Stachniewicz v. Mar-Cam Corp.

• Jurisdiction: Oregon
• Parties: John V. STACHNIEWICZ, Appellant, v.CORPORATION, an Oregon corporation, Respondent.
• Citation: 488 P.2d 436,259 Or. 583
• Docket Number: MAR-CAM
• Court: Oregon Supreme Court
• Decision Date: 10 September 1971

Page 436

488 P.2d 436

259 Or. 583

John V. STACHNIEWICZ, Appellant, v. MAR-CAM CORPORATION, an Oregon corporation, Respondent.

Supreme Court of Oregon.

Argued and Submitted Feb. 3, 1971.

Decided Sept. 10, 1971.

R. Ryan Lawrence, Portland, argued the cause for appellant. On the brief were Enls Peterson, and Peterson, Chaivoe & Peterson, Portland.

George M. Joseph, Portland, argued the cause for respondent. With him on the brief were Thomas S. Moore, and Morrison & Bailey, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

HOLMAN, Justice.

The patron of a drinking establishment seeks to recover against the operator for personal injuries allegedly inflicted by other customers during a barroom brawl. The jury returned a verdict for defendant. Plaintiff appealed.

From the evidence introduced, the jury could find as follows:

A fight erupted in a bar between a group of persons of American Indian ancestry, who were sitting in a booth, and other customers who were at an adjacent table with plaintiff. One of plaintiff's friends had refused to allow a patron from the booth to dance with the friend's wife because the stranger was intoxicated. Thereafter, such threats as, 'Hey, Whitey, how big are you?' were shouted from the booth at plaintiff and his companions. One of the persons at the table, after complaining to the bartender, was warned by him, 'Don't start trouble with those guys.' Soon thereafter, those individuals who had been sitting in the booth approached the table and one of them knocked down a person who was talking to a member of plaintiff's party. With that, the brawl commenced.

After a short melee, someone shouted 'Fuzz!' and those persons who had been sitting in the booth ran out a door and into the parking lot, with one of plaintiff's friends in hot pursuit. Upon reaching the door, the friend discovered plaintiff lying just outside with his feet wedging the door open.

Plaintiff suffered retrograde amnesia and could remember nothing of the events of the evening. No one could testify to plaintiff's whereabouts at the time the band in the booth went on the warpath or to the cause of the vicious head injuries which plaintiff displayed when the brawl was ended.

The customers in the booth had been drinking in defendant's place of business for approximately two and one-half hours before the affray commenced.

The principal issue is whether, as plaintiff contends, violations of ORS 471.410(3) and of Oregon Liquor Control Regulation No. 10--065(2) constitute negligence as a matter of law. The portion of the statute relied on by plaintiff reads as follows:

'(3) No person shall give or otherwise make availabel any alcoholic liquor to a person visibly intoxicated * * *.'

The portion of the regulation to which plaintiff points provides:

'(2) No licensee shall permit or suffer any loud, noisy, disorderly or boisterous conduct, or any profane or abusive language, in or upon his licensed premises, or permit any visibly intoxicated person to enter or remain upon his licensed premises.'

The trial court held that a violation of either the statute or the regulation did not constitute negligence per se. It refused requested instructions and withdrew allegations of negligence which were based on their violation.

A violation of a statute or regulation constitutes negligence as a matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislation and when the harm is of the kind which the statute or regulation was enacted to prevent. Dimick v. Linnell, 240 Or. 509, 511, 402 P.2d 734 (1965); Smith v. Portland Traction Co., 226 Or. 221, 359 P.2d 899 (1961). The reason behind the rule is that when a legislative body has generalized a standard from the experience of the community and prohibits conduct that is likely to cause harm, the court accepts the formulation. Justice Traynor in Clinkscales v. Carver, 22 Cal.2d 72, 136 P.2d 777 (1943).

However, in addition, it is proper for the court to examine preliminarily the appropriateness of the standard as a measure of care for civil litigation under the circumstances presented. F. James, Jr., 'Statutory Standards and Negligence in Accident Cases,' 11 La.L.Rev. 95, 111--12 (1950--51); Restatement (Second) of Torts § 286, comment D. (1965). The statute in question prevents making available alcohol to a person who is Already visibly intoxicated. This makes the standard particularly inappropriate for the awarding of civil damages because of the extreme difficulty, if not impossibility, of determining whether a third party's injuries would have been caused, in any event, by the already inebriated person. Unless we are prepared to say that an alcoholic drink given after visible intoxication is the cause of a third party's injuries as a matter of law, a concept not advanced by anyone, the standard would be one almost impossible of application by a factfinder in most circumstances.

Moreover, while it does not necessarily follow from the inclusion in the same statute of the prohibitions against purveying alcoholic drinks to minors and to intoxicated persons that a violation of either provision should be treated identically, we have already held in Wiener v. Gamma Phi Chap. of A.T.O. Frat., 92 Or. Adv.Sh. 1027, 1032, 485 P.2d 18 (1971) that the statute, insofar as minors are concerned, is not...