Stachniewicz v. Mar-Cam Corporation

Supreme Court of Oregon · 1971 · Torts

488 P.2d 436 (1971)

Updated July 23, 2026

TortsNegligenceNegligence per seDram shop liabilityCausationprotected classtype of harmappropriateness of standard

Facts

A fight broke out in defendant's bar after intoxicated men from a booth shouted threats at plaintiff's group and then approached their table and started a brawl. One person at plaintiff's table had complained to the bartender and was warned, "Don't start trouble with those guys," and the booth occupants had been drinking in the bar for about two and one-half hours before the affray. Plaintiff later was found outside the door with serious head injuries, but because he suffered retrograde amnesia and no witness saw the blow, no one could testify to exactly how he was injured. Plaintiff relied on ORS 471.410(3), which forbade making alcohol available to a visibly intoxicated person, and a liquor control regulation forbidding licensees from permitting loud, disorderly, abusive conduct or permitting visibly intoxicated persons to enter or remain on the premises.

Issue

Whether violations of ORS 471.410(3) and Oregon Liquor Control Regulation No. 10-065(2) constitute negligence as a matter of law in a civil action by a bar patron injured during a barroom disturbance. Also, whether there was sufficient evidence of causation to submit the regulatory-violation theory to the jury.

Rule

A violation of a statute or regulation constitutes negligence as a matter of law when the violation injures a person within the class intended to be protected and causes the kind of harm the enactment was designed to prevent; in addition, the court must determine whether the statutory or regulatory standard is appropriate for use as a civil standard of care under the circumstances. A regulation governing bar operations that prohibits disorderly conduct and the presence of visibly intoxicated persons may serve as such a standard, but the statutory ban on furnishing alcohol to a visibly intoxicated person does not.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a tavern in Portland, Oregon, the bartender serves an extra whiskey to Leo Mercer even though Leo is already visibly intoxicated. Twenty minutes later, outside the tavern, Leo punches Dana Kim, another patron, causing a broken jaw.

In Dana's negligence action against the tavern, which argument best states whether the bartender's violation of a statute forbidding making alcohol available to a visibly intoxicated person is negligence as a matter of law?

Explanation. The majority distinguished between the statute barring service to a visibly intoxicated person and the regulation governing bar conditions. It held the statutory ban on furnishing alcohol to someone already visibly intoxicated is not an appropriate standard for negligence per se in this kind of civil action, because it is extremely difficult to determine whether the additional drink caused the third party's injury. So the statutory violation does not constitute negligence as a matter of law here.