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J. Randolph Pickett, OSB #721974 Kristen W. McCall, OSB #061380 Kimberly 0. Weingart, OSB #091407 Ron K. Cheng, OSB #142955
Email: [email protected] Email: kristen@,pickettdummigan.com Email: [email protected] Email: ron@,pickettdummigan.com
PICKETT DUMMIGAN MCCALL LLP Centennial Block, Fourth Floor 210 S.W. Morrison Street Portland, OR 97204
of Attorneys for Plaintiff-Appellant/Respondent on Review, Ashley Schutz
Jay R. Chock, OSB #830043 John R. Barhoum, OSB #045150 CHOCK BARHOUM LLP 120 S.W. Morrison Street, Suite 415 Portland, OR 97204 Email: [email protected] Email: john. [email protected]
of Attorneys for Defendant-Respondent/ Petitioner on Review O'Brien Constructors LLC
Alice S. Newlin, OSB #084314 Michael J. Estok, OSB #090748 LINDSAY HART, LLP 1300 S.W. Fifth Avenue, Suite 3400 Portland, OR 97201 Email: [email protected] Email: [email protected]
of Attorneys for Amicus Curiae Oregon Association of Defense Counsel
Susan Marmaduke, OSB #841458 [email protected] HARRANG LONG GARY RUDNICK P.C. 1001 SW Fifth Avenue, 16th Floor Portland, OR 97204
Andrew D. Glascock, OSB #992676 HIEFIELD FOSTER & GLASCOCK 6915 S.W. Macadam Avenue, Suite 300 Portland, OR 97219 Email: [email protected]
of Attorneys for Defendant-Respondent/ Petitioner on Review Keeley O'Brien
Jeffrey D. Eberhard, OSB #872132 SMITH FREED & EBERHARD P.C. 121 S.W. Fifth Avenue, Suite 4300 Portland, OR 97204 Email: [email protected]
of Attorneys for Amicus Curiae Smith Freed & Eberhard P.C.
of Attorneys for Amicus Curiae Oregon Liability Reform Coalition
BRIEF FILED: August, 2018
TABLE OF CONTENTS
1. Questions Presented and Proposed Rules of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 1
A. First Question Presented on Review ....................................................... 1
B. First Proposed Rule of Law .................................................................... 1
C. Second Question Presented on Review .................................................. 2
D. Second Proposed Rule of Law ................................................................ 2
E. Third Question Presented on Review ..................................................... 3
F. Third Proposed Rule of Law .................................................................. 3
G. First Supplemental Question Presented on Review ................................ 4
H. First Supplemental Proposed Rule of Law ............................................. 4
2. Nature of the Action, Relief Sought, and the Judgment.. .............................. 5
3. Relevant Facts ................................................................................................ 6
4. Summary of Argument .................................................................................. 20
5. Argument ....................................................................................................... 21
A. The Court of Appeals correctly followed the Horton methodology as applied to plaintiff Ashley Schutz .......................................................... 21
B. Horton set off a major earthquake in Oregon remedy clause and jury trial clause jurisprudence ........................................................................ 25
C. The Court of Appeals properly viewed the Horton methodology through the lens of an "as applied" challenge ........................................ 27
D. The claims that Ashley Schutz brings against the O'Brien defendants were recognized at common-law in 2001 ............................................... 29
11
E. The facts in Ibach, Fulmer, and Schutz, are quite similar. ..................... 29
F. The comparative negligence system serves as a check and balance on first party claims that can be brought by an intoxicated patron ........ 31
G. The doctrine of the separation of powers does not permit the legislature to enact unconstitutional legislation-the judicial branch is the final arbiter of those issues ............................................................ 31
H. This Court need not reach constitutional issues . .................................... 33
7. Conclusion ..................................................................................................... 3 5
TABLE OF AUTHORITIES
Cases Page
Auto. Club of Oregon v. State, 314 Or 479, 840 P2d 674 (1992) .......................................................... 32
Bennett v. Farmers Ins. Co. of Oregon, 332 Or 138, 26 P3d 785 (2001) ........................................................... 32
Circuit Court of Oregon, Fifteenth Judicial Dist. v. AFSCME Local 502-A,
295 Or 542, 669 P2d 314 (1983) .......................................................... 33
Clarke v. OHSU, 343 Or 581, 175 P3d 418 (2007) .......................................................... 21
Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 723 P2d 298 (1986) .......................................................... 33
DeMendoza v. Huffman, 334 Or 425, 51 P3d 1232 (2002) .......................................................... 33
Fulmer v. Timber Inn Restaurant and Lounge,
111
330 Or 413, 9 P3d 710 (2000) ............................................................... passim
George B. Wallace Co. v. Int 'l Ass 'n of Mechanics, Mt. Hood Lodge, Local No. 1005, Auto Mechanics,
155 Or 652, 63 P2d 1090 (1936) ......................................................... 32
Grady v. Cedar Side Inn, Inc., 333 Or 42, 997 P2d 197 (2000) ......................... ..... .... ................... ........ 1, 2, 23
Hale v. Port of Portland, 308 Or 508, 783 P2d 506 (1989) ........................................................... 22
Heath v. Sears, Roebuck & Co., 123 NH 512, 464 A2d 288 (NH 1983) ................................................ 26
Horton v. OHSU, 359 Or 168, 376 P3d 998 (2016) ........................................................... passim
Cases Page Howell v. Doyle,
353 Or 359,298 P3d 1 (2013) ............................................................... 22
Ibach v. Jackson,
IV
148 Or 92, 35 P2d 672 (1934) .............................................................. 3, 29, 30
Ivancie v. Thornton, 250 Or 550,443 P2d 612 (1968) .......................................................... 32
Jensen v. Whitlow, 334 Or 412, 51 P3d 599 (2002) ............................................................ 28
Lakin v. Senco Products, Inc. , 329 Or 62,987 P.2d 463 (1999) .................. ...... . . . ..... ............................ 25
Mattson v. City of Astoria, 39 Or 577, 65 P 1066 (1901) ................................................................ 21
McFadden v. Dryvit Sys., Inc., 338 Or 528, 112 P3d 1191 (2005) ........................................................ 33
Miller v. City of Portland, 288 Or 271,604 P2d 1261 (1980) ........................................................ 3
Noonan v. City of Portland, 161 Or 213, 88 P2d 808 (1939) ............................................................ 21
Norwest v. Presbyterian Intercommunity Hosp., 293 Or 543,652 P2d 318 (1987) .......................................................... 22, 24
Pac. Power & Light Co. v. Bayer, 273 US 647, 47 S Ct 245, 71 L Ed 821 (1926) ..................................... 21
Peery v. Fletcher, 93 Or 43, 183 P 143 (1919) .......................................... 21
Perozzi v. Ganiere, 149 Or 330, 40 P2d 1009 (1938) .......................................................... 21, 22
Rains v. Stayton Builders Mart, Inc. , 359 Or 610,375 P3d 490 (2016) .......................................................... 27
V
Cases
Re Water Rights of Hood River, 114 Or 112,227 P 1065 (1924) ............................................................. 21
Robinson v. Lamb 's Wilsonville Thriftway, 332 Or 453, 31 P3d 421 (2001) ............................................................ 7
Sch. Dist. No. 24J v. McCarthy, 244 Or 379,418 P2d 817 (1966) .......................................................... 32
Schutz v. La Costita III, Inc. (Schutz I), 256 Or App 573, 302 P3d 460, rev den 354 Or 148 (2013) ................... passim
Schutz v. La Costita III, Inc. (Schutz II), 288 Or App 476, 407 P3d 857 (2017) .................................................... passim
Sealey v. Hicks, 309 Or 387, 788 P2d 435 (1990) .......................................................... 25, 26, 27
Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001) ............................................................. 21, 25
State ex rel. Huntington Rubber Mills v. Subnonetti, 276 Or 967, 557 P2d 641 (1976) .......................................................... 33
State v. Hirsch, 338 Or 622, 114 P3dl 104 (2005) .......... , .............................................. 28
State v. Kitzman, 323 Or 589,920 P2d 134 ....................................................................... 34
State v. Sutherland, 329 Or 359, 987 P2d 501 (1999) .......................................................... 28
State v. Williams, 313 Or 19, 828 P2d 1006 (1992) .......................................................... 32
Vaughn v. First Transit, Inc., 346 Or 128,206 P3d 181 (2009) .......................................................... 29
VI
Cases
Warner Val. Stock Co. v. Lynch, 215 Or 523, 336 P2d 884 (1959) .......................................................... 29
Wilda v. Roe, 290 Or App 599, 415 P3d 1146 (2018) ................................................ 28
Statutes and Rules
ORS 471.565 .............................................................................................. passim
Other Authorities
Oregon Constitutional Law, Landau, Steringer, Sykora, Schuman, Ming, Trompke (2013) ............................................................................................ 31-33
Interpreting Oregon Law, Johansen, Landau, Villella (2009) ..................... 34
RESPONDENT ON REVIEW'S BRIEF ON THE MERITS
1. Questions Presented and Proposed Rules of Law
Respondent on Review Ashley Schutz (hereinafter "PLAINTIFF"), does not
agree with the legal questions and proposed rules of law of Petitioners on Review
O'Brien Constructors, LLC and Keeley O'Brien (hereinafter referred to collectively
as "DEFENDANTS"), as presented in their Brief on the Merits, and therefore
submits the following alternatives.
A. First Question Presented on Review
Defendants posit the First Question on Review as follows: Did the Court of
Appeals accurately apply the Horton methodology when it detennined that ORS
471.565(1) did not eliminate a duty, but completely removed the remedy for the
breach of that duty, making the statute unconstitutional without further analysis?
B. First Proposed Rule of Law
Plaintiffs Answer:
The Court of Appeals correctly applied the Horton methodology.
ORS 471.565(1) was enacted in 2001 as a response to the Oregon Supreme Court's
decisions in Fulmer v. Timber Inn Restaurant and Lounge, 330 Or 413, 9 P3d 710
(2000), and Grady v. Cedar Side Inn, Inc., 333 Or 42, 997 P2d 197 (2000). It had
nothing to do with any so-called "societal changes" relating to the service of alcohol.
2
The Court of Appeals based its decision in part on Fulmer, 330 Or at 430,
wherein the Oregon Supreme Court clarified that a common-law cause of action was
available to a plaintiff that suffered injury due to his or her voluntary intoxication
after being served alcoholic beverages when visibly intoxicated.
C. Second Question Presented on Review
Defendants' Second Question on Review is as follows: Does ORS 4 71.565(1)
deny a common-law remedy to a plaintiff that sustains injury due to their own
voluntary intoxication?
D. Second Proposed Rule of Law
Plaintiff's Answer:
ORS 471.565(1) violates the remedy clause because a common-law cause of
action was available to a plaintiff that suffered injury due to his or her own voluntary
intoxication at the time the statute was enacted in 2001, as a legislative response to
Fulmer and Grady. It was not a codification of the cmmnon-law that existed at the
time the statute was enacted, because that common-law was clarified by the Fulmer
decision itself, which held that a plaintiff who had suffered injury due to his
voluntary intoxication, did have a potential cause of action. It was that common-law
which the legislature tried to abrogate.
E. Third Question Presented on Review
3
The Third Question Presented of defendants 1s: Did the Fulmer comt
accurately interpret the holding in Ibach?
F. Third Proposed Rule of Law
Plaintiffs Answer:
An accurate analysis of the common-law claim that existed in 2000, one year
before the amendments to ORS 471.565(1) were enacted, was set forth by the
Oregon Supreme Court in Fulmer, 330 Or at 419-426. In Fulmer, this Court
reviewed its prior decisions in Ibach v. Johnson, 148 Or 92, 35 P2d 672 (1934), a
case holding that a visibly intoxicated person could bring a claim against the server
of the alcoholic beverages, and Miller v. City of Portland, 288 Or 271, 604 P2d 1261
(1980), holding that a visibly intoxicated person did not have a cause of action
against the alcohol server.
In Fulmer, this Court held that Miller was "inc01Tect in its characterization of
the state of the law." Fulmer, 330 Or at 424. The Court went on to hold that the
"plaintiff may bring a common-law negligence action against the person or entity
that negligently supplied alcohol to the plaintiff when he or she was already visibly
intoxicated and the plaintiff suffered injuries caused by that negligent conduct." Id.
at 427.
G. First Supplemental Question Presented on Review
4
Was the Court of Appeals in Schutz v. La Costita III, LLC ("Schutz II"), 288
Or App 476, 483-484 (Or App 2017), correct in determining that ORS 471.565(1)
barred plaintiffs claims against defendants based on conduct that occurred before
the service of alcohol, and before plaintiff became voluntarily intoxicated?1
H. First Supplemental Proposed Rule of Law
The trial court was correct in its interpretation of ORS 471.565(1), as
discussed in the Court of Appeals' opinion in Schutz II, and the Court of Appeals
erred in holding otherwise:
The trial court did not necessarily agree with our interpretation of ORS 471.565(1) in Schutz [v. La Costita III, Inc. ("Schutz I"), 256 Or App 573, 302 P3d 460, rev den 354 Or 148 (2013)], stating, "the way I parsed out the statute with the second sentence of the statute was that somebody could theoretically assert a cause of action if the plaintiff could establish if the defendant knew or should have known * * * before alcohol's served that there is a scenario where the defendant knew or should have known that the plaintiff was going to come and basically become intoxicated to the point of incapacitation."
Schutz II, 288 Or App at 480 n2. The trial court's initial interpretation of ORS
4 71.565(1) follows the general principle of statutory construction that statutes are
1 Plaintiffs original Complaint contained allegations against defendants Keeley O'Brien and O'Brien Constructors, directly relating to the service of alcohol at La Costita. Based on the trial court's initial rulings in this case, those allegations were stricken, and plaintiff did not argue on appeal any error in the trial court's decision in that regard.
construed to be constitutional.
2. Nature of the Action, Relief Sought, and the Judgment
5
Plaintiff was injured in a car crash on December 12, 2008. She worked for
defendant O'Brien Constructors, LLC ("O'BRIEN CONSTRUCTORS"), as a
temporary office assistant, and attended an after-work function at a nearby tavern,
La Costita, with defendant Keeley O'Brien, her supervisor, and other co-workers.
Plaintiff drank to the point of acute intoxication, and after leaving the restaurant,
drove the wrong way on an I-5 exit ramp, and was seriously injured in a head-on
collision.
Plaintiff filed a Complaint against defendants O'Brien Constructors and
Keeley O'Brien, and against the restaurant where the alcoholic beverages were
served, La Costita III, Inc. ("LA COSTITA"). The trial court dismissed defendant
La Costita, which dismissal was upheld on appeal. See Schutz v. La Costita III, Inc.
("Schutz I"), 256 Or App 573, 302 P3d 460, rev den 354 Or 148 (2013). The trial
court also granted the Motions to Disimss filed by defendants O'Brien Constructors
and Keeley O'Brien contemporaneously with La Costita's motions, based upon the
purchase of alcoholic beverages for plaintiff at La Costita, but denied the motions
with respect to the allegations of conduct taking place prior to arrival at the tavern.
Plaintiff thereafter filed a First Amended Complaint in compliance with the trial
6
court's rulings (ER 1-10).
After the Court of Appeals decision was final in Schutz I, a new set of motions
were filed below, and the trial court now granted the Motions for Summary
Judgment of defendants O'Brien Constructors and Keeley O'Brien, commenting
that the Court of Appeals' opinion in Schutz I required the trial court to now grant
the Motions for Summary Judgment, even though the remaining claims were based
upon conduct occurring prior to the service of alcoholic beverages at La Costita.
This appeal followed. The Court of Appeals reversed the trial court, relying
on this Court's decision in Horton v . OHSU, 359 Or 168, 376 P3d 998 (2016), and
noting: "We conclude that ORS 471.565 is unconstitutional because it falls within a
category of legislation that the remedy clause prohibits and that the trial court erred
in granting defendants' motion for summary judgment based on the statute." Schutz
II, 288 Or App at 488.
3. Relevant Facts
Petitioners on Review's section entitled "Facts Material to Determination on
Review,"2 presents the facts in a manner favorable to defendants' arguments, and
not in the light required by ORCP 47C. The framework for review of the trial court 's
grant of a Motion for Summary Judgment provides that this Court view the evidence
2 See Defendants' Merits Brief, pp. 3-4.
7
and all reasonable inferences that may be drawn from the evidence in favor of the
adverse party, in this case, plaintiff Ashley Schutz. ORCP 47C; Robinson v . Lamb 's
Wilsonville Thriftway, 332 Or 453, 461, 31 P3d 421 (2001).
Plaintiff accepts the facts as found by the Court of Appeals in its opinion with
this supplementation:
a) On December 12, 2008, around 4:30 p.m., Ashley Schutz agreed to go
to a happy hour at La Costita with co-workers at the invitation of her boss, defendant
Keeley O'Brien (Plaintiffs Memorandum in Opposition to Defendants' Motions for
Summary Judgment, Ex. C,3 Deposition of Plaintiff Ashley Schutz, 68:16 to 69:21;
Ex. G, Depo of Wayne Pykonen, co-worker of Ashley Schutz at the time at defendant
O'Brien Constructors, 10: 10-16).
b) The last memory Ashley Schutz has from that night is of saying "I'm
going to be really buzzed if I drink this beer (Ex. C, Schutz Depo, 79: 14-23; 82:7-
10).
c) Sometime after Ashley Schutz left La Costita, she was involved in a
head-on collision while travelling southbound in the I-5 northbound lanes near the
Macadam exit, suffering serious injuries including quadriplegia, as alleged in her
3 All references to Exhibits ("Ex. _") with specific letters are excerpted from Plaintiffs Memorandum in Opposition to Defendants' Motions for Summary Judgment in the record below, filed on May 12, 2014.
8
First Amended Complaint (ER 1-10; Ex. H, Police Report).
d) After she was admitted to the hospital, approximately 1 ½ hours after
the collision, plaintiff was determined to have a whole blood alcohol content of . 1 9%
by weight, almost 2½ times the legal limit of .08%, an acute level of intoxication for
this individual (Ex. B, Declaration of William J. Brady, M.D., if7, p. 2; Ex. H, Police
Report).
e) In June of 2007, Keeley O'Brien began his employment with O'Brien
Constructors, under his father, Patrick O'Brien, the president of the company,
working as a project manager (Ex. D, Depo of defendant Keeley O'Brien, 6:25 to
8: 1 5; 1 0 : 1 6-24).
f) Ashley Schutz was hired as a temporary employee to help out as a front
office administrative assistant because O'Brien Constructors had a lot of work to do
at the time (Ex. C, Schutz Depo, 2 1 :2 1 to 22:3; Ex. E, P. O'Brien Depo, 9:20 to 1 0 :6;
1 0:24-1 1 : 1 3).
g) Plaintiff assisted with office duties and helped out the project managers
at O'Brien Constructors, including Keeley O'Brien, Wayne Pykonen and Patrick
O'Brien (Ex. F, Depo of Joel Nelson, then intern, now employee, at O'Brien
Constructors, 7: 1 3-20).
9
h) Plaintiff worked most closely at O'Brien Constructors with Keeley
O'Brien, whom she understood to be the lead project manager and son of the
business owner Patrick O'Brien (Ex. C, Schutz Depo, 22:22 to 23:2, 24:4-8).
i) On day one of her employment with O'Brien Constructors, plaintiff was
oriented as to her job by Keeley O'Brien and Tracy Powell, the company controller,
and believed after this meeting that Keeley O'Brien was her supervisor (Ex. C,
Schutz Depo, 24:16-25; Ex. E, P. O'Brien Depo, 9:20 to 10:20).
j) That very first day, Keeley O'Brien inquired whether plaintiff wouldn't
like to make her employment there permanent instead of temporary, apparently
because he thought that, with her work experience and education, she would be a
good addition to the company (Ex. C, Schutz Depo, 160:13 to 161:25).
k) Keeley O'Brien directed Ms. Schutz to create a five-year plan of goals
with the company, had her perform duties specifically for him such as cleaning out
his computer and checking his voicemails, gave her a "huge list" of tasks to
accomplish and additionally scheduled weekly training meetings wherein she could
learn infonnation about the construction industry necessarily acquired to facilitate
her advancement in the company (Ex. C, Schutz Depo, 25:14 to 26:14; 35:3-11; Ex.
D, K. O'Brien Depo, 62:4-14).
1 0
1) From the beginning of her employment, Keeley O'Brien told plaintiff
that she could have more and more responsibility as time went on and that he would
grow her into a project manager with the company that he would take over eventually
as Patrick O'Brien, the father of Keeley O'Brien, was getting older and soon to retire
(Ex. C, Schutz Depo, 33:2 1 to 35: 1 1).
m) Keeley O'Brien had Ms. Schutz prepare a business plan and
PowerPoint investor presentation package for a wine-storage facility project that he
envisioned owning, for which she could become the project-manager, a position and
advancement that she was definitely interested in (Ex. C, Schutz Depo, 34:14 to
35:2).
n) Plaintiff communicated to Keeley O'Brien that she was only interested
in remaining with the company if she continued advancing and learning, and,
specifically, if she were to move up, out of the receptionist role; Keeley O'Brien
indicated that such movement was possible and that others had advanced in similar
fashion (Ex. C, Schutz Depo, 36: 1 3 to 37:4; 6 1 :7 to 63: 15; 162:5-25).
o) Shortly after plaintiff was hired on, Keeley O'Brien, her supervisor,
began repeatedly inviting her to gatherings outside of work, specifically "drinking
things" (Ex. C, Schutz Depo, 25:1-13, 27:12 to 28:2).
1 1
p) Defendant Keeley O'Brien told plaintiff that networking was important
to her advancement at O'Brien Constructors and that socializing and meeting people
was integral to that objective (Ex. C, Schutz Depo, 39:21 to 4 1 : 14).
q) Plaintiffs impression from Keeley O'Brien as her supervisor and
mentor at the company was that attending outside of work drinking activities was
important to her career with O'Brien Constructors, in part because of the frequency
and persistence with which he invited her to these types of activities (Ex. C, Schutz
Depo, 39:21 to 41:4; 60:10-20).
r) In "giving her crap" for "saying no" to his invitations, Keeley O'Brien
created the impression in plaintiff that if she didn't start going out with him outside
of work that he wouldn't do as much to help her advance as he had indicated was
possible (Ex. C, Schutz Depo, 168:2 to 169:6).
s) After one occasion when Ms. Schutz declined an invitation to a
"drinking thing," she indicated that she would make it do join him eventually, so
that he would not be upset with her, and Keeley O'Brien retorted "[I'm] starting to
wonder" (Ex. C, Schutz Depo, 169:2-19; 1 72:24 to 173:11).
t) Keeley O'Brien had indicated to plaintiff that he would be taking over
the company and wanted to groom her to play a signifcant role in changing company
policy to get O'Brien Constructors "on track" with him; in their interactions, Keeley
12
O'Brien made plaintiff feel that she would have to socialize with him and his friends
as a kind of networking activity to keep on the advancement track that he had laid
out for her (Ex. C, Schutz Depo, 41:5 to 42:21; 64:7 to 65:16).
u) The more invitations Keeley O'Brien made to Ms. Schutz to attend
outside-of-work social events, the more she felt that there would be consequences
professionally for declining to attend events at his invitation, and consequently, the
more pressure she felt that she needed to drink with him (Ex. C, Schutz Depo, 59:4
to 61:3; 75:7 to 76:3).
v) Despite the fact that she felt it was weird that he kept inviting her
places, after having declined four or five invitations, plaintiff resolved that she would
eventually have to participate in some outside-of work activities with Keeley
O'Brien (Ex. C, Schutz Depo, 87:5-18; 88:7 to 89:4).
w) Plaintiff fully expected that Keeley O'Brien would continue to ask her
out to drinking events until she relented (Ex. C, Schutz Depo, 173:12 to 174:15).
x) Keeley O'Brien used his company email and his cellphone to
communicate invitations to Ashley Schutz to attend different "drinking activities"
(Ex. C, Schutz Depo, 56:22 to 58:4; 147:20 to 148:6; Ex. D, K. O'Brien Depo, 19:16
to 23:13).
13
y) In one of the text messages, sent from his cell phone just two weeks
before the day of the incident, Keeley O'Brien said "10 beers down and next game
started. You going to catch up with our crew?" (Ex. J, Text message sent from
Keeley O'Brien to Ashley Schutz on November 28, 2012, at 7:09 p.m.).
z) Three days later, on December 1, 2008, Ms. Schutz apologized to
Keeley O'Brien for not having accepted the invitation by company email on
November 26, 2008, to attend the function at the Deschutes Brewery that was
referenced in the text message (Ex. J).
aa) Ms. Schutz indicated in the company email "I'm normally not such a
huge fake so don't stop inviting me in the future :)." and Keeley O'Brien responded
by company email "Starting to wonder . . . . . . jk" ( Ex. K, company emails to and from
Keeley O'Brien and Ashley Schutz).
bb) Keeley O'Brien was a regular and experienced drinker, consuming
alcohol on average maybe three nights a week, usually three or four beers, and
sometimes seven, depending on the type of beer he was drinking ( Ex. D, K. O'Brien
Depo, 46:19 to 47:23).
cc) On the day of the incident, Keeley O'Brien came up to plaintiff to invite
her on a happy hour outing along with other co-workers (Ex. C, Schutz Depo, 68: 16-
24; 164:17-25).
14
dd) Ms. Schutz replied "right now?" to which Keeley O'Brien replied
"yeah;" she noted that it was an opportunity to leave work a half hour early and
agreed (Ex. C, Schutz Depo, 69:12-21; 164:22-25).
ee) As it was Friday afternoon, late in the day, around 4:30 p.m. or so, and
"everyone was working hard," Keeley O'Brien and Wayne Pykonen proposed to go
out and "catch a beer or two," "blow some steam off' and "catch up" (Ex. D, K.
O'Brien Depo, 23 :17 to 24:12; 25: 10-13).
ff) This invitation was made to everyone generally, in the office, which is
about as big as a legal conference room, while it seemed "the whole office was there"
(Ex. D, K. O'Brien Depo, 24:2-23).
gg) The group response was that "some people were interested and some
people weren't" (Ex. D, K. O'Brien Depo, 25:6 to 26:1).
hh) On prior occasions, when plaintiff had gone out for lunch meetings with
the same co-workers, they had always talked about work, including the specifics of
projects that they were collectively working on (Ex. C, Schutz Depo, 74:22 to 75:6;
141:7-17; Ex. D, K. O'Brien Depo, 18:23 to 19:15).
ii) On the day in question, plaintiff believed that one benefit of accepting
the invitation to the outing was that Keeley O'Brien, Wayne Pykonen and Joel
Nelson (an intern at O'Brien Constructors) were all working on the same big
15
upcoming condominium project together. Plaintiff hoped to be working on that
project, too, if she advanced in the company as Keeley O'Brien indicated that she
could, and that their group would be able to talk about those projects together at the
happy hour (Ex. C, Schutz Depo, 88:16 to 89:4; 176:2-24).
jj) The group left O'Brien Constructors at approximately 4:30 p.m. (Ex.
C, Schutz Depo, 68:16 to 69:21; Ex. G, Pykonen Depo, 10:8-16).
kk) At the end of the work-day, Keeley O'Brien sometimes went to have
beers with other employees at O'Brien Constructors or superintendents in the field;
while out with superintendents, they would discuss their ongoing projects over beer
(Ex. D, K. O'Brien Depo, 12:17 to 14:10).
11) Typically, when Keeley O'Brien and Wayne Pykonen went out for
beers as co-workers, which they did regularly, they went to La Costita (Ex. C, Schutz
Depo, 29:14 to 26:14, 38:17 to 38:2; Ex. D, K. O'Brien Depo, 27:14 to 28:11; Ex.
G, Pykonen Depo, 12:2-17).
mm) La Costita is located just down the street from O'Brien Constructors,
within a half-mile, and it takes just a few minutes to get there by car (Ex. C, Schutz
Depo, 165:15-21; Ex. F, Nelson Depo, 12:23 to 13:2; Ex. G, Pykonen Depo, 11:6-
8).
16
nn) On December 12, 2008, each of the O'Brien Constructors employees
heading to the rendezvous at the bar (Keeley O'Brien, Wayne Pykonen, Joel Nelson
and Ashley Schutz) drove their individual and separate vehicles to La Costita,
arriving at approximately the same time (Ex. C, Schutz Depo, 165:5-14; Ex. D, K.
O'Brien Depo, 30:18-23; 32:3-16; Ex. F, Nelson Depo, 13:3-17; Ex. G, Pykonen
Depo, 10:15-20).
oo) At the bar, the group ordered large size, 24 ounce, glasses of Dos Equis
beer, like Keeley O'Brien and Wayne Pykonen had told Ashley Schutz that they
always did when they went there for happy hour (Ex. C, Schutz Depo, 73:8 to 74:16;
Ex. D, K. O'Brien Depo, 33:4 to 34:6; Ex. F, Nelson Depo, 13:24 to 14:13; Ex. G,
Pykonen Depo, 7 :23 to 8:17).
pp) When Keeley O'Brien, Wayne Pykonen and Joel Nelson went to La
Costita for social get-togethers after work, they consumed alcohol (Ex. F, Nelson
Depo, 8:24 to 10:14; Ex. G, Pykonen Depo, 7:23 to 8:17; 8:24 to 10:7).
qq) Ms. Schutz drank what they drank to be "part of the team" and never
looked at the menu (Ex. C, Schutz Depo, 137:10-22).
rr) Before the group ordered a second round of the large beers, Wayne
Pykonen left to go to his home in Beaverton, about a half hour away by car (Ex. F,
Nelson Depo, 15:11 to 16:12; Ex. G, Pykonen Depo, 13:1-21).
17
ss) Keeley O'Brien made fun of Wayne Pykonen in front of the group for
needing to get home to his wife after only one beer (Ex. C , Schutz Depo, 77 :11-21;
Ex. D, K. O'Brien Depo, 36:20 to 37:1).
tt) Ms. Schutz considered leaving at that time, but felt she didn't have a
good excuse to present to her boss like Wayne Pykonen did (Ex. C, Schutz Depo,
77:22-25).
uu) Keeley O'Brien believed it took the group about ffteen minutes to
consume the frst round of large beers before ordering the second round (Ex. D, K.
O'Brien Depo, 35:11-25; 36:16-22; 37:2-7).
vv) After Joel Nelson finished his second beer, he announced to the
remaining group that he could not drink another one and Keeley O'Brien pressured
him to get another by calling him a "wimp" and a "wuss" and also making fun of
him for not being "a man" with respect to wanting to get home to his wife until he
agreed to consume a third large beer (Ex. C, Schutz Depo, 75:17 to 76:3; 79:24 to
80:8; Ex. D, K. O'Brien Depo , 40:6 to 41:5).
ww) Keeley O'Brien was instrumental in convincing Joel Nelson to order
the third beer rather than heading home after his wife had called a few times (Ex. D ,
K. O'Brien Depo, 40:8 to 41 :5).
1 8
xx) This pressuring behavior by Keeley O'Brien, along with the fact that
he made it clear that he liked to drink a lot, and that drinking was an important
component of networking, made plaintiff feel that she needed to drink to intoxication
(Ex. C, Schutz Depo, 75:7 to 76:3; 76: 1 8 to 77: 1 ).
yy) It was at this time, after Joel Nelson relented to Keeley O'Brien's
pressuring, saying "okay, I'm ordering a third beer," that Ms. Schutz remembers
ordering her third beer as well and saying, "I'm going to be really buzzed if I drink
this beer" (Ex. C, Schutz Depo, 79: 14-23).
zz) That was Ashley Schutz's last memory of the events of that day (Ex. C,
Schutz Depo, 79: 1 4-23).
aaa) The third round of large beers was ordered and consumed by Keeley
O'Brien, Joel Nelson, and Ashley Schutz (Ex. D, K. O'Brien Depo, 38:21 to 40:7).
bbb) After Joel Nelson fnished his third beer he left to drive to his home in
Metzger, Oregon, a ten to fifteen minute drive away (Ex. F, Nelson Depo, 17: 11 to
18:8).
ccc) Keeley O'Brien paid for Joel Nelson's beers when he left, advising him
"not to worry about it" (Ex. D, K. O'Brien Depo, 42: 1 9-25).
19
ddd) O'Brien drank a fourth and fifth beer and Ashley Schutz consumed part
of a smaller sized fourth beer (Ex. D, K. O'Brien Depa, 43:1 to 45:18).
eee) According to Keeley O'Brien, that partial beer was the last alcohol
Ashley Schutz consumed at La Costita (Ex. D, K. O'Brien Depa, 43 :23 to 44:7).
fff) Keeley O'Brien paid the tab-for all of the drinks consumed by the
group that evening-in the amount of $60.50 sometime after 7:50 p.m. (Ex. D, K.
O'Brien Depa, 45:19 to 46:4; 48:21 to 49:7; 59:14 to 60:3).
ggg) Four days after the collsision, Keeley O'Brien spoke with a police
officer who stated in his report: "He told me that he was unsure of the quantity of
drinks consumed but didn't think Schutz had too many. He said she looked okay
when she was leaving the restaurant, which was about 9 pm" (Ex. D, K. O'Brien
Depo, 66:12 to 70:19; Ex. H, Police Report).
hhh) After leaving the bar, Keeley O'Brien walked with Ashley Schutz to
the door and separated ways in the parking lot to their respective cars (Ex. D, K.
O'Brien Depa, 49:3-21; 70: 14-19).
iii) Near the time of her crash, Keeley O'Brien sent a text message to Ms.
Schutz and Joel Nelson that read "Let me know if you two make it home okay . . .. "
(Ex. C, Schutz Depo, 143:1 to 144:6; Ex. D, K. O'Brien Depo, 56:1-16; Ex. I, text
message from K. O'Brien to A. Schutz, dated December 12, 2008 at 9:18 p.m.).
20
jjj) Shortly after leaving La Costita, plaintiff was involved in a head-on
collision when she was driving the wrong way on an I-5 off-ramp, at approximately
9 : 1 6 p.m. (Ex. H, Police Report).
4. Summary of Argument
The Court of Appeals was correct to reverse the trial court. ORS 471.565(1)
eliminates "previously cognizable claims, for which plaintiff could have sought a
recovery." Schutz II, 288 Or App at 486. SB 925, the legislative bill that culminated
in the enactment of the amendments to ORS 471.565 in 2001, was legislation "in
which a common-law duty is not eliminated, but an injured person is denied a
remedy for breach of that duty * * *." Schutz II, 28 8 Or App at 486. The Court of
Appeals correctly determined that this was not "legislation that sought to adjust a
person's rights and remedies as part of a larger statutory scheme that extends benefits
to some, while limiting benefits to other ( a quid pro quo)" and that this was not
"legislation that modified common-law duties or eliminated a common-law cause of
action when the premises underlying those duties and causes of action have
changed." Schutz II, 288 Or App at 486 (citing Horton, 359 Or at 219-220).
5. Argument
A. The Court of Appeals correctly followed the Horton methodology as applied to plaintiff Ashley Schutz.
21
There is no better place to begin to discuss the methodology involved in
analyzing remedy clause challenges than to quote Horton at 359 Or at 2 1 8-220:
As our early cases recognized, common-law causes of action and remedies provide a baseline for measuring the extent to which subsequent legislation conforms to the basic principles of the remedy clause-ensuring the availability of a remedy for persons injured in their person, property, and reputation. As our early cases also recognized, however, the common law is not infexible but changes to meet the changing needs of the state. Perozzi v . Ganiere, 1 49 Or 330, 348, 40 P2d 1009 (1938); Re Water Rights of Hood River, 1 14 Or 1 12, 180-81 , 227 P 1 065 ( 1924), cert dismissed sub nom Pac. Power & Light Co. v . Bayer, 273 US 64 7, 4 7 S Ct 245, 7 1 L Ed 82 1 (1926); Peery v. Fletcher, 93 Or 43, 52, 1 83 P 1 43 ( 1919). For that reason, Smothers v. Gresham Transfer, Inc. , 332 Or 83, 23 P3d 333 (2001), clearly erred in holding that the remedy clause locks courts and the legislature into a static conception of the common law as it existed in 1857. Put differently, the remedy clause does not protect only those causes of action that pre-existed 1857, nor does it preclude the legislature from altering either common-law duties or the remedies available for a breach of those duties.
In determining the limits that the remedy clause places on the legislature, our cases have considered three general categories of legislation. First, when the legislature has not altered a duty but has denied a person injured as a result of a breach of that duty any remedy, our cases have held that the complete denial of a remedy violates the remedy clause. See Noonan v . City of Portland, 161 Or 2 13, 222-35 (summarizing Mattson v . City of Astoria, 39 Or 577, 65 P 1 066 (1901), and cases following it). Similarly, our cases have held that providing an insubstantial remedy for a breach of a recognized duty also violates the remedy clause. Compare Clarke v. OHSU, 343 Or 581, 608, 6 10, 175
22
P3d 4 1 8 (2007) ($200,000 capped damages not substantial in light of $12,000,000 in economic damages and $ 1 7,000,000 in total damages), with Howell v. Doyle, 353 Or 359, 376, 298 P3d 1 (2013) ($200,000 capped damages substantial in light of $507,500 in total damages).
Second, the court has recognized that the reasons for the legislature's actions can matter. For example, when the legislature has sought to adjust a person's rights and remedies as part of a larger statutory scheme that extends benefits to some while limiting benefits to others, we have considered that quid pro quo in determining whether the reduced benefit that the legislature has provided an individual plaintiff is "substantial" in light of the overall statutory scheme. Hale v. Port of Portland, 308 Or 508, 523 , 783 P2d 506 (1989).
Third, the legislature has modified common-law duties and, on occasion, has eliminated common-law causes of action when the premises underlying those duties and causes of action have changed. In those instances, what has mattered in determining the constitutionality of the legislature's action is the reason for the legislative change measured against the extent to which the legislature has departed from the common law. See Perozzi, 149 Or at 348. That is, we have considered, among other things, whether the common-law cause of action that was modified continues to protect core interests against injury to persons, property, or reputation or whether, in light of changed conditions, the legislature permissibly could conclude that those interests no longer require the protection formerly afforded them. See Norwest v. Presbyterian Intercommunity Hosp., 293 Or 543 , 563, 652 P2d 3 1 8 ( 1 987) ( discussing legislative abolition of common-law torts of criminal conversation and alienation of affections). [ full citations added]
The Court of Appeals properly determined in the case at bar that ORS
47 1 .565( 1 ) fell within the frst category of cases: "legislation that did not alter the
common-law duty but denies or limits the remedy a person injured as a result of that
breach of duty may recover." Schutz II, 288 Or App at 486. Defendants apparently
23
acknowledge that ORS 4 71.565(1) was not the result of any type oflegislative "quid
pro quo" where a person's rights and remedies were adjusted as part of a larger
statutory scheme (the second Horton category), but argue the 2001 legislation falls
within the third category of cases, where the legislature has eliminated common-law
causes of action "when the premises underlying those duties and causes of action
have changed" Schutz II, 288 Or App at 486 (citing Horton, 359 Or at 219-220),
Defendants disagree with the Court of Appeals' conclusion on that point.
The problem with defendants' argument is that there is no reason to believe
that the "premises underlying those duties and causes of action have changed."
Horton, 359 Or at 219. Defendants cite to an alleged change with respect to the
element of personal responsibility.4 This concept of accounability is hardly
something that blossomed anew in the years 2000 and 2001. The legislation was
nothing more and nothing less than an attempt to overrule two Oregon Supreme
Court opinons: Fulmer and Grady.5
The concepts of self-reliance and accountability are deeply embedded in our
society in the state of Oregon. On May 22, 1919, Frederick V. Holman, President
of the Oregon Historical Society, in an address at the unveiling of the statue "The
4 See Defendants' Merits Brief, p. 12. 5 See Deckard v . Bunch, 358 Or 754, 790, 370 P3d 478 (2016), for a discussion of the legislative rationale for the enactment of the 2001 amendments.
24
Pioneer" on the campus of the University of Oregon, stated, in talking about early
Oregon frontier pioneers: "These immigrants of 1 843 were intrepid, determined,
resourceful, and self-reliant." These concepts of had been around for more than a
century at the time the legislature enacted ORS 471 .565( 1 ) in 2001 .
Compare that alleged change in societal conditions with the discussion in
Norwest , cited in Horton at 359 Or 220, as exemplifying the third category of remedy
clause cases. In Norwest, this Court discussed actual and real changes in societal
attitudes that resulted in the legislature abolishing the previously existing common-
law torts of criminal conversation and alienation of affections.
In Norwest, this Court discussed the fact that a claim for alienation of affection
began as a common-law claim, available only to the husband. Norwest, 293 Or at
562. After various legislative changes to restore gender equity between spouses, the
Court then discussed what happened to the common-law torts of alienation of
affection and criminal conversation:
In more recent times, however, equality with respect to alienation of affections was provided not by making this claim available to wives but by abolishing it altogether, along with the tort of criminal conversation. Or. Laws 1 975, ch. 562. The legislative history makes clear that despite their intentional character and the resulting emotional harm to the injured spouse, these actions for invasion of the family relationship were considered outmoded by changing views of marriage, divorce, and sexual relations, as reflected in the repeal in 1 97 1 of criminal laws against adultery and enactment of no-fault divorce laws. [citation omitted]
25
No such "changing views" were taking place in Oregon in the time frame of
2000 and 2001 with respect to long-held principles of self-reliance and personal
responsibility (as distinct from the present day, in which we are witnessing national,
if not global, examination of power dynamics vis-a-vis accountability for improper
coercion in the workplace).
B. Horton set off a major earthquake in Oregon remedy clause and jury trial clause jurisprudence.
Horton brought about a sea change in terms of remedy clause and jury trial
jurisprudence. There is no need to extensively detail the vastly-changed landscape
of remedy clause and jury trial clause legal principles in Oregon after Horton. With
respect to Article I, Section 17, the jury trial clause, this court overruled Lakin v.
Senco Products, Inc., 329 Or 62, 987 P2d 463 (1999). At the same time, it overruled
Smothers, and created an entirely new landscape for remedy clause jurisprudence,
based upon Article I Section 10.
This change in remedy clause jurisprudence can be best encapsulated by
comparing two Oregon Supreme Court cases. The case of Sealey v . Hicks, 309 Or
387, 788 P2d 435 (1990), was a case restored by Horton, when it overruled
Smothers. In Sealey, the Oregon Supreme Court expressly did not recognize a
substantive right to a remedy as found in Article I, Section 17-in fact it
categorically rejected it.
26
In Sealey, the Oregon Supreme Court discussed Heath v . Sears, Roebuck &
Co., 123 NH 512, 464 A2d 288 (NH 1983), a case which found that the New
Hampshire Statute of Ultimate Repose ("SOUR") law violated a substantive right to
a remedy under the New Hampshire Constitution. This Court commented: "[s]uch
statements refect a fundamental difference between the powers and duties of the
Supreme Court of New Hampshire and of this court. There is no 'substantive due
process' clause in our constitution." Sealey, 309 Or at 396.6 This court upheld
Oregon's SOUR law in Sealey as passing constitutional muster.
Compare that with Horton, which says Article I, section 10, limits the
legislature's substantive authority to alter or adjust a person's remedy for injuries to
person, property, and reputation." Horton, 359 Or at 173. It clarifes:
6 It is not explicit in the Heath case that the New Hampshire Supreme Court saw itself as ruling based on "a substantive due process clause." Although the Heath court looked at the reasonableness of the law, and the question of whether the law was "substantially related to a legitimate legislative object," Heath, 464 A2d at 296, the court ultimately relied on Part One, Article Fourteen, of the New Hampshire Constitution, which does not contain the phrase "due process" and which the Sealey court described as a "similar state constitution remedies clause." Sealey, 309 Or at 395. The Sealey court summarized the different approach of the New Hampshire Supreme Court, despite this similarity: "The New Hampshire Supreme Court views this clause as a substantive guarantee that the state courts will provide a remedy to every citizen for every injury." Id. ( emphasis added). This statement is both an arguably misstated dismissal of the New Hampshire Court's approach, and enlightening as to whether the Sealey Court believed Oregonians had such a "substantive" right. Cf Horton, 359 Or at 218-221.
27
"We * * * disagree with defendant that we should overrule our other cases holding
that the remedy clause places a substantive limit on legislative authority." Id. at 1 75
( emphasis supplied).
The Oregon Supreme Court confrmed this reading soon afterwards in Rains
v. Stayton Builders Mart, Inc., 359 Or 6 10, 639 nl0, 375 P3d 490 (2016):
In Horton, this court further held that Article I, section 10, of the Oregon Constitution, substantively ensures a remedy for persons injured in their person, property, or reputation." (emphasis supplied)
The Sealey case, and the Horton case, as explained in Rains, 359 Or at 639
n l0, present a 1 80-degree change from "no 'substantive due process' clause in our
Constitution," in Sealey, to "substantively ensures a remedy for persons injured in
their person, property, or reputation" in Rains.
C. The Court of Appeals properly viewed the Horton methodology through the lens of an "as applied" challenge.
Horton teaches us that the resolution of remedy clause cases should be left to
"the customary process of case-by-case adjudication." Horton, 359 Or at 225. In
the Court of Appeals opinion in Schutz II, it is not expressly explained that the court
was viewing the issue as an "as applied" challenge, but this was later clarified by the
Court of Appeals in a footnote in the case of Wilda v . Roe, 290 Or App 599, 4 1 5 P3d
1 1 46 (Or App 2018), wherein the court noted:
28
[T]he parties have noted our recent decision that held ORS 471.565(1) to be a violation of the remedies clause as applied in a claim of an intoxicated patron.
Wilda, 290 Or App at 601 nl (emphasis supplied) (citing Schutz II, 288 Or
App at 4 7 6). A litigant bringing an "as applied" challenge must show that the statute
is unconstitutional "as applied" to the particular facts at hand. State v . Hirsch, 338
Or 622, 627, 114 P3d 1104 (2005). Simply put, an "as applied" challenge needs a
record that contains evidence of the nature of the injury sustained and a jury's
assessment on the issue. Jensen v. Whitlow, 334 Or 412, 415, 51 P3d 599 (2002). By
contrast, in a facial challenge "there can be no reasonably likely circumstances in
which application of the statute would pass constitutional muster." State v .
Sutherland, 329 Or 359, 365, 987 P2d 501 (1999).
Defendants' Merits Brief and the Amicus Merits Briefs focus on this issue as
if this was a facial challenge to the constitutionality of the 2001 amendments. It is
not. The issue before this Court is whether those amendments, "as applied" to the
claims of Ashley Schutz, are constitutional.
486:
29
D. The claims that Ashley Schutz brings against the O'Brien defendants were recognized at common-law in 2001.
The Court of Appeals discussed this issue in Schutz II at 288 Or App at 485-
In applying that understanding of Horton to this case, our first inquiry is whether, when ORS 471.565 was enacted in 2001, the common law recognized a cause of action and remedy for injuries caused by the type of conduct alleged against defendants: with respect to defendant O'Brien, individually, negligence in organizing and pressuring plaintiff to attend an event where excessive amounts of alcohol would be served and consumed, and failing to warn plaintiff that excessive alcoholic beverages would be served and expected to be consumed; with respect to defendant O'Brien Constructors, vicarious liability for defendant O'Brien's negligence as well as direct liability for negligence in the training and supervision of O'Brien.
We conclude that, before the enactment of ORS 471.565, both of the alleged claims would have been cognizable under general common-law negligence principles, and defendants have not argued to the contrary. See Vaughn v. First Transit, Inc., 346 Or 128, 137-38, 138 n7, 206 P3d 181 (2009).
The claims that Ashley Schutz brings in this case were cognizable at common
law in 2001.
E. The facts in Ibach, Fulmer, and Schutz, are quite similar.
Defendants cite extensively to portions of the Ibach, opinion, in an attempt to
differentiate the facts in Ibach from the facts in the case at bar. However, a close
examination of the facts of both cases shows that attempt to be unavailing.
30
Defendants argue that a review of Ibach shows that the Court only found a
cause of action when the plaintiffs intoxication was not voluntary, and that the
Amended Complaint in Ibach clearly states facts negating decedent's voluntary
participation. Defendants' brief and the amicus briefs repeatedly emphasize the
terms "voluntary participation" and "volition" in an attempt to differentiate the facts
in Ibach from the facts in the instant case.
However, we fnd nearly identical allegations in the First Amended Complaint
of the case at bar at ER 3, First Amended Complaint, p. 3, if4, lines 1 3- 1 5 :
After consuming a number of these alcoholic beverages, plaintiff became acutely intoxicated, with accompanying loss of volition, motor control, decision-making ability, and sense of care and caution. ( emphasis supplied).
Careful analysis shows the facts in Ibach to be not that dissimilar from the
facts in the case at bar. Moreover, an examination of the facts in Fulmer, shows
there is a similarity in that case to the facts of the instant case, as well. In Fulmer,
the Oregon Supreme Court summarized the facts as follows at 330 Or at 4 1 7:
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 * * * "
Again, there is a substantial similarity to what happened to Ashley Schutz.
F. The comparative negligence system serves as a check and balance on first party claims that can be brought by an intoxicated patron.
31
Defendants and Amici argue that the Court of Appeals holding in Schutz II
opens the door to an unlimited number of first-party claims by intoxicated patrons
against alcohol providers. This ignores two factors: 1) the amendments to the statute
may pass constitutional muster as applied to a particular claimant; 2) the
comparative negligence system serves as a counterbalance to claims of this type, as
the Supreme Court explained in Fulmer, at 330 Or at 427:
Our decision today does not relieve intoxicated patrons of their own responsibility to act reasonably to take care of themselves. Under the comparative fault statute, a properly-instructed jury may reduce significantly or negate any recovery when the plaintiffs own unreasonable conduct has contributed to the plaintiffs injuries.
G. The doctrine of the separation of powers does not permit the legislature to enact unconstitutional legislation - the judicial branch is the final arbiter of those issues.
Defendants and Amici make strenuous and repetitive arguments to the effect
that the Court of Appeals' decision in Schutz II results in a violation of the separation
of powers concept, but provide no cogent explication of the issue. An extensive
discussion of the concept of the separation of powers was contained in Oregon
Constitutional Law, editors Landau, Steringer, Sykora, Schuman, Ming, Trompke
(2013) at § 12.4:
32
§12.4-l(a) Legislative Policy and the Courts
Courts may not question the legislative policy underlying a statute or "legislate" for a change in the statute. Bennett v. Farmers Ins. Co. of Oregon, 332 Or 138, 149, 26 P3d 785 (2001) (the creation of law for reasons of public policy is a task of the legislature, not the courts). See State v. Williams, 3 13 Or 19, 44, 828 P2d 1006 (1992) ( exclusion of evidence regarding cost of incarceration versus death penalty proper for public policy reasons); See also Sch. Dist. No. 24J v. McCarthy, 244 Or 3 79, 3 83, 418 P2d 81 7 ( 1966) ( courts cannot read into statutes meaning that is not intended); George B. Wallace Co. v. Int 'l Ass 'n of Mechanics, Mt. Hood Lodge, Local No. 1005, Auto Mechanics, 155 Or 652, 661-62, 63 P2d 1 090 ( 1936) (courts declare what the law is, not what it thinks it should be). It has been asserted that a legislative decision to permit the courts to substitute their judgment on questions of legislative policy would be unconstitutional. See Ivancie v. Thornton, 250 Or 550, 556-57, 443 P2d 612 (1968) (broad or vague statutes may be unconstitutional); Warner Val. Stock Co. v . Lynch, 215 Or 523, 556, 336 P2d 884 (1959) (statutes would be unconstitutional if they vested in the courts the power to substitute judicial judgment for legislative policy).
The discussion continues in a following section:
§12.5-1 Separation between the Judicial and Legislative Departments.
The legislature occasionally will pass a law and attempt to characterize the legislation for constitutional purposes or state within the statute the legislature's intent that the operation of the law does not conflict with the constitution. Auto. Club of Oregon v. State, 3 1 4 Or 479, 488, 840 P2d 674 (1992). The court maintains the ability to make an independent determination of the meaning and effect of such a law within the parameters of the implicated constitutional provision. Auto. Club of Oregon, 314 Or at 485-87.
33
The legislature may enact laws laying out the exercise of judicial powers as long as the legislation does not unduly burden or substantially interfere with the judiciary. When the legislation excessively hinders the ability of the courts to adjudicate a case or destroys an essential power to the adjudicatory function, the legislation is constitutionally defective. DeMendoza v. Huffman, 334 Or 425, 454, 51 P3d 1232 (2002) ( court having to list state as judgment creditor does not interfere with judicial function); Circuit Court of Oregon, Fifteenth Judicial Dist. v. AFSCME Local 502-A, 295 Or 542, 549, 669 P2d 314 (1983) (collective bargaining of court employees does not interfere). This defect arises under Article VII (Amended), section 1. See McFadden v. Dryvit Sys., Inc. , 338 Or 528, 535, 112 P3d 1191 (2005) (revival of claims in amended statute not violative of Article VII of the Oregon Constitution).
Comment: Regardless of how the legislature words or defines a law, the court has the duty to interpret and apply law. The court has the ultimate authority to interpret the constitution. Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 364 n7, 723 P2d 298 (1986). See also McFadden, 338 Or at 538; State ex rel. Huntington Rubber Mills v . Sulmonetti, 276 Or 967, 970-71, 557 P2d 641 (1976) (legislature may revive claims without violating the court's right to determine res judicata).
The comment stated above succinctly states the core principle involved: "The
court has the ultimate authority to interpret the constitution," and so it will do in the
case at bar.
H. This Court need not reach constitutional issues.
The trial court in its first ruling, held that the three allegations against
defendants that are the subject matter of this appeal, were not subject to the
provisions of ORS 471.565 (1 ), as explained by the Court of Appeals in a footnote
34
in the Schutz II, 288 Or App at 480 n2, set forth in full on p. 4 of this brief.
The trial court was correct in its interpretation of ORS 471.565(1). The trial
court's reading follows the general principle of statutory construction that statutes
are construed to be constitutional. As explained in Interpreting Oregon Law, §4.8,
Johansen, Landau, Villella (2009):
When the court has to choose between two plausible interpretations of a statute, one of which is constitutional and one of which is unconstitutional, the court will assume that the legislature intended the constitutional interpretation. State v . Kitzman, 323 Or 589, 602, 920 P2d 134 (1996). This is commonly known as the avoidance canon. Oregon courts apply this maxim so as to avoid results that are potentially unconstitutional. The proposed construction does not have to be blatantly unconstitutional.
If this Court has doubts about the Court of Appeal's holding on the
constitutionality of ORS 471.565(1), as applied to the claims of Ashley Schutz, then
it should follow the avoidance canon, and adopt the trial court's initial interpretation
of the applicability of the statute to plaintiffs allegations about defendants'
negligent conduct that occurred well prior to the service of alcohol at La Costita.
In the case of Ms. Schutz, she was an employee of defendant O'Brien
Constructors and a direct subordinate of defendant Keeley O'Brien. Mr. O'Brien's
behaviors mirror those unfortunately seen in situations where unchecked power
imbalances can ultimately lead to unhealthy, destructive, and de-humanizing
workplace dynamics.
CERTIFICATE OF FILING AND SERVICE
I hereby certify that on August 9, 2018, I mailed two true copies of the foregoing
RESPONDENT ON REVIEW ASHLEY SCHUTZ'S BRIEF ON THE MERITS, to
each of the following:
Jay R. Chock, OSB #830043 John R. Barhoum, OSB #045150 CHOCK BARHOUM LLP 121 S.W. Morrison Street, Suite 415 Portland, OR 97204 Email: [email protected] Email: john. [email protected]
of Attorneys for Defendant-Respondent/ Petitioner on Review O'Brien Constructors LLC
Alice S. Newlin, OSB #084314 Michael J. Estok, OSB #0907 48 LINDSAY HART, LLP 1300 S.W. Fifth Avenue, Suite 3400 Portland, OR 97201 Email: [email protected] Email: [email protected]
of Attorneys for Amicus Curiae Oregon Association of Defense Counsel
Susan Marmaduke, OSB #841458 [email protected] HARRANG LONG GARY RUDNICK P.C. 1001 SW Fifth Avenue, 16th Floor Portland, OR 97204
of Attorneys for Amicus Curiae Oregon Liability Reform Coalition
Andrew D. Glascock, OSB #992676 HIEFIELD FOSTER & GLASCOCK 6915 S.W. Macadam Avenue, Suite 300 Portland, OR 97219 Email: [email protected]
of Attorneys for Defendant-Respondent/ Petitioner on Review Keeley O'Brien
Jeffrey D. Eberhard, OSB #872132 SMITH FREED & EBERHARD P.C. 121 S.W. Fifth Avenue, Suite 4300 Portland, OR 97204 Email: j [email protected]
of Attorneys for Amicus Curiae Smith Freed & Eberhard P.C.
