Bonner v. American Golf Corp. of California ( 2024 )

814 October 31, 2024 No. 37
IN THE SUPREME COURT OF THE
STATE OF OREGON
Kerrie BONNER,
Personal Representative of the
Estate of David W. Bonner, Deceased,
Plaintiff,
v.
AMERICAN GOLF CORPORATION
OF CALIFORNIA, INC.,
dba Oregon Golf Club,
fdba The Oregon Golf Club, a foreign corporation;
and American Golf Corporation,
dba Oregon Golf Club, fdba The Oregon Golf Club,
a foreign corporation,
Defendants.
(United States District Court for the District of Oregon
No. 322cv01582SI)(SC S070183)
En Banc
On certified question from the United States District
Court for the District of Oregon; certified order dated April 25,
2023, certification accepted May 18, 2023.
Argued and submitted September 14, 2023.
Rachel M. Jennings, Pickett Dummigan Weingart, LLP,
Portland, argued the cause and filed the brief for plaintiff.
Also on the briefs were J. Randolph Pickett, Shangar S.
Meman, and Kyle T. Sharp.
Andrew J. Lee, Schwabe, Williamson & Wyatt, P.C.,
Portland, argued the cause and filed the brief for defen-
dants. Also on the brief were Jeffrey S. Eden, Sara Kobak,
and Mario E. Delegato.
Lisa T. Hunt, Law Office of Lisa T. Hunt, LLC., Lake
Oswego, filed the brief for amicus curiae Oregon Trial
Lawyers Association.
Cite as 372 Or 814 (2024) 815
Alice S. Newlin, Lindsay Hart, LLP, Portland, filed
the brief for amicus curiae Oregon Association of Defense
Counsel. Also on the brief was Michael J. Estok.
MASIH, J.
The certified question is answered.
816 Bonner v. American Golf Corp. of California
MASIH, J.
Servers of alcohol in Oregon have a duty not to
serve alcohol to “visibly intoxicated” persons, but ORS
471.565(1) limits servers’ liability in some circumstances
even if the person is visibly intoxicated. Under that stat-
ute, “[a] patron or guest who voluntarily consumes alcoholic
beverages served by [a licensed server or social host] does
not have a cause of action, based on statute or common law,
against the person serving the alcoholic beverages, even
though the alcoholic beverages are served to the patron or
guest while the patron or guest is visibly intoxicated.” In
this case, which comes before us on a certified question of
Oregon law from the United States District Court for the
District of Oregon, we are asked to determine to what
extent, if any, ORS 471.565(1) violates the remedy clause of
Article I, section 10, of the Oregon Constitution. As we will
explain, Oregon’s common law has long held that a person
has a remedy against the server of alcohol for injuries that
the person suffered as a result of consuming alcohol involun-
tarily, meaning after the point that the person has lost the
“sense of reason and volition.” See Ibach v. Jackson, 148 Or
92, 35 P2d 672 (1934) (setting that standard). A statute that
precluded such a recovery would violate the remedy clause.
However, ORS 471.565(1), by its terms, does not reach that
far. On the contrary, it bars a claim only by a person who
“voluntarily consumes” alcohol. Accordingly, application of
ORS 471.565(1) to bar a plaintiff’s claim against a licensed
server or social host does not violate the remedy clause of
Article I, section 10, because it does not bar a claim by a per-
son who involuntarily consumed alcohol served by a licensed
server or social host.
I. CERTIFIED QUESTION
In this case, plaintiff, a patron of a golf club that
was hosting a golf championship, brought suit against defen-
dants, the owners of the golf club, for, among other things,
common-law negligence, based on allegations that he was
served alcohol when he was visibly intoxicated and then fell
off a golf cart and was seriously injured.1 Defendants moved
1
The case was originally filed by plaintiff’s guardian ad litem in the
Multnomah County Circuit Court in August 2022. In October 2022, defendants
Cite as 372 Or 814 (2024) 817
to dismiss the complaint under FRCP 12(b)(6) for failure to
state a claim, on the ground that plaintiff’s claim is barred
by ORS 471.565(1). Plaintiff responded that, to the extent
that that statute barred his claim,2 it deprived him of a rem-
edy in violation of Article I, section 10.
With the consent of the parties, the district court
certified the following question to this court:
“Does ORS 471.565(1) violate the Remedy Clause of the
Oregon Constitution, Article I, § 10, by denying a remedy
to a plaintiff who sustains injury due to his or her own vol-
untary intoxication and who sues a licensed server or social
host in their role as such?”
In its certification order, the district court noted
that the Court of Appeals had held in 2017, in Schutz v. La
Costita III, Inc., 288 Or App 476, 478, 406 P3d 66 (2017)
(Schutz II), aff’d on other grounds, 364 Or 536, 436 P3d 776
(2019) (Schutz III), that ORS 471.565(1) violated the plain-
tiff’s constitutional right to a remedy.3 In reaching that
conclusion, the Court of Appeals relied on this court’s then-
recent decision in Horton v. OHSU, 359 Or 168, 218-19, 376
P3d 998 (2016). According to the Court of Appeals, the court
in Horton held that a statute deprives a person of a remedy
if the common law at the time that the statute was enacted
removed the complaint to the United States District Court for the District of
Oregon. Shortly thereafter, plaintiff died. In February 2023, plaintiff’s ex-wife
became the personal representative of plaintiff’s estate, and, in that role, she was
substituted as plaintiff in this case.
2
Plaintiff’s complaint also included a claim of negligence based on premises
liability, a theory of liability that rests on a defendant’s negligent conduct as a
premises owner and operator. At oral argument, defendants agreed that a claim
for premises liability would not fall within the scope of the immunity provided by
ORS 471.565(1), which only bars claims based on the service of alcohol to a patron
or guest.
3
Four years earlier, in a case involving the same plaintiff but different defen-
dants, the Court of Appeals held that ORS 471.565(1) did not violate the plain-
tiff’s constitutional right to a remedy, because the plaintiff in that case would
not have had a viable common-law negligence claim against the defendants when
the Oregon Constitution was adopted. Schutz v. La Costita III, Inc., 256 Or App
573, 302 P3d 460, rev den¸ 354 Or 148 (2013) (Schutz I). In Schutz I, the Court
of Appeals relied on the remedy clause analysis set out in Smothers v. Gresham
Transfer, Inc., 332 Or 83, 23 P3d 333 (2001) (concluding that a statute deprives
a person of a remedy under Article I, section 10, only if the common law would
have provided a remedy for the same type of claim in 1857, when the Oregon
Constitution was adopted). This court overruled Smothers in part in Horton v.
Oregon Health & Sci. Univ., 359 Or 168, 376 P3d 998 (2016).
818 Bonner v. American Golf Corp. of California
would have provided a remedy for the same type of claim.
Schutz II, 288 Or at 485-88. The district court further noted
that this court affirmed the Court of Appeals’ decision in
Schutz II, but on a different ground: We held that, given
that the plaintiff’s allegations of negligence against the
defendants arose out of their roles as employer and supervi-
sor and not out of their roles as servers or social hosts, the
defendants were not entitled to statutory immunity under
ORS 471.565(1) and, thus, it was unnecessary to resolve the
constitutional question. Schutz III, 364 Or at 537.
Based on its reading of those cases, the district
court certified the question to this court, stating:
“Because the Oregon Supreme Court interpreted ORS
471.565 more narrowly in Schutz [III], it is ambiguous,
at best, whether the constitutional analysis in Schutz [II]
still applies. Thus, the precedential value of Schutz [II] is
unclear and likely leaves this important question with-
out controlling precedent from either the Oregon Court of
Appeals or the Oregon Supreme Court. Final resolution by
the Oregon Supreme Court would be helpful in resolving
both counts of plaintiff’s negligence claim and have broad
legal consequence in the state and federal systems.”
We accepted the certified question under ORS
28.200. However, we observe that the district court’s ques-
tion does not reflect the terms of ORS 471.565(1). The dis-
trict court’s question asks whether the statute is unconsti-
tutional as applied to a “plaintiff who sustains injury due
to his or her own voluntary intoxication and who sues a
licensed server or social host in their role as such.” However,
ORS 471.565(1) does not use the term “voluntary intoxica-
tion”; it bars a claim by a patron who “voluntarily consumes
alcoholic beverages” against a server for “injury, death, or
damages caused by intoxication,” “even though the alcoholic
beverages are served to the patron or guest while the patron
or guest is visibly intoxicated.”
This court has discretion to reframe a certified
question. Western Helicopter Services v. Rogerson Aircraft,
311 Or 361, 370, 811 P2d 627 (1991); McFadden v. Dryvit
Sys., Inc., 338 Or 528, 532-33, 112 P3d 1191 (2005). The con-
cepts of the voluntary consumption of alcohol and visible
Cite as 372 Or 814 (2024) 819
intoxication are both found in the statute. Because both are
necessary to our constitutional analysis but are distinct, we
think it appropriate to slightly reframe the district court’s
question. We therefore exercise our discretion to modify the
certified question as follows:
“Does ORS 471.565(1) violate the Remedy Clause of the
Oregon Constitution, Article I, section 10, by preventing
a plaintiff who voluntarily consumes alcoholic beverages
served to the plaintiff by a licensed server or social host
when the plaintiff was visibly intoxicated and who sustains
injury as a result from suing the licensed server or social
host in their role as such?”
II. ANALYSIS
Before we commence our analysis of the consti-
tutionality of ORS 471.565(1), we address a more general
issue that defendants have raised in their brief to this court.
Namely, defendants invite the court to revisit the meaning of
the remedy clause. Defendants explain that, in Horton, this
court considered itself constrained by its earlier decisions
interpreting the remedy clause, and, therefore, it declined to
“decide how we would interpret Oregon’s remedy clause if we
were considering it for the first time.” Horton, 359 Or at 218.
In a concurring opinion, Justice Landau urged the court to
undertake a wholesale review of its remedy clause jurispru-
dence. Id. at 254-86 (Landau, J., concurring). Defendants
now ask this court to align itself with Justice Landau’s con-
currence and hold that the remedy clause serves to “pro-
tect[ ] against executive and legislative interference with
judicial independence and access to the courts”4 and, con-
versely, that it was not intended to limit “the otherwise ple-
nary authority of the legislature to determine rights and
remedies.” Id. at 286.
Although we appreciate defendants’ thorough and
thoughtful explication of the origins and history of the
remedy clause, we decline their request to reconsider our
4
Defendants ask us only to revisit the Article I, section 10, remedy clause
analysis in Horton. Defendants do not advance any argument that the remedy
clause analysis and the right to a jury trial may be interdependent and that,
therefore, the court should also reassess Horton’s analysis under Article I,
section 17, of the Oregon Constitution, along the lines proposed by Justice Landau
in Busch v. McInnis Waste Systems, Inc., 366 Or 628, 652, 468 P3d 419 (2020).
820 Bonner v. American Golf Corp. of California
decision in Horton. In that case, the court took into account
both the legislature’s right to refine public policy set out
in Article IV, section 1, and Article VIII, section 7, of the
Oregon Constitution, and the right of injured Oregonians
to access the courts under Article I, section 10, to obtain a
remedy for an injury done them in their person, property,
or reputation through a civil jury trial under Article I, sec-
tion 17. Horton, 359 Or at 218-19. We find no fault with that
approach.
In addition, defendants acknowledge that the path
that they urge us to take necessarily would involve overrul-
ing all of our remedy clause cases decided before 2001. It is
defendants’ burden to establish that we must disavow our
earlier cases. See State v. Ciancanelli, 339 Or 282, 290, 121
P3d 613 (2005) (“[T]he party seeking to change a precedent
must assume responsibility for affirmatively persuading us
that we should abandon that precedent.”). Defendants have
not met that burden here.
In State v. Owen, 369 Or 288, 302, 505 P3d 953
(2022), the court set out the various considerations that may
lead the court to overrule precedent in statutory, common
law, and constitutional cases. The court stated that litigants
urging the court to overturn a case must consider stare deci-
sis and the competing interests at stake; they must identify
a deficit in the analytical process that the court used in that
case to interpret the statute, common law, or constitutional
provision at issue; they must show that, under a correct inter-
pretation, the holding in that case was incorrect; and they
must convince us that abandoning the holding in that case is
prudent. Id. Defendants have not explained how those factors
establish that the change in precedent that they urge is war-
ranted. Moreover, we agree with Justice Balmer’s statement
in his concurring opinion in Busch v. McInnis Waste Systems,
Inc., 366 Or 628, 660-61, 468 P3d 419 (2020) (Balmer, J., con-
curring): “Oregon courts for more than 150 years have held
* * * that the remedy clause imposes some kind of substantive
limit on the extent to which the legislature may modify or
abolish existing rights and remedies” and “[t]here is simply
too much water under the bridge * * * to ignore or overturn so
many of our cases.” (Emphasis in original.)
Cite as 372 Or 814 (2024) 821
For those reasons, we decline defendants’ invitation
to revisit the history and intent of the remedy clause in the
manner requested, and we proceed to consider the consti-
tutionality of ORS 471.565(1) in light of the Horton remedy
clause analysis.
A. Remedy Clause Analysis Under Horton
The “remedy clause” is part of Article I, section 10,
of the Oregon Constitution, which provides:
“No court shall be secret, but justice shall be adminis-
tered openly and without purchase, completely and without
delay, and every man shall have remedy by due course of law
for injury done him in his person, property, or reputation.”
(Emphasis added.)
As discussed, in 2016, in Horton, this court recon-
sidered its approach to determining when a statute vio-
lates the remedy clause. The court overruled its decision in
Smothers and adopted a paradigm for analyzing asserted
remedy clause violations that focuses on the state of the
common law at the time that the statute in question was
enacted, not when the constitution was adopted. In so
doing, the court explained that the text of the remedy
clause “is as much about the availability of a remedy as
it is about the ‘due course of law’ by which the remedy is
to be administered.” Horton, 359 Or at 180. And, the court
stated, there is “no basis in the text of the remedy clause,
its context, or its history from which we can conclude that
the framers intended to limit the meaning of that clause
to the concept of injury as it was defined in 1857.”5 Id. at
183. To the contrary, the court stated, “when the framers
drafted the Oregon Constitution in 1857, they would have
understood that the common law was not tied to a partic-
ular point in time but instead continued to evolve to meet
changing needs.” Id. Thus, the court stated, “common-law
causes of action and remedies provide a baseline for mea-
suring the extent to which subsequent legislation conforms
5
In Horton, we traced the history of the remedy clause to the constitution
of Indiana and back further through Blackstone’s Commentaries on the Laws of
England to Edward Coke’s The Second Part of the Institutes of the Laws of England
concerning Chapter 29 of the Magna Carta of 1225, which, in turn, derived from
Chapter 40 of the 1215 version of the Magna Carta. 359 Or at 189-205.
822 Bonner v. American Golf Corp. of California
to the basic principles of the remedy clause—ensuring the
availability of a remedy for persons injured in their person,
property, and reputation.” Id. at 218.
The court in Horton recognized that legislation can
affect a person’s constitutional right to a remedy in different
ways. It explained that, sometimes, legislation does not alter
a duty that one person owes to another, but it eliminates an
existing remedy for a person injured as a result of a breach
of that duty or it provides only an insubstantial remedy for a
breach of a recognized duty. Id. at 219. Statutes that fall into
that category violate the remedy clause. Id. Sometimes, the
legislation does not alter or eliminate an existing duty, but
it adjusts a person’s rights and remedies as part of a larger
statutory scheme in which a quid pro quo may or may not be
present for the altered right and remedy. Id. We have held
that statutes that fall into that category may or may not
violate the remedy clause depending on whether the alter-
native remedy is “substantial” in light of the overall statu-
tory scheme and other factors, including but not limited to
the existence of a quid pro quo to counterbalance the plain-
tiff’s loss of a common-law remedy. Id. And finally, there
may be situations where legislation modifies common-law
duties or eliminates common-law causes of action, but the
circumstances that required the imposition of those duties
and the recognition of those causes of action have changed
to such an extent that the interests that fueled the court’s
concern no longer require protection. Id. at 219-20. Statutes
that fall into that category do not violate the remedy clause.6
Id. The court stated that the court’s grouping of legislation
into those categories cannot be applied mechanically for
purposes of a remedy clause analysis. Id. at 220. Rather, to
determine whether “the legislature’s actions impair a per-
son’s right to a remedy under Article I, section 10, we must
consider the extent to which the legislature has departed
from the common-law model measured against its reasons
for doing so.” 359 Or at 220.
6
See Horton, 359 Or at 182 (citing as examples legislative abolishment of the
common-law torts of criminal conversation and alienation of affections because
those “actions for invasion of the family relationship were considered outmoded
by changing views of marriage, divorce, and sexual relations” (citation and inter-
nal quotation marks omitted)).
Cite as 372 Or 814 (2024) 823
Nothing in ORS 471.565(1) eliminates the duty
that has existed since at least the early twentieth century
not to serve alcohol to a “visibly intoxicated” person. That
duty continues to exist and is currently reflected in multiple
statutes, including ORS 471.315(1)(a)(H),7 which subjects an
Oregon Liquor and Cannabis Commission (OLCC) licensee
who allows a visibly intoxicated person to consume alcohol
on the licensed premises to various administrative conse-
quences and penalties; ORS 471.410(1), which generally pro-
hibits the provision of alcohol to a visibly intoxicated per-
son; ORS 471.412(1), which prohibits an OLCC licensee from
permitting a visibly intoxicated person to consume alcohol
on the licenses premises; and ORS 471.565(2)(a), which pro-
vides that an OLCC licensee may be liable for damages
caused by intoxicated patrons to third parties if the licensee
served the patron when the patron was visibly intoxi-
cated. In addition, there has been no suggestion that ORS
471.565(1) adjusts a person’s rights and remedies as part of
a larger statutory scheme or that the policy underlying the
duty has no continuing purpose.8 Thus, if ORS 471.565(1)
falls into any Horton category, it is the first. Consequently,
whether the legislature’s enactment of that statute impairs
a person’s right to a remedy under Article I, section 10, the
7
ORS 471.315 was amended during the 2024 regular legislative session. Or
Laws 2024, ch 40, § 9. Because those amendments do not affect our analysis, we
refer to the current version of the statute in this opinion.
8
The legislation would not fall into the quid pro quo, comprehensive scheme
category, because the legislature has not provided some alternative remedy or
quid pro quo. The inclusion of the second sentence in ORS 471.565(1)—stating
that the statute is inapplicable to claims for relief based on negligent or inten-
tional acts other than the service of alcohol—adds nothing that a plaintiff other-
wise would not have had at common law. That sentence simply affirms that the
legislation does not alter the common law of premises liability, which requires a
proprietor to make its premises reasonably safe for its invitees. It has nothing to
do with a proprietor’s liability to a patron who suffers injury after having been
served alcohol while visibly intoxicated.
The legislation also would not fall into the category in which the policy under-
lying the duty has no continuing purpose. To the contrary, the dangers inherent
in over-service of alcohol were recognized by legislators during the process of
enacting ORS 471.565(1), as demonstrated by the colloquy between certain legis-
lators that we discuss below. Although the bill that became ORS 471.565(1) was
ostensibly designed to procure some measure of personal responsibility on the
part of the patron or guest whose voluntary conduct contributes to the injury,
that interest was being served by the state’s comparative fault system. That sys-
tem allows a jury to compare the relative fault of a server and a patron in its
apportionment of responsibility for a plaintiff’s injuries.
824 Bonner v. American Golf Corp. of California
issue boils down to whether ORS 471.565(1) eliminated an
existing remedy for a person injured as a result of a breach
of the server’s duty not to serve alcohol to a “visibly intoxi-
cated” person.
That, in turn, begs the question: How do we deter-
mine whether the “common-law model” provided a remedy
for a breach of that duty at the time when the legislation
was enacted? The Court of Appeals in Schutz II understood
Horton to hold that, if a person would have had a common-law
cause of action for negligence on the date that the statute
eliminating that cause of action was enacted, then the stat-
ute would fall into the first category identified by the court
in Horton, and it would be unconstitutional. 288 Or App at
485 (explaining that “it is the common-law causes of action
and remedies that exist at the time legislation is enacted”
that provide the baseline for measuring whether legisla-
tion unconstitutionally eliminates a common-law remedy
(emphasis in original)). Defendants disagree with that inter-
pretation. They point out that, in Horton, this court held
that the Smothers court had “erred in holding that the rem-
edy clause locks the courts and the legislature into a static
conception of the common law as it existed in 1857.” 359 Or
at 218-19. Moreover, they argue that the court recognized
that the remedy clause does not prevent the legislature from
eliminating common-law actions or conditioning recovery on
proof of new elements or avoidance of new defenses. Horton,
359 Or at 193-94, 209-10, 219. For those reasons, defendants
argue that the legislature could, consistent with the remedy
clause, eliminate an existing remedy that was not deeply
rooted in the common law—meaning a remedy that had not
traditionally been available to an injured person but rather
had been more recently recognized by the court. According
to defendants, in that circumstance, the statute should be
seen as simply restoring the “traditional” common law.
Defendants further argue that that analysis
applies to ORS 471.565(1). As we will explain in more detail
below, what is now ORS 471.565(1) was enacted in 2001, in
response to this court’s decision in Fulmer v. Timber Inn
Restaurant and Lounge, Inc., 330 Or 413, 427, 9 P3d 710
(2000), in which the court held that a “plaintiff may bring
Cite as 372 Or 814 (2024) 825
a common-law negligence action against a person or entity
that negligently supplied alcohol to the plaintiff when he or
she already was visibly intoxicated and the plaintiff suf-
fered injuries caused by that negligent conduct.” Defendants
contend that the court’s holding in Fulmer does not repre-
sent the “common-law model,” because, according to defen-
dants, the court in that case allowed a claim that had never
previously been recognized: a common-law negligence claim
on behalf of a person who “voluntarily consumed” alcohol.
Because Fulmer had been decided only a year before the
legislature enacted ORS 471.565(1), defendants assert, the
legislature’s action should be seen as merely restoring the
historic common-law prohibition on such claims.
Defendants are correct that, in rejecting the
Smothers conception of the remedy clause, the court in
Horton stated that the framers of our constitution would
have understood that the common law is not tied to a par-
ticular point in time, “but instead continued to evolve to
meet changing needs.” 359 Or at 183. But beyond that, the
court did not express a view about whether the constitution-
ality of the legislative change should be measured by con-
sidering only a single moment in time—whether a plaintiff
had a cause of action for a similar injury at the time that
the statute eliminating the cause of action was enacted—or
whether the full sweep of the common law, from the found-
ing of the state through the date of the legislation, must
be considered to determine whether the right to a remedy
was firmly rooted in the common law when the statute was
enacted.
We do not need to resolve that issue in this case
because, as we will explain, we conclude that ORS 471.565(1),
as we interpret it here, is consistent with the common law
as it had existed for decades prior to the statute’s enact-
ment. We begin our analysis by examining that statute to
understand the types of causes of action that the statute
precludes. See State v. Ausmus, 336 Or 493, 499, 85 P3d
864 (2004) (“Because we cannot address [the] constitutional
challenges until we first discern the conduct that [the chal-
lenged statute] proscribes, we begin our analysis by constru-
ing that statute.”). That analysis includes consideration of
826 Bonner v. American Golf Corp. of California
the legislative history of the statute, which, in turn, necessi-
tates a close examination of the state of the common law at
the time, because, as noted, the statute was enacted in part
in reaction to this court’s decision in Fulmer.
B. Scope of ORS 471.565(1)
To construe ORS 471.565(1), we apply the methodol-
ogy set forth in State v. Gaines, 346 Or 160, 171-72, 206 P3d
1042 (2009): We consider the text of the statute, its context,
including other provisions of the same statute and related
statutes, and any useful legislative history. Id.
1. Text and context of ORS 471.565(1)
To repeat, ORS 471.565(1) provides, in relevant
part:
“A patron or guest who voluntarily consumes alco-
holic beverages served by a person licensed by the Oregon
Liquor and Cannabis Commission, a person holding a per-
mit issued by the commission or a social host does not have
a cause of action, based on statute or common law, against
the person serving the alcoholic beverages, even though the
alcoholic beverages are served to the patron or guest while
the patron or guest is visibly intoxicated. The provisions
of this subsection apply only to claims for relief based on
injury, death or damages caused by intoxication[.]”
The plain words of that statute preclude a remedy for injury,
death, or damages caused by intoxication only for those who
have “voluntarily” consumed alcohol. Neither the word “vol-
untarily” nor “voluntary” is defined in the statute. The dic-
tionary defines “voluntary,” as relevant here, as “proceeding
from the will : produced in or by an act of choice” and “of
or relating to the will : subject to or regulated by the will.”
Webster’s Third New Int’l Dictionary 2564 (unabridged ed
2002). In other words, a person acts voluntarily when the
person makes a deliberate choice to perform an act, which,
in turn, presumes that the person is capable of making a
choice. Thus, a person who is injured as a result of choosing
to consume alcohol is barred from suing the server of the
alcohol. However, a patron or guest whose consumption of
alcohol is involuntary is incapable of making a choice and
continues to have a cause of action against the server.
Cite as 372 Or 814 (2024) 827
In addition, the statute provides that a patron or
guest whose intoxication was voluntary does not have a
cause of action for injury, death, or damages even if the
person was “visibly intoxicated” when being served. Thus,
the legislature has expressly differentiated between visi-
ble intoxication and involuntary intoxication, meaning that
the former does not necessarily imply the latter. Although
the legislature has not defined “visibly intoxicated,” stat-
utes began using that term in 1933, when the legislature
enacted a Special Session law that provided, among other
things, that the Oregon Liquor Commission could cancel or
suspend a liquor license if the licensee “knowingly has sold
alcoholic liquor to persons * * * known to be drunkards, to
interdicted persons, or to persons visibly intoxicated at the
time of sale.” Or Laws 1933, ch 17, § 18 (2nd Spec Sess).9
Similar wording eventually was incorporated into ORS
chapter 471, regulating alcoholic liquors generally. As noted,
those statutes impose a duty on providers of alcohol not to
serve visibly intoxicated persons. See, e.g., ORS 471.315
(1)(a)(H); ORS 471.410(1); ORS 471.412(1); ORS 471.565
(2)(a). But, again, none of those statutes defines the phrase
“visibly intoxicated.” Likewise, we are aware of no admin-
istrative rule that defines that term, although OAR 845-
009-0135 requires servers to be trained to recognize visibly
intoxicated persons.
As a matter of common parlance, “visible intoxica-
tion” can mean anything from appearing slightly tipsy to
appearing incoherent or even immobilized. The OLCC has
produced a list of 50 common signs of visible intoxication,
9
As early as 1876, criminal statutes made it a crime to furnish alcohol to an
“intoxicated person.” See, e.g., The Codes and General Laws of Oregon, ch VIII,
title II, § 1914 (Hill 1887) (“It shall be unlawful for any person to knowingly sell
* * * any spirituous or other intoxicating liquors * * * to any intoxicated person, or
to any person who is in the habit of becoming intoxicated[.]”). In 1913, the legis-
lature enacted the first Dram Shop Act, imposing civil liability in some circum-
stances for serving or selling alcohol to minors and intoxicated persons. Oregon
Laws 1913, ch 51, § 1. Section 1 of the 1913 statute provided that a person who
served alcohol to an “intoxicated person or habitual drunkard” was liable to the
spouse, parent, and child of that person for damages resulting from the service
of alcohol to that person. Id. § 1. Dram Shop Acts in various iterations contin-
ued to exist until 1979, when former ORS 30.730 (1977) was repealed by Oregon
Laws 1979, chapter 801, section 4. None of those statutes defined “intoxicated” or
described the level of intoxication that would trigger a server’s criminal or civil
liability.
828 Bonner v. American Golf Corp. of California
which include disheveled clothing and boasting as well as
disorientation and falling off chairs.10 At one end of the
spectrum, a visibly intoxicated person may be consuming
alcohol “voluntarily.” At the other end, the patron or guest
may no longer be capable of making reasoned decisions, and
further consumption of alcohol beyond that point may not
be truly voluntary. The wording of ORS 471.565(1) reflects
that the fact that a person is “visibly intoxicated” does not
necessarily mean that that person’s consumption of alcohol
was involuntary.
We have stated that context includes this court’s
interpretations of the statute at issue. Liberty Northwest
Ins. Corp. v. Watkins, 347 Or 687, 692, 227 P3d 1134 (2010).
This court has not previously considered the precise ques-
tion before us today. As discussed, in Schutz II, the Court of
Appeals held that ORS 471.565(1) denied the plaintiff there
a remedy in violation of Article I, section 10, but on review,
this court affirmed for a different reason. Schutz III, 364 Or
at 538. We held that ORS 471.565(1) provides immunity for
servers and social hosts only for their conduct in their roles
as servers and social hosts and that, although the defen-
dants in Schutz III were social hosts, the plaintiff’s specifi-
cations of negligence were based on the defendants’ alleged
roles as the plaintiff’s employer and supervisor and not on
their roles as servers of alcohol. The court therefore con-
cluded that the defendants were not immune from liability
for their tortious conduct, if any, in those roles. Id. at 556. In
so holding, this court did not endorse the Court of Appeals’
conclusions in Schutz v. La Costita III, Inc., 256 Or App 573,
302 P3d 460, rev den¸ 354 Or 148 (2013) (Schutz I), and in
Schutz II that the plaintiff’s consumption of alcohol had
been voluntary. In fact, it did not consider or interpret the
terms “voluntarily” or “visibly intoxicated” as they are used
in ORS 471.565(1).11
10
Oregon Liquor and Cannabis Commission, 50 Signs of Visible Intoxication
(Rev 2022), https://www.oregon.gov/olcc/docs/publications/50_signs_visible_
intoxication.pdf (accessed October 22, 2024).
11
To the contrary, the court expressly noted that, if the bar “had a duty to act
affirmatively to protect [the] plaintiff from harm, a question we do not address,
that duty, as alleged, could arise only from its role in having served alcoholic bev-
erages to [the] plaintiff after she became visibly intoxicated.” Id. at 555 (emphasis
added).
Cite as 372 Or 814 (2024) 829
2. Legislative history
We turn to the legislative history. As we have noted,
the history of the enactment of ORS 471.565(1) starts in
2000, with this court’s decision in Fulmer, because the fol-
lowing year, in response to that decision, the legislature pro-
posed Senate Bill (SB) 925 (2001), which eventually became
ORS 471.565(1).
a. This court’s decision in Fulmer and the cases on
which Fulmer was based
In Fulmer, the plaintiffs, husband and wife, sought
recovery from the defendants, the owners of a bar, for inju-
ries that the husband sustained in a fall on the defendants’
premises after having been served alcohol when he was
intoxicated. 330 Or at 416. The plaintiffs alleged eight claims
for relief, including, among others, common-law negligence
based on the defendants’ service of alcohol to the husband.
Id. The complaint alleged that the defendants “caus[ed]
plaintiff * * * to become poisoned with alcohol, to lose his
sense of reason and volition; and * * * knowing plaintiff * * *
was in such condition and visibly intoxicated, continu[ed] to
ply plaintiff * * * with alcohol * * *.” Id. at 419 (internal quo-
tation marks omitted). The defendants in that case argued
that Oregon law did not recognize a common-law claim in
favor of a person whose injury results from the person’s own
consumption of alcohol. Id. In support of that argument, the
defendants cited Miller v. City of Portland, 288 Or 271, 279,
604 P2d 1261 (1980) (so stating), and Sager v. McClenden,
296 Or 33, 35, 672 P2d 697 (1983) (same). In response, the
plaintiffs contended that the court had recognized such a
claim in 1934, in Ibach. The court agreed with the plain-
tiffs, concluding that Ibach controlled and that the court’s
reasoning in Miller and Sager was not persuasive. Fulmer,
330 Or at 425-26.
Ibach was a wrongful death action in which the
plaintiff, the administrator of the decedent’s estate, filed
a complaint alleging that the defendant had enticed the
decedent to go to his hotel room and then “wrongfully and
unlawfully served [the decedent] large quantities of intoxi-
cating alcoholic liquors * * * and induced her, * * * to drink
830 Bonner v. American Golf Corp. of California
the same in large quantities sufficient to and which did
cause her to become ill and to suffer from acute alcoholism,”
causing her death. 148 Or at 94-95. The plaintiff later filed
an amended complaint that repeated the allegations in the
original complaint and further alleged that defendant:
“wilfully, unlawfully, and wrongfully forced [the decedent]
to partake of intoxicating liquors to such an extent that
she lost her sense of reason and volition * * * and while in
a state of intoxication and unable to control her own action
and movements * * * [she sustained various injuries], and
thereafter, the defendant carelessly and negligently left
[the decedent] while she was in said condition in said hotel
room alone, where she died sometime during the night, as
a direct and proximate result thereof.”
Id. at 95-96. The trial court granted the defendant’s motion
to strike the amended complaint, and it issued a judgment
in favor of the defendant.
On the plaintiff’s appeal, this court held that the
trial court had erred in striking the amended complaint.
The court stated:
“[I]t is wrongful for any person repeatedly and continuously
to ply another person with intoxicating liquor until intox-
ication is produced. An action by a woman so mistreated
could be maintained unless by voluntary participation
therein she could herself be said to be at fault. It is alleged
in the amended complaint, as it may be inferred from the
original complaint, that after decedent lost her sense of
reason and volition, defendant continued to administer
liquor to her. If decedent had survived such an indignity,
she would have had a right of action against defendant for
such damages as she sustained thereby.”
Id. at 102-03.
The defendant petitioned for a rehearing, object-
ing to one of the inferences that the court drew from the
allegations in the complaint: namely, that, “after decedent
lost her sense of reason and volition, defendant continued
to administer liquor to her.” Id. at 107. On rehearing, this
court adhered to its previous decision. The court explained
that, given the procedural posture of the case—defendant
having filed an answer to the complaint months earlier—the
Cite as 372 Or 814 (2024) 831
court was required to draw inferences favorable to the plain-
tiff and “it [was] clearly inferable from the language of the
complaint quoted in the original opinion herein that part
of the liquor was given decedent before, and part of it after,
she had passed the crucial period of transition from con-
scious volition” to a loss of reason and volition. Id. at 108.
Ultimately, the court held:
“To say that the administration of liquor in such large quan-
tities as to cause death is not a breach of the duty which one
human being owes to every other human being with whom
he comes in contact, namely, the duty to observe ordinary
care to prevent injury, is to shock the fundamental and
rudimentary principles of decency and order. For this rea-
son[,] we hold that a breach of duty was so pleaded in the
original complaint. The same breach of duty is alleged in
the amended complaint.”
Id. at 112.
After summarizing the court’s decision in Ibach,
the court in Fulmer concluded:
“Thus, in Ibach, this court recognized the claim that plain-
tiffs bring in this case, namely, a common-law claim in favor
of an intoxicated person on the theory that the defendant
negligently had served alcohol to the person. Defendants’
argument that there is no prior case law holding that a
common-law negligence claim exists in favor of an intoxi-
cated person under such circumstances is incorrect.”
330 Or at 421. The court rejected the defendants’ argu-
ment that Ibach was distinguishable because the plain-
tiff in Ibach was “forced” to consume alcohol, whereas the
plaintiff in Fulmer “voluntarily” participated in his alco-
hol consumption. Id. The court observed that, in Ibach, the
court had clarified that the allegation in the amended com-
plaint concerning the defendant’s use of force was imma-
terial: “ ‘Whether constructive force or actual force, or no
force at all was employed, the violation of duty is shown by
the facts alleged[.]’ ” Id. (quoting Ibach, 148 Or at 111). The
court stated that, similarly, the fact that the defendants in
Fulmer did not “force” the plaintiff to consume alcohol did
not mean that the plaintiff had not alleged facts sufficient
to state a claim for negligence. Id. In other words, the fact
832 Bonner v. American Golf Corp. of California
that the plaintiff had not been forced to consume alcohol
did not mean that the plaintiff’s consumption of alcohol was
voluntary.
The court then turned to its earlier decisions in
Miller, in which the court stated that this court had “never
previously recognized a common-law cause of action in favor
of a person who suffers injury resulting from his or her own
consumption of alcohol,” 288 Or at 279, and Sager, in which
the court repeated that statement, Sager, 296 Or at 35.
In Miller, one of the issues presented was whether
the defendant tavern owners could be held liable to a minor
who was injured as a result of having been served alcohol
when she was visibly intoxicated. 288 Or at 273. In that
case, the defendants had served alcohol to two minors
without requiring proof of their age and continued serving
them alcohol after both minors were visibly intoxicated.
The minors left the tavern on a motorcycle and were struck
by a City of Portland police car. Id. at 273. One of the two
minors—the passenger—was injured in the collision and
sued the City of Portland for personal injuries. Id. After the
city settled with the plaintiff, the city impleaded the tav-
ern owners as third-party defendants, seeking contribution
from them on the ground that they were also responsible for
the accident. Id. Among other things, the complaint against
the tavern owners alleged a common-law negligence cause of
action based on allegations that the defendants had served
the plaintiff alcohol when she was visibly intoxicated and
that she was injured as a result. Id.On review, this court declined to recognize a
common-law negligence claim for physical injury to a person
caused by the person’s own illegal purchase and consump-
tion of alcohol. Id. at 279. In so doing, the court did not cite
Ibach. Rather, the court stated that “[t]his court has never
previously recognized a common law cause of action in favor
of a person who suffers injury from his or her own consump-
tion of alcohol.” Id.The court then stated that it would be inappropri-
ate to create such a cause of action for two reasons. First,
recognizing a negligence claim “for physical injury to minors
Cite as 372 Or 814 (2024) 833
caused by their illegal purchase of alcoholic liquor” would be
“contrary to apparent legislative policy.”12 Id. And second, the
court stated that, at the time of the collision, the Dram Shop
Act, former ORS 30.730 (1977), repealed by Or Laws 1979,
ch 801, § 4, was in effect in Oregon, and that statute provided
that a person who served alcohol to “any intoxicated person
or habitual drunkard” was liable for resulting damages in
an action brought by the wife, husband, or child of the intoxi-
cated person. Miller, 288 Or at 280. The court explained that
that statute did not include the intoxicated person among
the individuals legislatively entitled to relief, and, because
the legislature had “considered the liability to the inebriate’s
immediate family * * * but [had] refrained from giving [the
intoxicated person] a cause of action, we conclude it is proba-
ble it must have considered the matter and rejected any cause
of action for [the intoxicated person].” Id.In Fulmer, the court dismissed Miller’s reliance
on the Dram Shop Act as a basis for refusing to “create” a
common-law claim. 330 Or at 422. Among other things, the
court noted that it had previously held, in Wiener v. Gamma
Phi, ATO Frat., 258 Or 632, 638 n 2, 485 P2d 18 (1971), that
the legislature did not intend for the Dram Shop Act to be
the sole remedy against persons who had provided alcohol
to others. Fulmer, 330 Or at 424. The court recognized that
Miller and Ibach had reached different results with respect
to first party negligence claims, but it noted that Miller did
not expressly overrule Ibach. Id. at 424. The court also con-
cluded that Miller did not overrule Ibach sub silentio:
“We acknowledge, at the outset, that the court in Miller
went further than simply failing to mention Ibach—it affir-
matively asserted that this court never had recognized a
first-party claim in these circumstances—an assertion
that patently was inaccurate. Second, not only was Miller
incorrect in its characterization of the state of the law, the
court based its entire analysis concerning the plaintiff’s
first-party negligence claim on that faulty premise. Third,
12
Context suggests that, by “apparent legislative policy,” the court was refer-
ring to ORS 471.430 (1979) (making purchase and consumption of alcohol by
minors illegal) and the notion that it would be “inconsistent with apparent legis-
lative policy to reward the violator with a cause of action based upon [the] conduct
which the legislature has chosen to prohibit and penalize.” Miller, 288 Or at 279(applying similar reasoning to reject the plaintiff’s negligence per se claim).
834 Bonner v. American Golf Corp. of California
and finally, we note that the court in Miller predicated its
refusal to ‘create * * * a common law cause of action for the
benefit of the intoxicated person’ solely on its mistakenly
narrow reading of the Dram Shop Act [former ORS 30.730
(1977)]. * * * Accordingly, absent legislative or judicial abro-
gation, the common-law rule established in Ibach was in
effect when this court decided Miller.”
Id. (emphasis in original).13
The court then turned to Sager, where the court
cited Miller and again stated that “ ‘Oregon never has rec-
ognized a common law claim against alcohol providers in
favor of a person who suffers injury resulting from his or her
own intoxication.’ ” Fulmer, 330 Or at 425 (quoting Sager,
296 Or at 35). The Fulmer court explained that not only
was that statement inaccurate in light of the court’s ear-
lier decision in Ibach, it also was a dictum, because the sole
issue presented in Sager was whether former ORS 30.950
(1983), renumbered as ORS 471.565 (2001) (providing that
licensee who served alcohol to a visibly intoxicated patron
was liable for damages caused by that patron off the licens-
ee’s business premises) authorized a claim by an intoxicated
person against a person who served the person alcohol when
the person was visibly intoxicated. Id. In other words, the
plaintiff’s claim in Sager was based on negligence per se,
and therefore, the court stated, the court’s holding in that
case had no bearing on the issue presented in Fulmer. Id.Finally, the court rejected the defendant’s argu-
ment that the court should not “create”14 a negligence claim
13
The court in Fulmer did not remark on Miller’s apparent reliance on the fact
that the minor was engaged in illegal activity when she was injured or the fact that
the plaintiff in Miller had not alleged that she was served alcohol after she had
lost her sense of reason and volition. Those considerations distinguish Miller from
Ibach, and, thus, the court in Fulmer was incorrect to suggest that the court had
reached different results under similar circumstances in those cases. Nonetheless,
we agree with the court in Fulmer that the Miller court’s assertion that this court
“never previously recognized a common law cause of action in favor of a person who
suffers injury resulting from his or her own consumption of alcohol” was inaccu-
rate, because the plaintiff in Ibach was injured as a result of “her own consumption
of alcohol” and the court recognized her common-law cause of action in that case.
14
The court did not accept the defendants’ characterization of its recognition
of a common-law negligence cause of action in the circumstances of the case as
the “creation” of such a cause of action. Rather, as discussed, it understood that
such a common-law cause of action already existed, and, when referring to the
defendants’ arguments against the creation of a claim on behalf of an injured
Cite as 372 Or 814 (2024) 835
on behalf of an intoxicated patron because a person whose
voluntary act resulted in injury should be responsible for
that injury. Id. at 426. The court stated that defendants, “in
effect ask us to rule that plaintiff’s ‘participation’ in the ‘con-
dition’ that led to his injuries should lead to the dismissal
of a common-law claim in his favor—a ruling that would
revive by court decision the doctrines of contributory fault
and assumption of the risk that the legislature has abol-
ished.” Id. The court rejected that invitation, stating that
its decision did “not relieve intoxicated patrons of their own
responsibility to act reasonably to take care of themselves.”
Id. at 427. Rather, the court explained, “[u]nder the compar-
ative fault statute, a properly instructed jury may reduce
significantly or negate any recovery when the plaintiff’s
own unreasonable conduct has contributed to the plaintiff’s
injuries.”15 Id.
intoxicated person, it put the words “create” and “creation” in quotation marks.
Fulmer, 330 Or at 421, 422, 426.
15
The court was referring to the 1971 legislative adoption of the stat-
utory defense now referred to as “comparative fault,” under which the amount
of damages that a plaintiff can recover in a negligence action is reduced based
upon the degree to which the plaintiff’s own negligence contributed to cause the
injury. Or Laws 1971, ch 668, § 1 (enacting what is now ORS 31.600). Notably, the
year before the legislature’s adoption of comparative fault, this court was urged
to judicially abolish the common-law rule of contributory negligence and adopt
the doctrine of comparative fault. The court declined; it concluded that the issue
whether to abandon contributory negligence and adopt a form of comparative
fault was one of public policy and was the type of determination best made by
the legislature. Peterson v. Culp, 255 Or 269, 270, 465 P2d 876 (1970). With the
enactment of former ORS 18.470 (1971), renumbered as ORS 31.600 (2003), the
legislature made that determination.
Plaintiff in this case raises an argument that is the inverse of the defen-
dants’ argument in Fulmer, which the court rejected; he argues that applying
ORS 471.565(1) to bar an injured person’s claims when they are caused at least in
part by voluntary intoxication effectively bars recovery based on the person’s con-
tributory negligence. Plaintiff argues that interpreting ORS 471.565(1) in that
way effectively resurrects the doctrine of contributory negligence, which, as we
have explained, the legislature abandoned in 1971, and is contrary to the intent
of the legislature in enacting ORS 471.565(1). See Testimony, House Committee
on Judiciary, Subcommittee on Civil Law, SB 925, May 14, 2001, Ex E (writ-
ten statement of Bill Perry, Director of Government Relations for the Oregon
Restaurant Association) (“SB 925 is not a bill that changes Oregon’s compara-
tive negligence laws or revives a contributory negligence or assumption of risk
standard.”). However, the question whether our interpretation of ORS 471.565(1)
is consistent with the doctrine of comparative fault is outside the scope of our
inquiry here, which is concerned with whether that statute deprives a person of a
remedy in violation of Article I, section 10, and we leave that question for another
day.
836 Bonner v. American Golf Corp. of California
Ultimately, the court in Fulmer held that “absent
legislative or judicial abrogation, the common-law rule
established in Ibach was in effect when this court decided
Miller” and that “Ibach remain[ed] an accurate statement
of the common-law rule in Oregon.” Fulmer, 330 Or at 424,
425. It allowed the plaintiffs’ negligence claim to proceed.
b. Legislative reaction to Fulmer
The following year, in 2001, the Oregon Restaurant
Association sponsored SB 925 in reaction to the court’s deci-
sion in Fulmer. The association described the bill, in rele-
vant part, as “legislation to ensure that an establishment is
not liable if customers who consume alcohol under their own
free-will injure themselves.” Testimony, Senate Committee
on Judiciary, SB 925, Mar 13, 2001, Ex A (written state-
ment of Bill Perry, Director of Government Relations for the
Oregon Restaurant Association). Among other things, SB
925 provided that a person who voluntarily consumes alco-
hol does not have a common-law cause of action in negligence
or negligence per se against the server of the alcohol, even if
the person was visibly intoxicated when served.16 That part
of SB 925 was codified at ORS 471.565(1).
16
SB 925 also was prompted, in part, by this court’s decision in Grady
v. Cedar Side Inn, Inc., 330 Or 42, 997 P2d 197 (2000), abrogated in part by
Deckard v. Bunch, 358 Or 754, 370 P3d 478 (2016), which was decided four months
before the court decided Fulmer. In Grady, the court held that a plaintiff who
was injured by the actions of an intoxicated person may bring a common-law
negligence action against the person or entity who furnished the alcohol to the
intoxicated person, even if the plaintiff contributed to the intoxication by pur-
chasing the alcohol for the intoxicated person. Id. at 50. The bill abrogated the
court’s decision in Grady by providing that a plaintiff does not have a cause of
action against a person who served alcohol to a visibly intoxicated person for
injuries caused by the intoxicated person unless the plaintiff proves by clear and
convincing evidence, that, among other things, the plaintiff did not contribute
to the person’s intoxication. That provision was codified at ORS 471.565(2). In
addition, during the legislative process, legislators amended SB 925 to add a
second sentence to the provision addressing the court’s decision in Fulmer, which
was designed to leave intact the part of the court’s holding in Fulmer address-
ing premises liability. Tape Recording, House Committee on Judiciary, SB 925A,
May 23, 2001, Tape 69, Side A (statement of Bill Perry, Director of Government
Relations for the Oregon Restaurant Association). In Fulmer, the court had found
that the plaintiff had pleaded facts sufficient to establish a common-law claim for
premises liability because, “it is well-established in Oregon that a proprietor’s
obligation to make its premises reasonably safe for its invitees includes taking
into account the use to which the premises are put” and “one of the primary pur-
poses of defendants’ invitation to their tavern is the consumption of alcohol by
customers, [so] defendants [are] obligated to make their premises reasonably safe
Cite as 372 Or 814 (2024) 837
The legislative history of ORS 471.565(1) reveals
that the legislature’s express purpose in enacting that pro-
vision was to eliminate the common-law cause of action
that it understood the court to have recognized in Fulmer.
In testimony before the House Judiciary Committee, a rep-
resentative of the Oregon Restaurant Association told the
committee that “[t]he court in [Fulmer] recognized that the
legislature has the power to abolish rules of the common law
by statute and that is what SB 925 seeks to do.”17 Testimony,
House Committee on Judiciary, SB 925, May 14, 2001, Ex E
(written statement of Bill Perry, Director of Government
Relations for the Oregon Restaurant Association). During a
hearing of the House Judiciary Committee, members of the
committee discussed the effect of the proposed statute on
first-party claims:
“REPRESENTATIVE V. WALKER: * * * [S]o here’s
the scenario that I’ve got in my mind. You’re in a bar drink-
ing. The bartender does not cut you off and you are visibly
intoxicated, which I think there is some liability there. But
anyway, you get in your own car and you drive home and
you smash your car and you die. Is—your estate cannot sue
the bar.
“REPRESENTATIVE SHETTERLY: Right.
“REPRESENTATIVE V. WALKER: Is that what this
bill would be?
“REPRESENTATIVE SHETTERLY: That would be
the effect of it.
“REPRESENTATIVE V. WALKER: So there’s no lia-
bility on the part of the bartender to stop serving you alco-
hol at some point?
“REPRESENTATIVE SHETTERLY: Mr. Chair?
“CHAIR WILLIAMS: Yes.
in light of that purpose.” Id. at 429. The second sentence of ORS 471.565(1) thus
clarifies that that provision does not apply to claims for relief that are based on
negligent or intentional acts other than the service of alcohol to a visibly intoxi-
cated patron or guest.
17
See Fulmer, 330 Or at 424 (noting that “the legislature may abrogate rules
of the common law by statute”). Of course, those changes must still comply with
Article I, section 10.
838 Bonner v. American Golf Corp. of California
“REPRESENTATIVE SHETTERLY: I would bet that
in most cases this is not a problem, because I would expect
that the bar owner is going to be a lot more concerned about
your risk of harm to * * * third persons. So this is not going
to * * * to create an incentive for bar owners to serve people
in an intoxicated state.
“REPRESENTATIVE V. WALKER: Right.
“REPRESENTATIVE SHETTERLY: And clearly it’s
not, because the greater risk is they’re going to go out and
hurt somebody else, in which case then the bar owner is
still going to be liable. But I think to the extent that this
recognizes some element of personal responsibility for dam-
ages that you cause to yourself through your own voluntary
intoxication, I think it’s a fair balancing.”
Tape Recording, House Committee on Judiciary, SB 925,
May 23, 2001, Tape 69, Side A. The staff measure summaries
for the bill and a legal analysis accompanying the Oregon
Restaurant Association’s statement support the committee
members’ understanding of the bill’s purpose and effect. See
Exhibit A, Senate Committee on Judiciary, SB 925, Mar 13,
2001 (legal analysis by Mills & McMillin, PC, accompanying
statement of Bill Perry, Director of Government Relations
for the Oregon Restaurant Association); Staff Measure
Summary, House Committee on Judiciary, SB 925, May 25,
2001; Staff Measure Summary, Senate Committee on
Judiciary, SB 925, Mar 19, 2001.
Thus, the legislative history shows that ORS
471.565(1) was intended to eliminate a cause of action in
negligence that the legislature understood to have been cre-
ated by Fulmer, a claim by or on behalf of a person who was
injured as a result of the person’s voluntary consumption
of alcohol, against the person or entity who served the per-
son the alcohol, even if the person was served when visibly
intoxicated.
C. Did the Legislature, in Enacting ORS 471.565(1),
Eliminate a Remedy That the Common Law Had
Recognized?
In deciding whether a statute violates the rem-
edy clause, Horton asks us to “consider the extent to which
the legislature has departed from the common-law model,
Cite as 372 Or 814 (2024) 839
measured against its reasons for doing so.” 359 Or at 220.
As we have demonstrated, the legislature believed that it
was departing from the common-law model set out in Fulmer
when it enacted ORS 471.565(1), and its reason for doing so
was a concern that bar and restaurant owners and servers
were bearing liability for patrons’ and guests’ voluntary con-
sumption of alcohol. We turn to examine whether and to what
extent ORS 471.565(1) departed from the common-law model.
1. Defendants’ argument that the court in Fulmer cre-
ated a new cause of action
As we have stated, ORS 471.565(1) was intended to
and does bar a negligence claim against a server of alcohol
based on a person’s voluntary consumption of alcohol, even if
the person was visibly intoxicated when served. Defendants,
like the legislature that enacted ORS 471.565(1), under-
stand Fulmer to have created a first-party negligence claim
based on a person’s voluntary consumption of alcohol, and
they argue that this court should not treat that claim as
part of the “common-law model” in determining whether the
statute eliminating such a claim violates the remedy clause,
because the right to a remedy for such a claim was not firmly
rooted in the common law when the statute was enacted.
Specifically, defendants argue that, notwithstand-
ing the court’s conclusion to the contrary in Fulmer, the
court had never recognized a cause of action based on the
plaintiff’s voluntary intoxication before it decided Fulmer.
They contend that, in Ibach, the court recognized that, if a
plaintiff “voluntarily participates in the wrongful act and
by such participation contributes to the cause of the damage
sustained, an action cannot be maintained.” 148 Or at 98.
Similarly, they note that the court in Ibach had stated that
a woman who had been plied with alcohol “until intoxication
is produced” could maintain an action against the person
who furnished the alcohol, “unless by voluntary participa-
tion therein she could herself be said to be at fault.” Id. at
102-03. But, according to defendants, that is not how the
court described what happened in Ibach:
“It is alleged in the amended complaint * * * that after dece-
dent lost her sense of reason and volition, defendant contin-
ued to administer liquor to her. If decedent had survived
840 Bonner v. American Golf Corp. of California
such an indignity, she would have had a right of action
against defendant for such damages as she sustained
thereby.”
Id. at 103 (emphasis added). In other words, defendants
contend that the court in Ibach held that a plaintiff had
a common-law cause of action for injuries sustained as a
result of intoxication only if the plaintiff’s consumption of
alcohol was involuntary. Only in such a case must the person
“imposing the draught upon him * * * answer in damages
for the injury that ensues.” Id. at 104 (citation and internal
quotation marks omitted).
Defendants argue that, unlike in Ibach, the plain-
tiff’s consumption of alcohol in Fulmer was voluntary, and,
thus, in allowing a person harmed by his or her own vol-
untary intoxication to pursue claims for injuries caused by
that intoxication, the court in Fulmer recognized a cause
of action that had not previously existed. It follows, they
argue, that the remedy that the court in Fulmer recognized
was not deeply rooted in the common law, and, in enacting
ORS 471.565(1) to eliminate that remedy only a year later,
the legislature merely restored the “traditional” common
law. For that reason, defendant’s contend, that statute does
not violate the remedy clause of Article I, section 10, of the
Oregon Constitution.
Defendants are correct that the court in Ibach
recognized a cause of action against a server of alcohol for
injuries sustained as a result of intoxication only when the
plaintiff’s conduct was involuntary, but defendant’s argu-
ment that Fulmer involved the plaintiff’s voluntary intoxica-
tion is incorrect. As noted, the court in Fulmer stated that
the plaintiffs’ common-law negligence claim alleged that
the defendants were negligent in “causing plaintiff * * * to
become poisoned with alcohol, to lose his sense of reason and
volition; and * * * knowing plaintiff * * * was in such condition
and visibly intoxicated, continu[ing] to ply plaintiff * * * with
alcohol[.]” 330 Or at 419 (emphasis added; internal quotation
marks omitted). In other words, the plaintiffs’ allegation of
negligence in Fulmer was identical in material respect to
the allegation that the court in Ibach found to have stated
a cause of action. Thus, as in Ibach, the plaintiffs in Fulmer
Cite as 372 Or 814 (2024) 841
alleged that the husband’s consumption of alcohol, leading
to his injury, was involuntary.
Nonetheless, we recognize that the court in Fulmer
described the issue presented in the case as “whether a
common-law negligence claim exists in favor of an intoxicated
person who suffered injury on the premises of an establish-
ment against the server or establishment that supplied alcohol
to the injured person when the person was visibly intoxicated.”
Id. at 419 (emphasis added). Likewise, in conclusion, the court
stated, “We hold that a plaintiff may bring a common-law
negligence action against a person or entity that negligently
supplied alcohol to the plaintiff when he or she already was
visibly intoxicated and the plaintiff suffered injuries caused
by that negligent conduct.” Id. at 427 (emphasis added). As we
will explain, those statements sweep more broadly than was
required of the court given the facts of the case.
The court in Fulmer had expressly emphasized (1)
that the court’s holding in Ibach was based on its finding
that the defendant had served the plaintiff alcohol after she
had “lost her sense of reason and volition” and (2) that the
plaintiffs in Fulmer had alleged that the husband also had
been served alcohol after he had “los[t] his sense of reason
and volition.” Thus, Ibach required, and the complaint in
Fulmer alleged, that the plaintiff’s consumption of alcohol
was not voluntary; the plaintiff in Fulmer had been served
alcohol after he had, in the words of the court in Ibach,
“passed the crucial period of transition from conscious voli-
tion” to a loss of reason and volition. Ibach, 148 Or at 108.
The plaintiff in Fulmer therefore had a cause of action in
negligence against the server under Ibach.
However, in discussing its reasoning, Fulmer, rather
than referring to the voluntariness of a person’s consump-
tion of alcohol, referred to the person’s “visible intoxica-
tion.” As we have stated, neither the legislature nor this
court has ever defined the term “visible intoxication,” and,
in common parlance, that term does not necessarily encom-
pass the loss of a sense of reason and volition that the court
described in Ibach.18 Thus, in stating that liability could
18
However, it should go without saying that a person who has lost the sense
of reason and volition will show signs of visible intoxication.
842 Bonner v. American Golf Corp. of California
be imposed based solely on the service of alcohol to a “vis-
ibly intoxicated” person—and thereby including circum-
stances in which the person’s consumption of alcohol may be
voluntary—the Fulmer court’s description of its holding
encompasses circumstances not presented by the facts of the
case or justified by the court’s earlier case law.19
Nonetheless, we do not see Fulmer as announcing a
new common-law standard. Indeed, as noted, the court pur-
ported to be following Ibach. Rather, it appears to us that the
court was attempting to accommodate the fact that, since
Ibach had been decided, the legislature had abrogated the
doctrines of contributory negligence and assumption of risk
and replaced them with a comparative fault scheme that
weighed the extent to which a person’s own negligence con-
tributed to the injury. Thus, in referring to “visible” rather
than “voluntary” intoxication, the court in Fulmer seemed to
be suggesting that, with the adoption of comparative fault,
the distinction between voluntary and involuntary intoxica-
tion was less important. For those reasons, we understand
Fulmer simply as recognizing that the statutory landscape
had changed since the court first recognized a first-party
negligence claim based on a plaintiff’s consumption of alco-
hol, rather than as breaking new ground and creating a new
common-law cause of action.
2. Application of Horton to ORS 471.565(1)
As we mentioned earlier, the court explained in
Horton that legislation that affects a person’s right to a rem-
edy under Article I, section 10, generally falls into one of
three categories, and the constitutionality of the legislation
in each category depends on the extent to which the legisla-
tion alters an existing duty, eliminates an existing remedy,
provides a substantial alternative remedy including, among
other things, by providing a quid pro quo, or was intended
19
We also note that, in concluding that the plaintiffs had alleged facts that
stated a viable negligence claim, this court did not necessarily endorse all of the
plaintiff’s allegations of negligence. Rather, the court held that the trial court
erred in granting the defendant’s motion to dismiss because the plaintiffs had
alleged that the defendant’s service of alcohol to the plaintiff “caus[ed the] plain-
tiff * * * to lose his sense of reason and volition; and [that,] * * * knowing plaintiff
* * * was in such condition * * * [the defendant] continu[ed] to ply [the] plaintiff
* * * with alcohol,” an allegation that gave rise to a viable claim under Ibach.
Fulmer, 330 Or at 419 (internal quotation marks omitted).
Cite as 372 Or 814 (2024) 843
to protect an interest that no longer needs to be protected.
The court stated in Horton that those categories cannot be
applied mechanically; rather, we must consider the extent
to which the legislature has departed from the common law.
359 Or at 220.
We turn to consider whether or how Horton applies
to ORS 471.565(1). Once again, that statute bars a claim
by a person who is injured as a result of the voluntary con-
sumption of alcohol, even if the person was visibly intoxi-
cated when served, and nothing in that statute eliminates
the duty that has existed since at least the early twenti-
eth century not to serve alcohol to a visibly intoxicated per-
son. Thus, the question before the court is whether ORS
471.565(1) eliminated a common-law remedy for a violation
of that duty in that circumstance.
As we have explained, this court has never held
that a person who contributes to their own intoxication by
voluntarily consuming alcohol, and is injured as a result,
has a common-law right to recover in negligence from the
person who served the alcohol. Therefore, to the extent that
the term “visibly intoxicated” in ORS 471.565(1) encom-
passes something less than having lost the sense of reason
and volition, which would render the person’s intoxication
involuntary, that statute does not eliminate a remedy for a
breach of an existing duty. It follows that, in that situation,
the statute does not fall into any of the three categories that
the court identified in Horton, and it does not violate the
remedy clause of Article I, section 10.
However, a different question would be presented
with respect to a server who serves alcohol to a “visibly
intoxicated” person who has reached the point at which
further consumption is involuntary because the person has
lost the sense of reason and volition. That is so because a
server continues to have a legal duty not to serve alcohol to
visibly intoxicated patrons or guests, and, at the time that
ORS 471.565(1) was enacted, a person whose consumption
of alcohol can be said to be involuntary did have an existing
common-law negligence claim against the server who pro-
vided the alcohol, for injuries sustained as a result of the
person’s intoxication. For that reason, if ORS 471.565(1)
844 Bonner v. American Golf Corp. of California
were to be applied to preclude a cause of action in negligence
on behalf of an injured, intoxicated patron or guest in such a
situation, it would fall into the first category that the court
in Horton identified—encompassing statutes that deny
a remedy to a person injured as a result of a breach of an
existing common-law duty—and it would violate Article I,
section 10, of the Oregon Constitution.
It is a maxim of statutory construction that, when
a statute is capable of more than one plausible interpre-
tation, the court will avoid an interpretation that raises a
constitutional problem. State v. Stoneman, 323 Or 536, 540
n 5, 920 P2d 535 (1996). We therefore hold that, for pur-
poses of ORS 471.565(1), when a person has lost the “sense
of reason and volition,” the person does not “voluntarily con-
sume[ ] alcoholic beverages.” So interpreted, the statute is
constitutional.
III. CONCLUSION
For the foregoing reasons, we conclude that ORS
471.565(1) does not deny a remedy in violation of Article I,
section 10, of the Oregon Constitution, to a plaintiff who has
voluntarily consumed alcohol, for injuries sustained by the
plaintiff resulting from the plaintiff’s intoxication, even if
the plaintiff was visibly intoxicated when served the alcohol,
so long as the server did not provide alcohol to the plaintiff
after the point at which the plaintiff had lost the sense of
reason and volition and the plaintiff’s consumption of alco-
hol can no longer be said to be voluntary.
The certified question is answered.