concurring in part and dissenting in part.
I disagree with the majority’s conclusion that an adult may never maintain a common-law negligence action for injuries that result from his or her own intoxication. While it is indeed true, as the majority asserts, that Oregon courts have yet to allow such an action, I am convinced that this happenstance is a survival of the long-since rejected regime under which a plaintiffs contributory negligence acted as an absolute bar to recovery. I am further convinced that, under Oregon’s current comparative fault regime, there is no principled reason now to treat injuries caused by the consumption of alcohol differently from other negligence-caused injuries.
It is perhaps not surprising that none of the cases relied on by the majority has addressed the issues of contributory negligence and comparative fault. A closer examination of those cases reveals that each turned on the narrow interpretation of statutes adopted by the legislature both to protect and hold accountable commercial alcohol providers for injuries occurring off their premises. I have no quarrel with any of the earlier decisions by this court thus interpreting the various statutes adopted by the legislature in pursuit of those goals, and I agree with the majority that plaintiffs’ statutory claims are all without merit. I take issue, however, with the majority’s reliance on this court’s flat assertion in Plattner v. VIP’s Industries, Inc., 95 Or App 351, 354, 768 P2d 440, rev den 308 Or 79 (1989), that those statutory rulings somehow limit common-law claims. That assertion in Plattner was made without any accompanying analytical support, and I suggest that it is time to recognize it as fallacious.
It is true that in Miller v. City of Portland, 288 Or 271, 604 P2d 1261 (1980), the leading case in the line relied on by the majority, the Supreme Court held, inter alia, that the plaintiff did not have a common-law claim against the liquor retailer who had sold her alcohol. Id. at 279. The court’s reasoning was based not on the fact of the plaintiffs voluntary intoxication but, rather, on the fact that, because she was under age, she had committed an illegal act by purchasing and consuming the alcohol. Id. The court stated that it *346“would be inconsistent with apparent legislative policy to reward the violator with a cause of action based upon his or her conduct which the legislature has chosen to prohibit and penalize.” Id. I do not disagree with that facet of the court’s reasoning in Miller, but I believe that that case and its progeny have been given far too much precedential value by this court. I further believe that neither Miller nor any of the other cases cited by the majority controls the outcome of this case.
Miller and the cases following it have been uniform in the assertion, repeated by the majority here, that Oregon has never recognized a common-law claim for an individual who suffers injuries as a result of his or her own intoxication. None of those cases, however, has identified any universal truth or logic to support that assertion. Outside a system in which contributory negligence would act as an absolute bar to recovery, the only possible explanation I can see for this blanket rule is an inherent prejudice against individuals who drink to the point of intoxication. But law should be based not on prejudice but on reason. An adult who has drunk to the point of intoxication has committed no illegal act in doing so, and I can see no reason why a court, under contemporary legal principles of comparative fault, should reject out of hand the claim of a person injured as a result of the volitional consumption of alcohol.
Moreover, plaintiffs in this case allege that Gary Fulmer’s injuries were the result of nonvolitional conduct. The majority responds to that contention by ruling that the case on which plaintiffs rely, Ibach v. Jackson, 148 Or 92, 35 P2d 672 (1934), is no longer good law and that, even if it were good law, it would not support plaintiffs’ claims. The majority first states that the relevant pleadings in Ibach alleged that the defendant had forced the plaintiffs decedent to drink alcohol. 152 Or App at 342-43. The majority then states that the pleadings in this case do not indicate that defendant “ ‘induced’ Gary to drink anything, much less that it took advantage of him in his intoxicated state and imposed additional quantities of alcohol on him.”1 Id. at 343. I disagree *347with the majority on both points. First, plaintiffs allege in the pleadings that Gary Fulmer had become intoxicated to the point of losing all control of reason or volition. In other words, he was incapable of consenting to further service of alcohol. Defendant nevertheless continued to serve him. As part of its analysis, the court in Ibach stated:
“Independently of any statute, it is wrongful for any person repeatedly and continuously to ply another person with intoxicating liquor until intoxication is produced. An action by a [person] so mistreated could be maintained unless by voluntary participation therein she could herself be said to be at fault. * * * [/£] may be inferred from the original complaint, that after decedent lost her sense of reason and volition, defendant continued to administer liquor to her. If decedent had survived such an indignity, she would have had a right of action against defendant for such damages as she sustained thereby.”
Id. at 102-03 (emphasis supplied). The court went on to quote with approval the opinion of the Texas Supreme Court, in which Chief Justice Willie wrote:
“ ‘[T]he maxim of volenti non fit injuria presupposes that a party is capable of giving assent to his own injury. If he is divested of the power of refusal by reason of total or partial want of mental faculties, the damage cannot be excused on the ground of consent given. A consent given by a person in such condition is equivalent to no consent at all — more especially when his state of mind is well known to the party doing him the injury.’ ”
Id. at 103-04 (quoting McCue v. Klein, 60 Texas 168 (1883)) (emphasis supplied). As for the majority’s assertion that Ibach has been overruled sub silentio by the later decisions on which the majority relies in its decision today, I repeat my contention that none of those rulings has offered a principled reason for denying a common-law claim to an adult injured as a result of his or her own intoxication where contributory negligence no longer operates as an absolute bar to recovery.
*348Finally, because I believe that plaintiffs have alleged facts sufficient to state a common-law negligence claim by Gary, it follows that Lottie Ann has stated a claim for loss of consortium and that that claim must also be reinstated.
I respectfully dissent.
The procedural posture of Ibach adds to the confusion regarding its analysis. The plaintiff filed a complaint in which she did not allege that the defendant had *347“forced” the decedent to drink. After the defendant filed a demurrer, the plaintiff filed an amended complaint in which the word “force” was used. On reconsideration, the court held that the first complaint, which did not discuss the use of force, was sufficient to state a claim. Ibach, 148 Or at 111-12.