Balzer v. Moore

Under ORS 471.565, a person licensed by the Oregon Liquor Control Commission is not liable for damages caused by intoxicated patrons unless the plaintiff proves by clear and convincing evidence that (1) the licensee provided alcohol to a visibly intoxicated patron, and (2) the plaintiff did not substantially contribute to the intoxication by providing, encouraging, or facilitating the consumption of alcoholic beverages.

Plaintiff appealed the trial court's dismissal of a wrongful death claim.  Plaintiff assigned error to the court's grant of summary judgment by concluding that Johnson's "mere presence" substantially contributed to Moore's intoxication.  Plaintiff argued that Johnson "merely accompanied Moore to two pubs."  Defendant argued that summary judgment was still valid under ORS 471.565.  Under ORS 471.565, a person licensed by the Oregon Liquor Control Commission is not liable for damages caused by intoxicated patrons unless the plaintiff proves by clear and convincing evidence that (1) the licensee provided alcohol to a visibly intoxicated patron, and (2) the plaintiff did not substantially contribute to the intoxication by providing, encouraging, or facilitating the consumption of alcoholic beverages.  The Court held plaintiff did not come forward with evidence that would establish circumstances showing that Johnson did not "substantially contribute" to Moore's intoxication since the legislature places the burden on the plaintiff to produce evidence for a reasonable fact-finder.  Affirmed.