Deckard v. Bunch, CC 102298

CourtSupreme Court of Oregon
Citation370 P.3d 478,358 Or. 754
Docket NumberCC 102298,SC S062948.,CA A151792
Parties Casey J. DECKARD, Respondent on Review, v. Diana L. BUNCH, Defendant, and Jeffrey N. King, as Personal Representative of the Estate of Roland King, Deceased, Petitioner on Review.
Decision Date10 March 2016

Thomas M. Christ, Cosgrave Vergeer Kester, LLP, Portland, argued the cause and filed the brief for petitioner on review.

Brent W. Barton, The Barton Law Firm PC, Newport, argued the cause and filed the brief for respondent on review. With him on the brief was William A. Barton.

Jeffrey D. Eberhard, Smith Freed & Eberhard, P.C., Portland, filed a brief on behalf of amicus curiae Smith Freed & Eberhard, P.C.

Kristian Roggendorf, Roggendorf Law LLC, Lake Oswego, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

Before BALMER, Chief Justice, and KISTLER, WALTERS, LANDAU, BALDWIN, BREWER, and NAKAMOTO, Justices.**


, J.

This case presents the issue of whether ORS 471.565(2)

provides an independent statutory right of action against a social host who served alcohol to a visibly intoxicated guest, who in turn caused injuries to a third party. Plaintiff, who was injured in a motor vehicle accident, brought this action against the driver of the other vehicle, Bunch, and the social host who served that driver.1 Plaintiff asserted two claims against the social host, King: One for common-law negligence, and the second, which is our primary focus here, for statutory liability. In the common-law negligence claim, plaintiff alleged that King (defendant) was negligent in serving alcohol to his visibly intoxicated guest at his home when it was reasonably foreseeable that she would drive her vehicle and cause injury to persons on the roadway.2 In his statutory liability claim, plaintiff alleged that defendant was statutorily liable for serving alcohol to the guest in violation of ORS 471.565(2)


Defendant filed a pretrial motion to dismiss plaintiff's statutory liability claim under ORCP 21

A(8) for failure to allege ultimate facts sufficient to state a claim for relief. The trial court granted the motion to dismiss, and the case was tried solely on the common-law negligence claim, resulting in a jury verdict for defendant.4 Plaintiff appealed, assigning error to the dismissal of the statutory liability claim. The Court of Appeals reversed. Deckard v. Bunch, 267 Or.App. 41, 340 P.3d 655 (2014)

. That court concluded that, in enacting ORS 471.565(2), the legislature intended to impose statutory liability on social hosts for serving visibly intoxicated guests; the court also rejected defendant's argument that any error in dismissing the statutory liability claim was rendered harmless by the jury instructions that the trial court gave. Id. at 51–54, 340 P.3d 655. We granted review to determine whether ORS 471.565(2) provides a statutory liability claim against alcohol providers that exists independently of a claim for common-law negligence. For the reasons that follow, we conclude that it does not. We therefore reverse the decision of the Court of Appeals and affirm the judgment of the circuit court.


On review of the trial court's dismissal of plaintiff's statutory liability claim pursuant to ORCP 21

A(8), "we accept all well-pleaded allegations of the complaint as true and give plaintiff[ ] the benefit of all favorable inferences that may be drawn from the facts alleged." Stringer v. Car Data Systems, Inc., 314 Or. 576, 584, 841 P.2d 1183 (1992), recons. den., 315 Or. 308, 844 P.2d 905 (1993). Plaintiff alleged in his complaint that, shortly before the accident, Bunch was at defendant's house, where she consumed a number of alcoholic drinks. Plaintiff further alleged that Bunch was intoxicated when her vehicle subsequently crossed the center lane of traffic and collided head-on with plaintiff's vehicle, causing plaintiff to sustain serious injuries. In his statutory liability claim, plaintiff alleged that defendant was negligent "in serving and/or providing alcohol to [Bunch] when she was visibly intoxicated in violation of ORS 471.565."

In his motion to dismiss, defendant argued that ORS 471.565

did not create an independent statutory liability claim, but, rather, operated as a "shield" imposing limitations on common-law claims against commercial and social providers of alcohol.5 The trial court agreed with that proposition and granted the motion to dismiss.

On appeal after the jury rendered a verdict for defendant on the common-law negligence claim, plaintiff argued that the trial court erred in dismissing the statutory liability claim on the ground that this court previously has interpreted ORS 471.565

and its predecessor statutes as providing a statutory right of action to protect motorists who are injured by intoxicated drivers. Defendant responded that the statute does not create statutory liability but, instead, limits liability by placing conditions on the right to recover at common law. Alternatively, defendant argued that, even if the trial court erred in dismissing the statutory liability claim, the error was harmless because the jury was instructed that defendant was liable for common-law negligence if he served alcohol to Bunch while she was intoxicated—the same instruction that plaintiff would have been entitled to on the statutory liability claim.

The Court of Appeals reversed the trial court's dismissal of the statutory liability claim. Deckard, 267 Or.App. at 43, 340 P.3d 655

. After discussing the legislature's enactment of former ORS 30.950 (1979), renumbered as ORS 471.565 (2001), subsequent amendments to the statute, and this court's case law on the subject, the Court of Appeals concluded that "the legislature intended to create statutory liability" and that plaintiff's claim arose from the particular risk that the legislature addressed—the risk of injury to a third party by a drunk driver who was served alcohol while visibly intoxicated. Id. at 51–52, 340 P.3d 655. Accordingly, the court held that the trial court had erred in dismissing the statutory liability claim; the court further concluded that the error was not harmless. Id. at 52, 54, 340 P.3d 655.

On review, the parties renew their arguments before the trial court and the Court of Appeals. In this case, plaintiff already had a common-law negligence claim; a host may be liable for serving a visibly intoxicated guest who drives a car and injures a third person. See Campbell v. Carpenter, 279 Or. 237, 243–44, 566 P.2d 893 (1977)

(serving alcohol to visibly intoxicated patron amounted to common-law negligence where tavern owner reasonably could have foreseen that intoxicated patron would drive from tavern and injure others off of premises). Nevertheless, plaintiff contends that he also has a statutory claim that permits him to hold defendant liable for that same conduct. Plaintiff seeks the benefit of a statutory claim because he understands that, in a statutory claim, he need not prove foreseeability. Plaintiff asserts that the text, context, and legislative history of ORS 471.565 indicate that the legislature intended to create a statutory liability claim that does not require proof of foreseeability. Defendant responds that, when viewed through the proper interpretive lens, the statute does not create such a statutory liability claim against providers of alcohol.

As explained below, we conclude that, when it enacted former ORS 30.950 (1979), the predecessor statute to ORS 471.565

, the 1979 legislature intended to approve the common-law negligence standard for alcohol provider liability previously established by this court. We further conclude that there is no basis to infer that that legislative assembly impliedly intended to create a separate statutory right of action with elements different from the common-law negligence standard. Finally, we conclude that no subsequent amendments to the statute altered that intent.

A. Statutory Liability

Statutory liability "arises when a statute either expressly or impliedly creates a private right of action for the violation of a statutory duty." Doyle v. City of Medford, 356 Or. 336, 344, 337 P.3d 797 (2014)

(citing Nearing v. Weaver, 295 Or. 702, 670 P.2d 137 (1983) ). A statutory liability claim "allows recovery of damages if the plaintiff can show that the damages suffered came about as a result of the violation of a statute which the legislature passed intending to give recourse to a group of plaintiffs, which includes the plaintiff then seeking redress under the terms of the statute." Bellikka v. Green, 306 Or. 630, 636, 762 P.2d 997 (1988). In synthesis, to prove a claim for statutory liability, the plaintiff must establish that: (1) a statute imposed a duty on the defendant; (2) the legislature expressly or impliedly intended to create a private right of action for violation of the duty; (3) the defendant violated the duty; (4) the plaintiff is a member of the group that the legislature intended to protect by imposing the duty; and (5) the plaintiff suffered an injury that the legislature intended to prevent by creating the duty.

Because the issue is one of legislative intent, the determination of whether an enactment created statutory liability is a matter of statutory interpretation; thus, when a statute prescribing a duty does not expressly indicate whether the legislature intended to create statutory liability to enforce the duty, we consider whether such intent is implied by examining "the text, context, or legislative history of the statute creating the duty." Doyle, 356 Or. at 344–45, 337 P.3d 797

; see also State v. Gaines, 346 Or. 160, 171–73, 206 P.3d 1042 (2009) (setting out methodology).

In its earlier decisions—especially in decisions pre-dating the adoption of our current statutory interpretation methodology—this court sometimes emphasized two factors that it deemed significant to the implied legislative intent inquiry:...

To continue reading

Request your trial
29 cases
  • Mason v. BCK Corp., A161175
    • United States
    • Court of Appeals of Oregon
    • July 5, 2018 that regard, they are resolved by the statute's legislative history.As the Supreme Court explained in Deckard , 358 Or. at 790-91, 370 P.3d 478, the bill that became ORS 471.565(2)(b) —Senate Bill (SB) 925—was enacted in 2001 in response to 292 Or.App. 592two cases: Grady v. Cedar Side I......
  • Piazza ex rel. Piazza v. Kellim, S063442 (Control)
    • United States
    • Supreme Court of Oregon
    • July 21, 2016
    ...foreseeability in negligence determinations formerly described in terms of duty-breach and proximate cause); see also Deckard v. Bunch , 358 Or. 754, 761, 370 P.3d 478 (2016). In synthesis,360 Or. 71 “unless the parties invoke a status, a relationship, or a particular standard of conduct th......
  • Tomlinson v. Metro. Pediatrics, LLC, CC 110911971
    • United States
    • Supreme Court of Oregon
    • February 8, 2018
    ...factual allegations in the complaint and draw all reasonable inferences from those allegations in favor of plaintiffs. Deckard v. Bunch , 358 Or. 754, 757, 370 P.3d 478 (2016). We 362 Or. 435set out the pertinent allegations in the complaint in accordance with that standard.The parents' son......
  • Cruz v. Multnomah Cnty., A155157
    • United States
    • Court of Appeals of Oregon
    • June 22, 2016
    ...the legislature “intended to create or to deny” statutory liability sounding in tort.15 Id . at 338–39, 337 P.3d 797 ; Deckard v. Bunch , 358 Or. 754, 759–60, 370 P.3d 478 (2016).ORS 181A.820(1) prohibits Oregon law enforcement agencies from using funds, equipment, or personnel on certain a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT