Hawkins v. Conklin

• Decision Date: 30 December 1988
• Citation: 767 P.2d 66,307 Or. 262
• Parties: Anthony HAWKINS, Respondent on Review, v. Donna CONKLIN, dba The Shire Inn, Petitioner on Review, and John Shively and John Does A & B, Defendants. TC A8401-00244; CA A37535; SC S34645.
• Court: Oregon Supreme Court

Page 66

767 P.2d 66

307 Or. 262

Anthony HAWKINS, Respondent on Review, v. Donna CONKLIN, dba The Shire Inn, Petitioner on Review and John Shively and John Does A & B, Defendants.

TC A8401-00244; CA A37535; SC S34645.

Supreme Court of Oregon.

Argued and Submitted Oct. 6, 1988.

Decided Dec. 30, 1988.

Ridgway K. Foley, Jr., Portland, argued the cause and filed the petition on behalf of the petitioner on review. With him on the petition was Schwabe, Williamson & Wyatt, Portland.

Thomas C. Siel, Portland, argued the cause on behalf of the respondent on review.

Before PETERSON, C.J., LINDE, CAMPBELL, CARSON, JONES and GILLETTE, JJ., and VAN HOOMISSEN, J. Pro Tem.

CAMPBELL, Justice.

We accepted review to determine whether a tavern owner may be liable when one patron assaults and injures another patron after both patrons left the tavern. The plaintiff alleges theories of common law negligence based on the defendant's failure to call the police to have the intoxicated patron removed and her failure to protect the plaintiff when he left the tavern. The plaintiff alleges a theory of negligence based on ORS 471.410. He also seeks to recover under a theory of statutory liability based on ORS 30.950. The trial court granted the defendant's motion for judgment on the pleadings on all of the claims. ORCP 21 B. ¹ The Court of Appeals reversed, holding that the plaintiff stated claims of statutory liability, negligence per se, and common law negligence. Hawkins v. Conklin, 87 Or.App. 392, 742 P.2d 672 (1987). We reverse the decision of the Court of Appeals and affirm the judgment of the trial court.

The trial court should grant a motion for judgment on the pleadings when the pleadings, taken together, affirmatively show that the plaintiff has not stated a claim for relief. Salem Sand v. City of Salem, 260 Or. 630, 636, 492 P.2d 271 (1971). The following allegations appear in the complaint:

"Defendant, Donna Conklin d.b.a. The Shire Inn, was negligent in one or more of the following particulars:

"1. In selling alcoholic beverages to defendants John Shively and John Does A & B after when it was obvious that they were visibly and noticeable [sic] drunk and under the influence of intoxicating liquors in violation of ORS 30.950.

"2. In violating ORS 471.410.

"3. In not calling the police to remove defendants John Shively and John Does A & B after they threw chairs across the bar and threatened patrons of the Shire Inn with pool cues.

"4. In not providing plaintiff with protection from bodily harm when plaintiff left defendant Shire Inn at or near the same time defendants John Shively and John Does A & B were ejected for their violent and drunken behavior."

The plaintiff also alleges that Shively and his two companions assaulted the plaintiff after they left the tavern. They allegedly shoved the plaintiff into the path of an oncoming car. As a result, the plaintiff was severely injured. ²

The Court of Appeals held that the first paragraph of the complaint as set forth above stated a claim of statutory liability based on ORS 30.950. Hawkins v. Conklin, supra, 87 Or.App. at 395, 742 P.2d 672. ³ After the Court of Appeals issued its decision upholding the statutory liability claim, this court held that ORS 30.950 does not provide a statutory remedy in favor of plaintiffs who were injured in an assault. Gattman v. Favro, 306 Or. 11, 24, 757 P.2d 402 (1988). Because the plaintiff cannot state a claim of statutory liability based on ORS 30.950, we reverse the Court of Appeals on this issue.

Apparently, paragraph two alleges negligence per se based on ORS 471.410(1). ⁴ This court has held that ORS 471.410(1) is not an appropriate standard for establishing negligence per se. Stachniewicz v. Mar-Cam Corporation, 259 Or. 583, 586-87, 488 P.2d 436 (1971), overruled in part on other grounds Davis v. Billy's Con-Teena, Inc., 284 Or. 351, 356 n. 4, 587 P.2d 75 (1978). Whether or not we would so hold if the effect of ORS 471.410(1) were before us for the first time today, we follow our practice of giving a prior interpretation of a statute the effect of stare decisis. We reverse the Court of Appeals' holding that the plaintiff stated a claim of negligence per se based on ORS 471.410.

The third and fourth allegations purport to state two claims of common law negligence. Allegation number three states that the defendant was negligent for failing to call the police to remove the disorderly patrons who later assaulted the plaintiff. In allegation number four, the plaintiff alleges that the defendant was negligent in failing to protect the plaintiff when he left the tavern shortly after the management ejected the unruly patrons.

The defendant argues that ORS 30.950 bars the plaintiff's claims of common law negligence. At all times relevant to this action, 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." ⁵

According to the defendant, ORS 30.950 provides that licensees and permittees are not liable for common law negligence when an intoxicated patron leaves the premises and injures a third party unless the injuries occurred because the patron drove while he or she was intoxicated. Licensees and permittees would not be liable for other kinds of off-premises injuries. Although we agree with the defendant that ORS 30.950 bars the two claims of common law negligence, we reach this result for different reasons.

To understand the operation of ORS 30.950 in common law negligence actions, it is helpful to review this court's decisions addressing the common law liability of those who serve alcohol. At common law, anyone who served alcohol ordinarily was not liable for injuries resulting from the drinker's intoxication. See Gattman v. Favro, supra, 306 Or. at 17, 757 P.2d 402. An exception to the general rule arose for cases in which:

"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." Wiener v. Gamma Phi, ATO Frat., 258 Or. 632, 639, 485 P.2d 18 (1971) (footnote omitted), quoting Prosser on Torts § 33, 175 (3d ed. 1964).

Under Wiener, anyone who served alcohol to a guest and who had reason to know that the guest might act unreasonably could have been liable if the guest's intoxication causes injury to others. 258 Or. at 639, 485 P.2d 18.

Relying on the principles of common law negligence announced in Wiener, this court upheld a jury verdict holding a tavern owner liable for a third party's injuries caused by a drunk driver in Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893 (1977). In Campbell, the defendant tavern owner served alcoholic beverages to a patron when the patron was visibly intoxicated. The intoxicated patron later drove from the tavern and caused an accident in which the plaintiff's decedents were killed. Serving alcohol to the visibly intoxicated patron amounted to common law negligence because the tavern owner could reasonably have foreseen that the intoxicated patron would drive from the tavern and injure others off of the premises. 279 Or. at 243-44, 566 P.2d 893.

ORS 30.950 was the legislature's response to Campbell v. Carpenter, supra. The beverage and restaurant industry sponsored the bill that became ORS 30.950. Legislative debate focused on stemming expansion of the common law liability of licensees and permittees when an intoxicated patron injured a third party off of the licensee's or permittee's premises. See generally Minutes, House Committee on Judiciary, June 11, 1979, pp 2-9, 11; id., June 26, 1979, p 22-23; Minutes, Senate Committee on State and Federal Affairs and Rules, June 30, 1979, p 1; Sager v. McClenden, 296 Or. 33, 39-40, 672 P.2d 697 (1983). The sponsors sought to "roll back" the law to the state of the common law at or before the Campbell decision. Minutes, House Committee on Judiciary, June 11, 1979, p 11. To do so, they proposed relaxing the standard of care imposed on licensees and permittees. Instead of allowing recovery from a licensee or permittee who served someone who was visibly intoxicated, which was the common law standard of negligence in Campbell, the sponsors of the bill sought to bar recovery unless the tavern owner was grossly negligent in serving a visibly intoxicated patron. However, the legislature eventually rejected the gross negligence standard of care. ORS 30.950, as enacted, codified the holding of Campbell. Sager v. McClenden, supra, 296 Or. at 39, 672 P.2d 697.

ORS 30.950 provides that no licensee or permittee is liable for off-premises injuries caused by intoxicated patrons unless the licensee or permittee served alcohol to the patron when the patron was visibly intoxicated. It follows that any other negligent act or omission of a licensee or permittee which results in an intoxicated patron injuring someone off the premises will not form the basis for a common law negligence action against the licensee or permittee. We hold that in common law negligence actions governed by ORS 30.950, serving alcohol to someone who is visibly intoxicated is the only conduct for which tavern owners may be held liable for off-premises injuries. Thus, to state a common law negligence claim that is not barred by ORS 30.950, the plaintiff must allege that the licensee or permittee served alcohol to the person who injured the plaintiff when that person was visibly intoxicated. Otherwise, ORS 30.950 bars the claim. ⁶

Turning to the complaint in this case, we conclude that the plaintiff failed to state a common law negligence claim. The plaintiff alleges that the defendant was negligent in failing to call...