Sager v. McClenden

THORNTON, J. Plaintiff, the personal representative of the estate of Gerald Sager, who died as the result of a fall while intoxicated, brought this wrongful death action against two cocktail lounges and an employe bartender. The complaint alleged that defendants negligently served alcohol to decedent after he was visibly intoxicated. The trial court granted defendants’ motion to dismiss and motion for judgment on the pleadings, finding that plaintiff failed to state facts sufficient to constitute a claim. ORCP 21. The issue is whether a person or, as here, the personal representative of his estate has a personal cause of action for negligently serving that person alcohol. We conclude that the complaint stated a cause of action and reverse. Plaintiffs complaint makes a single allegation of negligence: “On or about November 12, 1979, defendants, and each of them, sold and distributed to plaintiffs decedent intoxicants after it became apparent to them that he was visibly intoxicated.” The complaint alleges that, as a result, decedent collapsed, striking his head against the ground. He died from that injury two days later. Plaintiff brought this action under the wrongful death statute. ORS 30.020. That statute allows the decedent’s personal representative to bring an action against the wrongdoer “if the decedent might have maintained an action, had he lived, against the wrongdoer for an injury done by the same act or omission.” ORS 30.020(1). We therefore treat the allegations in the complaint as if decedent himself had brought the action. Plaintiff argues that the cause of action rests on ORS 30.950, which provides: “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.” (Emphasis added.) [160] This statute was enacted by Oregon Laws 1979, chapter 801, section 1. Section 4 of that Act repealed the Oregon “Dram Shop Act,” ORS 30.730, which provided: “Any person who shall bargain, sell, exchange or give to any intoxicated person or habitual drunkard spiritous, vinous, malt or intoxicating liquors shall be liable for all damage resulting in whole or in part therefrom, in an action brought by the wife, husband, parent or child of such intoxicated person or habitual drunkard. The act of any agent or employe shall be deemed the act of his principal or employer for the purposes of this section.” Plaintiffs decedent clearly would not have had a cause of action against his providers of alcohol under ORS 30.730. City of Portland v. Alhadeff 288 Or 271, 280, 604 P2d 1261 (1980). Plaintiff contends that, by the repeal of ORS 30.730 and its replacement by ORS 30.950, the legislature has imposed liability where none previously existed, creating a cause of action in favor of persons, such as plaintiff s decedent, who are harmed as a result of their own intoxication. The defendants, on the other hand, contend that ORS 30.950 does not broaden the liability of providers of alcohol. They argue that that statute merely places a condition on their liability under the common law which does not recognize a cause of action in favor of persons such as plaintiff s decedent. The issue presented boils down to determining the meaning of the italicized language in ORS 30.950, quoted earlier. We read the italicized language to mean exactly what it says, namely, that licensees or permittees are liable both for damages “incurred” by intoxicated persons as well as damages “caused by” intoxicated persons. The dissenting opinion in construing the above section appears either to overlook or disregard the word “incurred.” Furthermore, the above analysis is consistent with earlier dictum by this court of this same statutory language in Johnson v. Paige, 47 Or App 1177, 1180 n 2, 615 P2d 1185 (1980), a case brought before the 1979 repeal of the Dram Shop Act involving a claim by plaintiff for injuries due to her own intoxication. In Johnson we said: “We note that H.B. 3152, Section 2, 1979, ORS 30.955, effective July 25, 1979, provides: [161] “ ‘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.’ “The provisions of ORS 30.955, however, do not apply retroactively to the instant cause of action which accrued on October 15, 1976. This statute reaffirms our conclusion that liability is now imposed where none previously existed.” (Emphasis added.) In construing a statute, courts must ascertain and declare what is, in terms or in substance, contained therein and cannot insert what has been omitted or omit what has been inserted. ORS 174.010; Union Pac. R. R. Co. v. Bean, 167 Or 535, 119 P2d 575 (1941). An unambiguous statute should not be construed, but should be enforced according to its language. State v. Young, 74 Or 399, 145 P 647 (1915); West Foods, Inc. v. Morgan, Orr 16 Or App 613, 519 P2d 1062, rev den (1974). Reversed and remanded.