Bonner v. Am. Golf Corp. of Cal.

1

372 Or. 814

Kerrie BONNER, Personal Representative of the Estate of David W. Bonner, Deceased, Plaintiff, v. AMERICAN GOLF CORPORATION OF CALIFORNIA, INC., dba Oregon Golf Club, fdba The Oregon Golf Club, a foreign corporation; and American Golf Corporation, dba Oregon Golf Club, fdba The Oregon Golf Club, a foreign corporation, Defendants.

SC S070183

Supreme Court of Oregon, En Banc

October 31, 2024

Argued and submitted September 14, 2023.

United States District Court for the District of Oregon No 322cv01582SI

On certified question from the United States District Court for the District of Oregon; certified order dated April 25, 2023 certification accepted May 18, 2023.

Rachel M. Jennings, Pickett Dummigan Weingart, LLP, Portland, argued the cause and filed the brief for plaintiff. Also on the briefs were J. Randolph Pickett, Shangar S. Meman, and Kyle T. Sharp.

Andrew J. Lee, Schwabe, Williamson & Wyatt, P.C., Portland argued the cause and filed the brief for defendants. Also on the brief were Jeffrey S. Eden, Sara Kobak, and Mario E Delegato.

Lisa T. Hunt, Law Office of Lisa T. Hunt, LLC., Lake Oswego, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Alice S. Newlin, Lindsay Hart, LLP, Portland, fled the brief for amicus curiae Oregon Association of Defense Counsel. Also on the brief was Michael J. Estok.

MASIH, J.

Servers of alcohol in Oregon have a duty not to serve alcohol to "visibly intoxicated" persons, but ORS 471.565(1) limits servers' liability in some circumstances even if the person is visibly intoxicated. Under that statute "[a] patron or guest who voluntarily consumes alcoholic beverages served by [a licensed server or 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." In this case, which comes before us on a certified question of Oregon law from the United States District Court for the District of Oregon, we are asked to determine to what extent, if any, ORS 471.565(1) violates the remedy clause of Article I, section 10, of the Oregon Constitution. As we will explain, Oregon's common law has long held that a person has a remedy against the server of alcohol for injuries that the person suffered as a result of consuming alcohol involuntarily, meaning after the point that the person has lost the "sense of reason and volition." See Ibach v. Jackson, 148 Or. 92, 35 P.2d 672 (1934) (setting that standard). A statute that precluded such a recovery would violate the remedy clause. However, ORS 471.565(1), by its terms, does not reach that far. On the contrary, it bars a claim only by a person who "voluntarily consumes" alcohol. Accordingly, application of ORS 471.565(1) to bar a plaintiffs claim against a licensed server or social host does not violate the remedy clause of Article I, section 10, because it does not bar a claim by a person who involuntarily consumed alcohol served by a licensed server or social host.

I. CERTIFIED QUESTION

In this case, plaintiff, a patron of a golf club that was hosting a golf championship, brought suit against defendants, the owners of the golf club, for, among other things, common-law negligence, based on allegations that he was served alcohol when he was visibly intoxicated and then fell off a golf cart and was seriously injured.^[1] Defendants moved to dismiss the complaint under FRCP 12(b)(6) for failure to state a claim, on the ground that plaintiffs claim is barred by ORS 471.565(1). Plaintiff responded that, to the extent that that statute barred his claim,^[2] it deprived him of a remedy in violation of Article I, section 10.

With the consent of the parties, the district court certified the following question to this court:

"Does ORS 471.565(1) violate the Remedy Clause of the Oregon Constitution, Article I, § 10, by denying a remedy to a plaintiff who sustains injury due to his or her own voluntary intoxication and who sues a licensed server or social host in their role as such?"

In its certification order, the district court noted that the Court of Appeals had held in 2017, in Schutz v. La Costita III, Inc., 288 Or.App. 476, 478, 406 P.3d 66 (2017) {Schutz II), affd on other grounds, 364 Or. 536, 436 P.3d 776 (2019) (Schutz III), that ORS 471.565(1) violated the plaintiffs constitutional right to a remedy.^[3] In reaching that conclusion, the Court of Appeals relied on this court's then-recent decision in Horton v. OHSU, 359 Or. 168, 218-19, 376 P.3d 998 (2016). According to the Court of Appeals, the court in Horton held that a statute deprives a person of a remedy if the common law at the time that the statute was enacted would have provided a remedy for the same type of claim. Schutz II, 288 Or at 485-88. The district court further noted that this court affirmed the Court of Appeals' decision in Schutz II, but on a different ground: We held that, given that the plaintiffs allegations of negligence against the defendants arose out of their roles as employer and supervisor and not out of their roles as servers or social hosts, the defendants were not entitled to statutory immunity under ORS 471.565(1) and, thus, it was unnecessary to resolve the constitutional question. Schutz III, 364 Or at 537.

Based on its reading of those cases, the district court certified the question to this court, stating:

"Because the Oregon Supreme Court interpreted ORS 471.565 more narrowly in Schutz [III], it is ambiguous, at best, whether the constitutional analysis in Schutz [II] still applies. Thus, the precedential value of Schutz [II] is unclear and likely leaves this important question without controlling precedent from either the Oregon Court of Appeals or the Oregon Supreme Court. Final resolution by the Oregon Supreme Court would be helpful in resolving both counts of plaintiffs negligence claim and have broad legal consequence in the state and federal systems."

We accepted the certified question under ORS 28.200. However, we observe that the district court's question does not reflect the terms of ORS 471.565(1). The district court's question asks whether the statute is unconstitutional as applied to a "plaintiff who sustains injury due to his or her own voluntary intoxication and who sues a licensed server or social host in their role as such." However, ORS 471.565(1) does not use the term "voluntary intoxication"; it bars a claim by a patron who "voluntarily consumes alcoholic beverages" against a server for "injury, death, or damages caused by intoxication," "even though the alcoholic beverages are served to the patron or guest while the patron or guest is visibly intoxicated."

This court has discretion to reframe a certified question. Western Helicopter Services v. Rogerson Aircraft, 311 Or. 361, 370, 811 P.2d 627 (1991); McFadden v. Dryvit Sys., Inc., 338 Or. 528, 532-33, 112 P.3d 1191 (2005). The concepts of the voluntary consumption of alcohol and visible intoxication are both found in the statute. Because both are necessary to our constitutional analysis but are distinct, we think it appropriate to slightly reframe the district court's question. We therefore exercise our discretion to modify the certified question as follows:

"Does ORS 471.565(1) violate the Remedy Clause of the Oregon Constitution, Article I, section 10, by preventing a plaintiff who voluntarily consumes alcoholic beverages served to the plaintiff by a licensed server or social host when the plaintiff was visibly intoxicated and who sustains injury as a result from suing the licensed server or social host in their role as such?"

II. ANALYSIS

Before we commence our analysis of the constitutionality of ORS 471.565(1), we address a more general issue that defendants have raised in their brief to this court. Namely, defendants invite the court to revisit the meaning of the remedy clause Defendants explain that, in Horton, this court considered itself constrained by its earlier decisions interpreting the remedy clause, and, therefore, it declined to "decide how we would interpret Oregon's remedy clause if we were considering it for the first time" Horton, 359 Or at 218 In a concurring opinion, Justice Landau urged the court to undertake a wholesale review of its remedy clause jurisprudence Id. at 254-86 (Landau, J, concurring). Defendants now ask this court to align itself with Justice Landau's concurrence and hold that the remedy clause serves to "pro-tect[] against executive and legislative interference with judicial independence and access to the courts"^[4] and, conversely, that it was not intended to limit "the otherwise plenary authority of the legislature to determine rights and remedies." Id. at 286.

Although we appreciate defendants' thorough and thoughtful explication of the origins and history of the remedy clause, we decline their request to reconsider our decision in Horton. In that case, the court took into account both the legislature's right to refine public policy set out in Article IV, section 1, and Article VIII, section 7, of the Oregon Constitution, and the right of injured Oregonians to access the courts under Article I, section 10, to obtain a remedy for an injury done them in their person, property, or reputation through a civil jury trial under Article I, section 17. Horton, 359 Or at 218-19. We find no fault with that approach.

In addition, defendants acknowledge that the path that they urge us to take necessarily would involve overruling all of our remedy clause cases decided before 2001. It is defendants' burden to establish that we must disavow our earlier cases. See State v. Ciancanelli, 339 Or 282, 290, 121 P.3d 613 (2005) ("[T]he...