GATTMAN, Appellant, v. FAVRO et al, Defendants, BORRELLI ENTERPRISES, INC., Respondent.
(A8309-05921; CA A37387)
Court of Appeals of Oregon
Argued and submitted September 15, 1986, reversed and remanded July 8, 1987
reconsideration denied August 21, 1987
227, 739 P2d 572
petition for review allowed September 29, 1987 (304 Or 185)
Peter R. Chamberlain, Portland, argued the cause for respondent. With him on the brief was Bodyfelt, Mount, Stroup & Chamberlain, Portland.
Before Joseph, Chief Judge, and Newman and Deits, Judges.
JOSEPH, C. J.
Deits, J., concurring in part; dissenting in part.
This action arises from an incident in which defendant Favro allegedly stabbed plaintiff repeatedly without justification. Defendant Borrelli Enterprises, Inc. (Borrelli) owns and operates a tavern in Troutdale, where Favro was allegedly served alcoholic beverages while visibly intoxicated, having come there after drinking at another establishment. He left Borrelli‘s tavern and rode 14 miles in a car driven by someone else to a bar in Portland. While there, he allegedly tried to kill plaintiff, who seeks damages from Borrelli for the injuries incurred as a result of that attack.
Plaintiff assigns as error the trial court‘s dismissal of his second and third amended complaints for failure to state claims against Borrelli. He alleged in his second amended complaint that his injuries were caused by the negligence of Borrelli in one or more of these particulars:
“(1) In serving alcoholic beverages to defendant Favro when defendant Favro was visibly intoxicated;
“(2) In serving defendant Favro intoxicating liquors while knowing or having reason to know of the violent propensities of defendant Favro;
“(3) In continuing to serve alcoholic beverages to defendant Favro while knowing or having reason to know of the increased violent propensities of defendant Favro when drinking.
“(4) In admitting defendant Favro to the premises or allowing him to remain upon the licensed premises when defendant Favro is [sic] visibly intoxicated in violation of
ORS 471.410(3) and Oregon Liquor Control Commission administrative regulations.“(5) In failing to emphasize to its employes the rules and statutes of the state of Oregon which require that they not serve a visibly intoxicated person.”
Plaintiff also alleged that, “pursuant to
After dismissal of the claims against Borrelli, plaintiff again amended his complaint by adding that his injuries “were foreseeably caused by the negligence of defendant Borrelli Enterprises, Inc., knowing or having reason to know of the increased risk of harm presented to the public by
The third amended complaint also alleged the same five specifications of negligence as the second amended complaint, correcting the reference to
Borrelli again moved against the complaint on the ground that altering the first claim by adding that the injuries were “foreseeably” caused by the negligence of Borrelli did not allege any ultimate facts which, if proved, would permit a jury to find that Favro‘s conduct was or should have been foreseeable by Borrelli. He also argued that the statutory tort claim failed, because it did not allege that Favro caused reasonably foreseeable harm or legislatively foreseen harm to another. The trial court allowed the motion without explanation.
The liability of a tavern owner for off-premises injuries to a third person caused by an intoxicated person‘s conduct other than by driving has never been dealt with by Oregon appellate courts.1 The Supreme Court recognized, in Chartrand v. Coos Bay Tavern, 298 Or 689, 695, 696 P2d 513 (1985), three possible theories on which a plaintiff could proceed against a tavern owner for injuries caused by a patron:
“(1) common law negligence without reference to any statute as recognized in Campbell v. Carpenter, [279 Or 237, 566 P2d 893 (1979)];
“(2) negligence proved as a matter of law by violation of Oregon Liquor Control Act Chapter 471, as recognized in Davis v. Billy‘s Con-Teena, 284 Or 351, 587 P2d 75 (1977); and
“(3) statutory tort as recognized in Nearing v. Weaver, 295 Or 702, 670 P2d 137 (1983) * * * based on
ORS 30.950 .”
We turn first to the statutory tort theory recognized in Nearing v. Weaver, supra. In Chartrand v. Coos Bay Tavern, supra, 298 Or at 696, the court explained that the plaintiff could avoid negligence concepts of foreseeability by claiming damages on a statutory tort theory, because the risk and potential harm to the plaintiff in that case had already been foreseen by the lawmakers in enacting
Plaintiff contends in this court that his negligence per se claim is also under
Under the doctrine of negligence per se, the violation of a statute raises a rebuttable presumption of negligence if the violation causes an injury to a member of the class of persons meant to be protected and the injury is of a type which the statute was enacted to prevent. Resser v. Boise Cascade Corporation, 284 Or 385, 587 P2d 80 (1978); Torres v. Pacific Power and Light, 84 Or App 412, 415, 734 P2d 364, rev allowed 303 Or 534 (1987). Foreseeability of the risk of harm remains a factual issue in a negligence per se action. Chartrand v. Coos Bay Tavern, supra, 298 Or at 695.
Recently, the Supreme Court summarized “the ordinary issues of [common law] negligence liability”6 in Donaca v. Curry Co., 303 Or 30, 38, 734 P2d 1339 (1987):
“[W]hether defendant‘s conduct caused a foreseeable kind of harm to an interest protected against that kind of negligent invasion, and whether the conduct creating the risk of that kind of harm was unreasonable under the circumstances. The existence and magnitude of the risk * * * bear on the foreseeability of harm; the foreseeability and cost of avoiding the risk bear on the reasonableness of defendant‘s conduct. * * * We do not mean that they must in every case be submitted to a jury; in an extreme case a court can decide that no reasonable factfinder could find the risk foreseeable or defendant‘s conduct to have fallen below acceptable standards.”
In Donaca the court reversed a dismissal for failure to state a negligence claim. It reasoned that, on the basis of the complaint alone, a court could not determine that no reasonable trier of fact could find the risk foreseeable. That ruling seems almost to eliminate failure to state a claim as a viable ground for moving against a negligence claim.7 Borrelli is correct in pointing out that the complaint does not state facts which specifically constitute an allegation of foreseeability of the harm, but it does plead foreseeability as such. Assuming that foreseeability needed to be pleaded in any explicit way, but see McEvoy v. Helikson, 277 Or 781, 562 P2d 540 (1977); Mezyk v. National Repossessions, 241 Or 333, 405 P2d 840 (1965); Becker v. Barbur Blvd. Equipment Rentals, Inc., 81 Or App 648, 726 P2d 967 (1986), modified on other grounds, 84 Or App 367, 733 P2d 900, rev den 303 Or 535 (1987), a point the parties do not presently dispute, the claim cannot be dismissed, because, as the court reasoned in Donaca, the pleadings do not show that Borrelli could not have foreseen (or could not have actually known) that a danger was being created by serving alcohol to Favro. We, therefore, conclude that the trial court also erred in dismissing plaintiff‘s common law and negligence per se claims in the third amended complaint.8
Reversed and remanded.9
I concur in the majority‘s disposition of the claims based on negligence and negligence per se, but dissent from the disposition of the statutory tort claim. That claim alleges that defendant violated
“No licensee or permitee is liable for damages incurred or caused by intoxicated patrons off the licensee‘s or permitee‘s business premises unless the licensee or permitee has served or provided the patron alcoholic beverages when such patron was visibly intoxicated.”
I disagree with the majority‘s conclusion that
The statute provides: “No licensee or permitee is liable * * * unless” certain conduct occurs. (Emphasis supplied.) It is unclear from that language whether the statute is limiting existing liability or extending liability beyond that recognized at common law. In Sager v. McClenden, 296 Or 33, 39, 672 P2d 697 (1983), the Supreme Court construed the statute as a limitation on existing liability. However, in Chartrand v. Coos Bay Tavern, 298 Or 689, 696, 696 P2d 513 (1985), in dictum, the court characterized the statute as expanding the liability of commercial hosts beyond the existing case law limits of Campbell v. Carpenter, 279 Or 237, 566 P2d 893 (1977), and Davis v. Billy‘s Con-Teena, Inc., 284 Or 351, 587 P2d 75 (1978). Because of the ambiguity in the statute, I examine the legislative history.
Campbell v. Carpenter, supra, was a wrongful death action where the decedent was killed by an automobile driver who had become intoxicated at defendant‘s tavern. In affirming the trial court‘s judgment, the court held that a tavern keeper can be liable in a common law negligence action 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.” Campbell v. Carpenter, supra, 279 Or at 243.
The court adopted the reasoning of the New Jersey court in Rappaport v. Nichols, 31 NJ 188, 156 A2d 1, 75 ALR 2d 821
““When alcoholic beverages are sold by a tavern keeper to * * * an intoxicated person, the unreasonable risk of harm * * * to members of the traveling public may readily be recognized and foreseen; this is particularly evident in current times when traveling by car to and from the tavern is so commonplace and accidents resulting from drinking are so frequent.’ ” 279 Or at 240.
In Campbell, the court recognized that it is foreseeable that intoxicated customers might injure third parties while leaving taverns in their automobiles. The court did not address injuries other than those inflicted by intoxicated patrons driving automobiles. In enacting
When examining whether a statutory tort claim exists, our responsibility is to determine whether the risk, the harm and the plaintiff were contemplated by the legislature. Nearing v. Weaver, 295 Or 702, 670 P2d 137 (1983). If they were foreseen, the only remaining questions are whether the defendant engaged in statutorily prohibited acts and whether those acts resulted in injury. Chartrand v. Coos Bay Tavern, supra, 298 Or at 696. Thus, in a statutory tort claim, a foreseeability analysis, generally used by courts and juries in negligence actions to limit liability when attenuated circumstances exist, is not undertaken. Therefore, it is especially important that we do not extend liability beyond the circumstances contemplated by the legislature. Because I believe that the majority has done so in this case, I dissent.