Statutory dram shop liability protections are important in evaluating potential exposure and rating possible premiums. The Oregon Supreme Court has concluded that one of these statutory protections is constitutional in one fact pattern but unconstitutional in another. This ruling could affect potential exposure and how prospective plaintiffs plead their cases.

IN Bonner v. American Golf Corp. in Californiathe plaintiff was at a golf tournament, fell out of a golf cart and allegedly sustained serious injuries. He claimed the golf club was negligent and liable for his injuries after continuing to serve him alcohol despite him being visibly intoxicated. The golf club moved to dismiss, arguing that ORS 471.565(1) precludes liability in this situation. Plaintiff responded that ORS 471.565(1) is unconstitutional because it violates the Remedies Clause of the Oregon Constitution. The remedies clause has been interpreted as limiting the legislature’s ability to eliminate common law causes of action in certain circumstances. Plaintiff argued that ORS 471.565(1) does just that and thus violates the Remedies Clause.

ORS 471.565(1) is an important part of Oregon’s statutory dram shop:

A patron or guest who voluntarily consumes alcoholic beverages served by a person licensed by the Oregon Liquor and Cannabis Commission, a person holding a permit issued by the commission, or a social host has no cause of action, based on statute or common law, against the who serves the alcoholic beverages, even though the alcoholic beverages are served to a patron or guest while the patron or guest is visibly intoxicated.

Bonner notes that nothing in ORS 471.565(1) “eliminates the duty that has existed since at least the early twentieth century not to serve alcohol to a visibly intoxicated person.” The issue was solely whether ORS 471.565(1) eliminates a common law remedy. The Oregon Supreme Court “has never held that a person who contributes to his own intoxication by voluntarily consuming alcohol, and is injured as a result, has a legal right to recover in negligence from the person who served the alcohol.” Applying it to the statutory language, if “the term “visibly intoxicated” in ORS 471.565(1) includes anything less than having lost the sense of reason and will, which would make the person’s intoxication unintentionalthis statute does not eliminate a remedy for a breach of an existing obligation.” Ultimately, ORS 471.565(1) is constitutional in this fact pattern.

However, Bonner expressly notes that ORS 471.565(1) would be held unconstitutional if a server “serves alcohol to a “visibly intoxicated” person who have reached the point where further consumption is involuntary because the person has lost the sense of reason and volition.” When ORS 471.565(1) was enacted, “a person whose consumption of alcohol may be said to be involuntary had a preexisting common law negligence claim against the server who provided the alcohol, for injuries sustained as a result of the person’s intoxication.

Ultimately, the most important difference seems to depend on whether the intoxication was voluntary or involuntary. In practice, this could make it more difficult to win summary judgment in cases where the level of intoxication is particularly high.