Chapman v. Mayfield ( 2015 )

No. 45 November 13, 2015 187
IN THE SUPREME COURT OF THE
STATE OF OREGON
Jason CHAPMAN
and Richard Gilbertson,
Petitioners on Review,
v.
Carroll MAYFIELD,
Gresham Players Club,
and Grant Baughman,
Defendants,
and
FRATERNAL ORDER OF EAGLES
GRESHAM AERIE #2151 GRESHAM OREGON,
dba Eagles Lodge #2151 Gresham,
Respondent on Review.
(CC 1012-16919; CA A150341; SC S062455)
En Banc
On review from the Court of Appeals.*
Argued and submitted April 22, 2015, at Marist High
School, Eugene, Oregon.
J. Randolph Pickett, Pickett Dummigan LLP, Portland,
argued the cause and filed the briefs for petitioners on
review. With him on the briefs were R. Brendan Dummigan,
Kristen West McCall, and Kimberly O. Weingart.
Jonathan Henderson, Davis Rothwell Earle & Xóchihua,
P.C., Portland, argued the cause and filed the brief for
respondent on review. With him on the brief were Nicole M.
Rhoades and Daniel S. Hasson.
Lisa T. Hunt, Lake Oswego, filed the brief for amicus
curiae Oregon Trial Lawyers Association.
_____________
*  Appeal from Multnomah County Circuit Court, Karin J. Immergut, Judge.
263 Or App 528, 329 P3d 12 (2014).
188 Chapman v. Mayfield
BREWER, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Case Summary: Plaintiffs brought a common law negligence claim against
defendant tavern, alleging that defendant served alcohol to a visibly intoxicated
patron who then walked down the street to a different establishment and unin-
tentionally shot and injured plaintiffs. The trial court granted defendant’s sum-
mary judgment motion on the ground that plaintiffs had not presented sufficient
evidence to permit an inference that the type of harm that plaintiffs suffered
was reasonably foreseeable to defendant when it served the visibly intoxicated
patron. The Court of Appeals affirmed. Held: Plaintiffs’ evidence failed to create
a genuine issue of material fact as to foreseeability because (1) it described the
type of harm at risk too generally, and (2) it did not provide any relevant infor-
mation that would permit a trier of fact to find that defendant knew or should
have known that serving alcohol to the visibly intoxicated patron would create an
unreasonable risk of the type of harm that plaintiffs suffered.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
Cite as 358 Or 187 (2015) 189
BREWER, J.
In this negligence action, plaintiffs alleged in their
complaint that, after being served alcohol at defendant’s
bar when he was visibly intoxicated, a patron, Mayfield,
walked down the street to another business location and,
without intending to do so, fired a gun through the door-
way, causing injuries to plaintiffs for which they now seek
recovery.1 The trial court granted defendant’s summary
judgment motion, concluding that plaintiffs had presented
insufficient evidence to permit an inference that the type of
harm that plaintiffs suffered was reasonably foreseeable to
defendant when it served alcohol to Mayfield while he was
visibly intoxicated. A divided panel of the Court of Appeals
affirmed the ensuing judgment dismissing plaintiffs’ claim
against defendant. Chapman v. Mayfield, 263 Or App 528,
329 P3d 12 (2014). On review, we conclude that plaintiffs’
evidence was not sufficient to permit a trier of fact to find
that the harm that plaintiffs suffered was a reasonably fore-
seeable risk of defendant’s conduct. Accordingly, we affirm
the judgment of the trial court and the decision of the Court
of Appeals.
I.  FACTS AND PROCEDURAL HISTORY
On the night in question, Mayfield, a 67-year-old
retiree and self-described “homebody” with no criminal
history, accompanied his friend Baughman to the bar
on defendant’s premises. Mayfield had never been to the
Eagles Lodge before. While at the bar over a period of
several hours, Mayfield drank several beers and at least
one shot or a double shot of whiskey. Mayfield danced and
had a good time; he did not behave violently. Defendant’s
employees described Mayfield as “very polite, kind” and
a “very nice man.” However, tragically, as it turned out,
Mayfield was carrying a concealed handgun in his vest, a
fact that none of defendant’s employees knew or had rea-
son to know.
1
By “defendant,” we refer to defendant Fraternal Order of Eagles Gresham
Aerie #2151 Gresham, Oregon dba Eagles Lodge #2151 Gresham. Plaintiffs also
brought claims in this action against Mayfield, the Gresham Players Club, and
Mayfield’s friend, Baughman. Those other defendants are not parties to this
appeal.
190 Chapman v. Mayfield
After leaving defendant’s premises, Mayfield walked
down the street to the Gresham Inn. He approached the bar
and asked for a beer. The bartender, Hutzler, refused to
serve Mayfield after concluding, based on his observations,
that Mayfield was intoxicated. Mayfield then walked across
the street to the Gresham Players Club. Standing in the
doorway, Mayfield pulled the concealed handgun from his
vest and fired into the building, striking both of the plain-
tiffs and injuring them. No evidence in the record suggests
any motive for Mayfield’s actions.
Police arrested Mayfield that night and conducted
two breathalyzer tests. The first test, administered at
1:14 a.m., showed Mayfield’s breath sample to be 0.192%
ethanol by weight. The second test, at 2:07 a.m., revealed
0.180% ethanol by weight. When questioned, Mayfield
stated that he did not know why he had fired his gun into
the Gresham Players Club; he did not remember the inci-
dent at all. Mayfield recalled wanting to leave the Eagles
Lodge, but not being able to find Baughman. The next
thing that Mayfield remembered was being in the police
station.
This action ensued. Plaintiffs’ claim against
Mayfield alleged negligent or reckless—not intentional—
tortious conduct. Consistently with Mayfield’s version of
events, plaintiffs alleged that Mayfield did not intend to fire
his gun inside the Gresham Players Club and that he did
not intend for shots to strike and injure plaintiffs. In their
negligence claim against defendant, plaintiffs incorporated
the foregoing allegations regarding Mayfield by reference.
Plaintiffs further alleged that “[i]ntoxicated drinkers fre-
quently become violent. [Defendant], which was in the busi-
ness of selling alcohol, had reason to know that Mayfield
would become violent, because those who are in the business
of serving alcohol know that visibly intoxicated drinkers fre-
quently become violent.” In addition, plaintiffs alleged that
defendant’s negligence in serving alcohol to Mayfield when
he was visibly intoxicated was a substantial factor in caus-
ing Mayfield to discharge his gun and in plaintiffs’ resulting
injuries.
Cite as 358 Or 187 (2015) 191
Defendant filed a motion for summary judgment,
asserting that there was no evidence that Mayfield’s shoot-
ing of plaintiffs was reasonably foreseeable to defendant.
In response, plaintiffs argued that they were not required
to prove that defendant should have foreseen a particular
type of criminal assault—an attack with a gun—or that
Mayfield, in particular, would become violent. In plaintiffs’
view, they needed to prove only that defendant should have
known of the risk of harm by violence to third parties when
it served a visibly intoxicated patron. As evidentiary sup-
port for that proposition, plaintiffs submitted an excerpt
from Hutzler’s deposition testimony, as well as an affidavit
from Dr. William Brady, a pathologist with expertise in alco-
hol physiology and effects.
Hutzler’s deposition testimony described Mayfield’s
attempt to order a beer at the Gresham Inn and Hutzler’s
determination that he could not serve Mayfield because he
was visibly intoxicated. In describing the Gresham Inn’s
location, the neighborhood, and its clientele, Hutzler stated
that violence in the bar is not from drug use, but from alco-
hol. Violence occurred in the bar about once a month, and
Hutzler said, “That’s what alcohol is for. * * * That’s the alco-
hol talking.”
In his affidavit, Brady used Mayfield’s breathalyzer
test results and the dissipation rate of alcohol for a person
of Mayfield’s size to extrapolate backwards and determine
that, when Mayfield left defendant’s bar, Mayfield’s blood
alcohol content was between 0.200% and 0.250%. At that
level of blood alcohol content, Brady opined that Mayfield
would have been visibly intoxicated and his decision-making
processes severely impaired. Mayfield’s behavior, according
to Brady, also would have shown a lack of normal judgment
and self-control. In Brady’s opinion, Mayfield would have
displayed visible signs of intoxication when he consumed
his last two or three drinks at defendant’s bar. Brady then
averred that
“[i]ntoxicated drinkers frequently become violent. * * * The
link between visible intoxication and increased levels of
192 Chapman v. Mayfield
violence has been well-established in the medical, scientific,
and lay literature for decades, if not more than a century.”2
From that evidence, plaintiffs argued that they had created
a triable issue of fact that defendant should have foreseen
the risk that serving a visibly intoxicated person would
result in harm to plaintiffs.
In reply, defendant argued that evidence of overser-
vice alone does not render a tavern patron’s later criminal
conduct reasonably foreseeable. Defendant characterized
plaintiffs’ theory of relief as relying on the broad assertion
that an unspecified portion of society “frequently” becomes
violent when intoxicated, while providing no evidence that
Mayfield had any prior history of violence—either while
intoxicated or sober—or that defendant had any knowledge
regarding a risk of violence associated with the intoxication
of its patrons. Further, according to defendant, plaintiffs
failed to adduce evidence that injury from a random and
unprovoked attack with a gun is the type of harm that was
a reasonably foreseeable result of serving Mayfield while he
was visibly intoxicated or that strangers at a different loca-
tion were members of a class of plaintiffs that reasonably
could be expected to suffer such harm.
After a hearing, the trial court issued a letter opin-
ion granting defendant’s summary judgment motion. The
court first concluded that plaintiffs had presented evidence
that created a genuine issue of material fact regarding
whether defendant had served Mayfield while he was visibly
intoxicated. Nonetheless, the court determined that plain-
tiffs had failed to produce sufficient evidence to show that
the type of harm that they suffered was reasonably fore-
seeable. The court acknowledged that plaintiffs were not
required to prove that the exact manner in which the harm
2
Brady also stated, “Those who are in the business of serving alcohol know
that visibly intoxicated persons frequently become violent.” The trial court struck
that sentence from Brady’s affidavit on the ground that it lacked an adequate
foundation. As the Court of Appeals noted, the parties disagree as to the scope
and correctness of the trial court’s ruling; however, plaintiffs did not assign error
to the ruling. Chapman, 263 Or App at 533 n 2. Accordingly, we do not consider
whether the trial court erred in striking the sentence from Brady’s affidavit, and
we deem the record to include the entirety of the affidavit except that sentence.
See id.
Cite as 358 Or 187 (2015) 193
occurred was foreseeable or that Mayfield had known vio-
lent tendencies. However, the court concluded that the mere
fact that defendant had served Mayfield while he was visibly
intoxicated was insufficient to prove that defendant reason-
ably should have foreseen the random and unprovoked kind
of harm that Mayfield inflicted on plaintiffs.
On appeal, plaintiffs reprised their arguments
before the trial court. Among other arguments, plain-
tiffs emphasized Brady’s assertion that the link between
intoxication and violence has been established in medical,
scientific, and lay literature for decades. Because tavern
owners are part of the lay community, plaintiffs argued
that persons in the business of serving alcohol especially
should be aware of that link. According to plaintiffs,
Brady’s affidavit, coupled with Hutzler’s deposition testi-
mony, created a reasonable inference that tavern owners
know or should know that violence is a foreseeable result
of alcohol intoxication.
As noted, the Court of Appeals affirmed. Chapman,
263 Or App at 530. Relying on previous decisions of this
court, the majority determined that, to prove foreseeability,
plaintiffs were required to adduce evidence beyond the fact
of overservice to support an inference that defendant knew
or had reason to know of an unreasonable risk that Mayfield
would become violent. Id. at 531 (citing Moore v. Willis, 307
Or 254, 260-61, 767 P2d 62 (1988); Hawkins v. Conklin, 307
Or 262, 269, 768 P2d 66 (1988)). The majority described two
different ways in which a plaintiff could prove that a defen-
dant knew or should have known of the risk of violence from
furnishing alcohol to a visibly intoxicated patron. First, a
plaintiff could show that a defendant’s general observations
and experience in the business of serving alcohol gave it rea-
son to know that violence is a reasonably foreseeable result
of overservice. Id. at 532 (citing Moore, 307 Or at 260-61).
Alternatively, a plaintiff could show that a defendant knew
or should have known that a particular patron had a pro-
pensity for violence that could be triggered by serving addi-
tional alcohol. Id. (citing Hawkins, 307 Or at 269). Because
plaintiffs had adduced no evidence that Mayfield had a pro-
pensity for violence, the majority analyzed plaintiffs’ claim
under the first approach. Id. at 534.
194 Chapman v. Mayfield
The Court of Appeals primarily focused on two
aspects of plaintiffs’ evidence: (1) Brady’s statements that
“[i]ntoxicated drinkers frequently become violent” and that
the link between visible intoxication and increased violence
has been noted in medical, scientific, and lay literature for
decades, and (2) Hutzler’s testimony that, in his experience
as a bartender at the Gresham Inn, violence is “the alco-
hol talking.” Id. at 532-33. Because it believed that a finder
of fact would need to draw too many conjectural inferences
from that evidence, the majority concluded that plaintiffs
had not shown that defendant should have known that over-
serving Mayfield would create an unreasonable risk that he
would act violently. Id. at 535. The court reasoned that, to
make that finding, a trier of fact would have to infer that
persons in the business of selling alcohol not only know what
doctors and experts in alcohol physiology know, but that
they also would have read the unspecified literature men-
tioned in Brady’s affidavit. Id. Further, the court reasoned,
a trier of fact would have to infer from Hutzler’s deposition
testimony that the Gresham Inn’s clientele was similar to
defendant’s clientele or to the clientele of other bars in order
to generalize Hutzler’s experiences and observations either
to defendant or to bars in general. Id. at 535-36. Because the
majority deemed that chain of inferences to be speculative,
it ultimately concluded that plaintiffs’ evidence was insuf-
ficient to permit a finding that defendant knew or should
have known that overserving Mayfield created an unrea-
sonable risk that he would act violently. Id. at 536.
Judge Egan dissented. He agreed with the majority
that, in cases involving tavern patron violence, a plaintiff
must allege specific facts—more than visible intoxication
and everyday knowledge—that support an inference that
the defendant knew or should have known of the danger
to others. Id. at 541 (Egan, J., dissenting). However, in the
dissent’s view, the majority improperly analyzed each piece
of plaintiffs’ evidence separately, rather than looking at the
evidence as a whole. Id. at 547. The dissent argued that
the majority’s focus on the aspects of plaintiffs’ evidence
described above excluded inferences that could be drawn
from the evidence as a whole. In particular, the dissent
emphasized Brady’s statements that, in light of Mayfield’s
Cite as 358 Or 187 (2015) 195
blood alcohol content, he not only would have been visibly
intoxicated, but also would have lacked normal judgment
and self-control. Id. at 545. The dissent argued from that
evidence that it was reasonable to infer that Mayfield would
act in a manner that created unreasonable risks of harm.
Id. at 547. The dissent also pointed to Hutzler’s deposition
testimony that he had been trained to evaluate whether a
patron had had too much to drink and that he had refused
to serve Mayfield because he was visibly intoxicated. Id.
at 546. Together with Hutzler’s statement that violence is
“the alcohol talking,” the dissent argued that it was reason-
able to infer that a person in the business of serving alcohol
should know that a connection exists between intoxication
and violence. Id. at 547. The dissent acknowledged that the
evidentiary record was “thin,” but it nevertheless concluded
that plaintiffs had established a triable issue of fact with
respect to foreseeability. Id. at 549-50.3
On review, plaintiffs ask this court to hold that
proof of service of alcohol to a visibly intoxicated person, by
itself, is sufficient to create a jury question as to whether any
subsequent violent conduct by the person was foreseeable or,
alternatively, to hold that plaintiffs’ evidentiary showing—
when viewed as a whole—was sufficient to create a genuine
issue of material fact as to foreseeability.
II. ANALYSIS
A.  Standard of Review
Summary judgment is appropriate if there is no
genuine issue of material fact and the moving party is enti-
tled to a judgment as a matter of law. ORCP 47 C. That stan-
dard is satisfied when, viewing the evidence in the record
and all reasonable inferences that may be drawn from it in
3
To buttress the record, the dissent observed that, while Moore and Hawkins
were working their way through the courts, the legislature enacted Oregon’s
mandatory professional alcohol server education program in 1987. Id. at 541.
According to the dissent, an OLCC education program implementing that enact-
ment teaches servers about the effects of alcohol on the body and on behavior;
the prohibition on the sale of alcohol to intoxicated persons; and the fact that
alcohol consumption is a major factor in “serious crimes including murder, sui-
cide, assault, rape and domestic abuse.” Id. at 542-43. None of that material
was included in the summary judgment record in this case, and plaintiffs do not
assert that it is subject to judicial notice. Accordingly, we do not consider it here.
196 Chapman v. Mayfield
favor of the nonmoving party, no reasonable factfinder could
return a verdict for the nonmoving party. Id. The burden
rests with the nonmoving party to produce evidence on any
issue raised in the motion as to which the nonmoving party
would have the burden of persuasion at trial. Id. In this
case, plaintiffs, as the nonmoving parties, had the burden of
producing evidence on the elements of their claim, including
foreseeability.
B.  General Principles of Negligence
Traditionally, the elements of common-law neg-
ligence required a plaintiff to plead and prove that the
“defendant owed [the plaintiff] a duty, that [the] defendant
breached that duty, and that the breach was the cause-in-
fact of some legally cognizable damage to [the] plaintiff.”
Brennen v. City of Eugene, 285 Or 401, 405, 591 P2d 719
(1979). However, under this court’s contemporary jurispru-
dence, the traditional duty-breach analysis is subsumed in
the concept of general foreseeability, “unless the parties
invoke a status, a relationship, or a particular standard
of conduct that creates, defines, or limits the defendant’s
duty.” Fazzolari v. Portland School Dist. No. 1J, 303 Or 1,
17, 734 P2d 1326 (1987); see generally Oregon Steel Mills,
Inc. v. Coopers & Lybrand, LLP, 336 Or 329, 340, 83 P3d
322 (2004) (discussing shift in Oregon jurisprudence). 4
Despite that shift, causation-in-fact and the occurrence of
legally cognizable harm (damage) remain as elements of any
common-law negligence claim. Oregon Steel Mills, 336 Or
at 340. Thus, when a claim for common-law negligence is
premised on general principles of foreseeability, the plaintiff
must plead and prove that the defendant’s conduct created a
foreseeable and unreasonable risk of legally cognizable harm
to the plaintiff and that the conduct in fact caused that kind
of harm to the plaintiff. See generally Towe v. Sacagawea,
Inc., 357 Or 74, 86, 347 P3d 766 (2015); Oregon Steel Mills,
336 Or at 340; Fazzolari, 303 Or at 17.
4
When no special status, relationship, or standard of care is alleged, a plain-
tiff does not need to prove that the defendant owed the plaintiff a duty, because—
as a general proposition—everyone owes a duty to others to act reasonably in
light of foreseeable risks of harm. Towe v. Sacagawea, Inc., 357 Or 74, 86, 47 P3d
766 (2015).
Cite as 358 Or 187 (2015) 197
A trial court’s screening role, when it is invoked, is
to “determine whether upon the facts alleged or the evidence
presented no reasonable factfinder could decide one or more
elements of liability for one or the other party.” Fazzolari,
303 Or at 17.
C.  Foreseeability as a Limit on the Scope of Liability
Because the parties do not invoke a status, relation-
ship, or particular standard of conduct that informs defen-
dant’s duty,5 the dispositive question in this case is whether
plaintiffs’ evidence raised a triable issue of fact as to whether
defendant’s conduct created a foreseeable and unreasonable
risk of harm to plaintiffs. That inquiry includes the more
particular questions of whether plaintiffs’ injuries were
within the type of potential harms that made defendant’s
conduct unreasonable and whether plaintiffs were within a
reasonably foreseeable class of injured persons. Towe, 357
Or at 86; Fazzolari, 303 Or at 17.
Foreseeability involves a prospective factual judg-
ment about a course of events. Fazzolari, 303 Or at 4.
Foreseeability (what prospectively might happen) is con-
sidered separately from causation (what retrospectively did
happen) and serves as a limit on the scope of liability. Id. at
13. That is, “the community deems a person to be [liable]
only when the injury caused * * * is one which could have
been anticipated because there was a reasonable likelihood
that it could happen.” Stewart v. Jefferson Plywood Co., 255
Or 603, 609, 469 P2d 783 (1970). It is not necessary that the
risk of harm be more probable than not; rather, the ques-
tion is whether a reasonable person considering the poten-
tial harms that might result from his or her conduct would
“have reasonably expected the injury to occur.” Id. at 609-10.
The community’s judgment, usually given voice by
a jury, determines whether the defendant’s conduct met that
threshold in the factual circumstances of any particular
case. Id. at 607. If, and only if, the court determines that
the defendant’s conduct clearly falls outside the communi-
ty’s conception of fault, the issue of foreseeability must be
5
In particular, we note that plaintiffs do not cite any statute as setting the
standard for defendant’s conduct in their common-law negligence claim.
198 Chapman v. Mayfield
withdrawn from the jury. Id. at 609. Where the plaintiff’s
injury arises from a “concatenation of highly unusual cir-
cumstances,” the harm is deemed unforeseeable as a matter
of law. See id.
Over the course of the past five decades, this court
has struggled earnestly to give informed meaning to those
principles. The five cases discussed below illustrate this
court’s application of the foreseeability doctrine as a limit on
the scope of a defendant’s liability for negligence. The dis-
cussion begins with foreseeability generally, then more spe-
cifically involving third party criminal conduct, and finally,
involving the overservice of alcohol where injuries occurred
off the defendant’s premises.
In Stewart, a negligently started fire spread from
the defendant’s sawmill to a neighboring warehouse. Id. at
605. The plaintiff came to the scene to assist firefighters;
he worked to put out sparks and control the fire from the
rooftop of the warehouse. Id. As he assisted in fighting the
fire, the plaintiff fell through a concealed skylight on the
warehouse roof and sustained injuries. Id. at 605-06. In the
negligence action that ensued, a jury returned a verdict for
the plaintiff, and the defendant appealed. Id. at 605.
In considering whether a trier of fact could find that
the plaintiff’s injury was foreseeable, this court stated that
a reasonable person could foresee that a negligently started
fire could spread to a neighbor’s property and that the neigh-
bor or another person might be injured attempting to extin-
guish the fire. Id. at 610. The potential injuries could result
from any number of possible circumstances—from being
burned, from falling off a ladder, from falling off a roof, or
from falling through a burned portion of a roof. Id. Although
this court acknowledged that falling through a skylight—
particularly a concealed skylight—might not be a common
cause of injury, that circumstance was not so uncommon
that the defendant could not reasonably foresee the risk of
harm. Id. The record included no statistical evidence show-
ing the frequency of injuries due to falls through skylights,
but this court observed that a covered skylight likely would
expose a person on a roof to a risk of harm and that it was
not unlikely that an “injury would occur in this manner in
Cite as 358 Or 187 (2015) 199
the course of fighting a fire.” Id. at 611. Accordingly, this
court affirmed the judgment for the plaintiff.
In Stewart, the court described the type of harm
more generally—injuries that may occur while fighting a
fire—rather than specifically—injuries incurred from fall-
ing through a concealed skylight while fighting a fire. In
using a more general description of the type of harm at risk,
rather than describing the specific events that caused the
injuries, this court recognized that any conception of fore-
seeability necessarily depends on how the type of harm is
described. Id. at 610. Describing the type of harm in very
general terms often results in the conclusion that the risk of
harm was foreseeable; describing the type of harm too spe-
cifically, using a mechanism-of-harm approach, more often
results in the conclusion that the risk of harm was not fore-
seeable. Id.
At first blush, the court’s choice of a more general
level of abstraction in describing the type of harm that the
plaintiff suffered might appear to be a thumb on the scale in
favor of liability. However, as part of determining whether
the defendant’s conduct was unreasonable, there is nothing
surprising about a conception of foreseeability that assesses
the overall “setting for possible injury” under the plaintiff’s
theory of liability. See id. at 610. Drawing on the plaintiff’s
theory of liability, the court in Stewart determined that it
was not unlikely that an “injury would occur in this man-
ner in the course of fighting a fire.” Id. at 611 (emphasis
added). That approach, which views the defendant’s conduct
through the lens of the particular factual circumstances of
the case—with emphasis on what the defendant knew or
should have known about the risk of harm to a particular
class of plaintiffs—has been this court’s practice in cases
that address foreseeability as a limit on liability.
1.  Third-party criminal conduct
Two of this court’s previous decisions involving
third-party criminal conduct illustrate the importance of
how the type of harm at risk is described under the particu-
lar circumstances of the case. In Fazzolari, a 15-year-old-girl
walking up the steps of her high school early in the morning
200 Chapman v. Mayfield
was attacked, pulled into the bushes, and raped. 303 Or
at 3. The plaintiff brought a negligence action against the
school district for her injuries; the trial court granted the
school district’s motion for a directed verdict. Id. On review,
this court reversed. Id. Consistently with Stewart, the court
concentrated on two aspects of foreseeability: (1) describing
the type of harm at risk more generally, rather than predict-
ing an actual sequence of events, and (2) focusing on what
the defendant knew or reasonably should have known about
the risk and the class of plaintiffs exposed to that risk in
light of the particular factual circumstances of the case. Id.
at 21-22.
In describing the type of harm at risk, this court
in Fazzolari reiterated that an assessment of foreseeability
does not involve the precise, mechanical prediction of events
for which a defendant would be expected to argue; on the
other hand, the court observed, it does not adopt a paranoid
view of the world that encompasses all sources of potential
injury that a plaintiff might propose. Id. at 21. Applying
the conception of foreseeability from Stewart to the circum-
stances before it, the court observed that a school’s responsi-
bility for a student’s safety is not limited to the risk of rape,
but also extends to other types of assault, whether by fellow
students or other persons. Id. at 21. The court stated that, if
a school knew of assaults at specific locations on school prop-
erty, a trier of fact could find that a school should warn stu-
dents of the risk. Id. at 22. Importantly, evidence in the trial
record showed that the school district knew of a previous
sexual assault on the school grounds that had occurred 15
days before the attack on the plaintiff. Id. at 21. In revers-
ing the judgment for the school district, this court concluded
that a trier of fact could find that the type of harm that the
plaintiff suffered was reasonably foreseeable to the district
in light of the known risk of harm. Id. at 22.
A subsequent case involving third-party criminal
conduct once again focused on the particular factual circum-
stances of the case, but also recognized a limit on how gen-
erally the type of harm at risk can be described. In Buchler
v. Oregon Corrections Div., 316 Or 499, 853 P2d 798 (1993),
this court considered whether the state could be held liable
in negligence for the death and serious injury of the victims
Cite as 358 Or 187 (2015) 201
of violence inflicted by an escaped prisoner. 316 Or at 502.
The prisoner was a member of a work crew in a remote loca-
tion. The crew supervisor had left a state van’s keys in the
ignition. The prisoner escaped in the van, drove 50 miles
to his mother’s house, stole a gun, and, two days after the
escape, shot two people, killing one of them. Id. The trial
court granted the state’s summary judgment motion, and,
on review, the plaintiffs’ claims raised three issues concern-
ing foreseeability relating to the plaintiffs’ various theories
of negligence.
The first issue involved the state’s special duty as the
custodian of the prisoner. This court adopted Restatement
(Second) of Torts section 319 (1965), which provides that a
custodian has a duty to control a prisoner if the custodian
knows or should know that the prisoner is “likely to cause
bodily harm to others if not controlled.” Considering the par-
ticular circumstances of the case, including the fact that the
prisoner had no history of violence and that the shootings
occurred two days after the escape, the court determined
that no trier of fact reasonably could find that the state, as a
custodian, should have known that the prisoner was “likely
to cause bodily harm”; therefore, the plaintiffs’ injuries were
not the legally foreseeable consequence of the state’s alleged
negligence in allowing the prisoner to escape.6 Buchler, 316
Or at 507.
The second foreseeability issue concerned the plain-
tiffs’ claim that the state negligently had failed to warn
people in the area of the prisoner’s mother’s home that the
prisoner had escaped. Id. at 514. The court noted that the
plaintiff had presented no evidence that the state knew
or should have known that the prisoner would be near his
mother’s home, that the prisoner’s mother lived in the area,
or that the prisoner had stolen a gun from his mother’s home.
Id. at 515. In the absence of evidence that the state knew
or should have known that there was an unreasonable risk
that the prisoner would shoot someone or that persons in the
vicinity of his mother’s home would be expected victims, this
6
The court expressed no opinion regarding whether a trier of fact could rea-
sonably find that a nonviolent prisoner would be “likely to cause bodily harm”
during the actual escape from custody. Id. at 507.
202 Chapman v. Mayfield
court concluded that it was not reasonably foreseeable to the
state that the prisoner posed a risk of harm to persons in
the plaintiffs’ position. Id. at 516.
The third foreseeability issue in Buchler involved
the plaintiffs’ claim that the state had facilitated the harm
to the victims by leaving the van’s keys in the ignition. Id.
at 507. With regard to that issue, the court discussed—and
overruled—another case, Kimbler v. Stillwell, 303 Or 23,
734 P2d 1344 (1987), overruled by Buchler, 316 Or at 513.
In Kimbler, the victim’s personal representative brought a
wrongful death action against a retail store, alleging that
the defendant had not adequately secured its shotguns and
ammunition, which allowed a third party to steal those
items and use them to murder the victim. 303 Or at 25. The
personal representative alleged that the defendant knew
or should have known that the lack of security made the
shotguns and ammunition an easy target for theft, that sto-
len weapons are often used to commit crimes, and that the
defendant’s manner of displaying the shotguns and ammu-
nition created an unreasonable risk of harm. Id. In holding
that the complaint alleged facts sufficient to constitute a
claim for relief, this court stated:
“The fact that a plaintiff’s injury was inflicted by the inten-
tional, even criminal, act of a third person does not fore-
close liability if such an act was a foreseeable risk facili-
tated by the defendant’s alleged negligence.”
Id. at 27-28.
This court in Buchler described the complaint in
Kimbler as alleging that (1) guns are dangerous; (2) thieves
steal guns; (3) “as a matter of common knowledge,” stolen
guns are used to commit crimes against third parties; and
(4) the defendant failed to prevent the theft of the guns
that were used to harm the plaintiff at a later time and a
different location. Buchler, 316 Or at 511. According to the
court in Buchler, that theory of relief charged the defendant
with “responsibility for all intervening intentional crimi-
nal conduct that might conceivably occur.” Id. The sweep of
Kimbler, the court said, was inconsistent with a conception
of foreseeability by which a defendant is liable only where it
unreasonably created the risk of the type of harm that the
Cite as 358 Or 187 (2015) 203
plaintiff suffered. Id. Accordingly, the court in Buchler dis-
avowed Kimbler’s “facilitation” rationale. Id.
The court explained that describing the type of
harm at risk too generally—such as stating that criminals
commit crimes or that escaped prisoners may commit crimes
while at large—makes criminal acts the legal responsibility
of everyone who may have contributed in some way to the
criminal opportunity. Id. Such a conception would sweep too
broadly because “mere ‘facilitation’ of an unintended adverse
result, where intervening intentional criminality of another
person is the harm-producing force, does not cause the harm
so as to support liability for it.” Id. at 511-12. The court in
Buchler ultimately concluded that the harm that the plain-
tiffs suffered was not a reasonably foreseeable consequence
of the risk created by leaving the keys in the van. Id. at 514.
2.  Off- premises crimes in alcohol liability cases
Two cases involving off-premises crimes committed
after the service of alcohol to visibly intoxicated patrons are
particularly pertinent to our analysis. Both cases addressed
foreseeability at the pleading stage and focused on what—in
the particular factual circumstances of the case—the defen-
dant knew or reasonably should have known about the risk
of harm and the possible victims of that harm.
In Moore, two taverns served two patrons while
they were visibly intoxicated.7 307 Or at 256. A bartender
at the second tavern called a taxi for the patrons; after an
altercation between the patrons and the taxi driver, a gun
was drawn and the taxi driver was killed. Id. The driver’s
personal representative brought a common-law negligence
action against the tavern owners, alleging that the defen-
dants were negligent in selling alcohol to the patrons when
they were visibly intoxicated and that the defendants’
negligence caused the driver’s death.8 Id. at 257-58. The
7
One of the patrons was under the age of 21. Id. In a separate specification,
the plaintiff alleged that the defendants were negligent for serving an underage
patron as well as for serving both visibly intoxicated patrons. Id. at 257-58.
8
The plaintiff also brought a statutory liability claim under former ORS
30.950 (1979), renumbered as ORS 471.565 (2001), which provided:
“No licensee or permittee is liable for damages incurred or caused by intox-
icated patrons off the licensee’s or permittee’s business premises unless the
204 Chapman v. Mayfield
defendants moved for judgment on the pleadings, arguing
that the complaint did not adequately allege foreseeability,
and the trial court granted that motion. Id. at 257. In affirm-
ing the judgment for the defendants, this court held that a
“complaint must allege facts that would allow the factfinder
to determine that the [tavern owners] should have known of
the danger to others.” Id. at 261.
Because the complaint in Moore did not allege any
facts connecting the overconsumption of alcohol to violence,
the narrow issue before the court was whether the fact that
the two patrons were visibly intoxicated was sufficient for a
trier of fact to find that the victim’s death was reasonably
foreseeable. Id. at 260. The court stated that the mere fact
that a patron is visibly intoxicated does not make it foresee-
able that serving the patron alcohol creates an unreason-
able risk that the patron will become violent. Id. The court
elaborated:
“It may be common for intoxicated and underage drink-
ers to become violent. If violence is common among intox-
icated and underage drinkers, those who are in the busi-
ness of serving alcohol and who frequently observe people’s
reaction to alcohol may have reason to foresee the type of
harm that arose in this case. At the pleading stage, how-
ever, a court cannot simply assume that it is common for
intoxicated or underage drinkers to become violent in order
to support an inference that violence is a foreseeable result
of serving alcohol to someone who is intoxicated.”
Id. at 260-61 (citing Chartrand v. Coos Bay Tavern, 298 Or
689, 694, 696 P2d 513 (1985) (judicial belief that intoxicated
patrons commonly drive from taverns cannot supply fore-
seeability element)). The court stated that, if the plaintiff
claimed that the defendants had reason to know that the
patrons “would become violent because those who are in the
business of serving alcohol know that visibly intoxicated * * *
drinkers frequently become violent, the plaintiff must allege
licensee or permittee has served or provided the patron alcoholic beverages
when such patron was visibly intoxicated.”
Because this court recently had held that former ORS 30.950 (1983) did not pro-
vide a statutory remedy to plaintiffs injured in an assault, see Gattman v. Favro,
306 Or 11, 24, 757 P2d 402 (1988), the court did not discuss the plaintiff’s statu-
tory liability claim, Moore, 307 Or at 256-57.
Cite as 358 Or 187 (2015) 205
that intoxicated and underage drinkers frequently become
violent.” Id. at 261. In the absence of additional facts bearing
on the foreseeability of violent harm to the taxi driver, the
court concluded that the complaint failed to state a claim for
relief. Id.
Hawkins also concerned an off-premises assault
after a tavern served alcohol to a visibly intoxicated patron.
307 Or at 264. Hawkins involved a group of unruly patrons
who, after being ejected from the tavern, assaulted another
patron by shoving him into the path of an oncoming car.
Id. at 264-65. The assault occurred in the street and in a
parking lot near the tavern, not on the tavern’s premises.
Id. at 265 n 2. The injured patron brought an action against
the tavern owner, alleging that the defendant was negligent
(1) in serving the unruly patrons while they were visibly
intoxicated; (2) in failing to call the police to remove the
patrons after they threw chairs across the bar and threat-
ened other patrons with pool cues; and (3) in not providing
the plaintiff with protection when he left the tavern at about
the same time that the unruly group was ejected. Id. at 264.
The defendant moved for judgment on the pleadings, which
the trial court granted. Id.
On review, this court affirmed the trial court’s rul-
ing, in part because, as in Moore, the plaintiff had failed to
allege particular facts showing that the tavern owner knew
or should have known of an unreasonable risk of harm to
the plaintiff.9 The court explained,
“The plaintiff alleged that [the group of unruly patrons]
threw chairs and threatened other patrons in the tavern,
but he did not allege that the [tavern] knew about the
threats and unruly conduct or that the [tavern] otherwise
9
The court’s foreseeability analysis arguably was dictum. The court already
had held that former ORS 30.950 (1985) barred the plaintiff’s common-law negli-
gence claims of failing to call the police and failing to provide protection because
the plaintiff did not allege that the defendant served the unruly patrons while
they were visibly intoxicated in connection with those claims. Hawkins, 307 Or
at 268. The court stated that the allegation that the tavern served the unruly
patrons while they were visibly intoxicated was part of the plaintiff’s statutory
liability claim but, arguably, was not included in the common-law claims. Id. at
268-69. Perhaps unnecessarily, the court then considered whether the plaintiff
had adequately alleged foreseeability, on the assumption that the allegation of
overservice was incorporated into the common-law claims. Id. at 269.
206 Chapman v. Mayfield
had reason to know of [the group of unruly patron’s] vio-
lent propensities at the time the [tavern] served alcohol to
[the group of unruly patrons]. Without alleging facts that
would allow a jury to determine that the [tavern] should
have foreseen the risk of harm, the plaintiff cannot state a
common law negligence claim.”
Id. at 269.
Consistently with the other decisions that we have
discussed, Moore and Hawkins indicate that a plaintiff must
allege factual circumstances that, if proved, would permit a
trier of fact to find that the defendant knew or should have
known of an unreasonable risk of harm—including the risk
of harm from intentional violence—to a foreseeable plaintiff.
Missing from the complaint in Hawkins, for example, were
factual allegations that the tavern knew that the unruly
patrons had thrown chairs and threatened other patrons
before the defendant served them while they were visibly
intoxicated. Id. Likewise, if the plaintiff in Moore had alleged
facts showing that the defendants should have known of
an unreasonable risk that their patrons would become vio-
lent, the complaint adequately would have alleged—based
on the particular factual circumstances of that case—that
the defendant should have known of an unreasonable risk
of harm to a foreseeable plaintiff, the taxi driver whom one
of the defendants called to pick up the intoxicated patrons.
Moore, 307 Or at 261.
D.  Whether Serving a Visibly Intoxicated Person, By Itself,
Establishes Foreseeability
As noted, plaintiffs initially argue that evidence
that a tavern served alcohol to a visibly intoxicated person
should be sufficient to create a triable issue of fact as to
whether any subsequent violent conduct by the visibly intox-
icated person was foreseeable. To that end, plaintiffs urge
us to reexamine Moore in light of changes to the legislative
landscape concerning alcohol awareness and education, as
well as other public policy considerations.
Plaintiffs note that this court provided the foresee-
ability element as a matter of law in Campbell v. Carpenter,
279 Or 237, 566 P2d 893 (1977), a negligence action for inju-
ries sustained in a drunk driving accident. In Campbell,
Cite as 358 Or 187 (2015) 207
this court held that “a tavern keeper is negligent if, at the
time of serving drinks to a customer, that customer is ‘vis-
ibly’ intoxicated because at that time it is reasonably fore-
seeable that when such a customer leaves the tavern he or
she will drive an automobile.” Id. at 243-44. Plaintiffs also
note that, in Hawkins, this court stated that former ORS
30.950 (1979), renumbered as ORS 471.565 (2001), which
codified the holding in Campbell, did not limit common-law
liability based on the manner in which the intoxicated per-
son injured the plaintiff, and that the legislative history of
former ORS 30.950 (1979) does not distinguish among types
of risks of harm associated with intoxication. See Hawkins,
307 Or at 268 n 6. Plaintiffs suggest that, because this court
held in Campbell that overservice established foreseeability
as a matter of law in a drunk driving case, the same result
should obtain where violent harm is inflicted by an over-
served patron.
Defendant responds that Moore was correctly
decided; drawing on the facts of this case, defendant asserts
that evidence of service of alcohol to a visibly intoxicated
person, standing alone, does not make it reasonably fore-
seeable that the person will become violent, much less ran-
domly shoot two strangers. Defendant asserts that it did not
know or have any reason to know that Mayfield was car-
rying a concealed gun or that he had any violent propensi-
ties. Defendant also points out that the record contains no
evidence that anyone had ever become violent at its prem-
ises. Defendant argues that the random, unprovoked shoot-
ings that occurred in this case constitute a concatenation of
highly unusual circumstances of the sort that this court in
Stewart deemed unforeseeable as a matter of law.
Citing Moore, Hawkins, and an earlier decision,
defendant notes that this court repeatedly has held that, to
hold a tavern liable for injuries to a third party resulting from
a criminal assault, the plaintiff must establish that it was
foreseeable to the defendant that serving the person would
create an unreasonable risk of violent conduct. See also, e.g.,
Reynolds v. Nichols, 276 Or 597, 601, 556 P2d 102 (1976) (“If
the complaint had alleged that defendants served intoxicat-
ing liquors to [the assailant] with reason to know that the
combination of liquor and [the assailant’s] violent propensities
208 Chapman v. Mayfield
would prompt him to assault plaintiff, it is arguable that a
cause of action might have been stated.”). Defendant also
points out that, although this court in Campbell apparently
took judicial notice of the fact that many tavern patrons drive
vehicles after drinking and that car accidents resulting from
drinking are frequent, this court later held that a plaintiff
must still plead and prove that the defendant tavern owner
knew or should have known that the patron would drive a
vehicle from the tavern. See Chartrand, 298 Or at 694-95.
In defendant’s view, if serving alcohol to a visibly intoxicated
person, standing alone, is not sufficient to show that a sub-
sequent drunk driving accident was reasonably foreseeable,
then proof of overservice alone cannot establish that a ran-
dom shooting was reasonably foreseeable.
Finally, defendant argues that plaintiffs’ proposed
rule of law would impose strict liability on tavern owners,
which, defendant contends, would be inconsistent with cer-
tain legislatively enacted public policy pronouncements that
serve to limit the circumstances in which alcohol providers
can be liable for injuries caused by a patron.10 For those rea-
sons, defendant urges this court to adhere to its holding in
Moore that evidence of a patron’s visible intoxication, stand-
ing alone, does not make it foreseeable that serving more
alcohol to the patron would create an unreasonable risk of
violent harm to others.
We agree with defendant that the principles of fore-
seeability discussed above, bearing on how generally the
type of harm at risk is described and the significance of the
particular circumstances of the case, require a plaintiff to
prove more than that a tavern served a visibly intoxicated
patron. Although we disagree with defendant’s assertion
that allowing evidence of service to a visibly intoxicated per-
son, by itself, to establish foreseeability would create strict
10
See former ORS 30.950 (1979) (amended in 1987 to impose a heightened
“clear and convincing” standard of proof on claimants, see Or Laws 1987, ch 774,
§ 13, and amended in 2001 to prohibit claims by plaintiffs who cannot prove,
by clear and convincing evidence, that they did not “substantially contribute to
the intoxication of the patron or guest,” whether by providing or furnishing the
alcohol to the patron or guest, encouraging the patron or guest to drink, or facil-
itating the consumption of alcohol by the patron or guest, Or Laws 2001, ch 534,
§ 1).
Cite as 358 Or 187 (2015) 209
liability for alcohol providers, we do agree that such a con-
ception would permit a jury to decide foreseeability in all
cases in which a plaintiff alleged service to a visibly intox-
icated person without permitting a court to evaluate the
sufficiency of the plaintiff’s allegations in a particular case.
See Bellikka v. Green, 306 Or 630, 639, 762 P2d 997 (1988)
(“[Q]uestions of foreseeable risk and reasonable action in
light of the risk ordinarily depend on examining a defen-
dant’s action in the particular circumstances.”).
As an example of the pitfalls posed by such a loose
conception of foreseeability, defendant invokes the hypothet-
ical of a social host having a neighborhood barbeque. Under
plaintiffs’ conception, a jury could consider whether to hold
the host liable for injuries caused by a visibly intoxicated
guest who took a beer from the cooler and then, after return-
ing home, committed an act of domestic violence, even if no
facts other than the defendant’s service and the guest’s vis-
ible intoxication were alleged. Similarly, in this case, with
the benefit of hindsight, it is possible to connect Mayfield’s
shooting of two strangers at a different location with defen-
dant’s conduct in overserving him. Hindsight, however
is not foreseeability. We cannot say that, in every case in
which a plaintiff adduces evidence of overservice, a reason-
able juror could find an assault by the intoxicated person to
be foreseeable. Although it may be common knowledge that
intoxicated people often have impaired judgment and may,
therefore, act improperly, such general knowledge is not suf-
ficient to permit a jury to decide, from the fact of overservice
alone, that one who serves alcohol to a visibly intoxicated
person should reasonably have expected that that person
would commit an assault. See Buchler, 316 Or at 511. We
decline plaintiffs’ invitation to extend the limits of foresee-
ability that far.
E.  Whether Plaintiffs’ Evidence Created a Genuine Issue of
Material Fact
Because we conclude that evidence of overservice
alone is not enough, we must determine whether plaintiffs
presented additional evidence that, considered as a whole,
was sufficient to create a genuine issue of material fact on fore-
seeability. Turning to the particular factual circumstances
210 Chapman v. Mayfield
of this case, plaintiffs argue that evidence respecting gen-
eral observations and experiences “in the business of serv-
ing alcohol” gave defendant reason to know that violence
would be a foreseeable result of serving alcohol to a visibly
intoxicated patron. Plaintiffs assert that, taken together,
Brady’s affidavit and Hutzler’s deposition testimony showed
that (1) intoxicated drinkers frequently become violent;
(2) the link between visible intoxication and increased lev-
els of violence has been well understood and publicized for
decades; and (3) professional servers are aware of a connec-
tion between alcohol and violence. That evidence, plaintiffs
argue, permitted an inference that defendant should have
known that overserving Mayfield created an unreasonable
risk of violent harm to plaintiffs. Plaintiffs assert that a
contrary holding would allow negligent tavern owners, by
feigning ignorance, to avoid liability for harm stemming
from alcohol-related violence.
Defendant responds that plaintiffs’ evidence was
insufficient to create a triable issue of fact. Specifically,
defendant argues that Brady’s assertion that “[i]ntoxicated
drinkers frequently become violent” does not support an
inference that serving a visibly intoxicated person makes
it reasonably foreseeable that the intoxicated person will
become violent and randomly shoot strangers. Nor, defen-
dant asserts, does Brady’s statement support an inference
that defendant was aware of that “fact” or that overserving
a seemingly peaceable patron makes it reasonably foresee-
able that the patron will become violent. Defendant argues
that Brady’s statement was too conclusory and generalized;
it did not indicate which intoxicated drinkers become violent
or how often intoxicated drinkers become violent. In defen-
dant’s view, Brady’s general assertions are tantamount to
positing that criminals are likely to commit crimes, a con-
ception of foreseeability that this court rejected in Buchler.
Defendant argues that plaintiffs’ remaining evi-
dence was insufficient to create a triable issue of fact for
three reasons. First, it is illogical to infer that laypersons,
such as bartenders and tavern owners, have the same knowl-
edge as Brady, an experienced medical professional. Second,
it is unreasonable to assume that persons in the business of
selling alcohol have read the unidentified literature to which
Cite as 358 Or 187 (2015) 211
Brady referred, some of which is directed at medical and sci-
entific professionals. Third, Hutzler’s experience cannot be
attributed to defendant because it is not reasonable to infer
that an establishment with very different clientele would
have similar enough experiences to generalize Hutzler’s
observations to defendant or to bars generally. Such an infer-
ence actually would contradict other evidence that plaintiffs
proffered, according to defendant, because Hutzler testified
that his own establishment had experienced patron violence
about once a month, whereas defendant had never experi-
enced patron violence before.
To create a triable issue of fact with respect to
foreseeability, plaintiffs’ were required to show that defen-
dant knew or should have known that overserving alcohol
to Mayfield would create an unreasonable risk of harm to
plaintiffs of the type that they suffered. See Towe, 357 Or
at 86; Stewart, 255 Or at 609-10. Plaintiffs do not contend
that defendant knew that overservice could result in vio-
lence of the type that ensued in this case. Rather, plaintiffs
contend that defendant should have known of that risk of
harm. In that regard, plaintiffs offered two primary pieces
of evidence: (1) Brady’s testimony that intoxicated persons
frequently become violent and that medical, scientific, and
lay journals have documented a connection between violence
and alcohol for decades; and (2) Hutzler’s experiential obser-
vations about the link between alcohol and violence.11
As discussed, even though the precise mechanism
of harm need not be foreseeable, it is necessary to describe
the type of harm at risk and the class of plaintiffs at risk
with reference to the particular factual circumstances of
the case, as gleaned from the pleadings and evidence in the
record. Based on the circumstances of this case, we conclude
that the appropriate characterization of the type of harm
at issue is an unintentional attack by a visibly intoxicated
patron after he had left defendant’s premises. Cf. Fazzolari,
303 Or at 21-22 (characterizing type of harm from failing
11
Because the issue is what defendant should have known—not what it
actually knew—about an unreasonable risk of harm to plaintiffs, we need not
consider what evidence would have sufficed to create a triable issue of fact with
respect to actual knowledge.
212 Chapman v. Mayfield
to provide adequate warning or security as an assault on
students at school); Stewart, 255 Or at 610 (describing type
of harm from negligently setting fire as injuries that may
occur while attempting to extinguish fire). We further con-
clude that plaintiffs’ evidence was insufficient because it
described the risk of harm too generally.
As explained, evidence that it is common knowl-
edge that intoxicated people have impaired judgment and
may, therefore, behave improperly is too general to estab-
lish that a person who serves a visibly intoxicated person
reasonably should expect that that person will commit an
assault. Evidence making the bare assertion that it is com-
mon knowledge that visibly intoxicated persons frequently
become violent is no more sufficient. Such evidence does not
create a permissible inference that a particular defendant
should have been aware of an unreasonable risk of violent
harm or that a particular plaintiff was within the class of
persons at risk of such harm. Perhaps, if other, more spe-
cific evidence had been adduced, our conclusion might be
different. For instance, had the evidence shown the rate of
incidence of violence among intoxicated drinkers, the types
of intoxicated drinkers who become violent, or the class of
persons at risk of violent harm from a visibly intoxicated
person, different inferences may have been permissible so as
to preclude summary judgment for defendant.12
Those omissions distinguish the circumstances of
this case from those in Stewart, where this court was will-
ing, in the absence of more direct evidence, to use general
knowledge to supply an inference that the defendant should
have known that a negligently started fire reasonably could
be expected to result in harm to firefighters, even though the
precise mechanism of harm could not be foreseen. Stewart,
255 Or at 611 (although record did not contain statistics on
frequency of injuries resulting from falling through concealed
skylights, “general knowledge” of way injuries occur supported
foreseeability of how injury could occur in such manner). In
12
The described examples are illustrative; we do not suggest that plaintiffs
were required to produce all or any particular quantum of such evidence to create
a triable issue of fact with respect to foreseeability. Nor do we suggest that any
particular combination of such evidence would have sufficed to create a triable
issue of fact in this case.
Cite as 358 Or 187 (2015) 213
Stewart, it was rational to permit an inference, based on facts
in the record and the general knowledge that courts expect
juries to bring to their task, that a negligently started fire
will attract firefighters who reasonably can be expected to
incur injuries while engaging in a hazardous activity.13
Here, in contrast, plaintiffs’ evidentiary proffer did
not include facts that would justify supplying an inference—
based on general knowledge—that defendant should have
known that serving alcohol to a visibly intoxicated Mayfield
reasonably could be expected to result in his unintentional
attack on plaintiffs at a different location. See Buchler, 316
Or at 511 (disavowing broad conception of foreseeability
based on purported “common knowledge” connecting thieves,
guns, and crimes); see also Moore, 307 Or at 260-61 (court
cannot assume that intoxicated drinkers become violent);
Chartrand, 298 Or at 695 (“[J]udicial notice cannot replace
the need for proof of an essential element of the tort claim
* * * i.e., proof that the defendant knew or should have known
that the customer would drive a vehicle from the tavern.”)
III. CONCLUSION
This court previously has “cautioned against turn-
ing fact-specific decisions on foreseeability into rules of law.”
See, e.g., Bailey v. Lewis Farm, Inc., 343 Or 276, 289, 171
P3d 336 (2007) (citing Fazzolari, 303 Or at 16). We do not
depart from that precept here; rather, our decision turns on
the specific facts in the record before us. In this case, plain-
tiffs’ evidence failed to create a genuine issue of material
fact as to foreseeability because (1) it described the type of
harm at risk too generally, and (2) it did not provide any
relevant information that would permit a trier of fact to find
that defendant knew or should have known that overserving
Mayfield would create an unreasonable risk of the type of
harm that plaintiffs suffered.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
13
See, e.g., Christensen v. Epley, 287 Or 539, 563, 601 P2d 1216 (1979)
(Tongue, J., concurring) (“Jurors, as men and women of the world, are expected to
evaluate evidence not only in the light of their general experience, but in the light
of facts generally known in the community.”).