concurring in part; dissenting in part.
I concur in the majority’s disposition of the claims based on negligence and negligence per se, but dissent from the disposition of the statutory tort claim. That claim alleges that defendant violated ORS 30.950:
“No licensee or permitee is liable for damages incurred or caused by intoxicated patrons off the licensee’s or permitee’s business premises unless the licensee or permitee has served or provided the patron alcoholic beverages when such patron was visibly intoxicated.”
I disagree with the majority’s conclusion that ORS 30.950 does not limit recoverable damages to those caused by intoxicated drivers. '
The statute provides: “No licensee or permitee is liable * * * unless” certain conduct occurs. (Emphasis supplied.) It is unclear from that language whether the statute is limiting existing liability or extending liability beyond that recognized at common law. In Sager v. McClenden, 296 Or 33, 39, 672 P2d 697 (1983), the Supreme Court construed the statute as a limitation on existing liability. However, in Chartrand v. Coos Bay Tavern, 298 Or 689, 696 P2d 513 (1985), in dictum, the court characterized the statute as expanding the liability of commercial hosts beyond the existing case law limits of Campbell v. Carpenter, 279 Or 237, 566 P2d 893 (1977), and Davis v. Billy’s Con-Teena, Inc., 284 Or 351, 587 P2d 75 (1978). Because of the ambiguity in the statute, I examine the legislative history.
Campbell v. Carpenter, supra, was a wrongful death action where the decedent was killed by an automobile driver who had become intoxicated at defendant’s tavern. In affirming the trial court’s judgment, the court held that a tavern keeper can be liable in a common law negligence action if
“at the time of serving drinks to a customer, that customer is ‘visibly’ intoxicated because at that time it is reasonably foreseeable that when such a customer leaves the tavern he or she will drive an automobile.” Campbell v. Carpenter, supra, 279 Or at 243.
The court adopted the reasoning of the New Jersey court in Rappaport v. Nichols, 31 NJ 188, 156 A2d 1, 75 ALR 2d 821 *235(1959), which was decided on facts similar to those of Campbell. Quoting Rappaport, the court stated:
“ ‘When alcoholic beverages are sold by a tavern keeper to * * * an intoxicated person, the unreasonable risk of harm * * * to members of the traveling public may readily be recognized and foreseen; this is particularly evident in current times when traveling by car to and from the tavern is so commonplace and accidents resulting from drinking are so frequent.’ ” 279 Or at 240.
In Campbell, the court recognized that it is foreseeable that intoxicated customers might injure third parties while leaving taverns in their automobiles. The court did not address injuries other than those inflicted by intoxicated patrons driving automobiles. In enacting ORS 30.950, the legislature was responding to and codifying the decision in Campbell v. Carpenter, supra. Sager v. McClenden, supra, 296 Or at 38; Pfeifer v. Copperstone Restaurant and Lounge, 71 Or App 599, 693 P2d 644 (1985). There is no indication in the legislative history that other types of injuries were considered. The types of injuries foreseen by the legislature in enacting ORS 30.950 were those caused by intoxicated drivers and not other types of injuries, such as those resulting from assault with a deadly weapon.1
When examining whether a statutory tort claim exists, our responsibility is to determine whether the risk, the harm and the plaintiff were contemplated by the legislature. Nearing v. Weaver, 295 Or 702, 670 P2d 137 (1983). If they were foreseen, the only remaining questions are whether the defendant engaged in statutorily prohibited acts and whether those acts resulted in injury. Chartrand v. Coos Bay Tavern, supra, 298 Or at 696. Thus, in a statutory tort claim, a foreseeability analysis, generally used by courts and juries in negligence actions to limit liability when attenuated circumstances exist, is not undertaken. Therefore, it is especially important that we do not extend liability beyond the circumstances contemplated by the legislature. Because I believe that the majority has done so in this case, I dissent.
As noted above, in Chartrand the court did state that ORS 30.950 extended the liability of commercial hosts beyond Campbell. However, the court’s comments were dicta, because the case was pleaded and tried solely on the issues of common law negligence and negligence per se and because the case involved an injury by an intoxicated patron who was driving her vehicle after leaving the tavern.