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Grady v. Cedar Side Inn Inc.6/24/1998
on or guest while the patron or guest was visibly intoxicated; and
"(2) The plaintiff proves by clear and convicting evidence that the patron or guest was served alcoholic beverages while visibly intoxicated." (Emphasis supplied.)
"At common law, anyone who served alcohol ordinarily was not liable for injuries resulting from the drinker's intoxication." Hawkins v. Conklin, 307 Or 262, 266, 768 P2d 66 (1988). An exception developed in the common law to the general rule regarding cases in which the provider had reason to know that the recipient's consumption of the alcohol would create an unreasonable risk to others of injury . See Wiener v. Gamma Phi, ATO Frat., 258 Or 632, 643, 485 P2d 18 (1971). In 1977, the Oregon Supreme Court applied the exception to the common law rule that alcohol providers could not be held liable for injuries resulting from the recipient's intoxication to a different fact situation. It held that a wrongful death action founded in negligence could be brought against a tavern for serving a visibly intoxicated person, who subsequently caused the death of the decedent in a motor vehicle accident. Campbell v. Carpenter, 279 Or 237, 243-44, 566 P2d 893 (1977). The court reasoned that the tavern owner, serving a visibly intoxicated patron, could reasonably have foreseen that the patron would drive from the tavern and injure others off the tavern premises. Id.
In reaction to that decision, the legislature enacted ORS 30.950, which at the time provided that:
"SECTION 1. 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 provide the patron alcoholic beverages when such patron was visibly intoxicated.
"SECTION 2. No private host is liable for damages incurred or caused by an intoxicated social guest unless the private host has served or provided alcoholic beverages to a social guest when such guest was visibly intoxicated." Or Laws 1979, ch 801.
Since the statute was enacted, the Supreme Court has interpreted it and the subsequent changes to it on several occasions. When the Supreme Court interprets a statute, that interpretation becomes part of the statute as if written into it at the time of its enactment. Walther v. SAIF, 312 Or 147, 149, 817 P2d 292 (1991). In Sager, the court explained that " he legislative history of ORS 30.950 indicates that [the statute's] purpose was to limit the liability of liquor licensees and permittees to third parties." 296 Or at 37. (Emphasis supplied). The court held that "ORS 30.950 does not create a claim in favor of intoxicated patrons injured off premises against liquor licensees who serve them when visibly intoxicated." Id. at 40. In Hawkins, the court explained that the legislative debate focused on restricting expansion of the common law liability of alcohol providers when an intoxicated patron injured a third party off of the provider's premises. "The sponsors sought to 'roll back' the law to the state of the common law at or before the Campbell decision." Hawkins, 307 Or at 267. Ultimately, the legislature decided to codify the holding of Campbell in ORS 30.950 and otherwise restrict the bringing of actions against alcohol providers. In Hawkins, the court reiterated:
"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." 307 Or at 268.
In Gattman v. Favro, 306 Or 11, 757 P2d 402 (1988),the issue was whether OR
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