dismissal of the statutory claim for failure to state a claim which the trial court granted. ORCP 21 A(8). In its order, the trial court agreed with King that ORS 471.565 does not create a statutory cause of action and is only a limitation on existing common-law claims against alcohol servers and hosts. Plaintiff proceeded to trial on his negligence claims against Bunch and King. The jury found liability as to Bunch, awarding damages, but did not find King to be negligent.

[267 Or.App. 44] On appeal, plaintiff assigns error to the trial court's dismissal of the statutory claim. He argues that the trial court erred in determining that ORS 471.565 does not create a cause of action in favor of third parties who are injured by drunk drivers. Plaintiff contends that the Oregon Supreme Court has recognized the statutory liability of social hosts who served alcohol to visibly intoxicated guests. King, on the other hand, views ORS 471.565 as a limitation on common-law liability, rather than as a statutory basis for recovery.[2] Alternatively, he argues that, even if it was error to dismiss the statutory claim, there was no harm, because the jury was instructed regarding liability for providing alcohol to a visibly intoxicated person.

To determine whether the legislature has created statutory liability, we follow the analysis set out in Scovill v. City of Astoria, 324 Or 159, 166, 921 P.2d 1312 (1996),

Page 658

and reiterated recently.[3] " Whether a statute does so is a question of statutory interpretation." Doyle v. City of Medford, 356 Or 336, 344, 337 P.3d 797 (2014). " To prevail on a statutory liability claim, a plaintiff must be within the class of persons that the legislature intended to protect, and the harm must be of the sort that the legislature intended to prevent or remedy." Id. Where a duty exists, we must then determine whether " the text and context show that the legislature contemplated that a failure to act according to that duty gives rise to a potential liability in tort." Doyle v. City of Medford, 256 Or.App. 625, 634, 303 P.3d 346 (2013), rev'd on other grounds, 356 Or 336, 337 P.3d 797 (2014) (citing Scovill, 324 Or at 166); PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P.2d 1143 (1993). Legislative history may aid [267 Or.App. 45] in determining the legislature's intent in enacting the statute. State v. Gaines, 346 Or 160, 173, 206 P.3d 1042 (2009). Statutory liability does not depend on an express intention by legislature to create liability; the intention to create a right of action for the violation of a statutory duty may be implied. Doyle, 356 Or at 361.

The parties' core disagreement about legislature's intention requires that we begin with the history of liability for social hosts who serve alcohol to visibly intoxicated patrons. That history begins before ORS 471.565, with the common-law claims in Campbell v. Carpenter, 279 Or 237, 566 P.2d 893 (1977). In Campbell, two people had been killed by a drunk driver. The court recounted that a tavern had provided alcohol to a patron even after she was " 'perceptibly under the influence of intoxicating liquors'" and the tavern knew or should have known that the patron would drive after imbibing. Id. at 239. In its seminal decision, the Supreme Court recognized common-law negligence as a theory of liability, concluding that " a tavern keeper is negligent if, at that time of serving drinks to a customer, that customer is 'visibly' intoxicated because at the time it is reasonably foreseeable that when such a customer leaves the tavern he or she will drive an automobile." Id. at 243-44.

Legislation followed Campbell codifying liability for hosts who serve alcohol to visibly intoxicated patrons, at least where a third party was injured. The legislature enacted former ORS 30.950 (1979), renumbered as ORS 471.565 (2001).[4] That statute was implicated in the Supreme Court's next significant opinion, Chartrand v. Coos Bay Tavern, 298 Or 689, 696 P.2d 513 (1985). Like this case, the [267 Or.App. 46] plaintiff in Chartrand was injured by a drunk driver who drove " onto the wrong side of the road and into a head-on collision with the plaintiff, causing serious personal injuries." Id. at 691. The owner of a tavern was alleged to have supplied alcohol to the driver while she was visibly intoxicated. At trial, the jury found in favor of the plaintiff and awarded damages. The tavern owner appealed, challenging the trial court's jury instruction. In discussing the plaintiff's possible claims, the court described three theories of recovery, including statutory liability pursuant to former ORS 30.950. 298 Or at 695-96. The court observed that

" [t]he legislature by stating, or implying in reverse language, that a tavern owner will be held liable for the acts of a person who has been ...

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