*1 February 8, Argued and of trial and submitted reversed order court reinstated 15, 1983 November
SAGER, Review, Respondent al, et McCLENDEN Review, Petitioners on and LOUNGE, INC., TALK
TOWN TABLE, dba THE Petitioner on Review.
(TC A8009-04984, A20085, 29002) CA SC SC Smith, Portland, the cause for Peti- argued F. M. Robert individually and dba Review, Dianna tioners on petition Venus, Cereghino. With him on Marge and Club P.C., Kayser, Fellows, McCarthy, Zikes brief were Portland. O’Hanlon, Portland, for Peti- argued the cause
James B. *2 Inc., Review, and dba The Lounge, Town Talk on tioner Schwabe, petition and brief were Table. With him on Portland, J.P. Williamson, Roberts, Wyatt, Moore and O’Neil, H. Portland. Graff and Katherine Ratoza, Portland, and filed argued the cause Michael M. Respondent on Review. the brief Roberts, Peterson,*** Lent, J.,** Campbell, C.
Before Jones, Carson and Justices.
CARSON, J. J., concurring opinion. Lent, filed ** argued. case Chief Justice when
*** rendered. when decision Chief Justice
CARSON, J. presented The issue this case whether Service, specifically law on Intoxicating Liquor person against authorizes claim an n off premises injuries licensee for sustained visibly who was served alcohol while intox- Plaintiff, here, personal icated. is the representative patron’s fatally inebriated estate. Plaintiffs decedent was when, intoxication, as a result his voluntary he fell He days down and struck his head. died from that two brought later. Plaintiff death wrongful against action two lounges bartender, cocktail and an employe alleging negligently served the decedent he alcohol while intoxicated, which subsequent intoxication caused his fall and death. granted trial court defendants’ motion to dismiss
and motion for judgment pleadings, finding that had plaintiff failed to state facts sufficient to constitute a claim. ORCP reversed, 21. Court of Appeals concluding complaint stated a cause under 30.950. We reverse.
Oregon’s wrongful death statute allows a decedent’s
personal representative
bring
to
an action against
wrong
the
doer “if the decedent might
action,
have maintained an
had he
lived, against
wrongdoer
the
for
by
an
done
the same act
30.020(1).
or omission.” ORS
We thus judge
allegations
in
the complaint as if decedent
bringing
in
action
his
own behalf. Because this case
at
was resolved
the pleading
stage, we assume the
well-pleaded by plaintiffs
facts
com
plaint
A.(8);
true.
are
ORCP 21
Musgrave
ux.,
et ux. v.
et
Lucas
401, 408,
(1951).
Oregon never
recognized
has
a common law claim
against alcohol providers
person
in favor of a
who suffers
injury resulting from his or her own intoxication.
v. City
Miller
Portland,
(1980).
“Any sell, person bargain, exchange give who shall to or any vinous, person spiritous, intoxicated or habitual drunkard damage for all intoxicating liquors shall be liable
malt or therefrom, brought part in resulting in whole or in husband, wife, by parent or such intoxicated child of any agent employe drunkard. The act of or or habitual principal employer shall be deemed the act of his or for purposes of this section.” parent Shop spouse,
The Dram
Act authorized claim for the
person,
none for the intoxicated
or child of an intoxicated
but
City
Portland,
at
himself. Miller v.
When substance, is, in in contained tain and declare what terms or omitted, or to omit what therein, not to insert what has been * * provi statutory ORS 174.010. has been inserted When duty interpret ambiguous, in a them sions are manner consistent with expressed it our legislature the intention of the history policy in the expressed statutes, enactment of other and consistent previous Hurita, with decisions this court. Easton v. provides: 689, 694, ORS 174.020 “In the of a statute the intention of the construction * * pursued possible; legislature tois found the of the Court They phrase unambiguous. held the of ORS 30.950 * * *” “damages or caused incurred are liable both mean “that licensees *4 damages by persons well as ‘caused intoxicated as ‘incurred’ App Sager by’ persons.” 157, Or 59 intoxicated agree that this 160, P2d 1002 We do not 650 aas result of his or claim for a harmed creates a new her own intoxication.
37 The problem first concerns the word “damages.” phrase below read the “damages by incurred” intoxi meaning “injuries cated sustained” intoxicated patrons. loss, the word “damage” singular While means resulting omission; or harm from act when used in plural, “damages” compensation money “a means for (5th 1979). loss or damage.” Dictionary, Black’s Law 351 ed 444, In Denton v. International Health & Life, 452, (1974), we noted that the word “incur” has meanings. may to,” two It mean “to or subject become liable citing Holman, 578, 611-12, Earle v. P2d (1936), P2d 1242 or it may cause, on, mean “to bring occasion,” citing Indemnity American Co. Olesijuk, (Tex 1962). SW2d 71 App Applying Civ those meanings two 30.950, we find that incurred” “damages could have at interpretations. mean, least two It could as the Court of found, injuries persons, sustained or it could damages mean persons might which intoxicated be cases, liable. This not, latter need in all mean the same “damages patrons.”1
Because of this ambiguity within the we turn now to legislative intent as found legislative history in the ORS 30.950.2 HB repealed which Shop Dram Act (former 30.730) 30.950, and became ORS 30.955 and 30.960, was proposed the Oregon and Beverage Restaurant supported by Association and various commercial alcoholic beverage legislative history servers. The of ORS 30.950 indi- cates purpose its liability limit of liquor licensees and Commercial alco- beverage holic hearings servers testified at on HB 3152 that expansion liability were concerned about of their from two recent decisions this court. The cases deciding applicable Without whether these distinctions are to ORS examples damages incurred, legal several come to mind where in the sense of liabilities incurred, damages example, punitive would different from actual caused. For legally actually compensatory damages are incurred but are different from So, too, contribution, indemnity, liability caused. on actions based or vicarious can caused the damages. legal being personally result in incurred without the defendant Minutes, legislative history Hearings HB referred to consists of on Judiciary, 1979, Minutes, Hearings Comm. on House June 27 and Comm, Rules, 30, 1979. HB Senate on State and Federal Affairs and June
38 237, (1977), P2d 893 and Carpenter,
Campbell Inc., Con-Teena, 351, Billy’s 587 P2d Davis v. in holdings alcohol servers testified that
Commercial much more liability two cases had made insurance those Minutes, Comm. on expensive to obtain. House difficult 2; Minutes, 11, 1979, Senate Judiciary, Tape June Side Comm, Rules, and Federal Affairs and June on State further considering 1. Before Tape Side in of these two cases is history HB a discussion of brief order. keeper is held that tavern Campbell,
In this court in automobile parties liable to third who are visibly intoxicated cus- serving a accident that results from that when the reasonably it is foreseeable tomer because auto- he she will drive an premises, leaves the customer Or at 243-44. The supra, 279 Campbell Carpenter, mobile. liability negligence, is common law keeper’s of the tavern basis aof statute. not violation Davis, operators of two court held that
Tn
minors, without
taverns,
sold a
of beer to
keg
who each
party
of a third
of
liable for the death
requiring proof
age, were
minor who
another
in an automobile accident
killed
liability
of
was
The basis
kegs.
beer from both
consumed
471.130(1),3 which
se for violation of ORS
negligence per
to
alcoholic
it
for a licensee to sell
makes
unlawful
doubt
proof
age
of
if there is
anyone
requiring
without
This statute was found
years
is 21
old.
whether the customer
protect
general public as well
to
designed
to have been
Con-Teena, Inc.,
Section 3 which became ORS proposed holding was the to limit the in Davis. Section 3 limited parties of licensees and social hosts who underage patrons, by replacing negligenceper serve se rule of Davis with a reasonable standard. Section was approved major without revision. *6 thorough reading A of the minutes of the committee hearings single on HB 3152 fails to reveal of mention creating injured patrons. Throughout a claim in favor of the hearings, discussion centered on licensees’ legislature that the We believe if had intended to claim, law, create a new not available under the common there would have been some mention of it in the committee hear- ings. especially type is This of a of true claim as controversial as this one.
Further considerations also lead us to the conclusion legislature patrons injured no intended new claim for premises off the their own intoxication. ORS 30.950 is liability. limits, creates, written in form which not It reads: * * * * * * * * “No licensee is liable unless This logically expands agree limits relief rather than it. We with Appeals’ the of Court dissent in this case that ORS 30.950 only provides the condition under which a alco- commercial beverage already holic server becomes liable to one who has a Sager light App claim. 162. at In of legislative history, imposing we, too, the read ORS 30.950 provides: ORS 30.960 30.950, licensee, “Notwithstanding permittee 30.955 and no persons injured persons through social shall be host liable to third not years age licensee, reached of who obtained from the or social unless that host it is demonstrated a reasonable would requested have determined that identification should have been or that accurately identification exhibited was altered or did describe the liquor whom the alcoholic was or served.” sold liability originally by judicial created deci-
limitation sion. Appeals’ quote in this the Court of dissent We from case: of created has far
“The cause consequences. imagination little antici- reaching It takes by persons injure pate who them- the vast number claims aptly rung selves while intoxicated. alarm Rolando, App Ill Appeals in Holmes Illinois Court (1943): 51 NE2d “ *‘* * Pause, you contemplate if will and the vast drunks, may urged by claims number of every expense that are natural were entitled to Surely, legislature intoxication. did concomitants of compensative them to be under statute.’ not intend App App Ill at 165. at 482-83.” 59 language “damages incurred” has at find the We legislative interpretations. We, therefore, look to the least two logical intent, and to the form of statute ambiguity. policy expressed in other statutes to resolve light considerations, that ORS does of these we hold 30.950 In not create a claim in favor patrons injured off premises against when licensees who serve them Accordingly, judgment the Court of intoxicated. reversed, order of the trial court reinstated. and the opinion. concurring Lent, J., filed a concurring. LENT, J., *7 only upon separately concur, comment
I but I write opinion of this court’s decision the reference in the Billy’s Con-Teena, Inc., 587 P2d court Davis complaint (1978). argued plaintiff In that case “negligenceper se” for violation stated a cause of action for 471.130(1). argue the violation of Plaintiff did not that ORS the statute created a
right independent trappings resulting “negligence” from to recover concept. we did not address that violation today, analysis might that case before us Were Nearing Weaver, 670 P2d well be different. See that cases such I the conclusion have come to dependent upon present recovery theories of Davis per “negligence se.”