Category Archives: Oregon Law

NTSB Factual Reports and the Hearsay Rule in Oregon Aviation Cases

Oregon books

Oregon Evidence Code Rule 803(8) Provides the Necessary Exception to the Hearsay Rule for NTSB Fact Reports

Although the statements made in the Group Chairman’s reports (“the fact reports”) are arguably hearsay, the reports fall within an exception to the hearsay rule provided under the Oregon Evidence Code (“OEC”).  First, the fact reports are admissible as hearsay exceptions under OEC 803(8)(b).  That rule provides, in part, that reports “of public offices or agencies” that set forth “[m]atters observed pursuant to duty imposed by law as to which matters there was a duty to report” are admissible as exceptions to the hearsay rule.

Second, fact reports are admissible as hearsay exceptions under OEC Rule 803(8)(c), which provides, in part, that reports in civil actions “of public offices or agencies” that contain “factual findings resulting from an investigation made pursuant to authority granted by law” are admissible as exceptions to the hearsay rule “unless the sources of information or other circumstances indicate lack of trustworthiness[.]”

A factual NTSB report falls within the exception for hearsay provided by 803(8)(b)-(c) because it contains “factual findings” resulting from an investigation made by the NTSB, a government agency, pursuant to the authority granted to the NTSB investigators by law.  The NTSB “shall investigate…each accident involving civil aircraft:”  49 USC § 1132(a)(1)(A).  Moreover, by law, the investigation is required to result in a report.  49 USC § 1131(e) (“The Board shall report on the facts and circumstances of each accident investigated by it under subsection (a) or (b) of this section.  The Board shall make each report available to the public * * *.”).  The report and its attachments thus satisfy the foundational elements of OEC 803(8)(b)-(c).

The Admissibility of NTSB Fact Reports at Trial

Businesswoman standing in airplane engine

Introduction

The admissibility of NTSB fact reports at trial is a key issue for aviation lawyers.  The aviation accident defense lawyer must know how the NTSB works and what the relevant authorities are related to the admissibility of the various reports that the NTSB creates.  Aviation defense lawyers must also know what arguments plaintiffs are likely to make in a case where the factual reports prepared by the NTSB under the party system it employs, are unfavorable.  The aviation defense lawyer must be properly schooled on NTSB agency procedure, the party system, the enabling legislation, and the federal statutes that outline the NTSB mandate and system.

Finally, the aviation defense lawyer must know the local rules of evidence typically implicated in what is usually a hard fought battle to admit one or more of what may be the many NTSB group fact reports. This is extremely important for the aviation defense lawyer to understand in jurisdiction like Portland, Oregon, where state court is generally very plaintiff-friendly. Most state court judges do not have experience presiding over cases where a federal agency, let alone a federal agency as unique and specialized such as the NTSB, plays such a central role.

The NTSB Mandate

The NTSB s a unique federal agency.  It is not a federal executive branch agency, but rather is a congressionally chartered, completely independent agency.  The NTSB has a single aviation mandate: to investigate every aviation (and other forms of transportation such as rail, ferry, bus, subway) accident in the Unites States; to determine the probable cause of the accident; and to make recommendations to help protect against future accidents.  49 U.S.C. §§ 1131, 1132, 1135.  See also Chiron Corp. v. NTSB, 198 F.3d 935, 938 (D.C. Cir. 1999).   An NTSB investigation is “not conducted for the purpose of determining the rights or liabilities of any person.  Board regulations and policies are explicit in providing that parties participating in an investigation are involved in NTSB processes only to assist the safety mission and not to prepare for litigation.”  Id. (quotation marks and alterations omitted).

Under the NTSB investigative system discussed below, the operational and investigative methods of the NTSB result in the production of numerous so-called group chairman’s reports, which are intended to be factual in nature.  These are typically referred to as the NTSB “fact reports”.  At the end of the investigation, the NTSB board members may conduct a hearing during which the NTSB group chairs who lead the groups who authored the factual reports may testify.

When the investigation is complete, the Investigator In Charge (“IIC”) of the investigation issues a final report that contains conclusions and a finding of probable cause, which is then released to the public after adoption by the NTSB board members.  Although discussed in further detail below, 49 U.S.C. § 1154(b) prohibits the use of the final probable cause report prepared by the Board itself, as distinguished from it staff’s factual accident reports.

The NTSB Party System and Factual Report Process

For major aviation accidents, the NTSB typically sends a “Go Team”, one of several that the NTSB maintains in readiness so that they can typically leave within hours to go to the site of an accident and immediately begin investigating.  Rachel G. Clingman, LITIGTING THE AVIATION CASE FROM PRE-TRIAL TO CLOSIING ARUMENT 385 (Andrew J. Harakas ed., 3rd ed. 2008).  The NTSB then designates an IIC to oversee the full investigation.  Id. The NTSB and the IIC then nominate parties to participate in the investigation, and organizes themselves and the participating parties into different investigatory groups.  Id.

Each group investigates specific factors related to the accident, including operations, survival factors, meteorology, airworthiness, and aircraft performance.  Id.  Each group is headed by a chairperson who drafts a factual accident report regarding his or her subject matter that is submitted to the IIC.  Id.  The IIC submits the various chairperson factual accident reports to the NTSB, which then uses these reports to prepare the final Board accident report  Id. at 385-86.  Typically, but not always, the Board issues its final report very shortly after the final public hearing, if one is held.

Since aviation crashes can lead to incredibly complicated investigations and require countless individuals with extremely deep experience in sometimes unusual and unique skills including sound spectrum, meteorology, survival factors, CVR and FDR data recovery, aviation operations, metallurgy, airworthiness, crashworthiness, and a host of other factors, the NTSB investigation and reporting process is essential for the aviation defense lawyer to understand.  As noted above, the depth of this investigatory process is typically something most state court judges are not very familiar with.  The parties who are nominated to participate by the NTSB sign declarations attesting that they will not use or shape the information obtained during the investigation as advocates for their employers, who are often stakeholders in the investigation.  The parties agree to use their skill and knowledge and bring what they contribute to the party system investigation only for the purpose of finding the cause of the accident and making recommendations to improve safety.

The investigations conducted by some groups are incredibly broad.  For example, often the operations group will interview pilots and witnesses; travel to the scene, however remote; obtain records; travel to pilot bases; obtain and review pilot records; interview co-workers; and obtain records associated with the maintenance and flight house of the helicopter.

Method For Determining Admissibility

A motion in limine is “any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered”.  Luce v. United States, 469 U.S. 38, 40 n.2 (1984).  The court has inherent authority to decide such motions in order to manage the course of trials. Id at 41.  The court also has broad discretion to decide preliminary questions concerning the qualifications of a witness or the admissibility of evidence.  O.E.C. 104.  In State v. Busby, 315 Or. 292, 844 P.2d 897 (1993), the Oregon Supreme Court noted that it had “expressly approved the use of a pretrial motion in limine to obtain a ruling on evidence before the evidence is sought to be introduced.”  315 Or. n.16 at 305.

Other courts have permitted motions in limine to be filed by a party seeking pretrial rulings that NTSB group chairman’s factual reports were admissible, In re Air Crash at Charlotte, N.C. on July 2, 1994, 982 F. Supp. 1071, 1075 (D. S.C. 1996), or inadmissible, Brown v. Teledyne Continental Motors, Inc., No. 1:06-CV-00026 (N.D. Ohio March 15, 2007).

It is particularly appropriate to file a motion in limine well before the start of any aviation trial.  The NTSB investigation will likely be extensive, and by statute and regulation the NTSB is the only authorized investigatior into the facts and circumstances of the subject accident.  By the time the final report is released in a major NTSB investigation, thousands of hours may have been spent to produce an extensive body of evidence, all of which would be contained on the NTSB’s own public docketing system, and which would be virtually impossible to reproduce absent significant additional time and at incredible cost.

Conclusion

Aviation defense counsel should begin studying the NTSB fact reports, as well as what is virtually always a massive amount of attachments (exhibits) to the reports, as soon as possible.  The reports are virtually always primarily new information since during the pendancy of the NTSB investigation, the NTSB will use its powers as the exclusive investigating agency to voluntarily obtain or subpoena documents related to the investigation which, pursuant to the regulations, are not discoverable until released by the NTSB.  In many cases this is not until after the factual group chairman’s reports are posted to the NTSB docket, or even until after the Board’s report is due, although, as noted above, the report containing the Board’s causal conclusions and safety recommendations is inadmissible pursuant to statute.  The skilled aviation defense attorney will assess the judge’s familiarity with the NTSB and the NTSB process, if any, as soon as possible and begin educating the judge appropriately so that the proper rulings are obtained.

 

Independent Medical Examinations and Oregon Law

IME’s: Leveling the Playing Field

With few exceptions, Oregon has no expert discovery.  While Independent Medical Examinations (“IME’s”) are available, the Oregon Plaintiff’s Bar has resisted them consistently and for years has sought conditions such as the presence of “supporters” or plaintiff’s counsel, someone from their office, or audio and/or video recording, etc.  In large personal injury, product liability, or aviation cases where the defense has needed IME’s in a number of medical disciplines, plaintiffs routinely sought to, and successfully blocked multiple specialty IME’s.

Until recently, the plaintiff could retain one or more medical experts, who could then examine the plaintiff without the defendant ever knowing of the examination(s), or at best, only learning as the plaintiff’s surprise medical expert took the stand.  Obviously, it did not work the other way around and any defense IME, which usually required court intervention, would be discoverable to the plaintiff immediately.  Even if the defendant did not request a written report, the defendant’s expert was obligated to provide the report at the plaintiff’s expense.

Plaintiff Must Now Disclose IME’s and Reports, Or Have Plaintiff’s IME Provider Prepare a Report at Reasonable Expense to the Defense

Pursuant to ORCP 36, ORCP 44 and the Oregon Supreme Court’s recent decision in A.G. v. Guitron, 351 Or 465, 268 P3d 589 (2011),  the plaintiff is now required to produce a written report from any and all examining physicians and psychologists who have examined the plaintiff and not yet made a written report.  This includes the obligation to request that any examining physicians and psychologists who have been retained as  experts by the plaintiff, and who have not yet made a written report, prepare a written report of the examination at the defendant’s reasonable cost and produce it to the defendant.

Defendant May Obtain Attorney Fees If a Motion To Compel Is Required

Pursuant to ORCP 46 A(4), the defendant may also move the court for an Order requiring the plaintiff to pay the defendant’s reasonable attorney fees and costs in filing such a motion to compel, given the express language of ORCP 36, ORCP 44 and Guitron.  Unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust, it may order the plaintiff and/or the plaintiff’s attorney to pay the defendant’s reasonable expenses incurred in obtaining the Order, including attorney’s fees.

The Oregon Evidence Code Contains an Exception to the Psychotherapist-Patient Privilege in Cases Where Emotional Condition Is At Issue

A plaintiff may argue that the attorney-client privilege protects psychotherapist reports until the plaintiff or the plaintiff’s testifying doctor/therapist takes the stand, thereby waiving the privilege.  However, the Oregon Evidence Code (“OEC”) provides an exception to the psychotherapist-patient privilege asserted by plaintiff.  OEC 504(4)(b) provides that,

“There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient[.]”

Defense counsel should also be aware and prepared to argue that, by definition, the work-product privilege codified in ORCP 36 B(3) does not apply to medical records.  Also, while pretrial discovery of non-medical experts is generally not permitted in Oregon, Oregon does not recognize a general “expert” privilege that would relieve plaintiff of all obligations to produce medical records.

ORCP 36 B(1) and ORCP 44 D Make Clear that Plaintiff Does Not Have the Right to Ambush Defendant With a Secret Medical Witness

A plaintiff’s medical records in a personal injury case are relevant and discoverable pursuant to ORCP 36 B(1), which is broad and allows parties discovery “regarding any matter, not privileged, which is relevant” to any claim or defense in the case.  ORCP 36 B(1) further provides that, “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Under ORCP 44 C, “the claimant shall deliver to the requesting party a copy of all written reports and existing notations of any examinations relating to injuries for which recovery is sought * * *.”  Under ORCP 44 D(1), a party may request the report of an “examining physician or psychologist” who has examined the other party for purposes of litigation.   Under the Guitron case, when requested, under the proper predicate circumstances, a plaintiff is required to provide the defense with reports from that plaintiff’s IME physician.  Specifically, the Guitron court held that ORCP 44 C requires plaintiffs “to deliver to defendants, at defendants’ request, a copy of all written reports of examinations related to the psychological injuries for which plaintiff sought recovery, including, specifically, the report of an examination by a psychologist retained by plaintiff’s counsel for the purpose of the litigation.”  351 Or 465, 467.

The court in Guitron affirmed the trial court and the Oregon Court of Appeals’ decision to bar the plaintiff’s psychologist from testifying at trial pursuant to ORCP 44 D because his required written report was not produced to the defendants.  351 Or 465.  The court held that, under ORCP 44 C, plaintiffs are required to produce on request “the reports of the experts who examined them for purposes of litigation as well as for treatment.”  Id. at 485.  As the Guitron court noted, in adopting ORCP 44, the Oregon Legislature limited the reach of the protections of the physician-patient, psychotherapist-patient, and attorney-client privileges, and ordered plaintiff to produce a report that might otherwise have been protected.  351 Or at 484-85.

Plaintiffs Are No Longer Entitled to the Presence of a Supporter During IMEs Unless Extraordinary Circumstances Are Present

On March 7, 2013, The Oregon Supreme Court published an opinion which was a welcome further leveling of the playing field for the defense as it relates to defense-requested IME’s.  The issue of plaintiffs having their counsel or a “supporter” present during defense IME’s has plagued Oregon state civil defense lawyers for decades.

In Lindell v Kalugin, 353 Or 338, 297 P 3d 1266 (2013), the Oregon Supreme Court issued an important en banc opinion for the defense.  The court ruled that a plaintiff is not automatically entitled to be accompanied by counsel or a supporter at an IME requested by the defense.

An ongoing dispute for many years in Oregon is whether a plaintiff’s counsel, family member, or friend can attend a defense-requested IME.  After performing a balancing test, the court ruled that the defense was entitled to have the plaintiff examined without having a family member, friend, or their counsel in attendance.  Id. at 358.  The court noted that this was in part so that the IME examiner, and by extension the defense, could evaluate the true responses of the plaintiff and get a true sense of plaintiff’s condition, unaltered by the presence of the third person.  Id. at 357-58.

The court did not, however, rule that a third party would be prohibited to attend a plaintiff’s IME under any circumstances, but it did rule that the proper showing of need had not been made in the Lindell case.  We do not expect this opinion to alter the customary Oregon practice whereby trial court judges allow the presence of a third person such as a parent in cases involving children or vulnerable adults.

This will likely have particular importance in serious negligence, product liability, and aviation cases where serious injuries are possible and multiple-discipline IME’s are necessary.

Multi-Defendant Product Liability and Aviation Cases Under the Lasley Case

Close up of judge raising gavel in courtroom

Lasley: A road map for pleading claims related to the fault of other defendants

Olson Brooksby PC often represents one or more defendants In multi-defendant product liability actions and aviation cases.  The Oregon Supreme Court case of Lasley v Combined Transport, Inc., 351 Or 1 (2011), addressed the issue of causation in Oregon as it relates to negligence cases with multiple tortfeasors.  Lasley also contains a detailed analysis regarding allocation of fault.  It is instructive for defendants who have affirmative defenses relating to the fault of other parties, as well as cross-claims and indemnity and contribution claims against each other.

For example, in multi-party product liability and aviation cases, more often than not, there will be a two or more co-defendants who intend to present a unified, or at least not inconsistent, defense against the target defendant.

Lasley contains a road map for defendants in such cases and sets out how to properly plead claims concerning the fault of other defendants so that those claims may be appropriately considered by the jury.

 What happened in Lasley?

In the Lasley case, a truck owned by defendant Combined Transport lost part of its load of panes of glass on the I-5 freeway.  Id. at 4.  The plaintiff in the case was among those stopped in traffic on the freeway while the glass dropped by defendant Combined Transport was being cleaned up.  Id.  While the plaintiff was stopped, Clemmer, the other defendant in the case, hit plaintiff’s pickup truck.  Id.  Defendant Clemmer was allegedly driving while intoxicated.  The collision caused a gas leak from the plaintiff’s pickup which, in turn, caused a fire, killing the plaintiff.  Id.  The lawsuit against Clemmer and Combined Transport alleged “that Clemmer was negligent in driving at an excessive speed and in failing to keep a proper lookout and control of her car.”  Id. at 13.  Clemmer admitted fault.  Id.  Critically, “Plaintiff did not allege that Clemmer was negligent in driving while intoxicated.”  Id.

Based on these pleadings, the trial court granted the plaintiff’s motion in limine to exclude evidence that Clemmer was intoxicated at the time of the collision, and the jury ultimately returned a verdict against both defendants, finding Combined Transport 22% at fault and Clemmer 78% at fault for plaintiff’s damages.  Id. at 4.

On appeal, Combined Transport argued that the court should have allowed evidence of Clemmer’s negligence due to her intoxication because Combined Transport filed an answer including a general denial and filed a cross-claim against Clemmer for contribution based on negligence due to intoxication.   Id. at 13-14.  Specifically, Combined Transport alleged that Clemmer should “contribute such amount as is proportionate to her share.”  Id. at 23.  (Internal quotation marks omitted.)   However, “Combined Transport did not allege in its cross-claim that it had paid more than its proportional share of liability or seek a money judgment against Clemmer.”  Id.  (Bolding added.)    The plaintiff argued that evidence of Clemmer’s intoxication was properly excluded because the plaintiff did not allege that Clemmer was negligent in driving while intoxicated, and, therefore, Clemmer’s intoxication was not relevant to apportionment as framed by the pleadings.  Id. at 13.

The court explained that Combined Transport should have included allegations of Clemmer’s negligence due to intoxication and Clemmer’s responsibility for contribution in Combined Transport’s answer as an affirmative defense.  Id. at 23.  The court held that:

“[A] defendant that does not allege that it has paid more than its proportional share of liability and that does not seek a separate judgment against a codefendant for the amount of that excess payment, but that instead seeks to avoid paying the full damages that a plaintiff has alleged on the basis that a codefendant is more at fault in a way that was not alleged by the plaintiff, must plead the specification of negligence on which the defendant relies as an affirmative defense in its answer to the plaintiff’s complaint and not in a separate cross-claim against the codefendant.”  

Id. at 22-23.

As explained below, however, the court treated the Lasley case in a special way and allowed the cross-claim to be treated as an affirmative defense. Id. at 26. Most defendants in other multi-party cases, however, probably will not be so lucky.

Also, as explained below, the court went through a lengthy analysis of causation and negligence law in Oregon, and it also set out some critical Oregon-specific pleading rules in multi-defendant cases.

Causation in negligence cases involving multiple defendants under Lasley

The Lasley court stated that, in Oregon, “when the negligence of multiple tortfeasors combines to produce harm, each tortfeasor whose negligence was a cause of the harm may be held liable.”  Id. at 6. Oregon law focuses on factual cause.  Id. at 7.  The Oregon Supreme Court “has abolished not only the terms but also the concepts of ‘proximate’ and ‘legal’ cause.”  Id. at 6.   Factually, if the defendant’s negligence harmed the plaintiff, the defendant is liable to the plaintiff as long as the injuries that the plaintiff suffered were reasonably foreseeable as a result of the defendant’s negligence.  Id. at 7.  Therefore, causation is “a purely factual matter” and is separate from the concept of liability (which is determined by whether the harm was reasonably foreseeable–not by ‘proximate’ or ‘legal’ cause).  Id.

Under Oregon law, causation is determined based on the “substantial factor” test and is evaluated by looking at “causation in fact.”  Id. (internal citation and quotation marks omitted).  If the defendant’s conduct was a substantial factor in producing the harm that befell the plaintiff, the causation element is met.  Id.  The question is “whether someone examining the event without regard to legal consequences would conclude that the allegedly faulty conduct or condition in fact played a role in its occurrence.”  Id. (internal citation and quotation marks omitted).

In Lasley, Combined Transport argued that its conduct was so minimal when compared to Clemmer’s that its conduct could not have been a substantial factor in causing the plaintiff’s death.  Id. at 8.  Specifically, Combined Transport argued that the trial court should have admitted evidence that Clemmer was intoxicated at the time of the accident and that, when compared to Clemmer’s egregious conduct, Combined Transport’s conduct was so minimal that it should not be held liable.

The court admitted that a case might exist where the causation element is met as to the first defendant such that the plaintiff’s injury would not have occurred absent that first defendant’s negligence.  However, that first defendant’s act was so insignificant when compared to the act of the second defendant that the first defendant should not be held liable.  Id. at 10.  But the court declined to address such a circumstance, finding that those facts were not at issue in Lasley.  Id.

Rather, the court held that, “both the conduct of Clemmer and the conduct of Combined Transport were substantial factors in contributing to decedent’s death.”  Id.  Clemmer admitted fault and the jury found that Combined Transport’s act of spilling the glass on I-5 caused the plaintiff to stop.  Id. at 11.  There was expert testimony that, had the decedent’s pickup been moving at the time of the impact, the pickup would not have ignited and the plaintiff would not have died.  Id.

The court found that, even if the trial court had admitted evidence of Clemmer’s intoxication, Combined Transport’s conduct would not have been any less significant based on the evidence at trial.  Id. at 11.  The court reasoned that, “In deciding whether a defendant’s act is a factual cause of a plaintiff’s harm, the effect of the defendant’s conduct, and not whether that conduct fell below the expected standard of care, is the relevant consideration.”  Id.  Therefore, even if Clemmer was not intoxicated and did not engage in any negligent conduct, but still hit the decedent’s pickup while it was stopped, Clemmer’s conduct would have been a factual cause of the decedent’s harm.  Id.  The court explained that Combined Transport’s argument confused “causation” and “negligence.”  Id.  In other words, even if the trial court had introduced evidence regarding Clemmer’s intoxication, that would simply show “an additional way in which Clemmer deviated from the standard of care, it could not prove an additional way in which Clemmer contributed to the chain of events that caused decedent’s death.”  Id.  The focus is on “the effect of the defendant’s conduct, and not whether that conduct fell below the expected standard of care * * *.”  Id.  The court conceded that its analysis may have been different had Combined Transport proffered “evidence that showed that, because Clemmer was intoxicated, she inevitably would have killed decedent, even if his pickup had not been stationary.”  Id. at 12.  However, that argument was not made by Combined Transport at trial.

Apportionment of fault in multi-defendant cases under Lasley

Under Oregon law, when the fact finder determines that multiple defendants were at fault, the fact finder must apportion fault, based on percentages that equal 100, between those defendants.  Id. at 13.  The fact finder “is required to compare the degree to which each defendant deviated from the standard of care and is therefore ‘blameworthy.'”  Id.

The plaintiff in Lasley argued that Clemmer’s intoxication was not relevant to the fault of the parties “as framed by the pleadings” because the plaintiff did not make such an allegation in his Complaint.  Id.

Combined Transport argued that evidence of Clemmer’s intoxication should have been allowed because Combined Transport’s Answer included a general denial and it also cross-claimed against Clemmer for contribution on the basis of Clemmer’s intoxication.  Id. at 13-14.

The court held that:

“in a comparative negligence case, a defendant that seeks to rely on a specification of negligence not alleged by the plaintiff to establish a codefendant’s proportional share of fault must affirmatively plead that specification of negligence and do so in its answer as an affirmative defense and not in a cross-claim for contribution.”

Id. at 14.

The court found that, under the unique facts of Lasley, Combined Transport’s cross-claim could be construed as an affirmative defense alleging that Clemmer was negligent by driving under the influence.  Id.  The court therefore held that the trial court erred in excluding evidence of Clemmer’s intoxication.  Id.  It is important to note that the court stressed that Lasley was a very unique case and was almost a “one-off” exception to the holding that specific facts underlying a negligence claim not pleaded by a plaintiff must be pleaded by a defendant as an affirmative defense if the defendant wants to rely on those facts at trial.  As a rule, such facts should not be pled as a cross-claim for contribution.  In other words, “a defendant that intends to rely on a specification of negligence not pleaded by a plaintiff must affirmatively plead those facts to make them admissible.”  Id. at 15.  (Bolding added.)

The court explained that Combined Transport’s general denial was not sufficient to put into issue facts that the plaintiff had not pleaded in his Complaint.  Id. at 17.  A general denial only allows for evidence that contradicts “facts necessary to be proved by plaintiff * * *.”  Id (internal quotation marks and citation omitted).  In contrast, an affirmative defense pleads “a new matter” that “does not directly controvert a fact necessary to be established by plaintiff * * *.”   Id (internal quotation marks and citation omitted).

A “new matter” consists of facts “different from those averred by the plaintiff and not embraced within the judicial inquiry into their truth.”  Id (internal quotation marks and citation omitted).  In other words, “When a defendant seeks to avoid liability for the damages that a plaintiff claims by asserting that a codefendant engaged in more blameworthy negligent conduct not pleaded by the plaintiff, the defendant relies for that defensive posture on facts different from those averred by the plaintiff.”  Id.  

The court held that:

“a defendant that does not allege that it has paid more than its proportional share of liability and that does not seek a separate judgment against a codefendant for the amount of that excess payment, but that instead seeks to avoid paying the full damages that a plaintiff has alleged on the basis that a codefendant is more at fault in a way that was not alleged by the plaintiff, must plead the specification of negligence on which the defendant relies as an affirmative defense in its answer to the plaintiff’s complaint and not in a separate cross-claim against the codefendant.”  

Id. at 22-23.

Under the facts of Lasley, “Combined Transport did not allege in its cross-claim that it had paid more than its proportional share of liability or seek a money judgment against Clemmer.”  Id. at 23.  Rather, Combined Transport alleged that Clemmer was driving while intoxicated and that Clemmer should “‘contribute such amount as is proportionate to her share.'”  Id.  The court found that Combined Transport should have made those allegations as an affirmative defense.  Id.

However, the court noted that:

Combined Transport did allege, in its cross-claim, the fact of Clemmer’s intoxication and its theory that Clemmer’s intoxication should be considered in determining Clemmer’s proportional share of liability.  Combined Transport was incorrect in selecting the pleading that it was required to use, but was correct in recognizing that it must plead those allegations to make Clemmer’s intoxication relevant to the jury’s determination of comparative fault.  The trial court was correct that a cross-claim for contribution was premature, but it was incorrect that there was no role for Combined Transport’s pleading alleging negligence by Clemmer that was not pleaded by plaintiff.  A pleading was necessary to make Clemmer’s intoxication material and to allow the jury to consider that conduct in comparing the fault of Clemmer and Combined Transport.”

Id. at 26.  

Therefore, the court held that, “in the unique circumstances of this case, the cross-claim that Combined Transport proffered fulfilled the function of an affirmative defense, viz., to put the plaintiff on notice of the theory and facts comprising the defendant’s defense.”  Id. (bolding added).  The court found it significant that, at the time of trial, it was unclear (due to the trial court’s rulings) which pleading Combined Transport was required to use and Combined Transport’s cross-claim did apprise the plaintiff “of the facts on which it intended to rely and the purpose of those facts.  In that narrow circumstance, the defect in designating the pleading as a cross-claim rather than as an affirmative defense did not affect the substantial rights of plaintiff.”  Id. at 27 (bolding added).

The court added that, “However, for the reasons we have stated, the evidence of Clemmer’s intoxication was not relevant on the issues of causation, liability, or damages.  Therefore, we remand the case for a new trial limited to the degree of fault of each defendant ‘expressed as a percentage of the total fault’ attributable to each defendant.”  Id. at 27.

Pleading requirements and rules for defendants who want to ensure that fault is allocated to another party

The court also spelled out additional pleading requirements under Oregon law when a defendant wants to ensure that fault is allocated to another party:

– “When a defendant seeks to avoid liability to the plaintiff by asserting that the plaintiff or another tortfeasor should be held responsible for the plaintiff’s damages, Oregon law also anticipates that the defendant will alternatively plead the facts on which it relies.”  Id. at 16.

– “When a defendant contends that the plaintiff was at fault, the defendant must affirmatively plead ‘comparative or contributory negligence’ in its answer as an affirmative defense.  ORCP 19 B.”  Lasley, 351 Or at 16.

– “When a defendant contends that a tortfeasor who has not been joined in the action or with whom the plaintiff has settled was at fault, the defendant must file a third-party complaint against the tortfeasor or otherwise affirmatively allege the fault of that tortfeasor. ORS 31.600(3).”  Lasley, 351 Or at 16.

– “When a defendant contends that a codefendant was at fault, the defendant also must affirmatively allege the unpleaded fault of the codefendant.  * * *  ORCP 19 B requires that a party set forth affirmatively allegations of ‘comparative negligence.’  That requirement is not limited to allegations of the comparative negligence of a plaintiff.  Lasley, 351 Or at 16-17.

– “ORCP 19 B requires a defendant to set forth affirmatively ‘any other matter constituting an avoidance or affirmative defense.'”  Lasley, 351 Or at 17.

– “A general denial is required to ‘fairly meet the substance of the allegations denied.’  ORCP 19 A.  Therefore, a general denial does not put at issue facts that a plaintiff has not pleaded.”  Lasley, 351 Or at 17.

– Under ORS 31.600(3) and ORCP 19 B, “a defendant must, in some way, affirmatively plead a specification of negligence on which it intends to rely, and that has not been pleaded by the plaintiff, to establish the fault of a codefendant.  A general denial wil not permit a defendant to adduce evidence of a codefendant’s unpleaded negligence to avoid liability to the plaintiff.”  Lasley, 351 Or at 17.

– “[T]he proportional share of fault of each tortfeasor will be determined in the negligence action brought by the plaintiff.”  Id. at 18.

– Oregon no longer has joint and several liability.  “Now, under ORS 31.610, liability is several only; a tortfeasor is responsible only for its percentage of fault as determined in the action brought by the plaintiff.”   Lasley, 351 Or at 19.

– Under Oregon’s comparative negligence law, “no tortfeasor is liable for more than its percentage of fault, and that percentage of fault is determined in the original negligence action brought by the plaintiff.  ORS 31.610(2); ORS 31.805.”  Lasley, 351 Or at 21.

– “A defendant cannot bring a contribution action to seek a different determination of its percentage of fault.  A contribution action serves only to permit a defendant who has ‘paid more’ than its ‘proportional share of the common liability’ to obtain contribution from another person who is also liable for the same injury or death.  ORS 31.800(2).”  Lasley, 351 Or at 21.

– Although Oregon law allows for contribution claims under ORS 31.800(2), “Because a defendant’s liability is several only and the defendant is not obligated to pay more than its proportional share of liability, it seems that the circumstances in which a defendant will pay more than its proportional share and, therefore, have a reason to seek contribution from a codefendant will be quite limited.”   Lasley, 351 Or at 21.

– If a defendant does pay more than its proportional share and has a reason to seek contribution from a codefendant, that defendant “could use a cross-claim to assert a claim for contribution against a codefendant.  ORCP 22 B defines a cross-claim as a claim ‘existing in favor of the defendant asserting the cross-claim and against another defendant, between whom a separate judgment might be had in the action [.]’  A defendant who ‘has paid’ its proportional share could seek a separate judgment against a codefendant for the excess amount of its payment and do so by means of a cross-claim.”   Lasley, 351 Or at 21.

– A cross-clam for contribution should not be used “by a defendant to allege that a co-defendant is at fault for the plaintiff’s damages and should be held liable, not to the defendant, but to the plaintiff.  In that instance, the defendant does not seek a separate judgment against the codefendant as required by ORCP 22 B.  Even so, the comparative negligence statutes indicate that such a pleading may be permitted.”  Lasley, 351 Or at 21.

– “[W]hen a plaintiff does not join a tortfeasor as a defendant, the comparative negligence statutes permit the named defendant to file a third-party complaint against the tortfeasor.  ORS 31.600(3).  In that instance, the third-party defendant will not be liable to the defendant but, potentially, will be liable to the plaintiff.”  Lasley, 351 Or at 22.

– “ORCP 22 C(1) restricts third-party claims to circumstances in which a third party ‘is or may be liable to the third party plaintiff.'”  Lasley, 351 Or at 22.

– Even though ORCP 22 C(1) “indicates that a third-party claim is designed for the circumstance in which the third-party defendant is or may be liable to the third-party plaintiff, ORS 31.600(3) permits a defendant to file a third-party complaint to allege that a third-party defendant is at fault and potentially liable to the plaintiff.”  Lasley, 351 Or at 22.

– “ORS 31.600(2) specifically provides that the fact that a plaintiff is not a party to the third-party claim does not pervent the trier of fact from comparing the fault of the third-party defendant in the action brought by the plaintiff.”  Lasley, 351 Or at 22.

– “[T]he legislature anticipated that a defendant could file a third-party complaint against a tortfeasor who would not be liable to the defendant but who could, instead, be liable to the plaintiff.  Whether the legislature intended to permit a defendant to make a cross-claim against a codefendant who would not be liable to the defendant but, instead, would be liable to the plaintiff, is unclear.”  Id.  

– “Neither an affirmative defense nor a cross-claim for contribution is ideally designed as a mechanism for a defendant to plead the negligence of a codefendant that is not pleaded by the plaintiff and thereby to avoid or reduce the defendant’s liability to the plaintiff.  An affirmative defense is directed at a plaintiff, not at a codefendant.”  That said, “an affirmative defense is the pleading mechanism that a defendant should use.  The use of an affirmative defense is consistent with the terms of ORCP 19 B, whereas the use of a cross-claim for contribution would require modification of the terms of ORCP 22 B(1) and ORS 31.800.”  Lasley, 351 Or at 22.

– “We hold that a defendant that does not allege that it has paid more than its proportional share of liability and that does not seek a separate judgment against a codefendant for the amount of that excess payment, but that instead seek to avoid paying the full damages that a plaintiff has alleged on the basis that a codefendant is more at fault in a way that was not alleged by the plaintiff, must plead the specification of negligence on which the defendant relies as an affirmative defense in its answer to the plaintiff’s complaint and not in a separate cross-claim against the codefendant.”  Id. at 22-23.

– A cross-claim for contribution is directed at a codefendant and is not designed to avoid liability to a plaintiff.  Id. at 22.

– “[A] defendant who wishes to have the jury consider the unpleaded negligence of a codefendant in making” the comparison of fault of the parties “is required to plead the facts establishing that negligence.  The fact that the codefendant has accepted liability based on the facts alleged by the plaintiff does not eliminate that requirement.  Thus, in this case, to have the jury consider evidence of Clemmer’s intoxication in comparing the fault of the parties, either plaintiff or Combined Transport had to allege those facts.  Plaintiff did not do so, and the pleading burden fell on Combined Transport.”  Id. at 26.

 

Component Part Manufacturer Liability in Oregon

Oregon Did Not Adopt Caveat (3) In Its Adoption of The Restatement (Second) of Torts, § 402A (1965)

Component part liability is important in products liability cases and especially in aviation cases, where the aircraft may have a long air-frame life but require service or replacements of hundreds of parts over its years of service.  Although Oregon adopted the Restatement (Second) of Torts, § 402A contains a caveat (Caveat 3 (1965)) regarding whether strict liability should be extended to component part manufacturers.  The Oregon Legislature, however, did not adopt this caveat as an interpretive guide for the courts.  Therefore, both pre-codification and post-codification Oregon Supreme Court rulings hold that strict liability can extend to component part manufacturers for the sale of defective components.  See State ex rel Hydraulic Servocontrols v. Dale, 294 Or 381 (1982); Smith v. J.C. Penney Co., 269 Or 643 (1974) (fabric manufacturer held liable because of flammable character of fabric, even though fabric was sold to the coat manufacturer before reaching consumer).  If the component part is dangerously defective and it causes injury, the component part manufacturer (or seller or distributor) is subject to liability.

Oregon law also follows the Restatement (Third) of Torts: Products Liability, which takes the position that if the component part is defective and causes injury, the component part manufacturer (or seller or distributor) is subject to liability.  Additionally, if the component part manufacturer “substantially participates in the integration of the component into the design of the product,” the component manufacturer is subject to liability. Restatement (Third) Of Torts: Products Liability § 5 (1998).

Oregon Law Involving Alleged Misapplication of a Raw Material:  Misapplication of a Raw Material Does Not Give Rise To Liability As To the Supplier

The manufacturer of a component part, however, is not subject to strict liability if the component was misapplied rather than defectively designed.  In Hoyt v. Vitek, Inc., 134 Or App 271 (1995), after experiencing problems with her temporomandibular joint (TMJ), the joint that connects the jaw bone to the skull, the plaintiff, Hoyt, had a prosthetic device implanted in her jaw.  The device gradually fragmented and released particles of Teflon, which caused a serious adverse reaction.  Du Pont Company manufactured Teflon and sold it to Vitek, Inc., which used the Teflon as a component part in its TMJ device.

Vitek designed, manufactured and marketed the device.  In 1977 DuPont informed Vitek that it manufactured Teflon for industrial purposes only and had sought no FDA rulings on the safety or effectiveness of surgical uses, and that Vitek would have to rely on its own medical and legal judgment.  Du Pont was aware of studies that warned of abrasion and fragmentation with medical Teflon implants and passed along this information to Vitek.  In 1983, Vitek received permission from the FDA to market the device pending “specific performance standards.”  Hoyt, supra, 134 Or App at 277.

Hoyt sued Du Pont, contending that Teflon was unreasonably dangerous because it was defectively designed and because of Du Pont’s failure to warn the medical community.  The court of appeals found that the component part was not defective.  The court of appeals also relied on the “raw material supplier” doctrine in deciding not to apply strict liability.  When a multiuse raw material is not unreasonably dangerous in itself, but becomes unreasonably dangerous when incorporated into certain uses, the supplier cannot be sued based on strict liability.  Hoyt, supra, 134 Or App at 284-286.  See Crossfield v. Quality Control Equip. Co., 1 F3d 701 (8th Cir 1993); Childress v. Gresen Mfg. Co., 888 F2d 45 (6th Cir 1989).

Cases in Which Component Parts Are the Allegedly Defective Product

Plaintiffs did allege that defective replacement parts were supplied after the first sale of a helicopter in Evans v. Bell Helicopter Textron, 1998 WL 1297138 (D Or 1998), but the service bulletins proffered by plaintiffs were insufficient to establish that the defective component parts were installed in the engine after the first sale.  The helicopter was manufactured in 1979, and crashed seventeen years later.  Defendants’ motion for summary judgment was granted on the basis of ORS 30.905 because plaintiffs could not support their allegation that an affirmative misrepresentation occurred after the first sale of the helicopter by defendants.

In Allstate Indem. Co. v. Go Appliances LLC, 2006 WL 2045860 (D Or 2006), plaintiff alleged that a defective compressor installed on a used refrigerator caused a fire in its subrogor’s house.  The opinion does not state when the refrigerator was originally first sold and does not discuss product liability time limitations.  However, the court held that plaintiff could assert a products liability action against the defendant, who sold the used appliance and installed the allegedly defective new compressor.

The statute of ultimate repose in both strict product liability cases and negligence cases is beyond the scope of this article.  However, one of the controlling Oregon cases relevant to a replacement component part is Erickson Air-Crane Co. v. United Technologies Corp., 303 Or 281 (1987), mod. on recons. 303 Or 452.  Although Erickson discussed the application of the products liability statute of ultimate repose in the context of post-sale negligent misrepresentation, the case is relevant to a discussion regarding application of the statute of ultimate repose to a post- sale installation of a defective component part.

In Erickson, plaintiff purchased a helicopter in 1971.  Defendant allegedly made misrepresentations regarding the useful safe life of a compressor disc in 1977.  After the helicopter crashed in 1981 due to exhaustion of the compressor disc, plaintiff filed suit in 1983.  The plaintiff’s complaint alleged that defendant was negligent in providing erroneous information, failing to warn plaintiff as to the erroneous information, and failing to warn that the helicopter was dangerous after expiration of the true safe life of the compressor disc.  Erickson, 303 Or at 284-85.

The Oregon Court of Appeals found that plaintiff’s action against the manufacturer was a product liability action, and that because the action was commenced more than eight years after the first purchase of the helicopter, the statute of ultimate repose barred the action.  Id. at 285-86.  The Supreme Court reversed, holding that:  “ORS 30.905 applies only to acts, omissions or conditions existing or occurring before or at the ‘date on which the product was first purchased for use or consumption.’  Acts or omissions occurring after that date are governed by the statute of ultimate repose contained in ORS 12.115.”[1]  Id. at 286.  Because the defendant relayed the false information about the useful safe life of the compressor after the helicopter was first purchased, ORS 30.905 did not apply.  Id. at 289. (“The difference between the present case and the type of case that the legislature meant to cover under ORS 30.905(1) is that, in this negligence case, the reasonableness of certain of defendant’s actions after plaintiff’s purchase are in question while, in a product liability case governed by ORS 30.905, it is the condition of the article at the date of purchase that is in question.”) (emphasis in original).

The Erickson holding, when viewed in the context of installations of new components, supports the argument that such alterations cannot “restart” the statute of ultimate repose on the original product.  Erickson holds that ORS 30.905 only applies to “acts, omissions or conditions existing or occurring before or at the ‘date on which the product was first purchased for use or consumption,’” and a post-sale negligent misrepresentation leading to the installation of a new product necessarily occurs after the date the product was first purchased.  A manufacturer can argue that under Erickson, the statute of ultimate repose should run on the original product from the date it entered the stream of commerce, regardless of whether component parts were installed post sale.

 

 


[1] ORS 12.115 is the generic statute of ultimate repose for negligence actions, and provides that “any action for negligent injury to person or property of another” must be commenced within “10 years from the date of the act or omission complained of.”

Evaluation of Potential Claims: Direct Negligence and Vicarious Liability

Oregon Negligence Law Changed Significantly in 1987

Oregon is a state that recognizes a cause of action for direct negligence and vicarious liability.  The lawyers at OlsonBrooksby frequently defend catastrophic personal injury, product liability, and aviation claims which contain causes of action based on direct negligence and vicarious liability.

First, we will discuss potential claims for direct negligence.  An understanding of negligence law in Oregon requires a brief discussion of pre- and post-1987 common law decisions.  Prior to 1987, Oregon generally held to a conventional approach to negligence cases, requiring the existence of a duty, a breach of that duty, causation, and damages.  However, as a result of cases decided in the period around 1987, common law negligence in Oregon now depends on whether the defendant’s conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.

A Direct Claim For Negligence Can  Exist With Or Without The Fazzolari Special Relationship

The change from the strict adherence to the traditional common law elements of duty, breach, causation, and damages was a result of the Oregon appellate court’s perceived overuse of the cliché “duty” or “no duty.”  Oregon courts, therefore, began to encourage juries and judges to decide each case on its own facts.  Duty continues to play an affirmative role when the parties invoke a particular status, relationship, or standard of conduct beyond the standards generated by common law.  This was the result of the so-called Fazzolari principle, which now governs negligence law in Oregon.  See Fazzolari v. Portland School District 1J, 303 Or 1 (1987).

A special relationship is usually defined in the form of a fiduciary, contractual, or legal relationship such as guardianship.  Typically, the school–student relationship has been deemed a special relationship as contemplated by Fazzolari.

Fazzolari typically requires a three-part test:

  1. Determine whether a particular status, relationship, or standard exists;
  2. If so, analyze that status, relationship, or standard to determine whether a “duty” beyond that of ordinary care exists;
  3. If such a standard, relationship, or status is not alleged, then analyze the case under principles of general negligence based on foreseeability of risk of harm.

For example, suppose an employee of a sports club is involved in an accident in which a club member is injured.  Although there are no Oregon cases exactly on point, given the nature of the relationship between the employee and the club member, we do not believe that the member has a strong argument that a “special relationship” existed between himself and the sports club.

Let’s suppose further that the paperwork which was executed by the member consisted of the membership application and the general waiver of liability for use of the sports center facilities.  Suppose there were no detailed contractual provisions denoting certain services, obligations, or protections provided to, or expected of, the member.  Therefore, there was no fiduciary relationship.  Under these facts, a special relationship did not exist between the member and the sports club that typically would have invoked a duty of care to the member beyond that of the ordinary care extended to a business invitee.

Although courts have often found that schools are in a special relationship with their students, we do not believe that type of relationship is comparable to the sports club and its member.  This is because of the fundamentally voluntary nature of the sports club membership (without regard to the statutory abolition of assumption of the risk discussed below).  Moreover, we should assume that the sports club member was not a third-party beneficiary of any contract that existed between the sports club and a government agency or other third party.

For these reasons, we see nothing that would clearly take this hypothetical case out of the conventional principles of negligence and create a special relationship requiring examination on its own facts.

Although a special relationship may take a case out of the typical “duty” or “no duty” scenario, the harm to the protected interest of the putative plaintiff must still be reasonably foreseeable.  Therefore, given that, in this hypothetical “sports club / member” relationship scenario, we are operating under the principles of ordinary negligence, the appropriate standard in this case is that an organization’s conduct must not unreasonably create a foreseeable risk of harm to others.

Direct negligence claims are sometimes referred to as causes of action based on negligent hiring, negligent training, negligent supervision, or negligent retention.  The organization may be directly liable for negligence claims based on hiring, retention, supervision, or training if (1) it places a dangerous person in a position that poses an unreasonable risk of harm to others, and if (2) the organization knew of the danger or could have discovered the danger through reasonable investigation.

In the event there were other facts such as the following, it may support one or more of the sports club member’s claims for direct negligence:

  • Sports club failed to screen employees, including those that may have needed specialized training, i.e., lifeguards.
  • There is no documentation that sports club ever trained its employees, let alone the employee or employees who were involved with member’s hypothetical accident.
  • Employees displayed an attitude of disinterest, which may have affected their performance of safety related duties.
  • Sports club failed to maintain adequate documentation of employee performance in employee personnel files.
  • Employees had ambiguous or uncertain understanding of the proper safety protocol.
  • Sports club has a history of failing to comply with its own club procedures, resulting in similar prior injuries.
  • Sports club employee(s) admitted they were lazy, did not like their jobs, or were apathetic toward proper performance.
  • Sports club failed to develop adequate safety procedures, i.e., requiring employees or members to obtain and renew any type of skill or safety certification.
  • Sports club employee was not properly supervised, lacked familiarity with sports clubs rules and procedures, and was less experienced at a given task, i.e., weight training safety spotting, than many of the members.

In summary, if sufficient evidence exists of the sports club’s failure to properly hire, train, or supervise, or retain, the club would have an uphill battle defending against a direct negligence claim. 

Vicarious Liability 

Oregon is a vicarious liability state.  If, as in the example above, the sports club member made a claim that the sports club is vicariously liable for his alleged injury, he would argue that sports club, as the “master” of its employee or “servant,” is liable for its employee’s negligence in failing to protect what was a foreseeable interest in the kind of harm that befell the member.  Specifically, the member would allege that, due to the employee’s negligence in failing to supervise, the member was not properly protected from the injury of the type that befell him, and that the accident was foreseeable and preventable.  The employee must have been acting within the course and scope of his employment and have been motivated, in part, to serve the interests of the “master,” i.e., the sports club.

In a claim for vicarious liability, as discussed in more detail below, the sports club need not have played any role in the negligence itself, so long as it controls the actions of the negligent employee and the employee’s actions were performed within the course and scope of employment and performed, at least in part, to benefit the employer.

Regarding course and scope, an employee is acting within the course and scope of employment if three factors are present:

  1. The employee’s actions at the time of the accident substantially occurred within the time and space limits authorized by the employment;
  2. The employee was motivated, at least in part, by a purpose to serve the employer;
  3. The act is of a kind that the employee was hired to perform.

Chesterman v. Barmon, 305 Or 439, 442 (1988).

All three factors must be present for vicariously liability to withstand a challenge.

In vicarious liability cases, the best defense is that the employee committed an intentional act that fell outside the course and scope of his employment.  Nearly all the published cases where courts have held that the employee was acting outside the course and scope involve intentional acts of force committed by security guards, bouncers, bodyguards, etc.

Foreseeability Issues

Reasonable foreseeability is still a necessary aspect of negligence, in any form.  In the example above, where a sports club member is injured, depending on the nature of the injury, the sports club would need to consider the specific facts that gave rise to the claim and whether or not a jury would conclude that the injury was reasonably foreseeable.  From a defense perspective, arguing that reasonable foreseeability does not exist is an uphill battle in most cases.  Oregon law generally finds that an intervening act negates fault only in extreme cases, such as those involving criminals.  For example, in one of the seminal Oregon foreseeability cases, Buchler v. Oregon Corrections Division, 316 Or 499 (1993), an en banc decision, a prisoner on a work crew stole the prison van in which the guard had left the keys, drove to his mother’s home, stole a firearm, and later used it to kill someone in the van.  316 Or at 502.

The court noted that, while the defendant had a history of temper problems, there was nothing in his background that would ever suggest he would commit such a crime.  Id. at 507.  The court ultimately held that an intervening criminal instrumentality caused the harm and created the risk Id. at 510-11.  The court explained that, although “it is generally foreseeable that criminals may commit crimes and that prisoners may escape and engage in criminal activity while at large, that level of foreseeability does not make the criminal’s acts the legal responsibility of everyone who may have contributed in some way to the criminal opportunity.”  Id. at 511.

Conclusion

Product liability, catastrophic personal injury, and aviation claims, all of which Olson Brooksby frequently defend, require a clear understanding of which claims contain causes of action based on direct negligence and vicarious liability, and more importantly, what the elements are, so that proper defenses can be raised, and an investigation and discovery plan can be drafted, to attempt to defeat the claims.

Oregon Law Requires Places of Public Assembly (Including Large Brick and Mortar Retailers) To Have At Least One Automated External Defibrilator

Premises owners should be aware that at least one automated external defibrillator (“AED”) may be required in their buildings.  On January 1, 2010, Senate Bill (S.B.) 556, codified as ORS 431.690, took effect, requiring certain building owners to place at least one automated external defibrillator (“AED”) on their “premises.”  The requirement applies to “places of public assembly” which are defined as “facilities” that have at least “50,000 square feet” of “floor space” and where: (1) the “public congregates for purposes such as deliberation, shopping, entertainment, amusement or awaiting transportation;” or “business activities are conducted;” and (2) at least 25 people “congregate” there on a “normal business day.”  S.B. 556 (1)(a)-(b).

In 2011, S.B. 1033 amended ORS 431.690 to require the placement of at least one AED in public and private schools and health clubs as well.

In other words, businesses and facilities with over 50,000 square feet of floor space must have a defibrillator on their premises if at least 25 people “congregate” there on a normal day.  A copy of the statute requiring AEDs is found at http://www.oregonlaws.org/ors/431.690

It is safe to assume that most product manufacturing facilities comprise 50,000 or more square feet.  However, despite the fact that this law has been in effect for more than three years, many Oregon businesses affected by the law are not compliant.

Discussion

The AED law does not provide a definition for the word “congregate,” nor does it specify whether 25 people must be present at one time or can come and go over the course of an entire business day.  When Oregon courts interpret ambiguous language, they focus primarily on the text and context of the statute and secondarily on legislative history.  State v. Gaines, 346 Or. 160, 172, 206 P.3d 1042 (2009).  When analyzing the text of a statute, it is useful to consider the dictionary definition of any ambiguous words.  The dictionary definition of “congregate” is “to come together; to assemble; to meet,” or “to collect into a group, crowd, or assembly.”   Black’s Law Dictionary 301 (6th ed., West 1990), Merriam Webster’s Collegiate Dictionary 243 (10th ed., Merriam-Webster, Inc. 1997)

Given the dictionary definitions, one could reasonably argue that the new law applies only to businesses that have at least 25 people present at some point during the day (i.e. “assembled” or “together” at one time).  However, the legislative history of the bill may suggest a different interpretation.  S.B. 556 originally had no 25-person requirement, and therefore would have applied to all businesses with floor space exceeding 50,000 square feet.  This specification requiring at least 25 people to congregate was added by way of an amendment suggested during a work session of the Health Care and Veterans’ Affairs Committee (held on April 4, 2009).  At that meeting, Senator Wayne Morse expressed concern that the bill would require industrial warehouses with very few employees to install AEDs.  One of the bill’s sponsors, Senator Jeff Kruse, agreed and said that they intended the bill to apply to “big department stores,” shopping centers, “office buildings” and the like, but not sparsely populated warehouses.  Relying on this legislative history, it is more likely that the 25 person requirement was not intended to exempt stores that have more than 25 visitors during a day even if they are not all present at the same time.

For a business such as a large brick and mortar retailer, there are two threshold questions that determine whether ORS 431.690 (S.B. 556 applies).  First, does the store or other business have over 50,000 square feet of floor space?  And, second, do at least 25 people congregate at the business on a typical business day?  If the answer to both questions is yes, the business is subject to the AED requirement.  If a minimum of 25 people did not congregate during a typical business day, then there is a good argument that the business would be exempt from the law.

Note that the statute places no limitations on the reason the 25 people have congregated in one place.  The statute provides a nonexclusive list of some of the reasons people have for gathering in these places – “deliberation, shopping, entertainment, amusement or awaiting transportation.”  In the context of a “big box” retailer, for example, the 25 people would likely consist of any person present in the store including, but not limited to, all employees, shoppers, repair or maintenance contractors, or anyone else visiting the store.

Although this insight into the legislative history may be interesting, businesses should not get lost in debating the letter of the statute or meaning of what “congregate” signifies.  If the business believes it might in any way meet the parameters of the statutory requirements, they should simply install an AED.

The law does not specify where the AED should be located or contain any provisions regarding access.  The law merely specifies that the AED shall be “on the premises.”  Based on the absence of any specification, it does not appear that the AED necessarily need be available to any member of the public in the establishment at the time the AED is needed.

Part of S.B. 556 (now codified at ORS 30.802) Provides Protection From Liability For Those Who Comply With The AED Requirement

A provision of S.B. 556, now codified at ORS 30.802, provides a fairly broad immunity provision for those locations which comply with the statutory requirement and maintain an AED on premises, so long as the business is in compliance with the particulars of the immunity provision such as making sure there are employees trained in the use of the AED.  A copy of the statute providing liability protection is found at  http://www.oregonlaws.org/ors/30.802

The cost of AEDs has dropped precipitously with increased competition and more efficient mass production.  The benefits of compliance with the Oregon statute, including immunity from suit, vastly outweigh the risks of non-compliance.  Moreover, there is conclusive evidence that AEDs save lives.  If you have questions, please contact our office.

Olson Brooksby often represents national retailers with large brick and mortar locations.

Oregon is a Modified Comparative Fault State

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.

Punitive Damages

Initially Pleading the Claim for Punitive Damages is Not Permitted in Original Complaint

Punitive damages are permitted in Oregon in product liability actions. Under Oregon law, at the time of filing a pleading with the court, the pleading may not contain a request for an award of punitive damages. ORS 31.725. At any time after the pleading is filed, a party may move the court to allow the party to amend the pleading to assert a claim for punitive damages. The party making the motion may submit affidavits and documents in support of the claim and the party opposing may do the same. Punitive damages in Oregon are an element of damages, and do not constitute a separate claim for relief. Under Oregon law, insurance coverage for punitive damages is permitted.

The Standard for Pleading Punitive Damages

Oregon has a relatively low bar for the inclusion of a claim for punitive damages. Plaintiffs need only present “some evidence” of the conduct that may give rise to punitive damages. ORS 31.725(3)(a). The showing necessary for the amendment is equivalent to a prima facie case that would merely need to withstand a motion for directed verdict at the time the amendment is sought. We emphasize that this showing of “some evidence” is a low bar, particularly in Multnomah County Circuit Court. In most cases, when plaintiffs intend add a claim for punitive damages, they will expressly state in the initial complaint an intent to move to amend to do so.

In most counties in Oregon, punitive damages are generally not allowed in simple negligence cases. However, in Multnomah County Circuit Court, we have seen simple negligence cases where judges have allowed punitive damages to go to the jury.

The Clear and Convincing Standard and Evidence of Conduct Required at Trial

In order to actually obtain an award of punitive damages from the jury, as opposed to merely obtaining permission from the judge to request punitive damages in an amended complaint, Oregon law requires imposition of a clear and convincing standard. Punitive damages are not available unless the plaintiff proves by clear and convincing evidence that the party against whom punitive damages are sought has acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others. ORS 31.730.

If a jury awards punitive damages, the court is required to review the award to determine whether the award is within the range of damages that a rational juror would be entitled to award based on the record as a whole, as well as statutory and common law factors. ORS 31.725 et. seq.

Statutory Allocation of Awards of Punitive Damages

With respect to the distribution of punitive damages, the percentages of the total award are all prescribed by statute. ORS 31.735. Under the statute, the State of Oregon takes 60% of every punitive damage award away from the plaintiff and puts it in the state crime victim’s fund. Then, plaintiff receives 30% and the attorney is paid an amount out of this 30%, but in no event more than 20% of the total punitive damages awarded. Finally, 10% is payable to the Oregon Attorney General for deposit in the State Court Facilities and Security Account. Plaintiff’s lawyers know this, so they often try to push harder to get the jury to award noneconomic damages. They may even decide to forego a punitive damages claim to avoid the risk of having a lower noneconomic damages award and a high punitive damages award that will go mostly to the state of Oregon. In cases with exposure to significant punitive damages, the Oregon Justice Department will often file a peremptory lien against the punitive damages to ensure proper distribution.

Damages Caps

There are no relevant damages caps on personal injury actions, as opposed to wrongful death actions. While Oregon case law has upheld a cap of $500,000 in noneconomic damages in wrongful death cases, the Oregon Supreme Court has declined to impose such a cap on noneconomic damages in personal injury cases on the basis that a personal injury cause of action was recognized at common law at the time of the adoption of the Oregon Constitution. In contrast, the Oregon Supreme Court upheld the statutory cap on noneconomic damages because the wrongful death action is a creature of statute, and a cause of action that did not exist at the time of the ratification of the Oregon Constitution.

One important note about the noneconomic damages cap of $500,000: While the cap has now been upheld by the Oregon Supreme Court in an en banc decision, this does not prevent the plaintiffs from pleading any amount they want to in the complaint. Under the statute, the jury is never told of the cap, and if the verdict for noneconomic damages exceeds the cap, it is the judge, not the jury, who reduces the verdict to $500,000 before entering the judgment. The judgment, rather than the verdict, is technically the document that has legal force. The entry of the judgment either starts the 30-day period in which to file a notice of appeal, or allows the plaintiff to execute on the judgment (collect either through voluntary payment or seizure of assets).

For example, let’s consider a hypothetical aviation crash. Suppose wife/mother is injured and her husband and son are killed. She could theoretically file a lawsuit demanding $50,000,000.00 in noneconomic damages for both her deceased son and husband. If the case went to trial under that scenario, and that amount was awarded, the judge, unbeknownst to the jury, and after the jury is excused from service, would reduce the verdicts in the two wrongful death cases to $500,000 each in noneconomic damages before entering the judgment.

Loss of Consortium Law in Oregon and Evaluating Catastrophic Aviation Cases

Loss of consortium is a recognized cause of action in Oregon.  It is critical to have a thorough understanding of the permutations in the marital status of a couple involved in a catastrophic injury such as an aviation disaster where both death and/or serious injury are distinct possibilities.  Historically, verdicts for loss of consortium in Oregon have been relatively low, but each case is fact specific.  Previously, a verdict awarding damages for loss of consortium exceeding $1,000,000 was rare in Oregon.  However, in the last decade verdicts have become less regional in the United States, and the availability of a loss of consortium claim to a spouse and a loss of services claim to a child (a relative of the loss of consortium claim) can have significant impact on the overall verdict.  Loss of consortium claims can range upward of $2,000,000.00.

Children’s Loss of Services Claims

If a couple is not married, the children of that deceased couple may still have loss of services claims as beneficiaries under Oregon’s wrongful death statute.  A claim for loss of services is a category of uncapped economic damages stemming from the death of either parent.  The value of a loss of services claim is usually somewhat higher in cases where the deceased parent was the higher earner.

Parental Claims for Loss of Services of a Minor Child

The right of a parent to sue for an injury to his or her child arises out of the common law right of a master to sue for deprivation of the services of a servant.  Oregon codified this cause of action in ORS 30.010(1), which provides that: “A parent having custody of his or her child may maintain an action for the injury of the child.”

A claim for loss of services of a minor child is different than a wrongful death claim brought by a parent due to the death of a child.  Pursuant to ORS 30.010(2), “[a] parent may recover damages for the death of his or her child only under ORS 30.020 [the wrongful death statute].”

A parent’s claim for loss of services also allows damages for loss of society and companionship.  Beerbower v. State ex rel Or. Health Sci., 85 Or App 330, rev den, 303 Or 699 (1987).

Regarding defenses to such loss of services claims, the contributory fault of the child may bar an action by the parent for loss of services of the child.  See Boyd v. Portland Electric Co., 40 Or 126 (1901), overruled in part on other grounds by Ritchie v. Thomas, 190 Or 95 (1950).

No Wrongful Death Damages or Loss of Consortium for Unmarried Cohabitants

Suppose that, during an aviation disaster, one parent, the father, is killed and the mother of a child they have together is also killed.  If the couple was not married, the surviving female is not a beneficiary under the wrongful death statute.  In Ore-Ida Foods v. Gonzalez, 43 Or App 393 (1979), rev den, 288 Or 335 (1980), the court held that there could be no wrongful death recovery under ORS 30.020(1) (Oregon’s wrongful death statute) for unmarried cohabitants.

Additionally, although not completely settled under Oregon law, an action for loss of consortium appears to be limited to the marital relationship and does not apply to extramarital living arrangements.  The general concept under Oregon law that unmarried cohabitants are not entitled to loss of consortium goes all the way back to the lack of common law marriage in Oregon under Huard v. McTeigh, 113 Or 279 (1925).

The theory underlying a claim for loss of consortium is that, by virtue of marriage, a spouse receives certain benefits both tangible, as in material services, and intangible, such as companionship and affection, from the other spouse.  Accordingly, when one spouse is injured, the uninjured spouse may lose those benefits and is entitled to compensation.  Axen v. Am. Home Prods. Corp., 158 Or App 292, modified on other grounds by 160 Or App 19 (1999).  Since 1941, the Oregon legislature has granted to wives the same right to sue for loss of consortium as husbands previously had at common law.  ORS 108.010.  Ross v. Cuthbert, 239 Or 429 (1965).

Furthermore, as Justice O’Connell suggested in his dissent nearly 50 years ago in Ross v. Cuthbert, the courts do not particularly favor loss of consortium actions.  Id. at 441.

No Loss of Consortium for a Surviving Spouse 

If we change the aviation disaster case scenario above so that the two parents are legally married, and the husband dies in the aviation crash, his wife is probably not entitled to loss of consortium because the noneconomic damages that the wife is entitled to under Oregon’s wrongful death statute are, under Oregon law, enough to compensate her. Under Oregon law, loss of consortium is only available if the injured spouse is still alive because, in a death case, the personal representative is entitled to seek benefits for loss of society and companionship under the wrongful death statute.

Additionally, if death is instantaneous, no cause of action for loss of consortium arises.  Harp v. Montgomery Ward & Co., 223 F Supp 780 (D Or 1963).

Damages can be recovered for any suffering between the time of injury and the time of death.  However, even if the court were to theoretically allow the surviving spouse to proceed with a loss of consortium claim, assuming she is able to satisfy all conditions precedent, defense lawyers can argue that the surviving spouse’s claim (and child’s loss of services claim) would be subsumed and provided for under the wrongful death statute. Oregon’s wrongful death statute compensates “for pecuniary loss to the decedent’s estate”.  ORS 30.020(c).  It also compensates “the decedent’s spouse [and] children * * * for pecuniary loss and for loss of the society, companionship and services of the decedent.”  ORS 30.020(d).

If, however, the husband survives, and he and his wife are injured, they both have the right to bring a cause of action for loss of consortium and allege loss of society and comfort.  These are not available in the above scenario where the spouse dies because the permanent deprivation of society and companionship is fundamentally unavailable, as opposed to the temporary deprivation of society and comfort in an injury case where the spouse survived.

Comparative Fault as a Defense to Loss of Consortium Actions

Oregon’s comparative fault statute, ORS 31.600, may bar a loss of consortium claim (and the lawsuit as a whole) if the injured person’s fault is greater than the combined fault of the defendants.  ORS 31.600 provides that:

“Contributory negligence shall not bar recovery in an action by any person or the legal representative of the person to recover damages for death or injury to person or property if the fault attributable to the claimant was not greater than the combined fault of all persons specified in subsection (2) of this section, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the claimant.  This section is not intended to create or abolish any defense.”

Conclusion

Aviation claims often involve catastrophic injuries.  They also often involve accidents where unmarried couples and family members were together when the injuries occurred.   In such cases, loss of consortium claims should be carefully evaluated.