Plattner v. VIP's Industries, Inc. , 95 Or. App. 351 ( 1989 )

768 P.2d 440 (1989) 95 Or.App. 351

Theresa L. PLATTNER, As Personal Representative of the Estate of Michael Steven Plattner, Deceased, Appellant,
v.
VIP's INDUSTRIES, INC., an Oregon Corporation, Dba T & R Restaurant and Lounge, Respondent.

88-0089; CA A49348.

Court of Appeals of Oregon.

Argued and Submitted January 13, 1989. Decided February 22, 1989. Reconsideration Denied April 21, 1989.

Melvin T. Rollema, Albany, argued the cause and filed the brief for appellant.

Lann D. Leslie, Eugene, argued the cause for respondent. With him on the brief were George A. Burgott and Atherly, Butler & Burgott, Eugene.

Before GRABER, P.J., and RIGGS and EDMONDS, JJ.

EDMONDS, Judge.

Plaintiff appeals after the trial court dismissed her complaint for failure to state ultimate facts sufficient to constitute a claim. ORCP 21 A. We affirm.

Plaintiff alleged that her decedent was a patron of defendant's commercial liquor establishment and that it served him alcoholic beverages while the decedent was visibly intoxicated. After leaving defendant's lounge, he lost control of his vehicle and collided with a tree, resulting in his death. Plaintiff's wrongful death claim is based on allegations of common law negligence. We assume the facts pled to be true. Sager v. McClenden, 296 Or. 33, 35, 672 P.2d 697 (1983).

Oregon has never recognized a common law claim against an alcohol provider in favor of a person who suffers injury from his or her own intoxication. Sager v. McClenden, supra, 296 Or. at 35, 672 P.2d 697; Miller v. City of Portland, 288 Or. 271, 279, 604 P.2d 1261 (1980). Plaintiff urges us, relying on Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987), to do so now, arguing that an alcohol provider's conduct in serving a visibly intoxicated person creates a foreseeable risk of harm to that person and is negligence, which a jury is entitled to compare to the patron's negligence.^[1]

Under similar facts, the Supreme Court held in Sager v. McClenden, supra, that ORS 30.950^[2] does not create a statutory tort claim in favor of visibly intoxicated patrons injured off premises against liquor licensees who serve them. 296 Or. at 40, 672 P.2d 697. In Miller v. City of Portland, supra, the court ruled that it was inappropriate to create a common law action for the benefit of an intoxicated minor because former ORS 30.730^[3] created a cause of action only on behalf of the inebriate's immediate family. The court reasoned that, in enacting former ORS 30.730, the legislature must have considered and rejected any cause of action on behalf of the minor. 288 Or. at 280, 604 P.2d 1261.

The legislature intended ORS 30.950, former ORS 30.955 and ORS 30.960 to replace ORS 30.730 which was repealed in 1979. The legislative history of ORS 30.950 indicates that its purpose is to confine the judicially created liability of alcohol servers to third parties. Hawkins v. Conklin, 307 Or. 262, 268, 767 P.2d 66 (1988); Gattman v. Favro, 306 Or. 11, 19, 757 P.2d 402 (1988); Sager v. McClenden, supra, 296 Or. at 37-40, 672 P.2d 697.

It is presumed that, in enacting subsequent legislation, the legislature was aware of the policy underlying earlier enactments. State v. Waterhouse, 209 Or. 424, 436, 307 P.2d 327 (1957). Had the legislature intended ORS 30.950 to permit actions by patrons, it could have expressly done so; instead, it chose to limit the liability of the server to third parties only. We conclude that limitation applies to common law claims as well as to statutory claims.

AFFIRMED.

NOTES

[1] Under Fazzolari, in order to survive a motion to dismiss, a negligence complaint must allege facts from which a factfinder could determine:

"(1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that defendant's conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiff's harm, and, (5) that plaintiff, was within the class of persons and plaintiff's injury was within the general type of potential incidents and injuries that made defendant's conduct negligent." Solberg v. Johnson, 306 Or. 484, 490, 760 P.2d 867 (1988).

[2] ORS 30.950 now provides:

"No licensee, permittee or social host is liable for damages incurred or caused by intoxicated patrons or guests of the licensee, permittee or social host's premises unless:

"(1) The licensee, permittee or social host has served or provided the patron alcoholic beverages to the patron or guest while the patron or guest was visibly intoxicated; and

"(2) The plaintiff proves by clear and convincing evidence that the patron or guest was served alcoholic beverages while visibly intoxicated."

When Sager was decided, ORS 30.950 did not include "social hosts" within its scope. Former ORS 30.955 served that purpose. The 1987 legislature repealed ORS 30.955 and amended ORS 30.950 to include "social hosts." Or. Laws 1987, ch. 774, §§ 13, 14. It also added subsection (2).

[3] Former ORS 30.730 provided:

"Any person who shall bargain, sell, exchange or give to any intoxicated person or habitual drunkard spirituous, vinous, malt or intoxicating liquors shall be liable for all damage resulting in whole or in part therefrom, in an action brought by the wife, husband, parent or child of such intoxicated person or habitual drunkard. The act of any agent or employe shall be deemed the act of his principal or employer for the purposes of this section."