Filed: July 27, 2000

GARY FULMER
and LOTTIE ANN FULMER,
husband and wife,

Petitioners on Review,

v.

TIMBER INN RESTAURANT AND LOUNGE, INC.,
an Oregon corporation;
GORDON JOELSON, and M. ELAINE JOELSON,

Respondents on Review.

En Banc

On review from the Court of Appeals.*

Argued and submitted May 11, 1999.

Maureen Leonard, Portland, argued the cause for petitioners on review. With her on the briefs was Lawrence Baron.

Ronald B. Terzenbach, of Loomis & Holland, Eugene, argued the cause for respondents on review. With him on the briefs was Daniel M. Holland.

Kevin N. Keaney, of Willner Keaney Mata & U'Ren, LLP, Portland, and Meagan A. Flynn, of Pozzi Wilson Atchison, LLP, Portland, filed briefs for amicus curiae Oregon Trial Lawyers Association.

Thomas W. Brown, of Cosgrave, Vergeer & Kester, LLP, Portland, filed a brief for amicus curiae Oregon Association of Defense Counsel.

KULONGOSKI, J.

The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings.

* Appeal from Coos County Circuit Court, Michael J. Gillespie, Judge. 152 Or App 334, 954 P2d 201 (1998).

KULONGOSKI, J.

This is a civil proceeding in which plaintiffs seek recovery from defendants for injuries that plaintiff (1) sustained in a fall on defendants' premises after defendants allegedly served alcohol to plaintiff while plaintiff was visibly intoxicated. Plaintiffs' second amended complaint (hereinafter complaint) alleged eight claims for relief, including negligence per se, common-law negligence, premises liability, and loss of consortium. The trial court dismissed the complaint for failure to state a claim. ORCP 21 A(8). Plaintiffs appealed, and the Court of Appeals affirmed. Fulmer v. Timber Inn Restaurant and Lounge, Inc., 152 Or App 334, 954 P2d 201 (1998). We allowed plaintiffs' petition for review. We hold that plaintiffs' complaint stated ultimate facts sufficient to constitute claims for common-law negligence, premises liability, and loss of consortium. Accordingly, we affirm in part and reverse in part.

In reviewing a dismissal for failure to state a claim under ORCP 21 A(8), we accept as true all well-pleaded allegations of fact and all reasonable inferences that may be drawn from them. Scovill v. City of Astoria, 324 Or 159, 164, 921 P2d 1312 (1996). We examine those facts to determine only whether plaintiffs have alleged facts sufficient to constitute a claim. Id.

Plaintiffs' complaint alleged the following: In February 1993, plaintiffs went to the Timber Inn for a social evening with their family. Defendant Timber Inn Restaurant and Lounge, Inc., owns and operates that establishment. (2) Gordon A. and M. Elaine Joelson, the owners, operators, and officers of that corporation, also were named as defendents. The Timber Inn is a two-story restaurant and lounge. The only means of access to the lounge, located on the second level, is by way of stairs.

During the evening, defendants served a substantial quantity of alcohol to plaintiff. At some point, plaintiff became visibly intoxicated, but defendants continued to serve him alcohol, causing him "to become poisoned with alcohol, [and] to lose his sense of reason and volition * * *." Ultimately, plaintiff lost consciousness and fell down the stairs, sustaining serious injuries.

Plaintiffs' first seven claims sought an award of damages for the injuries that plaintiff suffered. The eighth claim sought damages on behalf of Lottie Ann Fulmer for loss of consortium. We begin with plaintiffs' first three claims, each of which alleged negligence per se.

Plaintiffs alleged that, by continuing to serve alcohol to plaintiff after he was visibly intoxicated, defendants violated ORS 471.410(1), (3) ORS 471.412(1), (4) and former ORS 472.310(3) (1993). (5) All three statutes prohibit serving alcohol to persons who are visibly intoxicated. Plaintiffs alleged that defendants' violation of those statutes was negligence per se, i.e., that defendants negligently failed to exercise the level of care allegedly specified in those statutes.

This court has held that ORS 471.410(1) does not create a standard of care the violation of which would constitute negligence per se. See Stachniewicz v. Mar-Cam Corporation, 259 Or 583, 586-87, 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) ("visible intoxication" standard under former ORS 471.410(3) (1975), renumbered and amended as ORS 471.410(1) (1977), is inappropriate in negligence per se context); Hawkins v. Conklin, 307 Or 262, 265, 768 P2d 66 (1988) (same).

Plaintiffs acknowledge that the court held in Stachniewicz that ORS 471.410(1) does not afford a basis for a claim of negligence per se and further acknowledge that ORS 471.412(1) and former ORS 472.310(3) (1993) are identical to ORS 471.410(1) in all respects relevant to this case. Plaintiffs contend, however, that the holding in Stachniewicz was incorrect and should be overruled. Plaintiffs also assert that the court should not extend that holding to the interpretation of ORS 471.412(1) and former ORS 472.310(3) (1993).

In Hawkins, the Court of Appeals had determined, contrary to Stachniewicz, that the plaintiff had stated a negligence per se claim on the basis of ORS 471.410(1). Hawkins v. Conklin, 87 Or App 392, 395, 742 P2d 672 (1987). This court reversed, stating:

"This court has held that ORS 471.410(1) is not an appropriate standard for establishing negligence per se. Stachniewicz v. Mar-Cam Corporation, 259 Or 583, 586-87, 488 P2d 436 (1971), overruled in part on other grounds Davis v. Billy's Con-Teena, Inc., 284 Or 351, 356 n 4, 587 P2d 75 (1978). Whether or not we would so hold if the effect of ORS 471.410(1) were before us for the first time today, we follow our practice of giving a prior interpretation of a statute the effect of stare decisis. We reverse the Court of Appeals' holding that the plaintiff stated a claim of negligence per se based on ORS 471.410."

Hawkins, 307 Or at 265.

At this point, plaintiffs' argument would require the court not only to reverse the statutory construction adopted in Stachniewicz, but also to abandon the decision in Hawkins to accord the effect of stare decisis to the holding in Stachniewicz. Plaintiffs submit nothing that would justify those actions. Under the circumstances, we follow Hawkins. Thus, in construing ORS 471.412(1) and former ORS 472.310(3) (1993), we accord stare decisis effect to this court's construction in Stachniewicz of the materially identical wording of ORS 471.410(1). Because none of those statutes afford a basis for a claim of negligence per se, the trial court did not err in dismissing plaintiffs' first three claims for relief.

Plaintiffs do not seek review of the dismissal of their fourth claim for relief, which alleged negligence per se based on violations of ORS 471.425(2) and former 472.310(6) (1993). Therefore, we proceed to consider plaintiffs' fifth claim for relief, based on common-law negligence.

Plaintiffs' fifth claim for relief alleged that defendants were liable, under a common-law negligence theory, for "causing plaintiff * * * to become poisoned with alcohol, to lose his sense of reason and volition; and * * * knowing plaintiff * * * was in such condition and visibly intoxicated, continu[ing] to ply plaintiff * * * with alcohol * * *." At issue is whether a common-law negligence claim exists in favor of an intoxicated person who suffered injury on the premises of an establishment against the server or establishment that supplied alcohol to the injured person when the person was visibly intoxicated. Defendants assert that Oregon does not recognize such a common-law claim in favor of a person who suffers injury resulting from his or her own consumption of alcohol, citing Miller v. City of Portland, 288 Or 271, 279, 604 P2d 1261 (1980), and Sager v. McClenden, 296 Or 33, 35, 672 P2d 697 (1983). Plaintiffs respond that defendants' assertion is incorrect, citing Ibach v. Jackson, 148 Or 92, 102-3, 35 P2d 672 (1934). As we explain below, plaintiffs are correct.

In Oregon, criminal penalties for the sale of alcohol to intoxicated persons first were enacted in 1876. See Annotated Laws of Oregon, v I, ch VIII, title II,