754 March 10, 2016 No. 15

IN THE SUPREME COURT OF THE

STATE OF OREGON

Casey J. DECKARD,

Respondent on Review,

v.

Diana L. BUNCH,

Defendant,

and

Jeffrey N. KING,

as Personal Representative of

the Estate of Roland King, Deceased,

Petitioner on Review.

(CC 102298; CA A151792; SC S062948)

On review from the Court of Appeals.*

Argued and submitted September 10, 2015.

Thomas M. Christ, Cosgrave Vergeer Kester, LLP, 

Portland, argued the cause and filed the brief for petitioner 

on review.

Brent W. Barton, The Barton Law Firm PC, Newport, 

argued the cause and filed the brief for respondent on review. 

With him on the brief was William A. Barton.

Jeffrey D. Eberhard, Smith Freed & Eberhard, P.C., 

Portland, filed a brief on behalf of amicus curiae Smith 

Freed & Eberhard, PC.

Kristian Roggendorf, Roggendorf Law LLC, Lake 

Oswego, filed a brief on behalf of amicus curiae Oregon Trial 

Lawyers Association.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, Baldwin, Brewer, and Nakamoto, Justices.**

______________

** Appeal from Lincoln County Circuit Court, Charles P. Littlehales, Judge.

267 Or App 41, 340 P3d 655 (2014).

** Linder, J., retired December 31, 2015, and did not participate in the decision of this case.
Cite as 358 Or 754 (2016) 755

BREWER, J.

The decision of the Court of Appeals is reversed, and the 

judgment of the circuit court is affirmed.

Case Summary: After sustaining serious injuries from a collision with 

an intoxicated motorist, plaintiff brought a statutory liability claim against 

defendant for serving alcohol to a visibly intoxicated guest, in violation of ORS 

471.565(2). The trial court determined that ORS 471.565 does not create an independent claim, but, instead, limits common-law liability. The court dismissed 

plaintiff’s statutory liability claim. Plaintiff appealed, alleging that this court 

has interpreted ORS 471.565 and its predecessors as providing a statutory right 

of action against commercial alcohol providers and social hosts who over-serve 

patrons and guests. The Court of Appeals disagreed with that conclusion and 

reversed. Held: (1) ORS 471.565(2) does not provide an independent statutory 

right of action against a host who furnishes alcohol to a visibly intoxicated person; and (2) the legislature enacted the predecessors to ORS 471.565 to approve a 

common-law negligence standard, which includes the requirement to show that a 

defendant knew or should have known of an unreasonable risk of harm to a third 

party at the time that he or she served a visibly intoxicated person.

The decision of the Court of Appeals is reversed, and the judgment of the 

circuit court is affirmed.
756 Deckard v. Bunch

BREWER, J.

This case presents the issue of whether ORS 

471.565(2) provides an independent statutory right of action 

against a social host who served alcohol to a visibly intoxicated guest, who in turn caused injuries to a third party. 

Plaintiff, who was injured in a motor vehicle accident, 

brought this action against the driver of the other vehicle, 

Bunch, and the social host who served that driver.1

 Plaintiff 

asserted two claims against the social host, King: One for 

common-law negligence, and the second, which is our primary focus here, for statutory liability. In the common-law 

negligence claim, plaintiff alleged that King (defendant) was 

negligent in serving alcohol to his visibly intoxicated guest 

at his home when it was reasonably foreseeable that she 

would drive her vehicle and cause injury to persons on the 

roadway.2

 In his statutory liability claim, plaintiff alleged 

that defendant was statutorily liable for serving alcohol to 

the guest in violation of ORS 471.565(2).3

Defendant filed a pretrial motion to dismiss plaintiff’s statutory liability claim under ORCP 21 A(8) for failure to allege ultimate facts sufficient to state a claim for 

relief. The trial court granted the motion to dismiss, and the 

case was tried solely on the common-law negligence claim, 

1 The other driver, Bunch, is not a party to this appeal.

2 After the accident, King passed away. This action was brought against the 

personal representative of King’s estate. We refer to both King and the personal 

representative as “defendant.”

3 ORS 471.565(2) provides:

“A person licensed by the Oregon Liquor Control Commission, person 

holding a permit issued by the commission or social host is not liable for 

damages caused by intoxicated patrons or guests unless the plaintiff proves 

by clear and convincing evidence that:

“(a) The licensee, permittee or social host served or provided alcoholic 

beverages to the patron or guest while the patron or guest was visibly intoxicated; and

“(b) The plaintiff did not substantially contribute to the intoxication of 

the patron or guest by:

“(A) Providing or furnishing alcoholic beverages to the patron or guest;

“(B) Encouraging the patron or guest to consume or purchase alcoholic 

beverages or in any other manner; or

“(C) Facilitating the consumption of alcoholic beverages by the patron or 

guest in any manner.”
Cite as 358 Or 754 (2016) 757

resulting in a jury verdict for defendant.4 Plaintiff appealed, 

assigning error to the dismissal of the statutory liability 

claim. The Court of Appeals reversed. Deckard v. Bunch, 

267 Or App 41, 340 P3d 655 (2014). That court concluded 

that, in enacting ORS 471.565(2), the legislature intended 

to impose statutory liability on social hosts for serving visibly intoxicated guests; the court also rejected defendant’s 

argument that any error in dismissing the statutory liability claim was rendered harmless by the jury instructions 

that the trial court gave. Id. at 51-54. We granted review 

to determine whether ORS 471.565(2) provides a statutory 

liability claim against alcohol providers that exists independently of a claim for common-law negligence. For the reasons that follow, we conclude that it does not. We therefore 

reverse the decision of the Court of Appeals and affirm the 

judgment of the circuit court.

I. FACTS AND PROCEDURAL HISTORY

On review of the trial court’s dismissal of plaintiff’s 

statutory liability claim pursuant to ORCP 21 A(8), “we 

accept all well-pleaded allegations of the complaint as true 

and give plaintiff[] the benefit of all favorable inferences 

that may be drawn from the facts alleged.” Stringer v. Car 

Data Systems, Inc., 314 Or 576, 584, 841 P2d 1183 (1992), 

recons den, 315 Or 308 (1993). Plaintiff alleged in his complaint that, shortly before the accident, Bunch was at defendant’s house, where she consumed a number of alcoholic 

drinks. Plaintiff further alleged that Bunch was intoxicated 

when her vehicle subsequently crossed the center lane of 

traffic and collided head-on with plaintiff’s vehicle, causing 

plaintiff to sustain serious injuries. In his statutory liability claim, plaintiff alleged that defendant was negligent “in 

serving and/or providing alcohol to [Bunch] when she was 

visibly intoxicated in violation of ORS 471.565.”

In his motion to dismiss, defendant argued that 

ORS 471.565 did not create an independent statutory liability claim, but, rather, operated as a “shield” imposing 

limitations on common-law claims against commercial and 

4 The jury found Bunch liable and awarded damages to plaintiff.
758 Deckard v. Bunch

social providers of alcohol.5

 The trial court agreed with that 

proposition and granted the motion to dismiss.

On appeal after the jury rendered a verdict for 

defendant on the common-law negligence claim, plaintiff 

argued that the trial court erred in dismissing the statutory liability claim on the ground that this court previously 

has interpreted ORS 471.565 and its predecessor statutes 

as providing a statutory right of action to protect motorists 

who are injured by intoxicated drivers. Defendant responded 

that the statute does not create statutory liability but, 

instead, limits liability by placing conditions on the right 

to recover at common law. Alternatively, defendant argued 

that, even if the trial court erred in dismissing the statutory liability claim, the error was harmless because the jury 

was instructed that defendant was liable for common-law

negligence if he served alcohol to Bunch while she was

intoxicated—the same instruction that plaintiff would have 

been entitled to on the statutory liability claim.

The Court of Appeals reversed the trial court’s dismissal of the statutory liability claim. Deckard, 267 Or App 

at 43. After discussing the legislature’s enactment of former 

ORS 30.950 (1979), renumbered as ORS 471.565 (2001), subsequent amendments to the statute, and this court’s case 

law on the subject, the Court of Appeals concluded that “the 

legislature intended to create statutory liability” and that 

plaintiff’s claim arose from the particular risk that the legislature addressed—the risk of injury to a third party by a 

drunk driver who was served alcohol while visibly intoxicated. Id. at 51-52. Accordingly, the court held that the trial 

court had erred in dismissing the statutory liability claim; 

the court further concluded that the error was not harmless. 

Id. at 52, 54.

On review, the parties renew their arguments before 

the trial court and the Court of Appeals. In this case, plaintiff already had a common-law negligence claim; a host may 

be liable for serving a visibly intoxicated guest who drives 

a car and injures a third person. See Campbell v. Carpenter, 

5 King also moved to dismiss any claim for negligence per se. Plaintiff 

responded that he had not alleged a claim for negligence per se and conceded that 

such a claim did not exist.
Cite as 358 Or 754 (2016) 759

279 Or 237, 243-44, 566 P2d 893 (1977) (serving alcohol to 

visibly intoxicated patron amounted to common law negligence where tavern owner reasonably could have foreseen 

that intoxicated patron would drive from tavern and injure 

others off of premises). Nevertheless, plaintiff contends that 

he also has a statutory claim that permits him to hold defendant liable for that same conduct. Plaintiff seeks the benefit of a statutory claim because he understands that, in a 

statutory claim, he need not prove foreseeability. Plaintiff 

asserts that the text, context, and legislative history of ORS 

471.565 indicate that the legislature intended to create a 

statutory liability claim that does not require proof of foreseeability. Defendant responds that, when viewed through 

the proper interpretive lens, the statute does not create such 

a statutory liability claim against providers of alcohol.

As explained below, we conclude that, when it 

enacted former ORS 30.950 (1979), the predecessor statute 

to ORS 471.565, the 1979 legislature intended to approve 

the common-law negligence standard for alcohol provider 

liability previously established by this court. We further 

conclude that there is no basis to infer that that legislative 

assembly impliedly intended to create a separate statutory 

right of action with elements different from the common-law 

negligence standard. Finally, we conclude that no subsequent amendments to the statute altered that intent.

II. ANALYSIS

A. Statutory Liability

Statutory liability “arises when a statute either 

expressly or impliedly creates a private right of action for the 

violation of a statutory duty.” Doyle v. City of Medford, 356 

Or 336, 344, 337 P3d 797 (2014) (citing Nearing v. Weaver, 

295 Or 702, 670 P2d 137 (1983)). A statutory liability claim 

“allows recovery of damages if the plaintiff can show that 

the damages suffered came about as a result of the violation of a statute which the legislature passed intending to 

give recourse to a group of plaintiffs, which includes the 

plaintiff then seeking redress under the terms of the statute.” Bellikka v. Green, 306 Or 630, 636, 762 P2d 997 (1988). 

In synthesis, to prove a claim for statutory liability, the 

plaintiff must establish that: (1) a statute imposed a duty 
760 Deckard v. Bunch

on the defendant; (2) the legislature expressly or impliedly 

intended to create a private right of action for violation of 

the duty; (3) the defendant violated the duty; (4) the plaintiff 

is a member of the group that the legislature intended to 

protect by imposing the duty; and (5) the plaintiff suffered 

an injury that the legislature intended to prevent by creating the duty.

Because the issue is one of legislative intent, the 

determination of whether an enactment created statutory 

liability is a matter of statutory interpretation; thus, when 

a statute prescribing a duty does not expressly indicate 

whether the legislature intended to create statutory liability to enforce the duty, we consider whether such intent 

is implied by examining “the text, context, or legislative 

history of the statute creating the duty.” Doyle, 356 Or at

344-45; see also State v. Gaines, 346 Or 160, 171-73, 206 P3d 

1042 (2009) (setting out methodology).

In its earlier decisions—especially in decisions 

pre-dating the adoption of our current statutory interpretation methodology—this court sometimes emphasized two 

factors that it deemed significant to the implied legislative 

intent inquiry: (1) whether the statute refers to civil liability in some way, Chartrand v. Coos Bay Tavern, 298 Or 

689, 696, 696 P2d 513 (1985); Nearing, 295 Or at 707; and

(2) whether the statute provides no express remedy, civil or 

otherwise, for its violation and, therefore, there would be no 

remedy of any sort unless the court determined that the legislature impliedly created one or the court itself provided 

one, Chartrand, 298 Or at 696; Nearing, 295 Or at 708-11. 

However, those factors are neither exclusive nor talismanic, 

and, in some instances—including, as we shall see, in this 

case—they may not advance the analysis very far. Instead, 

it bears reiteration that the proper methodology for determining whether the legislature (either expressly or by implication) intended to create a right of action for enforcement of 

a statutory duty is the familiar holistic framework applicable to all statutory interpretation problems—careful examination of the statutory text, context, and legislative history.

To further set the stage for our analysis, we briefly 

compare the roles that the concept of foreseeability plays 
Cite as 358 Or 754 (2016) 761

in statutory liability claims and common law negligence 

claims.6 To impose liability in a common law negligence 

claim, a court must conclude that the conduct at issue 

“unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” Fazzolari v. 

Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 

(1987). In that formulation, foreseeability plays at least two 

roles—it determines (1) whether the conduct created a foreseeable risk to a protected interest such that the defendant 

may be held liable for that conduct—a concept that has been 

referred to as “duty”; and (2) whether the defendant may be 

held liable to plaintiff for the particular harm that befell 

the plaintiff—a concept that has been referred to as “legal” 

or “proximate” cause. The roles that foreseeability plays are 

not always distinct and they may overlap.

As noted, statutory liability arises from the enactment of a statute that effectuates a legislative intent to create a right of action to enforce a statutory duty. It need not 

include particular elements of a negligence claim; thus, for 

example, if a violation is proven, it ordinarily does not matter whether the defendant acted reasonably under the circumstances. Bellikka, 306 Or at 650; Gattman v. Favro, 306 

Or 11, 15, 757 P2d 402 (1988).7

 The role that foreseeability 

6 “Negligence per se” is different still. It is a shorthand descriptor “for a negligence claim in which the standard of care is expressed by a statute or rule.” 

Abraham v. T. Henry Construction, Inc., 350 Or 29, 35 n 5, 249 P3d 534 (2011) 

(citing Shahtout v. Emco Garbage Co., 298 Or 598, 601, 695 P2d 897 (1985)). 

When a negligence claim otherwise exists, and a statute or rule defines the standard of care expected of a reasonably prudent person under the circumstances, a 

violation of that statute or rule establishes a presumption of negligence. Barnum 

v. Williams, 264 Or 71, 74-79, 504 P2d 122 (1972). Once a violation is proven, the 

burden shifts to the violator to prove that he or she acted reasonably under the 

circumstances. Resser v. Boise-Cascade Corporation, 284 Or 385, 392, 587 P2d 

80 (1978). A statute that sets a standard of care addresses only one element of a 

negligence claim; other elements remain unaffected and must be established.

7 In fact, a claim created by the legislature is not necessarily even a tort 

claim. In Bellikka, the court discussed the statutory claim for violations of the 

Oregon Residential Landlord and Tenant Act (ORLTA) recognized in Brewer v. 

Erwin, 287 Or 435, 600 P2d 398 (1979), abrogated by McGanty v. Staudenraus, 

321 Or 532, 901 P2d 841 (1995). Bellikka, 306 Or at 634-35. In Brewer, the court 

concluded, from the fact that the ORLTA provided that it “shall be so administered that an aggrieved party may recover appropriate damages,” that the 

legislature intended to create a civil claim for damages. In Bellikka, the court 

observed that “[s]tatutory liability is not necessarily ‘tort’ liability,” 306 Or at 

635, and explained that the claim permitted in Brewer “allows recovery of damages if the plaintiff can show that the damages suffered came about as a result of 
762 Deckard v. Bunch

will play in a statutory liability claim, if any, will depend 

on legislative intent; that is, whether foreseeability is an 

element of a statutory claim depends not on the fact that 

the claim is established by statute, but on whether the legislature intended that foreseeability be an element of the 

claim that it creates. If, for instance, the legislature imposes 

a duty to engage in conduct or refrain from conduct and 

intends to create a statutory claim for breach of that duty, 

then the legislature also may intend not to require that the 

plaintiff prove foreseeability as a concept that establishes 

a duty. The legislature already may have determined that, 

when a defendant’s conduct violates the statute, that conduct creates a foreseeable risk to persons in the plaintiff’s 

position, or that foreseeability is not an element of the statutory claim. See Gattman, 306 Or at 15 (so holding).

A conclusion that the legislature intended to dispense with foreseeability as a concept that establishes duty 

does not, however, necessarily mean that the legislature 

also intended to dispense with foreseeability as a concept 

that establishes the limits of a defendant’s liability. Whether 

a plaintiff must allege and prove that the harm that befell 

the plaintiff was foreseeable will depend on the statute in 

question. For instance, if a statute indicates a particular 

harm that the statute is intended to prevent, and the plaintiff alleges that she suffered harm of that type, there may be 

no need for the plaintiff to allege and prove that that harm 

was foreseeable. In contrast, where a statute does not indicate the type of harm that it is intended to remedy or where 

the harm that the plaintiff alleges is attenuated, then the 

plaintiff may be required to allege and prove that the harm 

that the plaintiff suffered was reasonably foreseeable.

With the foregoing principles in mind, we turn to 

the statute at hand.

B. ORS 471.565

As discussed in greater detail below, this court 

has examined ORS 471.565 and its predecessor statutes 

the violation of a statute which the legislature passed intending to give recourse 

to a group of plaintiffs, which includes the plaintiff then seeking redress under 

the terms of the statute.” Id. at 636. Thus, the court looked to the statute that 

created the claim to determine its elements.
Cite as 358 Or 754 (2016) 763

on several previous occasions. We have not, however, construed the statute to resolve the issue before us under our 

statutory interpretation methodology described in Gaines. 

Accordingly, we turn to that task; we begin with the statute’s text and context, and then consider the legislative 

history.

1. Text and Context

ORS 471.565 provides:

“(1) A patron or guest who voluntarily consumes alcoholic beverages served by a person licensed by the Oregon 

Liquor Control Commission, a person holding a permit 

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. ***

“(2) A person licensed by the Oregon Liquor Control 

Commission, person holding a permit issued by the commission or social host is not liable for damages caused by 

intoxicated patrons or guests unless the plaintiff proves by 

clear and convincing evidence that:

“(a) The licensee, permittee or social host served or 

provided alcoholic beverages to the patron or guest while 

the patron or guest was visibly intoxicated; and

“(b) The plaintiff did not substantially contribute to 

the intoxication of the patron or guest by:

“(A) Providing or furnishing alcoholic beverages to the 

patron or guest;

“(B) Encouraging the patron or guest to consume or 

purchase alcoholic beverages or in any other manner; or

“(C) Facilitating the consumption of alcoholic beverages by the patron or guest in any manner.”

According to defendant, the statutory text does 

not indicate when an alcohol provider is liable for serving 

alcohol to a guest who then injures third parties; instead, 

it indicates when an alcohol provider is not liable. In defendant’s view, subsection (1) provides that a patron or guest 

who voluntarily drinks “does not have a cause of action” 

against an alcohol provider “even though” the patron or 
764 Deckard v. Bunch

guest was served while visibly intoxicated, and subsection 

(2) states that an alcohol provider is “not liable” for injuries 

that a patron or guest inflicts on a third party off-premises 

“unless” the patron or guest was served while visibly intoxicated. Defendant argues that, instead of creating liability, 

those subsections impose restrictions on whatever liability an alcohol provider may have apart from ORS 471.565, 

including under the common law.

With regard to the context of the statute, defendant 

observes that ORS 471.565 does not impose a duty on alcohol 

providers not to serve alcohol to visibly intoxicated patrons 

and guests. Instead, that duty is imposed by another statute, ORS 471.410(1), which provides that a “person may not 

sell, give or otherwise make available any alcoholic liquor 

to any person who is visibly intoxicated.” Moreover, defendant notes that this court previously has held that the duty 

imposed by ORS 471.410(1)8

 not to serve alcohol to visibly 

intoxicated persons does not create an appropriate standard 

of care for imposing liability based on negligence per se. See 

Stachniewicz v. Mar-Cam Corporation, 259 Or 583, 585-88, 

488 P2d 436 (1971), overruled in part on other grounds by 

Davis v. Billy’s Con-Teena, Inc., 284 Or 351, 356 n 4, 587 P2d 

75 (1978).

In response, plaintiff argues that both the text and 

context of ORS 471.565 indicate that the legislature intended 

to create statutory liability. According to plaintiff, the statute’s text contemplates liability twice, albeit in reverse form, 

in that subsection (1) states when a patron or guest “does 

not have a cause of action, based on statute or common law,” 

and subsection (2) states when an alcohol provider will be 

“liable for damages” by setting out the criteria for when they 

will not be liable. Plaintiff notes that “[s]uch reasoning by 

negative implication frequently has been a focal point of this 

court’s statutory liability decisions.” See Doyle, 356 Or at 

357 n 10 (citing Scovill v. City of Astoria, 324 Or 159, 169, 

8 When the court issued several of the relevant decisions cited in this opinion, the statute was numbered ORS 471.410(3). To avoid confusion, we cite and 

quote to the current version of the statute, ORS 471.410(1) (2015), throughout 

this opinion because the renumbering effected by the 1977 amendment does not 

affect our analysis. See Or Laws 1977, ch 814, § 1. 
Cite as 358 Or 754 (2016) 765

921 P2d 1312 (1996); Chartrand, 298 Or at 695-96; Nearing, 

295 Or at 708-10).

With respect to the statute’s context, plaintiff 

argues that subsection (1) bars all claims arising from a 

person’s voluntary intoxication, whether “based on statute 

or common law.” In plaintiff’s view, the fact that subsection 

(2) does not contain similar wording suggests that the legislature intended to preserve both common-law and statutory 

claims. In response to defendant’s argument that the duty 

not to serve visibly intoxicated persons is imposed by ORS 

471.410(1), not ORS 471.565, plaintiff argues that both statutes impose such a duty, but the scope of that duty—and 

whether its violation imposes liability—is different depending on the presenting circumstances.

We observe, initially, that ORS 471.565 does not 

expressly create a private right of action, and plaintiff does 

not contend otherwise. Compare ORS 471.565 with e.g., ORS 

30.780 (“Any person violating [the anti-gambling statutes] 

shall be liable in a civil suit for all damages occasioned 

thereby.” (Emphasis added.)), ORS 30.825 (“Any person who 

is damaged by an act prohibited in ORS 164.886(1) to (3) 

[tree spiking] may bring a civil action to recover damages 

sustained.” (Emphasis added.)). The issue thus reduces to 

whether the statute impliedly creates statutory liability. The 

threshold inquiry in that determination, as noted above, is 

whether the statute imposed a duty on defendant.

A duty is a “legal obligation that is owed or due to 

another and that needs to be satisfied; that which one is 

bound to do, and for which somebody else has a corresponding right.” Black’s Law Dictionary 615 (10th ed 2014). When 

a statute mandates a course of action, a duty is created. 

Scovill, 324 Or at 167. Viewed in those terms, the text of 

ORS 471.565 does not directly impose a legal obligation not 

to serve alcohol to visibly intoxicated persons. To complicate 

things further, ORS 471.410(1), not ORS 471.565, directly 

imposes a legal obligation on hosts and commercial servers not to serve alcohol to visibly intoxicated persons.9

 In 

9 Plaintiff does not argue that ORS 471.565 and ORS 471.410(1) jointly 

impose such an obligation. Instead, plaintiff asserts that the two statutes operate 

independently. As noted, this court has held that ORS 471.410(1) does not provide 
766 Deckard v. Bunch

this unusual set of circumstances, what is clear is that ORS 

471.565 refers to a duty not to serve visibly intoxicated persons. What is less clear from its text and context is whether 

the statute itself imposes the duty or whether the duty to 

which it refers has a different source.

We need not resolve that issue in this case, however, 

because even if a duty not to serve alcohol to visibly intoxicated persons could be inferred from ORS 471.565, nothing 

in the text or context of the statute indicates that the legislature impliedly intended to create an independent statutory right of action to enforce such a duty. Although plaintiff 

correctly observes that ORS 471.565 refers to civil liability, 

a common-law claim against alcohol providers for serving 

visibly intoxicated persons who then injure third parties in 

drunk driving accidents already existed when the statute 

was enacted. See Campbell, 279 Or at 243-44 (so noting). In 

light of Campbell, and the additional fact that the statute 

is phrased in terms of a limitation of a right of action, it is 

equally reasonable to infer that, when it referred to civil liability, the legislature meant to regulate common-law negligence actions, as it is reasonable to infer that the legislature 

meant to create an additional statutory right of action.

The fact that the statute does not provide an 

express remedy for the violation of a duty also is not particularly illuminating where, as here, a private right of action 

for negligently serving visibly intoxicated persons already 

existed at common law. A more pertinent question in such 

circumstances is whether there is any indication that, by 

enacting former ORS 30.950 (1979), the legislature intended 

an appropriate standard for establishing negligence per se liability. Stachniewicz, 

259 Or at 587. In that case, the court stated:

“The statute in question prevents making available alcohol to a person who 

is already visibly intoxicated. This makes the standard particularly inappropriate for the awarding of civil damages because of the extreme difficulty, if 

not impossibility, of determining whether a third party’s injuries would have 

been caused, in any event, by the already inebriated person. Unless we are 

prepared to say that an alcoholic drink given after visible intoxication is the 

cause of a third party’s injuries as a matter of law, a concept not advanced 

by anyone, the standard would be one almost impossible of application by a 

factfinder in most circumstances.”

Id. at 586-87 (emphasis omitted). We have no occasion in this case to revisit that 

aspect of the holding in Stachniewicz.
Cite as 358 Or 754 (2016) 767

to impose an additional or separate standard of liability for 

serving visibly intoxicated persons than already existed for 

common-law negligence claims. The answer to that question 

is “no.” The “visibly intoxicated” standard that the legislature enacted in former ORS 30.950(1) (1979) was incorporated in this court’s statement of the common-law negligence 

standard of liability for overservice of alcohol in Campbell. 

279 Or at 243-44. There simply is no indication in the text 

or context of former ORS 30.950 (1979) that the legislature 

intended to create a statutory right of action with the same 

elements or different elements from a common-law negligence claim. Indeed, the legislative history of ORS 471.565 

confirms that conclusion.

2. Legislative History

The substance of ORS 471.565 originally was 

enacted in 1979 as former ORS 30.950 (1979), renumbered as 

ORS 471.565 (2001), and former ORS 30.955 (1979), repealed 

by Or Laws 1987, ch 774, § 14 . The bill that resulted in the 

enactment of those statutes, House Bill (HB) 3152 (1979), 

was proposed by the Oregon restaurant and beverage industry in response to three decisions by this court—Wiener 

v. Gamma Phi, ATO Frat., 258 Or 632, 485 P2d 18 (1971), 

Campbell, and Davis.

a. The Common Law Backdrop

In Wiener, the plaintiff was injured in a car accident 

as she was riding home from an off-site fraternity party, 

where the vehicle’s underage driver had consumed alcohol. The plaintiff brought common-law negligence claims 

against the fraternity, the owner of the off-site venue, and 

the fraternity member who had purchased the alcohol that 

was provided at the party. The trial court dismissed those 

claims.

On review, this court observed:

“Ordinarily, a host who makes available intoxicating liquors 

to an adult guest is not liable for injuries to third persons 

resulting from the guest’s intoxication. There might be circumstances in which the host would have a duty to deny 

his guest further access to alcohol. This would be the case 

where the host ‘has reason to know that he is dealing with 
768 Deckard v. Bunch

persons whose characteristics make it especially likely 

that they will do unreasonable things.’ Such persons could 

include those already severely intoxicated, or those whose 

behavior the host knows to be unusually affected by alcohol. Also included might be young people, if their ages were 

such that they could be expected, by virtue of their youth 

alone or in connection with other circumstances, to behave 

in a dangerous fashion under the influence of alcohol.”

Wiener, 258 Or 639 (citing Rappaport v. Nichols, 31 NJ 188, 

156 A2d 1, 9 (1959) (footnotes omitted). With regard to the 

fraternity member who supplied the alcohol and the owners 

of the venue, this court acknowledged that, under the circumstances described above, a person could be liable to a third 

person for allowing another person to become intoxicated. 

258 Or at 640. However, the court concluded that the allegations against the fraternity member and the venue owners 

were insufficient to assert a breach of duty to the plaintiff, 

because: (1) the fraternity member acted only as a conduit 

in providing alcohol to the people who served it to others; 

and (2) the venue owners furnished the premises, but they 

had no duty to protect the guests or others from the actions 

of those who were allowed to become intoxicated. Id. at

640-42. Turning to the fraternity, this court concluded that 

its status as host and its direct service of alcohol to the driver 

were sufficient to create a duty “to refuse to serve alcohol to 

a guest when it would be unreasonable under the circumstances to permit him to drink.” Id. at 643. Accordingly, this 

court reversed the dismissal of the common law negligence 

claim against the fraternity. Id. at 643-44.

Six years later, in Campbell, the plaintiff alleged 

that the defendant tavern owners were liable for injuries 

that the plaintiff sustained in a car accident caused by a 

customer to whom the owners had served alcohol while 

she was “perceptibly” intoxicated. The plaintiff further 

alleged that the tavern owners knew or should have known 

that the customer would leave the tavern by driving a car, 

thereby creating an unreasonable risk of harm to others. 

Campbell, 279 Or at 239. The case was tried to the court, 

which entered a judgment for the plaintiff. The tavern owners appealed, arguing that the evidence was insufficient to 

support the court’s verdict; the defendants did not contend 
Cite as 358 Or 754 (2016) 769

that the allegations of the complaint failed to state a claim. 

Id.

On review, this court reiterated its previous statement in Wiener that a person who negligently furnishes 

alcohol to a person who already is severely intoxicated may 

be held liable for damages to a third person who suffers injuries as a consequence. Id. at 239-40 (citing Wiener, 258 Or at 

639). The court then discussed Rappaport again, and ultimately adopted the following reasoning from that case:

“When alcoholic beverages are sold by a tavern keeper to 

a minor or to an intoxicated person, the unreasonable risk 

of harm not only to the minor or the intoxicated person but 

also to members of the traveling public may readily be recognized and foreseen; this is particularly evident in current times when traveling by car to and from the tavern is 

so commonplace and accidents resulting from drinking are 

so frequent.”

Id. at 240 (citing Rappaport, 156 A2d at 8-9). The court in 

Campbell also noted that Oregon statutory law prohibited 

the service of alcohol to “visibly” intoxicated persons and 

was similar in that regard to New Jersey law, which prohibited serving alcohol to “apparently” intoxicated persons. Id.

at 241 n 2 (citing former ORS 471.410(3) (1971), renumbered 

as ORS 471.410(1) (1977) (“No person shall give or otherwise make available any alcoholic liquor to a person visibly 

intoxicated.”); former ORS 472.310(3) (1977), repealed by Or 

Laws 1995, ch 301, § 74; Oregon Liquor Control Regulations 

No. 10-065(2)). However, this court adopted the reasoning of 

Rappaport as a matter of common-law negligence, not based 

on or because of a statute.10 Campbell, 279 Or at 241 n 2.

This court in Campbell held that there was sufficient evidence to support an inference that, in serving 

alcohol to the patron while she was visibly intoxicated, the 

tavern owners had reason to know that, upon leaving the 

10 The court adopted the “visibly intoxicated” standard as a common-law 

negligence standard, although, in the context of a negligence per se claim, this 

court previously had held in Stachniewicz that the visibly-intoxicated standard 

was “particularly inappropriate for the awarding of civil damages because of the 

extreme difficulty, if not impossibility, of determining whether a third party’s 

injuries would have been caused, in any event, by the already inebriated person.” 

Stachniewicz, 259 Or at 586-87.
770 Deckard v. Bunch

tavern, she would drive away in a car. Id. at 243. The court 

reasoned that,

“[u]nder the rule of Rappaport, however, which we now 

adopt for application in such cases, a tavern keeper is negligent if, at the time of serving drinks to a customer, that 

customer is ‘visibly’ intoxicated because at that time it is 

reasonably foreseeable that when such a customer leaves 

the tavern he or she will drive an automobile.”

Id. at 243-44.

This court in Campbell therefore concluded, as a 

matter of first impression, that a tavern owner may be liable 

in common-law negligence for damages inflicted off-premises 

on a third party by a patron who had been served while visibly intoxicated. Id. at 239, 243-44.11 The court’s statement 

that a tavern owner who serves a visibly intoxicated patron 

is negligent should not be understood to suggest that the 

issue of foreseeability has been conclusively established by 

judicial notice in such circumstances. As this court stated in 

Chartrand:

“In Campbell, when we took judicial notice of the facts 

discussed above, we did not remove from the definition of 

negligence the ‘knew or should have known’ element; nor 

did we suggest by our language that the ‘knew or should 

have known’ element need not be proved at all but may be 

supplied by judicial notice. The facts that in current times 

traveling by car to and from a tavern is commonplace and 

car accidents resulting from drinking are frequent are not 

the type of indisputable facts that qualify for judicial notice 

under OEC 201. Judicial notice cannot replace the need for 

proof of an essential element of the tort claim as alleged 

in this case, i.e., proof that the defendant knew or should 

have known that the customer would drive a vehicle from 

the tavern.”

Chartrand, 298 Or at 694-95.

The third case leading to the 1979 legislation was 

Davis. In that case, two taverns sold kegs of beer to minors 

without requiring proof of age. Another minor drank some 

of the beer and, after becoming intoxicated, drove his car 

11 The court expressly noted that it had not reached that issue in Wiener. Id.

at 238.
Cite as 358 Or 754 (2016) 771

negligently, causing an accident that resulted in the death of 

another person. This court held that the taverns were negligent per se in violating ORS 471.130(1) (1975), “which [made] 

it unlawful to sell [alcohol] to any person ‘about whom there 

is any reasonable doubt of his having reached 21 years of 

age,’ without first requiring [identification or other] proof of 

age[.]” Davis, 284 Or at 355-57.

It was in that setting that the 1979 legislature considered the matter of the liability of social hosts and commercial providers to third parties for overservice of alcohol.

b. The 1979 legislation

Section 1 of HB 3152, as originally introduced, 

stated:

“The Legislative Assembly recognizes the need to 

restrict the liability of licensees and private hosts for damages incurred or caused by intoxicated patrons or social 

guests they have served. While there is a clear desire to 

hold responsible those licensees and private hosts who consciously or recklessly serve visibly intoxicated patrons or 

social guests, the Legislative Assembly believes that a person must be held responsible and accountable for the person’s voluntary actions when such actions are undertaken 

with a knowledge of possible, although not specifically foreseeable, consequences.”

HB 3152 § 1 (1979). Section 2 of the bill provided that a 

licensee was not liable for damages caused or incurred by 

intoxicated patrons off the licensee’s business premises, 

unless the licensee served the patron while visibly intoxicated and the service was grossly negligent under the circumstances. HB 3152 § 2 (1979). Similarly, section 3 of the 

bill provided that “[n]o private host is liable for damages 

incurred or caused by an intoxicated social guest, unless the 

private host served or provided alcohol to the guest while 

visibly intoxicated and the service was grossly negligent 

under the circumstances.” HB 3152 § 3 (1979).

The bill was first considered in the House Judiciary 

Committee. At its initial hearing, a representative from 

the Oregon Restaurant and Beverage Association (ORBA) 

testified that, in ORBA’s view, recent court decisions had 

gone beyond the “intent of the law.” Tape Recording, House 
772 Deckard v. Bunch

Committee on Judiciary, HB 3152, June 11, 1979, Tape 85, 

Side 2 (statement of Legislative Chairman John Van Horn, 

Oregon Restaurant & Beverage Association). According to 

ORBA, HB 3152 would reduce insurance costs, which had 

significantly increased as a result of those decisions. Id.

Van Horn told committee members that ORBA wanted all 

parties to be held responsible for their actions, including 

patrons and licensees. See id. (“[I]f a licensee is negligent in 

serving a visibly intoxicated person, he or she should suffer 

the consequences of violating the law, including payment of 

a fine, suspension, or revocation of the license.”). However, 

ORBA disagreed with “the theory expressed by the supreme 

court—that a violation of the statute prohibiting the sale of 

liquor to minors or visibly intoxicated persons should constitute negligence per se—is sound public policy, as [that] act is 

not always necessarily the proximate cause of the plaintiff’s 

injuries.” Id.

According to Van Horn, ORBA’s members were willing to bear part of the burden of risks of injuries to third parties, but they wanted that burden limited to circumstances 

where a licensee was grossly negligent. Id. In ORBA’s view, 

“[i]n the Campbell case, the court shifted the burden of evidence from the plaintiff to the defendant, so that in order to 

escape liability, the defendant must show that he had some 

specific knowledge that the particular individual in question was not going to be driving from the establishment.” 

Id. In ORBA’s estimation, a negligence standard reflected 

better public policy, because responsibility would be shared 

by licensees and social hosts, on the one hand, and patrons 

and guests who consume the alcohol, on the other, rather 

than placing the entire burden on the alcohol server, as, in 

ORBA’s view, the recent case law suggested. Id.

At the same committee hearing, a representative 

from the restaurant industry, Dave Dietz, also testified. 

Dietz said that recent case law had led to problems for 

licensees in acquiring insurance; he noted that, in Wiener, 

the court concluded that there was no statutory presumption that a licensee would be liable, whereas in Campbell, 

common-law negligence liability was upheld based on the 

same types of laws as Wiener, and then extended to negligence per se in Davis. Tape Recording, House Committee on 
Cite as 358 Or 754 (2016) 773

Judiciary, HB 3152, June 11, 1979, Tape 85, Side 2 (statement of Dave Dietz). HB 3152 was the industry’s attempt 

to address its concerns about how far that liability ought to 

extend. Id.

Dietz agreed with Van Horn that the burden of the 

risk of injuries needed to be better balanced between providers and consumers of alcohol. Dietz stated that

“[s]ections 2 and 3 address directly the requirement of the 

proof of liability for the licensee and social hosts. In both 

cases, we are asking that a licensee or social host be held 

liable only in the case where they have served alcoholic beverages to a visibly intoxicated person and that server was 

grossly negligent under the circumstances then existing at 

the time of the service.”

Id. Dietz noted that the visibly intoxicated standard reflected 

current law and, although potentially difficult to apply, it 

was a standard that servers understand. Id. Dietz stated 

that, if a server provides alcohol to a visibly intoxicated 

patron, the owner of the establishment “should be liable, 

and they should understand when and where that liability 

begins to exist.” Id.

At the same hearing, Representative Frohnmayer 

took issue with the proponents’ position that recent case law 

had shifted the burden of risk of injury away from intoxicated patrons and guests. Tape Recording, House Committee 

on Judiciary, HB 3152, June 11, 1979, Tape 85, Side 2 (comments of Rep Dave Frohnmayer). He described the effect of 

recent court decisions as adding an additional category of 

potential plaintiffs, not limiting the liability of the intoxicated driver in any way. Id. In addition, Representative 

Frohnmayer expressed concern about the bill’s proposed 

gross negligence standard, which he described as impossible 

to administer. Id. The following exchange is informative:

FROHNMAYER: “[I]sn’t it true that this bill doesn’t 

merely restore the status quo prior to the supreme court’s 

recent decision, but in fact rolls back the law as it has been 

understood for a decade or so to a point where third party 

liability is very difficult to obtain at all?

DIETZ: “There’s an argument that could be made that 

it rolls it back much before the ’78 decision in Campbell. 
774 Deckard v. Bunch

And, of course, that’s exactly what we’re attempting to do. 

I think it takes it back very nearly to the 1971 decisions, in 

both Wiener and Stachniewicz, both of which spoke more to 

the issue of what the common law had at that point in time 

determined. We think this is something that should be 

determined statutorily. And therefore we need a statutory 

standard that addresses this issue specifically. We never 

have had a statute in this state that precisely and definitely 

addresses this very point. And because of that, the courts 

have had to do a great deal of shifting and changing to try 

to arrive at the responsibilities of the parties involved. I 

don’t think it rolls it back so much as it finally establishes a 

standard that will be consistently applied.

FROHNMAYER: “Well, let me see if I can spell out, what 

I’m thinking. The supreme court decided a case on the basis 

of a statute that some people feel shouldn’t have established 

a statutory standard but was taken to be. Therefore, the 

legal effect of it is, once you’ve violated the statute, then 

that’s negligence per se. That’s the first clear holding of the 

supreme court on that and that was, in the minds of many, 

including my own, an extension of the law beyond that that 

I think the legislature intended. Now, and again, speaking 

for myself, if you came and just said to us, ‘we don’t believe 

that violation of statute in this context ought to be negligence per se,’ I think I could buy it. To go back from that 

and say that not only is it not negligence per se, but that 

instead you now have to establish gross negligence, even 

after you meet the requirement that shows that the guest 

is visibly intoxicated, then I think that maybe rolls it back 

into the ’50s or the ’40s, not just the 1970s.

DIETZ: “Well, don’t forget, when the court held precisely 

that the violation was negligence per se, the court was not 

looking at 471.410. It looked at 471.130 which held that the 

negligence per se occurred when you served a minor. Now, 

that we think was an unintended interpretation, at least 

in terms of why the legislature passed that particular statute. And the courts had held in 1971 that 410, 471.410 were 

intended as protection statutes—protection of minor statutes. For the court then in 1978 to turn around and say to 

our licensees that service to a minor was negligence per se

for the actions that that minor later engaged in, and which 

ultimately led to the injury of a third party or a third party’s property, we think entirely unintended by the enactment of 471.130 and a gross extension of the statute beyond 
Cite as 358 Or 754 (2016) 775

any reason. And, yes, we want to roll it back to make very 

clear exactly what legislative intent is. Maybe it’s not precisely this language, but we hope it will be something that 

once and for all establishes a standard that the court can 

use in deciding the cases that are brought to it.”

Tape Recording, House Committee on Judiciary, HB 3152, 

June 11, 1979, Tape 85, Side 2 (statements of Dave Dietz and 

Rep Dave Frohnmayer). It is apparent from the foregoing 

exchange that both Representative Frohnmayer and Dietz 

were primarily concerned about the reach of Davis, where 

this court had held that a violation of former ORS 471.130(1) 

constituted negligence per se.

At a later work session on HB 3152, Dietz proposed 

amendments to remove the gross negligence standards for 

both licensees and social hosts in response to the committee’s 

concerns. Tape Recording, House Committee on Judiciary, 

HB 3152, June 26, 1979, Tape 96, Side 1 (statement of Dave 

Dietz). “In other words, we would go back to what is essentially the pre-[Davis] standard of common law negligence 

for finding third party liability that was expressed in the 

Wiener case in 1971.” Id. Dietz stated that the amendments 

to delete the gross negligence standard were “to get back 

towards the common law negligence test, not necessarily 

that we want to go all the way back to a point where licensees could be unfairly or inequitably held liable for service 

to patrons.” Id. The amendments to remove the gross negligence standard from HB 3152 were then adopted. Id.

Representative Rutherford then expressed concern about the preamble of the bill, section 1, which, as 

noted, provided, in part: “While there is a clear desire to 

hold responsible those licensees and private hosts who consciously or recklessly serve visibly intoxicated patrons or 

social guests, the Legislative Assembly believes that a person must be held responsible and accountable for the person’s voluntary actions when such actions are undertaken 

with a knowledge of possible, although not specifically foreseeable, consequences.” Representative Rutherford opined 

that section 1 was redundant and could muddy the water. 

Tape Recording, House Committee on Judiciary, HB 3152,

June 26, 1979, Tape 96, Side 1 (comment of Rep Rutherford). 
776 Deckard v. Bunch

He was concerned that “if we write the statute to say what we 

intend it to say, we don’t need someplace else saying, ‘what 

we really mean is this.’ And it has a number of words that 

can appear to add another layer of meaning to the words 

in the document.” Id. A discussion ensued regarding inconsistencies in section 1 of the bill after the gross negligence 

standard had been removed and a “common-law negligence 

standard” was retained, and the committee subsequently 

deleted section 1. Id.

Afterwards, Representative Frohnmayer stated 

that perhaps a more informal expression, such as a statement of legislative history, could replace the editorial statement in section 1. Tape Recording, House Committee on 

Judiciary, HB 3152, June 26, 1979, Tape 96, Side 1 (comments of Rep Dave Frohnmayer). He then said,

“I think it is clear that it’s the agreement of the committee, 

if the bill passes, that the liability situation with respect 

to persons who innocently serve liquor in their home or 

in some instances has gotten out of hand creating serious 

problems with respect to the availability of insurance and 

so forth and that the committee is doing its best to address 

that question by retreating at least somewhat from the 

implications of certain court decisions which have been the 

subject of the committee’s discussions. That is my understanding of what the bill is doing.”

Id.12

As pertinent here, the discussion next centered on 

section 5, concerning minors. Section 5, as initially proposed, would have amended ORS 417.130(1) to provide that 

a licensee shall not be liable for failure to require proof of 

age for persons about whom there is reasonable doubt as to 

whether they had reach the age of 21. HB 3152 § 5 (1979). 

12 Nobody present disputed Representative Frohnmayer’s statement. At the 

same time, it is apparent that other legislators, if left to their own devices, would 

have preferred either more relaxed or more rigid standards for over-service liability claims. For example, Representative Rutherford commented, “Since we are 

talking about legislative [intent], it seems to me that people who serve liquor to 

other people should be responsible for their negligence, if any, and that term is 

commonly understood[.]” Id. On the other side, Representative Bugas stated that 

he did not like third party liability and would vote for all the restrictions that 

could be placed on it. Id.
Cite as 358 Or 754 (2016) 777

Framing the issue, Representative Lombard contrasted this 

court’s decisions in Wiener and Davis:

“[I]n 1971, in the case of Wiener v. Gamma Phi ATO 

Fraternity at the University of Oregon, we had a situation 

in which the suit was based simply on common law negligence and foreseeability of that against an individual 

that had sold liquor to, not an intoxicated minor, but an

un-intoxicated minor, and the liquor was thereafter conveyed to a party. ** * And the court in that kind of situation 

looked at the foreseeability on the part of the defendants 

selling the alcohol, as to whether or not that the alcohol 

being purchased would be distributed unwisely and so on 

and so forth. Now what those who support the [Davis] case, 

I think, want to say as a matter of public policy that it shall 

be presumed that sale of any alcoholic liquor to a minor will 

be consumed unwisely.”

Tape Recording, House Committee on Judiciary, HB 3152, 

June 26, 1979, Tape 96, Side 1 (statement of Rep Lombard). 

According to Representative Lombard, section 5 stated the 

legislature’s true intent with regard to ORS 471.130(1). Id.

Representative Rutherford then moved to delete section 5 in 

order to retain existing case law with respect to minors, that 

is, the holding in Davis. Id.

Representative Frohnmayer then suggested that a 

middle ground between Wiener and Davis could be found; he 

was content with Wiener but thought that Davis went too far. 

Id. At an ensuing work session, the committee approved an 

amendment stating that no alcohol provider shall be liable 

for damages caused by persons under the age of 21, “unless it 

is demonstrated that a reasonable person would have determined that [proof of age] should have been requested or that 

the identification [provided] was altered” or otherwise false. 

HB 3152 (1979), Amendments, A-Engrossed bill (June 29, 

1979). With that amendment, the committee approved HB 

3152, and sent it to the House floor, where it subsequently 

passed without further amendment.

Before the Senate Committee on State and Federal 

Affairs and Rules, Dietz again testified that HB 3152 was 

meant to retreat from recent court decisions which the 

restaurant and beverage industry believed had gone too far 

in interpreting then-existing statutes on the issue of third 
778 Deckard v. Bunch

party liability. Tape Recording, Senate Committee on State 

and Federal Affairs and Rules, HB 3152, June 30, 1979, 

Tape 9, Side 1 (statement of Dave Dietz). Dietz stated,

“We believe [HB] 3152 is a reasonable response to the court’s 

recent efforts. We believe it would bring good balance, both 

for protecting the rights of people that are injured, as well 

as protecting the ability of a licensee or permittee to conduct business in a responsible manner. *** Matter of fact, 

we regard this bill as a measure that increase the responsibility of our permitiees and our licensees. The bill, very 

simply, protects both licensees, permittees, and social hosts 

in sections one and two of the measure, and indicates that 

a licensee, permittee, or social host would only be liable for 

damages incurred or caused by an intoxicated patron or 

guest in the event that beverages were provided to a visibly 

intoxicated patron or guest.”

Without significant discussion, HB 3152 then passed 

through committee and the Senate floor, and was enacted 

as Oregon Laws 1979, chapter 801, sections 1 to 6.

To summarize, as enacted, the pertinent statutes 

provided:

Former ORS 30.950 (1979). “No licensee or permittee 

is liable for damages incurred or caused by intoxicated 

patrons off the licensee’s or permittee’s business premises 

unless the licensee or permittee has served or provided the 

patron alcoholic beverages when such patron was visibly 

intoxicated.”

Former ORS 30.955 (1979). “No private host is liable for 

damages incurred or caused by an intoxicated social guest 

unless the private host has served or provided alcoholic 

beverages to a social guest when such guest was visibly 

intoxicated.”

Former ORS 30.960 (1979), renumbered as ORS 471.567 

(2001). “Notwithstanding ORS 30.950, 30.955 and 471.130, 

no licensee, permittee or social host shall be liable to third 

persons injured by or through persons not having reached 

21 years of age who obtained alcoholic beverages from the 

licensee, permittee or social host unless it is demonstrated 

that a reasonable person would have determined that identification should have been requested or that the identification 

exhibited was altered or did not accurately describe the person to whom the alcoholic liquor was sold or served.”
Cite as 358 Or 754 (2016) 779

c. Case law concerning the 1979 legislation

This court has reviewed the legislative history of 

the 1979 legislation on several previous occasions in an 

effort to determine the legislative intent with respect to 

its various provisions. In Sager v. McClenden, 296 Or 33, 

672 P2d 697 (1983), the question was whether former ORS 

30.950 (1979) created a claim for the estate of an intoxicated 

patron against a tavern for fatal injuries that the decedent 

had sustained in a fall after being served alcohol while he 

was visibly intoxicated. Id. at 35. After reviewing the committee hearing minutes concerning HB 3152, this court 

determined that the purpose of former ORS 30.950 (1979) 

was to limit the liability of taverns and other commercial 

alcohol providers to third parties. Id. at 37. The court stated 

that section 1 of HB 3152 initially “was proposed to limit 

the holding in Campbell”; the court described Campbell as 

holding that “a tavern keeper is liable to third parties who 

are injured in an automobile accident that results from serving a visibly intoxicated customer because it is reasonably 

foreseeable that when the customer leaves the premises, 

he or she will drive an automobile.” Sager, 296 Or at 38. 

According to the court, once the gross negligence standard 

was removed from HB 3152, section 1 of the bill, as finally 

approved, “codified the holding in Campbell.” Id. at 38-39.

The court further stated that a “thorough reading of 

the minutes of the committee hearings on HB 3152 fail[ed] 

to reveal a single mention of creating a [new] claim in favor 

of injured patrons[,]” and, in fact, the discussion throughout the hearings centered on limiting a licensee’s liability to 

third parties. Id. at 39. Moreover, because the text of former 

ORS 30.950 (1979) was written in a way that logically limited liability rather than expanding it, the court held that 

former ORS 30.950 (1979) did not create a claim in favor 

of injured patrons against a tavern who served them when 

visibly intoxicated. Id. at 39-40 (citation omitted) (“[Former] 

ORS 30.950 only provides the condition under which a commercial alcoholic beverage server becomes liable to one who 

already has a claim. In light of the legislative history, we 

[] read [former] ORS 30.950 as imposing a limitation on 

the liability originally created by judicial decision.”). The 

court in Sager also stated that section 3 of HB 3152, the 
780 Deckard v. Bunch

section concerning service to minors, “was proposed to limit 

the holding in Davis” and, as finally approved, it restricted 

third party liability for licensees and social hosts who serve 

alcohol to minors “by replacing the negligence per se rule of 

Davis with a reasonable person standard.” Id. at 39.

Two years later, this court again examined former 

ORS 30.950 (1979) in Chartrand, a common-law negligence 

action against a tavern for serving alcohol to a visibly intoxicated patron who injured the plaintiff in a head-on vehicle 

collision. Chartrand, 298 Or at 691. In that case, the jury 

returned a verdict for the plaintiff, and the tavern appealed. 

Id. This court reversed the judgment for the plaintiff based 

on instructional error. Id. at 695.

In dictum, the court went on to say that, on remand, 

the plaintiff could proceed under one or more of three theories: (1) common-law negligence, as recognized in Campbell; 

(2) negligence per se for violation of ORS Chapter 471, as 

recognized in Davis; and (3) statutory liability under former 

ORS 30.950 (1979), as recognized in Nearing. Chartrand, 

298 Or at 695. Elaborating on the statutory liability theory, 

the court said,

“The legislature by stating, or implying in reverse language, that a tavern owner will be held liable for the acts of 

a person who has been served alcoholic liquor while visibly 

intoxicated, resolved the foreseeability issue as a matter of 

law. Thus, a plaintiff protected by such a statute need not 

resort to any concepts of negligence. Negligence is irrelevant. The sole question is whether the defendant engaged 

in acts prohibited by the statute and whether the violation 

of the statute resulted in injury.”

Id. at 696.

The court then discussed the historical process 

that had resulted in the enactment of former ORS 30.950 

(1979). In contrast to this court’s description of the legislative history in Sager, the court in Chartrand described the 

legislation as expanding the liability of commercial alcohol 

providers beyond the limits established by Campbell and 

Davis. Chartrand, 298 Or at 696. Quoting an analysis of the 

legislative history from a student law review comment, the 

court stated that, after HB 3152 was amended to remove the 
Cite as 358 Or 754 (2016) 781

gross negligence standard, the purpose of the bill changed 

from limiting liability to third parties to expanding it. Id.

at 696-97 (quoting Comment, Review of Oregon Legislation, 

16 Willamette L Rev 191, 192-93 (1979) (“After numerous 

amendments by the House Judiciary Committee, the bill 

lost its liability reducing impact, yet retained the support 

of commercial host lobbyists.”).13 The court then stated 

that the final version of the bill resulted in two sections—

former ORS 30.950 (1979) and former ORS 30.955 (1979)—

that created liability for commercial and social hosts for 

injuries caused by intoxicated persons that are served while 

visibly intoxicated, “with no reference to proof of any form of 

negligence.” Id. at 697.

After Chartrand, this court considered former ORS 

30.950 (1979) or former ORS 30.955 (1979) on four more occasions. In Gattman, the question was whether former ORS 

30.950 (1979) provided a remedy to a third party against 

a tavern that served alcohol to a visibly intoxicated patron 

who later stabbed the plaintiff off-premises. To answer 

that question, this court reviewed the decisions that led 

13 In support of that conclusion, the comment cited statements made by 

Representative Rutherford at a work session on June 28, 1979. Elizabeth 

Lee Fancher, Commercial and Social Host Liability for Dispensing Alcoholic 

Beverages, 16 Willamette L Rev 191, 192 n 10 (1979) (citing Tape Recording, House 

Committee on Judiciary, HB 3152, June 28, 1979, Tape 98, Side 1 (statement of 

Rep Rutherford)). We find no support for that conclusion in the comments of any 

legislator, including Representative Rutherford, at the June 28 work session. As 

noted, the subject of that work session was an amendment to limit the holding of 

Davis by prohibiting recovery against an alcohol provider for damages caused by 

a minor in the absence of proof that a reasonable person would have requested 

proof of age or would have determined that the identification provided was false. 

House Committee on Judiciary, HB 3152, June 28, 1979, Tape 98, Side 1.

Representative Rutherford’s position is best captured in the following statement that he made at the June 26 hearing:

“Since we are talking about legislative [intent], it seems to me that people 

who serve liquor certainly should be responsible for their negligence, if any, 

as that term is commonly understood.”

Tape Recording, House Committee on Judiciary, HB 3152, June 26, 1979, Tape 

98, Side 1.

The actual substantive basis for the law review comment’s conclusion may 

have been the author’s belief that, in adopting “the rule of law formulated *** 

in Campbell[,]” the legislature provided a statutory standard of care in HB 3152 

that would support a negligence per se claim. See Fancher, 16 Willamette L Rev 

at 198-99. Whatever may be the merit of that proposition, it does not support this 

court’s dictum in Chartrand that former ORS 30.950 (1979) created a statutory 

liability claim against persons who serve visibly intoxicated patrons or guests.
782 Deckard v. Bunch

to the enactment of the 1979 legislation, and then extensively quoted this court’s review in Sager of the history of 

that legislation. Gattman, 306 Or at 16-22. The court stated 

that “[m]embers of the 1979 legislature would be surprised 

to hear that in attempting to limit the liability of servers 

of alcoholic beverages to the standard stated in Campbell, 

they instead created licensee and permittee liability for all 

actions of an intoxicated customer” after service to a visibly intoxicated person. Id. at 22 (emphasis added). Noting 

that it would be unusual to create statutory liability by providing that “no person is liable unless,” id. at 23 n 11, the 

court reiterated that the legislative history set out in Sager

established that former ORS 30.950 (1979) may have been 

proposed as a limitation on server liability, but it became “a 

legislative codification of this court’s decision in Campbell 

***.” Gattman, 306 Or at 23.

The court in Gattman acknowledged that Chartrand

provided “some support” for the assertion that the statute did 

provide a statutory liability claim for the plaintiff’s situation 

in Gattman. Gattman, 306 Or at 23. However, the court 

distinguished Chartrand as involving the exact situation 

that the legislature was concerned with—drunk driving—

and declined to hold that former ORS 30.950 (1979) created 

statutory liability in an assault case. Id. at 23-24. The court 

also noted that the statement in Chartrand that the plaintiff there could proceed on a statutory liability theory was 

dictum, id. at 23, and that that dictum had been the subject 

of academic criticism. Id. at 24 n 12 (citing Caroline Forell, 

The Interrelationships of Statutes and Tort Actions, 66 Or 

L Rev 219, 266-67 (1987) (noting that Chartrand court did 

not consider wisdom of creating additional statutory action 

where common law claim existed or whether legislature 

intended statutory action to preempt common law claim)).

Later the same year, this court considered whether, 

under former ORS 30.955 (1979), a tavern could maintain 

a third party claim based on statutory liability against a 

private host who bought his visibly intoxicated friend drinks 

at the tavern before the friend drove negligently and injured 

the plaintiff in an automobile accident. Solberg v. Johnson, 

306 Or 484, 487-88, 760 P2d 867 (1988). Noting that former 

ORS 30.955 (1979) also originated in HB 3152, the court 
Cite as 358 Or 754 (2016) 783

reasoned that, if former ORS 30.950 (1979) “was designed to 

hold liable for damages licensees who serve liquor to visibly 

intoxicated patrons[,]” then former ORS 30.955 (1979) was 

designed to hold private hosts liable for serving alcohol to 

visibly intoxicated guests. Solberg, 306 Or at 489. The court 

concluded that the statute was “specifically adopted to provide a remedy” against private hosts. Id.

We note that the third-party plaintiff tavern in 

Solberg pleaded a single claim in which it alleged that the 

host was “negligent” in serving alcoholic beverage[s] to 

someone who was visibly intoxicated in violation of [former] 

ORS 30.955. In Solberg, the court did not cite Chartrand, 

nor did it indicate whether foreseeability was material to a 

statutory liability claim under former ORS 30.955 (1979). In 

short, neither the court nor the parties addressed whether, 

and if so, how, the elements of a statutory liability claim differed from those of a negligence claim.

In a case involving an off-premises assault similar 

to Gattman, the plaintiff asserted claims based on commonlaw negligence, negligence per se under ORS 471.410(1), 

and statutory liability under former ORS 30.950 (1979). 

Hawkins v. Conklin, 307 Or 262, 264-65, 768 P2d 66 (1988). 

In Hawkins, this court affirmed its holding in Gattman that 

former ORS 30.950 (1979) does not provide a statutory remedy in favor of plaintiffs injured in an assault.14 Id. at 265. 

The court then discussed the “operation of [former] ORS 

30.950 in common law negligence actions[.]” Id. at 266.

As background for its discussion of how the statute 

affected common-law claims, the court in Hawkins again 

reviewed the legislative history of former ORS 30.950 (1979). 

Id. at 267-68. Citing Sager, the court stated that, despite the 

restaurant and beverage industry’s desire to “roll back” the 

law to its status before Campbell, “the statute as enacted 

codified the holding of Campbell.” Id. The court also concluded that “the legislative history did [not] indicate an 

intent to distinguish between the types of risks associated 

with intoxication.” Id. at 268 n 6. Noting that the “purpose 

14 The court also reaffirmed its decision in Stachniewicz that former ORS 

471.410(3) (1971), renumbered as ORS 471.410(1) (1977) is not an appropriate 

standard for establishing negligence per se. Hawkins, 307 Or at 265.
784 Deckard v. Bunch

of [former] ORS 30.950 was to protect commercial alcohol 

servers, not to protect a particular class of plaintiffs, such as 

those who were injured by intoxicated drivers[,]” the court 

stated that the statute did not limit common law recovery 

to injuries caused by intoxicated drivers. Id. Because former 

ORS 30.950 (1979) provided that “[n]o licensee or permittee is liable * ** unless,” the court held that “in common 

law negligence actions governed by [former] ORS 30.950, 

serving alcohol to someone who is visibly intoxicated is the 

only conduct for which tavern owners may be held liable for 

off-premises injuries.” Therefore, the court held, “to state 

a common law negligence claim that is not barred by [former] ORS 30.950, the plaintiff must allege that the licensee 

or permittee served alcohol to the person who injured the 

plaintiff when that person was visibly intoxicated.” Id. Thus, 

the court in Hawkins essentially treated former ORS 30.950 

(1979) as imposing a statutory limit on common-law negligence claims.

Finally, in Grady v. Cedar Side Inn, Inc., 330 Or 

42, 997 P2d 197 (2000), the plaintiff was a passenger in a 

car that struck a power pole and overturned. The plaintiff 

and the driver were both intoxicated, having spent the day 

consuming alcoholic beverages, some purchased at an inn 

and some at a convenience store. The plaintiff sued the inn 

and convenience store for common-law negligence and statutory liability under former ORS 30.950 (1987),15 alleging 

that both defendants had served the driver while he was 

visibly intoxicated. Id. at 45. The issue before this court was 

whether the plaintiff could recover even though he had participated in the driver’s intoxication by purchasing some of 

the alcohol for him. Id. at 44. This court rejected the defendants’ argument that the plaintiff’s complicity in the driver’s intoxication precluded his recovery on the ground that 

such a defense would be inconsistent with the legislature’s 

decision to abolish contributory negligence as a defense. Id.

at 47. The court also concluded that the plaintiff was not 

barred as a matter of law from recovery under his statutory 

claim because nothing in the text or context of former ORS 

15 As elaborated below, Grady involved a later version of former ORS 30.950 

(1987) that did not vary, insofar as pertinent here, from the original version of the 

statute.
Cite as 358 Or 754 (2016) 785

30.950 (1987) limited liability under the statute to “innocent” third parties. Id. at 48-49. Nor was the plaintiff barred 

from recovery as a matter of law because he was a “social 

host” who had purchased alcohol for the driver. Id. at 49. 

The court ultimately stated that the plaintiff’s possible status as a “social host” may have affected the apportionment 

of relative fault, but that status did not bar the plaintiff 

from recovery under the statute. Id. (“[Former] ORS 30.950 

subjects licensees, permittees, and social hosts to liability to 

third parties for injuries caused by the intoxicated patron 

or guest whom they served. * ** That is exactly the type of 

claim that the statute permits.”).

d. The intent of the 1979 legislation revisited

From our review of the legislative history of former 

ORS 30.950 (1979) and former ORS 30.955 (1979), as well as 

this court’s prior decisions examining that legislative history, it does not appear that this court has previously considered the recordings of the 1979 legislative hearings on 

HB 3152 that we have discussed here. Instead, this court’s 

previous consideration of the legislative history appears to 

have been confined to committee minutes. See Sager, 296 

Or at 37 n 2 (“legislative history” consisted of minutes 

from committee hearings); id. at 39 (“A thorough reading 

of the minutes of the committee hearings on HB 3152 fails 

to reveal a single mention of creating a claim in favor of 

injured patrons.” (Emphasis added.)). However, our review 

of the recordings indicates that the conclusions that this 

court drew from the legislative history before it in Sager, 

296 Or at 38-39, Gattman, 306 Or at 23, and Hawkins, 307 

Or at 267-68, were essentially accurate: In enacting former 

ORS 30.950 (1979) and former 30.955 (1979), the legislature 

ultimately approved the holding in Campbell and intended 

to limit the holding in Davis. At no time during hearings on 

HB 3152 did anyone suggest that its enactment would create statutory liability that was different from common law 

liability. On the contrary, the focus throughout the hearings 

was on whether the perceived reach of the Campbell and 

Davis decisions should be statutorily confined.16

16 See Tape Recording, House Committee on Judiciary, HB 3152, June 11, 

1979, Tape 85, Side 2 (statement of Legislative Chairman John Van Horn, Oregon 
786 Deckard v. Bunch

The legislative history of HB 3152, as amplified by 

the full record of hearings on that bill, shows that its ultimate purpose was to limit the liability of alcohol providers in 

serving visibly intoxicated patrons. Comments made at the 

committee hearings on the bill repeatedly stated preferences 

for a common-law negligence standard and for rejecting a 

gross negligence standard.17 It is true that the proponents of 

HB 3152 and perhaps some legislators may have understood 

this court’s decision in Campbell as having prescribed a negligence per se standard for alcohol providers who serve visibly intoxicated persons.18 However, those statements do not 

Restaurant & Beverage Association) (supporting concept of limited liability in 

HB 3152 because recent court decisions had gone beyond law’s intent); id. (statement of Dave Dietz) (stating that recent case law led to problems for licensees in 

acquiring insurance and HB 3152 attempted to address concerns about extent of 

liability); id. (statement of Rep Dave Frohnmayer) (stating that recent court decision based on statute resulted in negligence per se, which went too far in many 

opinions, including his own); Tape Recording, House Committee on Judiciary, 

HB 3152, June 26, 1979, Tape 96, Side 1 (comments of Rep Dave Frohnmayer) 

(summarizing legislative intent by stating that liability situation had gotten out 

of hand and committee was addressing problem by retreating from recent court 

decisions; expressing desire for middle ground between Wiener and Davis because 

Davis had gone too far); id. (comment of Rep Rutherford) (stating that section 1 of 

HB 3152—expressing legislature’s acknowledgement of need to restrict liability 

of licensees and hosts—was redundant); id. (comment of Rep Bugas) (expressing 

displeasure with third party liability and desire to place restrictions on it); Tape 

Recording, Senate Committee on State and Federal Affairs and Rules, HB 3152, 

June 30, 1979, Tape 9, Side 1 (statement of Dave Dietz) (stating that HB 3152 was 

designed to back away from recent court decisions).

17 Tape Recording, House Committee on Judiciary, HB 3152, June 11, 

1979, Tape 85, Side 2 (statements of Van Horn and Dietz); id. (statement of Rep 

Frohnmayer) (Negligence per se “was, in the minds of many, including my own, 

an extension of the law beyond that that I think the legislature intended.”); Tape 

Recording, House Committee on Judiciary, HB 3152, June 26, 1979, Tape 96, 

Side 1 (statement of Rep Lombard) (“[T]he standard *** in the bill is basically 

negligence.”); id. (statement of Rep Rutherford) (“[W]e’ve adopted a negligence 

standard[.]”).

18 For example, Van Horn described Campbell as shifting the burden of 

producing evidence from the plaintiff to a defendant-licensee by requiring the 

licensee to show some specific knowledge that the intoxicated patron was not 

going to drive from the tavern. Tape Recording, House Committee on Judiciary, 

HB 3152, June 11, 1979, Tape 85, Side 2 (statement of Legislative Chairman 

John Van Horn, Oregon Restaurant & Beverage Association). Van Horn further described Campbell as reflecting this court’s theory “that a violation of the 

statute prohibiting the sale of liquor to * ** visibly intoxicated persons should 

constitute negligence per se ***.” Id. Similarly, Dietz described the industry’s 

concern with the shift from Wiener—where no statutory presumption of liability 

existed—to Campbell—where common law negligence was based on statutes and 

OLCC regulations—to Davis—where common law negligence was extended to 

negligence per se. Id. (statement of Dave Dietz).
Cite as 358 Or 754 (2016) 787

reflect a proper understanding of the holding of Campbell. 

As noted, to prevail in a common-law negligence claim 

based on overservice under Campbell, a plaintiff still had 

to plead and prove that the defendant knew or should have 

known that a visibly intoxicated patron would create an 

unforeseeable and unreasonable risk of harm to others off 

the defendant’s premises. See Chartrand, 298 Or at 694-95

(“Judicial notice cannot replace the need for proof of an 

essential element of the tort claim as alleged in this case, 

i.e., proof that the defendant knew or should have known 

that the customer would drive a vehicle from the tavern.”).

In former ORS 30.950 (1979) and former ORS 30.955 

(1979), the legislature effectively said that liability may go 

as far as Campbell but no farther. The result was legislation 

that limited liability for alcohol providers by describing the 

only circumstances under which they could be liable in a 

common-law negligence claim—i.e., for serving alcohol to a 

visibly intoxicated person. Consistently with that purpose, 

the legislation as enacted did not state that an alcohol provider is liable for serving visibly intoxicated persons, which 

could indicate that one or more aspects of foreseeability 

would not need to be shown; instead, the legislation provided that no alcohol server is liable unless, which indicates 

a limitation on liability. Because, as the record shows, legislative committee members expressed skepticism toward 

even a negligence per se standard, it seems highly unlikely 

that they would have consciously approved legislation creating statutory liability that would hold an alcohol provider 

liable for overservice without regard to foreseeability.

Unfortunately, this court stated in dictum in 

Chartrand that, after the gross negligence standard was 

removed from HB 3152, the bill’s effect was not to limit alcohol provider liability but, rather, to expand it. Chartrand, 

298 Or at 697. As discussed, there is no indication in the 

legislative record that the rejection of the proposed gross 

negligence standard signaled such a change in the bill’s 

purpose. That standard was meant to “roll back the law” 

from ORBA’s understanding of Campbell as setting a negligence per se standard and to retreat to what ORBA understood to be an earlier state of the law. See Tape Recording, 

House Committee on Judiciary, HB 3152, June 11, 1979, 
788 Deckard v. Bunch

Tape 85, Side 2 (comments of Rep Dave Frohnmayer). It is 

illogical to infer that the legislature’s rejection of the gross 

negligence standard was more than a partial retreat from 

the proponents’ goals. After the gross negligence standard 

was removed, committee members continued to state that 

the bill was intended to limit liability for alcohol providers 

who serve visibly intoxicated persons.19 Moreover, when the 

amended bill was presented to the Senate committee, industry representative Dietz still described the intent of HB 3152 

as backing away from recent court decisions and protecting alcohol providers. Tape Recording, Senate Committee 

on State and Federal Affairs and Rules, HB 3152, June 30, 

1979, Tape 9, Side 1 (statement of Dave Dietz).

In short, the 1979 legislature ultimately enacted 

compromise legislation that rejected both a gross negligence standard and a negligence per se standard for alcohol providers and, as a middle ground, endorsed this court’s 

common-law negligence standard in Campbell. Because 

that standard requires a plaintiff to show that the defendant knew or should have known that its conduct created an 

unreasonable and unforeseeable risk of harm to the plaintiff 

and limits liability to reasonably foreseeable harm, there is 

no basis to conclude that, by enacting HB 3152, the legislature intended to create a form of statutory liability that 

eliminated those foreseeability requirements. In fact, to so 

conclude would directly contradict the legislative history 

that this court has reviewed in its decisions since 1979.

Which brings us to back to Chartrand. In light 

of the foregoing analysis, we must disavow the dictum in 

Chartrand stating that, by enacting former ORS 30.950 

(1979), the legislature intended to create statutory liability 

for alcohol providers that effectively dispensed with a foreseeability requirement. See, e.g., ODOT v. Alderwoods (Oregon), 

Inc., 358 Or 501, 520 n 8, __ P3d __ (2015) (disavowing 

19 See id. (comments of Rep Dave Frohnmayer) (summarizing legislative 

intent by stating that liability situation had gotten out of hand and committee 

was addressing problem by retreating from recent court decisions); (comment 

of Rep Rutherford) (stating that section 1 of HB 3152—expressing legislature’s 

acknowledgement of need to restrict liability of licensees and hosts—was redundant); (comment of Rep Bugas) (expressing displeasure with third party liability 

and desire to place restrictions on it).
Cite as 358 Or 754 (2016) 789

dictum that was “not supported by any authority”); State 

v. Christian, 354 Or 22, 40, 307 P3d 429 (2013) (overruling 

prior decisions that extended, without explanation, overbreadth analysis beyond free-speech cases). As noted, the 

student comment on which the court relied to state that 

the legislation ultimately expanded liability for alcohol providers did not support the court’s dictum. In addition, the 

court’s reliance on Sager for that proposition was misplaced. 

As discussed, this court in Sager held that the purpose of 

HB 3152 was to approve the common-law negligence standard set out in Campbell, which, as this court stated in 

Chartrand, retained a foreseeability requirement.20

e. Later statutory amendments

Although we have determined that ORS 30.950 

(1979) was not intended to create a statutory right of action 

that exists independently of a common law negligence claim 

for licensees or hosts who serve alcohol to visibly intoxicated 

patrons or guests, our review would be incomplete without 

considering whether any subsequent amendments to that 

statute created such liability.

In 1987, the legislature combined former ORS 

30.950 (1979) and former ORS 30.955 (1979) into one statue, 

which continued as former ORS 30.950 (1987), renumbered 

as ORS 471.565 (2001).21 Or Laws 1987, ch 774, § 13. That 

legislation also added a requirement that plaintiffs prove 

20 Unlike the dictum in Chartrand, this court’s statements in Solberg and 

Grady that the plaintiffs there could maintain claims for statutory liability based 

on former ORS 30.950 (1979) were actual holdings of those cases. However, in neither of those cases did the court actually decide that any such claim has different 

elements than a common law negligence claim. Accordingly, we need not reconsider those cases here except to disavow any suggestion in them that, in enacting 

HB 3152 (1979), the legislature intended to create an independent statutory right 

of action with different elements from a common-law negligence claim.

We further conclude that we need not reconsider this court’s decision in 

Gattman. As discussed, although the court in Gattman did acknowledge the dictum in Chartrand, it also warily treated it as such and ultimately distinguished 

Chartrand in concluding that the plaintiff was not entitled to recover on a statutory liability theory. Gattman, 306 Or at 23-24.

21 Former ORS 30.950 (1987) provided:

“No licensee, permittee or social host is liable for damages incurred or 

caused by intoxicated patrons or guests off the licensee, permittee or social 

host’s premises unless:
790 Deckard v. Bunch

visible intoxication by “clear and convincing evidence.” Id.

In 1997, a pre-action notice requirement was added for any 

action against a social host or commercial alcohol provider 

for alcohol-related injury or damage. Or Laws 1997, ch 841, 

§ 1. Then, in 2001, the statute was amended to read as it 

does now, and it was renumbered as ORS 471.565. Or Laws 

2001, ch 534, § 1.

The 2001 amendments were enacted in response to 

two decisions by this court, Grady, which we already have 

discussed, and Fulmer v. Timber Inn Restaurant and Lounge, 

Inc., 330 Or 413, 9 P3d 710 (2000). In Fulmer, the plaintiffs 

sought recovery from a restaurant that served one of the 

plaintiffs while he was visibly intoxicated, after which he 

had injured himself in a fall on the restaurant’s premises. 

Id. at 416. The plaintiff asserted claims for common-law negligence and negligence per se based on ORS 471.410(1), but 

did not allege statutory liability under former ORS 30.950 

(1993). Id. at 417. This court affirmed dismissal of the negligence per se claim. Id. at 418-19 (citing Stachniewicz, 259 

Or at 586-87; Hawkins, 307 Or at 265). On the common-law 

negligence claim, the court concluded that an intoxicated 

patron could assert a claim against an alcohol provider for 

damages caused by the patron’s intoxication. Id. at 427.

In response to Grady and Fulmer, the 2001 legislature amended former ORS 30.950 (1999), renumbered as 

ORS 471.565 (2001). As a result, ORS 471.565 now provides, 

in part:

“(1) A patron or guest who voluntarily consumes alcoholic beverages served by a person licensed by the Oregon 

Liquor Control Commission, a person holding a permit 

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 

“(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.”
Cite as 358 Or 754 (2016) 791

injury, death or damages caused by intoxication and do not 

apply to claims for relief based on injury, death or damages 

caused by negligent or intentional acts other than the service of alcoholic beverages to a visibly intoxicated patron or 

guest.

“(2) A person licensed by the Oregon Liquor Control 

Commission, person holding a permit issued by the commission or social host is not liable for damages caused by 

intoxicated patrons or guests unless the plaintiff proves by 

clear and convincing evidence that:

“(a) The licensee, permittee or social host served or 

provided alcoholic beverages to the patron or guest while 

the patron or guest was visibly intoxicated; and

“(b) The plaintiff did not substantially contribute to 

the intoxication of the patron or guest by:

“(A) Providing or furnishing alcoholic beverages to the 

patron or guest;

“(B) Encouraging the patron or guest to consume or 

purchase alcoholic beverages or in any other manner; or

“(C) Facilitating the consumption of alcoholic beverages by the patron or guest in any manner.”

Or Laws 2001, ch 534, § 1. Subsection (1) was intended to 

overturn this court’s holding in Fulmer, and subsection (2) 

was intended to limit the holding in Grady. See, e.g., Minutes, 

Senate Committee on the Judiciary, SB 925, Mar 13, 2001, 

1 (stating that focus of bill is to eliminate claims for intoxicated persons who injure themselves); Testimony, Senate 

Committee on Judiciary, SB 925, Mar 13, 2001, Ex A (statement of Bill Perry describing bill as “legislation to ensure 

than an establishment is not liable if customers who consume alcohol under their own free-will injure themselves”).

Defendant and amicus curiae argue that the later 

amendments to the 1979 legislation mark the legislature’s 

continuing efforts to limit the liability of alcohol providers. 

In their view, a plaintiff’s burden was increased by the addition of the clear and convincing evidence standard, and the 

requirement that plaintiffs prove that they did not substantially contribute to the intoxication of the person that caused 

the injury.
792 Deckard v. Bunch

For his part, plaintiff focuses on the 2001 amendments and argues that the phrase “does not have a cause 

of action, based on statute or common law” indicates that 

the legislature reaffirmed its previous provision of a statutory liability claim for serving a visibly intoxicated person. Plaintiff argues that, if a statutory liability claim did 

not already exist, the legislature would not have prohibited 

statutory claims for persons injured as a result of their 

own voluntary intoxication. In support of that argument, 

plaintiff cites the statement of the legislative counsel who 

drafted that part of the amendment: “[I]t occurred to me 

that perhaps it would be better to make it clear that this 

law that—this change to the law—would in fact not allow 

suits under theories, not only for common-law negligence, 

which is what is specified in the bill, but also under any theory.” Tape Recording, Senate Committee on Judiciary, SB 

925, March 13, 2001, Tape 57, Side A (statement of Dave 

Heynderickx). In plaintiff’s view, if the legislature had 

never intended for ORS 471.565 or its predecessors to provide statutory rights of action, then it would not have been

necessary—when implementing the change in the law to 

prohibit first party claims—to expressly deny a statutory 

liability claim to future plaintiffs.

Defendant responds that plaintiff’s argument fails 

for four reasons. First, defendant notes that subsection (1) 

concerns first-party claims, not third-party claims, so there 

was no reason for the legislature to refer to subsection (2) in 

subsection (1). Second, defendant argues, legislative counsel 

would have known that this court had previously held that 

subsection (2) did not create liability in third-party cases. 

Third, defendant asserts, when explaining the amendment, 

legislative counsel did not refer to subsection (2), which he 

likely would have done if that was the statute to which he 

meant to refer. From defendant’s perspective, the purpose of 

the “based on statute or common law” phrase was to make 

clear that first-party claims could not be brought under any 

theory, including liability under statutes not yet considered 

by the courts. Finally, defendant argues that whatever the 

2001 legislature may have thought about the originally 

enacted version of the law could not have altered that law’s 

actual effect; if former ORS 30.950 (1979) and former ORS 
Cite as 358 Or 754 (2016) 793

30.955 (1979) did not create a statutory claim when enacted, 

the 2001 legislature’s contrary belief would not matter.

In our view, the most that can be said for the provision in the 2001 amendment referring to liability based on 

“statute” is that, in light of Chartrand, Solberg, and Grady, 

the legislature was simply clarifying that the limits that it 

imposed would apply to statutory as well as common law 

claims. In short, that amendment is not pertinent to the 

issue of whether the 1979 legislature intended to create 

statutory liability or the elements that would be included in 

such a claim, nor did it create new statutory liability itself.

III. CONCLUSION

In sum, we conclude that, in enacting former ORS 

30.950 (1979) and former ORS 30.955 (1979), the legislature 

did not intend to create a statutory right of action against 

social hosts or commercial providers for overservice of alcohol 

to visibly intoxicated guests or patrons that dispenses with 

any elements of a common law negligence claim. Instead, as 

enacted, the legislation limited this court’s holding in Davis

that a violation of ORS 471.130 (1975) constituted negligence 

per se, and it approved the common law negligence standard 

set out in this court’s decision in Campbell, including the 

requirement that a plaintiff must establish that, when he or 

she served a visibly intoxicated person, the defendant knew 

or should have known of an unreasonable risk of harm to an 

injured third party.

Because the later amendments to the statute 

also did not create such a statutory right of action, ORS 

471.565(2) does not provide a right of action against alcohol 

providers that has elements independent of a claim for common law negligence. It follows that the circuit court properly dismissed plaintiff’s statutory liability claim and that 

the Court of Appeals erred in reversing the judgment for 

defendant.22

The decision of the Court of Appeals is reversed, 

and the judgment of the circuit court is affirmed.

22 Because of our conclusion that the trial court did not err in dismissing 

plaintiff’s statutory liability claim, we need not address defendant’s harmless 

error argument.