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Chartrand v. Coos Bay Tavern Inc.6/27/1984
te reversible error. The instruction objected to was requested by plaintiff on the basis of ORS 487.545.
Plaintiff's claim has its roots in Campbell v. Carpenter, 279 Or 237, 243-44, 566 P2d 893 (1977), where the court said:
"* * * e now adopt [the rule that], 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 customer leaves the tavern he or she will drive an automobile."
The basis of the tavern keeper's liability in Campbell was "common law negligence, not violation of a statute." Sager v. McClenden, 296 Or 33, 38, 672 P2d 697 (1983). After Campbell, ORS 30.950 was enacted. Or Laws 1979, ch 801, § 1. It 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."
In Sager v. McClenden, supra, the court said that "ORS 30.950 codified the holding in Campbell and that " n light of the legislative history, we * * * read ORS 30.950 as imposing a limitation on the liability originally created by judicial decision." 296 Or at 39.
ORS 30.950 sets the standard for civil liability to third parties as being "visibly intoxicated," which is not necessarily the same as being "under the influence of intoxicating liquor." The officer's testimony concerning the blood alcohol standard for being under the influence of intoxicating liquor was never tied to the principal element of the alleged negligence in this case, i.e., serving alcohol to a "visibly" intoxicated person. The testimony is not relevant. A similar
difficulty is presented by the instruction. The instruction that plaintiff must prove that defendant served its customer when she was "visibly intoxicated," followed by the instruction objected to that "a person whose blood alcohol content is more than .10 percent is under the influence of intoxicating liquor," confuses two unrelated standards, and the latter is not the standard for civil liability in this action. Together, the instructions are confusing and misleading. It was error to admit the officer's testimony and to give the instruction.
Defendant's last contention is that the trial court erred when it gave the following instruction to the jury:
"By statute, it is the law of Oregon that no person shall sell, give or otherwise make available any alcoholic liquor to any person who is visibly intoxicated. Anyone who violates this statute is negligent." (Emphasis supplied.)
The court's instruction is in the language of ORS 471.410(1), quoted in n 5, supra, and charges that a violation of the statute is negligence per se. The present case was pleaded and tried as one for common-law negligence under Campbell v. Carpenter, supra. Therefore, the factfinder had to find that the defendant knew or should have known that the visibly intoxicated person would operate a motor vehicle. Although there was evidence in this case to support a finding that it was reasonably foreseeable to defendant that its customer, on leaving the tavern, would drive a car, the instruction complained of did not inform the jury of that additional requirement as a predicate to defendant's liability. Giving it was error. See Stachniewicz v. Mar-Ca
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