Gattman v. Favro

• Decision Date: 07 June 1988
• Citation: 757 P.2d 402,306 Or. 11
• Parties: Ronald GATTMAN, Respondent on Review, v. Neil FAVRO: Buzzard's Roost Tavern, Inc., an Oregon corporation; and Charles Tibbett, doing business under the assumed business name the Sanctuary Tavern, Defendants, and Borrelli Enterprises, Inc., a foreign corporation, Petitioner on Review. TC A8309-05921; CA A37387; SC S34317.
• Court: Oregon Supreme Court

Page 402

757 P.2d 402

306 Or. 11

Ronald GATTMAN, Respondent on Review, v. Neil FAVRO: Buzzard's Roost Tavern, Inc., an Oregon corporation; and Charles Tibbett, doing business under the assumed business name the Sanctuary Tavern, Defendants and Borrelli Enterprises, Inc., a foreign corporation Petitioner on Review.

TC A8309-05921; CA A37387; SC S34317.

Supreme Court of Oregon.

Argued and Submitted Nov. 3, 1987.

Decided June 7, 1988.

Peter R. Chamberlain, Bodyfelt, Mount, Stroup & Chamberlain, Portland, argued the cause and filed the petition for petitioner on review.

Wayne Mackeson, Des Connall and Dan Lorenz, P.C., Portland, argued the cause and filed a response for respondent on review.

Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and JONES, JJ.

PETERSON, Chief Justice.

On April 1, 1983, ORS 30.950 provided:

"No licensee or permittee is liable for damages incurred or caused by intoxicated patrons off the licensee's or permittee's business premises unless the licensee or permittee has served or provided the patron alcoholic beverages when such patron was visibly intoxicated." ¹

The plaintiff's complaint alleges that the defendant Borrelli Enterprises, Inc. operates a restaurant and lounge, and that it served alcoholic beverages to the co-defendant Favro when Favro was visibly intoxicated. Favro allegedly left the defendant's premises and later stabbed the plaintiff. The only question presented by the defendant's ² petition for review is whether ORS 30.950 provides a remedy to the plaintiff.

The plaintiff's complaint against the defendant contains these negligence allegations:

"VI

"At all times material herein, defendant Borrelli Enterprises, Inc., was a California corporation authorized to do business in Oregon under the assumed business name 'Red Baron Steak House at Troutdale' and operating a lounge at the Troutdale airport.

" * * *

"VIII

[In this paragraph, the plaintiff alleged that he was stabbed by Favro, causing injury.]

" * * *

"X.

"The injuries as aforesaid 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 patrons who consume alcohol, particularly those who drink to excess or while visibly intoxicated, in one or more of the following 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 was visibly intoxicated in violation of ORS 471.410(1).

"5. In failing to emphasize to its employees the rules and statutes of the State of Oregon which require that they not serve a visibly intoxicated person."

In a separate claim for relief, the plaintiff alleged:

"The injuries as aforesaid were directly and proximately caused by defendant Borelli Enterprises' violation of ORS 30.950 in that defendant Borelli Enterprises served or provided defendant Favro alcoholic beverages while defendant Favro was visibly intoxicated. Defendant Borelli Enterprises is strictly liable for said damages and injuries pursuant to said statute."

Defendant moved for dismissal "on the ground that plaintiff fails to allege facts sufficient to constitute a claim." ORCP 21 A(8). The motion was granted, the trial court entered judgment against the plaintiff in favor of defendant, and made the judgment appealable under ORCP 67 B. The Court of Appeals reversed, holding that the plaintiff's complaint stated claims for relief under common-law negligence, and negligence per se under ORS chapter 471, and on a statutory tort theory based on ORS 30.950. Gattman v. Favro, 86 Or.App. 227, 739 P.2d 572 (1987).

The defendant petitioned for review, asserting that the Court of Appeals erred in holding that a claim for relief was stated under ORS 30.950. The defendant does not seek reversal of the Court of Appeals' rulings on common-law negligence and negligence per se. ³ We disapprove the Court of Appeals holding on the statutory tort issue.

The question in a statutory tort context (as it was in Nearing v. Weaver, 295 Or. 702, 670 P.2d 137 (1983)) is whether the plaintiff has "pleaded an infringement by [the defendant] of a legal right arising independent of the ordinary tort elements of a negligence action." Nearing v. Weaver, 295 Or. at 707, 670 P.2d 137. One significant difference between a statutory tort remedy and a common-law right of action is that if a statutory tort is created, foreseeability may be immaterial or has been determined by the legislature. See Chartrand v. Coos Bay Tavern, 298 Or. 689, 695, 696 P.2d 513 (1985), discussed below. ("The plaintiff [on remand] could and may after proper amendments claim damages on a theory of tort law unfettered by negligence concepts of foreseeability.")

In deciding whether a "statutory tort" ⁴ exists because of the enactment of ORS 30.950, we first examine our recent decisions--decisions that precipitated the enactment of ORS 30.950--involving the liability of liquor licensees and others for serving intoxicated persons and minors. We then discuss whether ORS 30.950 provides a statutory tort remedy in favor of the plaintiff in this case.

I

The predecessor to ORS 30.950 was known as the Dram Shop Act. The Dram Shop Act, originally passed in 1913, provided:

"Any person who shall bargain, sell, exchange or give to any intoxicated person or habitual drunkard spiritous, vinous, malt or other intoxicating liquors shall be liable for all damage resulting in whole or in part therefrom, in an action brought by the wife, husband, parent or child of such intoxicated person or habitual drunkard."

Former ORS 30.730 (repealed by Or.Laws 1979, ch. 801, § 4). ⁵ The predecessor statute to the 1913 legislation was first enacted in 1876 and provided criminal penalties for the same acts. ⁶ One writer stated: "As a result of the temperance movement in the late nineteenth century, * * * a number of states enacted legislation [the Dram Shop Acts] to control commercial liquor traffic" in an effort to minimize the inherent evils of legalized alcohol. Note, The Minnesota Supreme Court 1962-1963, 48 Minn.L.Rev. 119, 126 (1963). ⁷

After the advent of automobile traffic, former ORS 30.730, the successor to the 1913 legislation, was applied to damage actions unrelated to traffic mishaps. See, e.g., O'Rorke v. John Day Lodge # 1824, 270 Or. 533, 528 P.2d 1030 (1974) (action by decedent's spouse to recover for death of decedent caused by alcohol overdose). However, the remedy under the Dram Shop Act was limited to the wife, husband, parent or child of the intoxicated person or habitual drunkard; it provided a remedy for loss of family support due to the injury or death of an intoxicated family member. The Dram Shop Act did not provide a remedy to a third party injured by an act of an intoxicated person. Wiener v. Gamma Phi, ATO Frat., 258 Or. 632, 638-39 n. 2, 485 P.2d 18 (1971).

The common law did not hold the vendor of intoxicants liable for injuries to a third person caused by an intoxicated customer of the vendor. See, e.g., Meade v. Freeman, 93 Idaho 389, 462 P.2d 54 (1969). See also Note, Torts--The Common Law Negligence Liability of Commercial Purveyors of Alcohol: Campbell v. Carpenter, 57 Or.L.Rev. 357, 357 n. 2 (1978). In Wiener v. Gamma Phi ATO Frat., supra, 258 Or. at 643, 485 P.2d 18, a negligence case, this court departed from the historical rule and held that a social host serving intoxicants may have an obligation "to refuse to serve alcohol when it would be unreasonable under the circumstances to permit him to drink." Chief Justice O'Connell explained:

"Ordinarily, a host who makes available intoxicating liquors to an adult guest is not liable for injuries to third persons resulting from the guest's intoxication. There might be circumstances in which the host would have a duty to deny his guest further access to alcohol. This would be the case where the host 'has reason to know that he is dealing with persons whose characteristics make it especially likely that they will do unreasonable things.' Such persons could include those already severely intoxicated, or those whose behavior the host knows to be unusually affected by alcohol. Also included might be young people, if their ages were such that they could be expected, by virtue of their youth alone or in connection with other circumstances, to behave in a dangerous fashion under the influence of alcohol."

Wiener, 258 Or. at 639, 485 P.2d 18 (footnotes omitted).

The court also rejected the argument that the legislature, by enacting the Dram Shop Act, prescribed the sole civil remedy against persons who furnish liquor to others. The court rejected the argument because the statute "provides a remedy for a very limited class of plaintiffs." Id. at 638-39 n. 2, 485 P.2d 18.

The same year, 1971, in Stachniewicz v. Mar-Cam Corporation, 259 Or. 583, 584, 488 P.2d 436 (1971), a patron of a drinking establishment sought to recover from the operator damages for personal injuries allegedly inflicted by other customers during a "barroom brawl" and sought to invoke former ORS 471.410(3) (now ORS 471. 410(1)) as a per se standard of conduct for those who serve alcoholic beverages. That statute provided:

"No person shall give or otherwise make available any alcoholic liquor to a person who is visibly intoxicated."

This court decided that this statute did not provide an appropriate standard for a negligence per se claim. The court stated:

"The statute in question prevents making alcohol available to a person...