A ruling by the Oregon Supreme Court last week cut away at potential avenues formerly open to persons injured by patrons or partygoers overserved by bars and social hosts to recover from the overserving entities or persons.

Prior to this ruling, under Oregon law, there appeared to be two grounds upon which an injured person could seek to hold a bar (dramshop) or social host liable, via: (1) a statutory claim; or, (2) a common law negligence claim.

Having to prove the ‘foreseeability' aspect is undeniably more burdensome on injured persons than not having to prove it.”

The statutory claim was believed to exist under ORS 471.565. Bars and social hosts were potentially liable under this law for harm caused by drunk patrons or guests where the injured victims could prove the patrons or guests were served while visibly intoxicated. Note under this approach, the resultant harm need not be “foreseeable” to the bar or social host.

The statutory claim was decidedly different, then, from a common law negligence claim. In a common law negligence claim not only must victims prove the bar or social host was careless in serving alcohol to a “visibly intoxicated person,” but also that the bar or social host should have “foreseen” that the drunk person was going to drive a car and harm another person.

The main difference, to really boil it down, is that an injured person had less to prove to hold a bar or social host liable in a statutory claim as opposed to a common law negligence claim. Having to prove the “foreseeability” aspect is undeniably more burdensome on injured persons than not having to prove it.

In the case ruled upon by the Court last week, a 37-year-old, Casey Deckard, was driving home after work in Newport, Oregon. On his way home, he was hit by a 24-year-old drunk driver, Diana Bunch, who had crossed the center line of U.S. 101 and ran head-on into Deckard. The crash occurred on Nov. 4, 2009. Bunch had been drinking at a friend's house that afternoon and registered a blood alcohol level of .23 percent – well over the legal limit for driving in Oregon (.08 percent).

After an in-depth analysis of the legislative history pre-dating ORS 471.565 and the case law which has been generated over the years relating to that statute and its prior iterations, the Oregon Supreme Court found that the legislature never intended to create a statutory right of action against bars or social hosts beyond a common-law negligence claim. Instead, the Court found the legislation meant only to codify and impose limits on the common-law negligence standard.

It is now clear under Oregon law that an injured person seeking to pursue a claim stemming from overservice must establish that a potentially liable bar or social host knew or should have known of an unreasonable risk that the visibly intoxicated person would drive a car and harm another person at the time of the overservice.