Between the Sheets by Nadia Dahab, Cody Hoesly and Elizabeth Savage, OTLA Guardians ORS 471.565(1) does not deny a remedy in violation of Article I, section 10, of the Oregon Constitution, to a plaintiff who voluntarily consumes alcohol, for injuries the plaintiff sustained resulting from the plaintiff’s intoxication. Bonner v. Am. Golf Corp. of Calif., Inc., 372 Or 814 (2024); Masih, J. The plaintiff was represented by Rachel Jennings and Randy Pickett. Lisa Hunt filed an amicus brief on behalf of OTLA. In this case, the plaintiff was a patron at a golf club who was served alcohol when he was visibly intoxicated. He then fell off a golf cart and was seriously injured. The plaintiff sued the owners of the golf club in state court for, among other things, common-law negligence based on the service of alcohol. The case was removed to federal court and the owners of the golf club moved to dismiss the plaintiff’s claims on the ground that the negligence claim was barred by ORS 471.565(1), which provides that 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 response, the plaintiff argued, to the extent the statute barred his claim, it deprived him of a remedy in violation of Oregon’s remedy clause of Article I, section 10, of the Oregon Constitution. The federal district court certified that question — whether ORS 471.565(1) denies a remedy to a plaintiff in violation of Article I, section 10 — to the Oregon Supreme Court. The Supreme Court answered the certified question in the negative. The Court explained a statute violates the remedy clause of Article I, section 10, if it does not alter a duty that one person owes to another, but it either eliminates an existing remedy available to a person injured as a result of a breach of that duty or provides only an insubstantial remedy for a breach of a recognized duty. The Court further explained that Oregon law has long imposed, and continues to impose, a duty not to serve alcohol to a visibly intoxicated person and nothing in ORS 471.565(1) eliminates that duty. Furthermore, Oregon’s common law has long held a person has a remedy against the server of alcohol for injuries the person suffered as a result of consuming alcohol involuntarily, meaning, after the point the person has lost the “sense of reason and volition,” and the fact that a person was not forced to consume alcohol does not mean the person’s consumption of alcohol was voluntary. The key under the common law is whether the person passed the crucial period of transition from conscious volition to a loss of reason and volition. ORS 471.565(1), by contrast, bars a claim only by a person who “voluntarily consumes” alcohol. Applying ORS 471.565(1) to bar a plaintiff’s claim against a NADIA DAHAB specializes in appeals, civil rights, and general civil and class action litigation. She contributes to OTLA Guardians at the Guardians Club level. Dahab is a shareholder at Sugerman Dahab, 101 SW Main St., Ste. 910, Portland, OR 97204. She can be reached at [email protected] or 503-228-6474. CODY HOESLY specializes in appeals, financial fraud and commercial cases. A Co-chair of the OTLA Amicus Committee, he contributes to OTLA Guardians at the Guardians Club level. Hoesly is a shareholder at Barg Singer Hoesly PC, 121 SW Morrison St., Ste. 600, Portland, OR 97204. He can be reached at 503-241-8521 or [email protected]. ELIZABETH SAVAGE specializes in appeals, personal injury and family law. She is a Co-chair of the OTLA Amicus Committee and contributes to the OTLA Guardians at the Sustaining level. Savage operates Elizabeth Savage Law, 7805 SW 40th Ave., #80278, Portland, OR, 97219. She can be reached at 971-430-4030 or [email protected]. 56 Trial Lawyer | Winter 2025
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