Chapman v. Mayfield , 2014 Ore. App. LEXIS 775 ( 2014 )

LAGESEN, J.

Carroll Mayfield went on a drinking binge, which included a stop at the Eagles Lodge #2151 Gresham. There, he was served whiskey and beer over the course of several hours. Mayfield later visited the Gresham Players Club, where he shot and injured plaintiffs Jason Chapman and Richard Gilbertson. Plaintiffs sued Mayfield, the Eagles Lodge, the Gresham Players Club, and Mayfield’s friend Grant Baughman, asserting claims for common-law negligence and seeking damages resulting from the shooting. With respect to the Eagles Lodge (hereinafter “defendant”¹), plaintiffs alleged that defendant negligently served Mayfield while he was visibly intoxicated, leading to the shooting. The trial court granted summary judgment to defendant on the ground that plaintiffs had not presented evidence sufficient to create a factual dispute as to whether Mayfield’s act of shooting plaintiffs was the foreseeable result of defendant’s act of serving alcohol to Mayfield while he was visibly intoxicated. We affirm.

On review of a trial court’s grant of summary judgment, “we view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to *** the party opposing the motion.” Jones v. General Motors Corp., 325 Or 404, 408, 939 P2d 608 (1997). Summary judgment is proper only “if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 638, 20 P3d 180 (2001) (citing ORCP 47 C). “A genuine issue of material fact is lacking when ‘no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.’” Id. at 638-39 (quoting ORCP 47 C). Because plaintiffs would have had the burden of proof at trial, to withstand defendant’s motion for summary judgment, plaintiffs had the burden of producing admissible evidence establishing “facts that by themselves or by their reasonable inferences could cause a reasonable juror” to find each element of plaintiffs’ claim. O’Dee v. Tri-County Metropolitan Trans. Dist., 212 Or App 456, 460-61, 463, 157 P3d 1272 (2007); see Brant v. Tri-Met, 230 Or App 97, 103, 213 P3d 869 (2009) (on a defendant’s motion for summary judgment in a negligence case based on the standard of care, “the question is whether [the] plaintiff produced sufficient evidence to allow a jury to find that the [defendant] was negligent”); see also Hagler v. Coastal Farm Holdings, Inc., 354 Or 132, 140, 144-47, 309 P3d 1073 (2013) (discussing a plaintiffs evidentiary burden to avoid summary judgment in a negligence case).

Under Oregon law, a tavern owner that negligently serves alcohol to a visibly intoxicated person may be liable for injuries to a third party resulting from the visibly intoxicated person’s violent conduct, if it was foreseeable to the tavern owner that serving the person would create an unreasonable risk of violent conduct. Moore v. Willis, 307 Or 254, 767 P2d 62 (1988); Hawkins v. Conklin, 307 Or 262, 768 P2d 66 (1988); Sparks v. Warren, 122 Or App 136, 856 P2d 337 (1993). “The fact that someone is visibly intoxicated ***, standing alone, does not make it foreseeable that serving alcohol to the person creates an unreasonable risk that the person will become violent.” Moore, 307 Or at 260.

Rather, to establish foreseeability, a plaintiff must first plead and then prove specific facts — -beyond the fact of visible intoxication — from which an objectively reasonable factfinder could find or reasonably infer that the tavern owner who served the visibly intoxicated person knew or had reason to know that serving that person created the unreasonable risk that that person would become violent. See id. at 260-61 (“[b]ecause there [were] no allegations of facts from which a factfinder could infer that [the particular] defendants had reason to know that serving alcohol to [the visibly intoxicated persons at issue] would cause them to become violent,” the plaintiff’s allegations were insufficient to establish foreseeability); Hawkins, 307 Or at 269 (the plaintiffs allegations were insufficient to establish foreseeability where the plaintiff did not allege facts showing “that the defendant knew about the [visibly intoxicated person’s] threats and unruly conduct or that the defendant otherwise had reason to know of [the visibly intoxicated person’s] violent propensities at the time the defendant served alcohol to [the visibly intoxicated person]”); Sparks, 122 Or App at 139-40 (the plaintiffs evidence was insufficient to establish foreseeability at the summary judgment stage of the case where the plaintiff presented “no evidence” showing that the defendants knew or should have known that if they negligently failed to prohibit consumption of alcohol by minors, “underage drinkers or [the underage drinker at issue] would become violent”). As the Supreme Court recognized in Moore, a plaintiff can do that by proving facts showing that a tavern owner’s general observations and experiences “in the business of serving alcohol” gave that tavern owner reason to know that violence would be a foreseeable result of serving alcohol to a visibly intoxicated person. 307 Or at 260-61. Alternatively, a plaintiff can establish foreseeability by proving facts showing that the tavern owner knew or had reason to know that the visibly intoxicated person in question had a propensity for violence that could be incited by further drinking. Hawkins, 307 Or at 269.

Here, in opposing defendant’s summary judgment motion, plaintiffs did not present evidence that would permit a reasonable factfinder to find or infer the facts that Moore requires. At this point, it is undisputed that defendant did not know or have reason to know any specific facts about Mayfield that would make his violent conduct foreseeable. Instead, plaintiffs’ theory of foreseeability, as alleged in the complaint, is that defendant had reason to know that serving Mayfield while he was visibly intoxicated created an unreasonable risk of violence “because those who are in the business of serving alcohol know that visibly intoxicated drinkers frequently become violent.” The only evidence that plaintiffs submitted in support of that “reason-to-know” theory of foreseeability consists of (1) a declaration from Dr. Brady — a medical doctor with expertise in “alcohol physiology and effects” — stating that he could testify to “a degree of reasonable medical certainty” to, among other things, the facts that “[i]ntoxicated drinkers frequently become violent,” and “[t]he link between visible intoxication and increased levels of violence has been well-established in the medical, scientific, and lay literature for decades, if not more than a century”;² and (2) the deposition testimony of a bartender from a different bar down the street that, when a bar patron becomes violent, “[t] hat’s the alcohol talking.” But that evidence is insufficient to permit a rational factfinder to make the finding that Moore requires — in this instance, a finding that defendant, by virtue of the fact that it was in the business of serving alcohol, was on notice that serving a visibly intoxicated person created an unreasonable risk that the person would become violent. See, e.g., Stewart v. Kids Incorporated of Dallas, OR, 245 Or App 267, 283, 261 P3d 1272 (2011), rev dismissed as improvidently allowed, 353 Or 104 (2012) (equating requirement that a plaintiff demonstrate that the defendant “knew or should have known” of a risk of harm with a requirement that a plaintiff demonstrate that the defendant was on notice of the risk of harm).

Viewing the evidence and the reasonable inferences therefrom in the light most favorable to plaintiffs, and resolving any conflicts in the evidence in favor of plaintiffs, the following story emerges from the summary judgment record in this case:

• Prior to the night in question, defendant had served visibly intoxicated patrons.

• Prior to the night in question, defendant had not experienced any incidents of violence involving persons to whom defendant served alcohol.

• Defendant’s clientele consists of “low-key, very friendly people.”

• Mayfield had not been to defendant prior to the night in question.

• Defendant served Mayfield while he was visibly intoxicated.

• Medical professionals with expertise in alcohol physiology and effects have recognized a link between intoxication and violence, and are aware that “intoxicated drinkers frequently become violent.”

• A variety of “medical, scientific, and lay literature” has long reported on “[t]he link between visible intoxication and increased levels of violence.”

• A bartender in a different bar down the street from defendant has observed that violence occurs in his bar “once a month max” and that when it does, “[t] hat’s the alcohol talking.”

Those facts do not show directly that defendant knew that serving alcohol to Mayfield while he was visibly intoxicated created an unreasonable risk that he would behave violently. Accordingly, under Moore, the question is whether it rationally can be inferred from those facts that defendant should have known — that is, was on notice of the fact — that serving Mayfield while he was visibly intoxicated created the unreasonable risk that he would become violent. It cannot.

We have adopted the standard applied by the federal courts to determine whether a particular inference is a reasonable one or is, instead, impermissible speculation. See State v. Guckert, 260 Or App 50, 56, 316 P3d 373 (2013), rev den, 354 Or 840 (2014); State v. Bivins, 191 Or App 460, 467, 83 P3d 379 (2004). Under that standard:

“The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts.”

Bivins, 191 Or App at 467 (quoting Tose v. First Pennsylvania Bank, N.A., 648 F2d 879, 895 (3rd Cir), cert den, 454 US 893 (1981)) (internal quotation marks omitted).

Here, the conclusion that defendant should have known that serving Mayfield while he was visibly intoxicated would lead to the unreasonable risk that Mayfield would act violently is not a rational inference because it does not follow, as a matter of logical probability, from those facts that the summary judgment record establishes. To reach that conclusion from those facts would require a factfinder to make too many intermediate inferences and assumptions, none of which logically follows from the facts established by the summary judgment record. See Bivins, 191 Or App at 468 (explaining that evidence is insufficient to support an inference if it “requires the stacking of inferences to the point of speculation”). Specifically, a factfinder would have to infer that (1) persons in the business of serving alcohol generally know what medical doctors who are experts in alcohol physiology and effects know about the connection between intoxication and violence; (2) the unspecified “medical, scientific, and lay literature” documenting the connection between intoxication and violence is the type of literature that would be read by persons in the business of selling alcohol;³ and (3) the operations and clientele of the bar where the other bartender observed a connection between intoxication and violence were similar enough to the operations and clientele of bars generally, or to the operations and clientele of defendant specifically, that that bartender’s experiences and observations can be generalized to defendant and/or other bars.

On this record, those intermediate inferences represent guesswork. It is not logical to assume that people in the business of selling alcohol know what medical experts on alcohol physiology and effects know about the connection between alcohol and violence, especially on a record like this one, where the uncontroverted evidence shows that defendant did not previously have the opportunity to observe that connection firsthand. It also is not logical to assume that the mere existence of unidentified literature addressing the connection between alcohol and violence means that that literature is of the ilk that people in the business of selling alcohol ordinarily would read — especially when some of that literature is directed toward the fields of medicine and science, and the rest is unidentified, leaving the factfinder to speculate about what that literature is and who is likely to have read it. And it is not logical to assume that the experiences of one bar necessarily generalize to other bars, absent evidence showing how that one bar’s operations and clientele are similar to those of other bars.

It may not have taken much additional evidence to convert those unfounded assumptions into permissible inferences. However, plaintiffs did not supply that evidence here, and we cannot supply it for them by speculating that such evidence might exist. As a result, on this record, it cannot be found or reasonably inferred that defendant knew, or had reason to know, from its experience or otherwise, that serving Mayfield while he was visibly intoxicated created an unreasonable risk that Mayfield would become violent.

The dissent reaches a different conclusion. In so doing, the dissent errs in three respects. First, the dissent errs to the extent that it implies that because Moore addressed what facts a plaintiff must plead in order to establish foreseeability in a case like this one, the standard for foreseeability established by Moore does not apply at the summary judgment stage of the case. 263 Or App at 548-49 (Egan, J., dissenting). But if a plaintiff must plead certain facts in order to sufficiently allege foreseeability so as to state a claim for relief, the plaintiff ultimately must prove those facts in order to establish foreseeability. The facts required to state a claim for relief are the facts that must be proved to obtain relief. See Davis v. Tyee Industries, Inc., 295 Or 467, 479, 668 P2d 1186 (1983) (under ORCP 18 A, “whatever the theory of recovery, facts must be alleged which, if proved, will establish the right to recover” (emphasis added)); Moore, 307 Or at 259 n 7 (same; quoting Davis, 295 Or at 479). And if a plaintiff must prove particular facts at trial to establish foreseeability, the plaintiff must, at the summary judgment stage of the case, come forward with sufficient evidence to permit a jury to find those particular facts in order to avoid summary judgment. See O’Dee, 212 Or App at 460-61. That means that, to avoid summary judgment in this case, plaintiffs were required to present sufficient evidence to permit a jury to find specific facts demonstrating that defendant knew or was on notice of the fact that serving alcohol to Mayfield while he was visibly intoxicated created an unreasonable risk of violence. Given the allegations in the complaint, plaintiffs were required to put on evidence sufficient to permit a jury to find that defendant was on notice that serving Mayfield while he was visibly intoxicated created an unreasonable risk of violence by virtue of the fact that defendant was in the business of selling alcohol. Plaintiffs did not do so.

Next, the dissent invokes the principle that questions of foreseeability “‘ordinarily’” are jury questions, unless a case involves the “‘outer margins of debatable conduct,”’ and argues that we are erroneously disregarding that principle. 263 Or App at 550 (Egan, J., dissenting) (quoting Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 12, 734 P2d 1326 (1987)). But that principle — that foreseeability questions ordinarily present jury questions — is not a rule of law, it is a rule of thumb. Moreover, it is a rule of thumb that affords the least guidance where, as here, the Supreme Court has articulated with some precision what facts a plaintiff must prove in order to establish foreseeability. In those instances in which the Supreme Court has identified what facts must be proved in order to establish foreseeability, a court’s role in reviewing a grant of summary judgment is to assess whether the evidence presented by the plaintiff is legally sufficient to permit a factfinder to find those facts that the Supreme Court has said must be found. See Buchler v. Oregon Corrections Div., 316 Or 499, 509, 853 P2d 798 (1993) (court’s role is to “determine[] as a matter of law whether the facts alleged or the evidence of them is sufficient to support relief’). That is what we did previously in Sparks, and that is what we have done here. See 122 Or App at 139-40 (affirming grant of summary judgment to the defendant fraternity because the plaintiff, who alleged that he was assaulted by an underage, intoxicated member, “did not present evidence sufficient to create an inference that [the] defendant’s conduct created a foreseeable risk of the kind of injury that occurred,” as required by Moore).

Finally, the dissent asserts that the evidence presented by plaintiffs is sufficient to create a factual issue on foreseeability and suggests that we have reached a contrary result by impermissibly “elevat[ing] plaintiffs’ burden.” 263 Or App at 546 (Egan, J., dissenting). But we have not elevated plaintiffs’ burden; we have assessed whether the evidence is legally sufficient to permit a jury to find the particular facts that Moore says must be found. That is our charge on review of a grant of a motion for summary judgment. Buchler, 316 Or at 509; O’Dee, 212 Or App at 460-61. And, as explained above, on this sparse evidentiary record, the conclusion that defendant was on notice that serving Mayfield while he was visibly intoxicated created an unreasonable risk of violence would be nothing more than a guess. As a result, plaintiffs’ evidence was insufficient to establish that defendant knew or should have known that serving Mayfield while he was visibly intoxicated created an unreasonable risk that Mayfield would act violently, and the trial court correctly granted summary judgment to defendant.

Affirmed.

1 The Eagles Lodge is the only defendant that is a party to this appeal.

2 Although defendant argues otherwise, the transcript reflects that the trial court struck one sentence in the expert’s declaration for lack of foundation. In that sentence, the expert opined, “Those who are in the business of serving alcohol know that visibly intoxicated persons frequently become violent.” On appeal, the parties disagree both as to the scope of the trial court’s evidentiary ruling and its correctness. Defendant argues that the entirety of the paragraph in the expert’s declaration addressing the link between alcohol and violence was inadmissible; plaintiffs argue — in their reply brief only — that the trial court erred by striking that one sentence. However, neither party has assigned error to the trial court’s evidentiary ruling in the manner required by our rules, ORAP 5.45 (governing assignments of error) and ORAP 5.57 (governing cross-assignments of error). For that reason, we decline to review the correctness of the trial court’s ruling on the motion to strike, and review the trial court’s ruling on summary judgment on a record that excludes the stricken portion of the expert’s affidavit and includes the portions of the affidavit that were not stricken. See, e.g., State v. Drummond, 137 Or App 168, 173, 903 P2d 925 (1995) (declining to consider arguments regarding admissibility of evidence absent separate assignment of error addressing trial court’s evidentiary ruling); Oregon Occupational Safety v. Marv’s Utility, 128 Or App 204, 209, 875 P2d 531 (1994) (same, in agency context).

3 The dissent observes — correctly'—that in the time since the Supreme Court decided Moore, the legislature has mandated an educational program for Oregon alcohol servers that has greatly increased awareness of the dangers of the over-consumption of alcohol. The dissent further observes that the Oregon Liquor Control Commission (OLCC) course addresses the link between “irresponsible drinking” and “violence and violent crime,” as well as “specific techniques for cutting off intoxicated patrons in order to avoid fights.” 263 Or App at 542-43 (Egan, J., dissenting). However, plaintiffs did not submit any evidence of the existence or content of that OLCC curriculum in this case. As a result, until the Supreme Court revisits its formulation of foreseeability in Moore in the light of the legislative changes identified by the dissent, the dissent’s discussion of the content of that curriculum has no bearing on the issue that this case presents: whether plaintiffs’ evidence was sufficient to establish that defendant knew or should have known that serving Mayfield while he was visibly intoxicated created an unreasonable risk that Mayfield would act violently.