Oregon’s comparative fault statute, ORS 31.600, and the related Uniform Civil Jury Instructions, provide that the trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought, the fault of third-party defendants who are liable in tort to the claimant, and the fault of any person with whom the claimant has settled. In other words, the jury will be charged with allocating fault to all parties on the verdict form, including parties who have settled. The percentages must equal 100% for a valid verdict. Liability is several in Oregon and each party pays their allocated percentage of fault.
While a party may blame all fault on parties who are immune (such as an employer in a work-related personal injury case) and who, therefore, are not included on the verdict form, only those parties on the verdict form, including settled parties, will have fault allocated to them by the jury. Oregon is a several liability state. The comparative fault scheme is modified comparative.
Any compensatory damages awarded to plaintiff will be reduced by the corresponding percentage of comparative fault allocated to plaintiff by way of the affirmative defense of comparative fault. Therefore, assuming that plaintiff’s own fault would be raised as an affirmative defense in a product liability case, plaintiff would be on the verdict form. Any fault allocated to one or more plaintiff would reduce his or her verdict by the percentage of fault allocated to him or her. If the fault allocated to a plaintiff is 51% or more, his or her recovery is barred entirely.
The jury must be told that an allocation of fault to the plaintiff will result in a reduction of the plaintiff’s award in proportion to the percentage of fault allocated. Although settled parties are on the verdict form, and the jury is required to compare the fault of all parties on the verdict form in making their allocation, the jury is prohibited from being informed that any of the parties on the verdict form have settled. See ORS 31.605.
Immune parties, such as those who are protected by the exclusive remedy provision (e.g., the employer), are not subject to tort liability to the injured worker and, therefore, are not placed on the verdict form, and no percentage of fault can be allocated to them. However, the comparative fault statute does not prevent a party from alleging that the party was not at fault because the injury was the sole and exclusive fault of a person who is not a party. In other words, although the jury may determine that an employer who was compliant with worker’s compensation is 100% at fault, they cannot allocate partial fault to the complying employer and the rest of the fault to those on the verdict form.
Under Oregon law, fault may be allocated to a plaintiff’s family member or friend. For example, in cases involving children, failure to supervise may warrant a claim against a child plaintiff’s parents. For example, in order for the jury to allocate fault to a parent who was negligent in failing to supervise his or her child, the parent must be a party to whom fault can be allocated on the verdict form. The parent in this hypothetical will only be on the verdict form if a cross-claim or third-party claim properly alleges the specifications of negligence against the parent. Defendant would then have the burden of alleging and proving that the parent’s own negligence, in failing to act reasonably to avoid causing injury to the child, was a substantial contributing factor in the accident and injury.
In the absence of proper specifications of negligence at the directed verdict stage against the parent (or any third party, and including the comparative fault of plaintiff), the judge could strike that party from the verdict form, and no fault could be allocated to them.