Tag Archives: negligence

Kristin Olson wins motion to compel documents in a sexual assault case

While representing a victim who was sexually assaulted during a massage at ClubSport Oregon, Kristin Olson won a motion to obtain documentation concerning the Oregon Board of Massage Therapists’ investigation into the assault on her client.  During the discovery phase of the lawsuit, Kristin requested the documents, but the defendant massage therapist refused to produce them.  Kristin filed a motion to compel the documentation and won, and the Court ordered the defendant massage therapist to produce all of the documents.  Freifeld v. Leisure Sports, Inc., et al., Washington County Case No. 18CV12178 (November 9, 2018).

Kristin is an Oregon sexual abuse lawyer who represents sexual abuse and sexual assault survivors in civil lawsuits throughout the state of Oregon.

The Elements of a Premises Liability Case in Oregon Depend on the Visitor’s Legal Status at the Time of the Injury

Kolisch steps

As explained in detail below, there are three types of visitor status: business invitee, licensee, and trespasser.  The duty of the person in control (the “possessor”) of the premises where the injury occurred is controlled by the legal status of the injured visitor at the time of the injury.  This may include the obligation of the possessor to protect the visitor against injuries from third parties or animals.

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, since the 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.

This change from the strict adherence to the traditional common law elements of duty, breach, causation, and damages was a result of the Oregon appellate courts’ 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.  Fazzolari v. Portland School District 1J, 303 Or 1 (1987).

Fazzolari typically requires a three-part test:

  1. Determine whether a particular status or relationship 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, status or relationship is not alleged, then analyze the case under principles of general negligence based on foreseeability of risk of harm.

The General Premises Liability Claim Under Oregon Law

Premises liability is based on the fact that a defect in the land that poses a danger to those who are not in possession of the land, but are present on the land either for their own benefit or the benefit of their host.  The person in possession and control of land is obligated to cause no unreasonable harm to others in the vicinity.  W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 57 at 386 (5th ed 1984 and Supp 1988).  The particular duty owed by an occupier of land to a visitor is dictated by the visitor’s status.  Settle v. PGE, 81 Or App 474, 477 (1986), rev den, 302 Or 460 (1986).

As discussed above, the Oregon Supreme Court has dealt extensively with the concept of duty in common-law negligence cases and, in the series of cases in 1987 discussed above, largely overhauled common-law negligence principles in Oregon.  The same negligence principles apply in premises liability cases.  In other words, as in Fazzolari, 303 Or 1, discussed above, Oregon premises liability law determines whether the defendant’s conduct created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.

Business Invitees

Three categories of visitor status exist in Oregon:  invitee, licensee, and trespasser.  Stewart v. Kralman, 240 Or App 510, 517 (2011).  Business invitees are, for example, customers in stores, restaurants, gyms, or entertainment events.  Johnson v. Short, 213 Or App 255, 260 (2007) (stating that, “In general, a business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”  (Internal citation and quotation marks omitted)).  A possessor of premises has the duty to “warn of latent dangers” and to “protect the invitee against dangers in the condition of the premises about which the [possessor] knows or should reasonably have known.”  Id. (internal citation and quotation marks omitted).


Most cases involving injuries to invitees concern allegedly defective conditions.  Stated simply, a licensee is someone who is on the premises at the possessor’s invitation and for the benefit of the licensee.  A good example might be the guest at a dinner party.  Determining whether the possessor of the premises breached a duty owed the licensee involves a three-part test.  For an injured licensee to recover, he or she must allege and prove all three parts.  The possessor of land is subject to liability for physical harm to a licensee caused by a condition of land if the possessor:

  1. Knows of the condition or by the exercise of reasonable care would discover the condition and realizes or should realize that it involves an unreasonable risk of harm to the invitee;
  2. Expects or should expect that an invitee will not discover or realize the danger or will fail to protect himself or herself against it; and
  3. Fails to exercise reasonable care to protect the invitee against the danger.

Katter v. Jack’s Datsun Sales, Inc., 279 Or 161, 167 (1977).


The possessor of land has no duty to a trespasser to make the premises safe.  However, the possessor of land cannot intentionally create hazards for trespassers.

The Duty To Make a Business Invitee Safe and/or to Protect Him or Her from Acts of Third Persons

A more specific premises liability claim stems from the Oregon common law notion that a possessor of land has a duty to protect invitees from the negligent or intentional acts of third persons or animals.  If the possessor fails to exercise reasonable care to discover acts being done or likely to be done and fails to warn patrons or protect against harm by third persons, he or she is liable.  Restatement (Second) Of Torts §344 (1965).  See also Whelchel v. Strangways, 275 Or 297 (1976) (tavern owner who knows or should know of likelihood of boisterous conduct may be required to provide additional employees for protection of patrons).  A premises liability claimant must first have a premises liability theory to have a cause of action that the possessor of land did not protect him or her from the injuries of third parties.

Recreational Use Immunity

The recreational use statute was enacted by the Oregon legislature in 1995.  Oregon encourages landowners to make their land available to the public for recreational purposes.  ORS 105.676.  See also ORS 105.672-699.  Consistent with that policy, the recreational use statute provides that an owner of land who makes it available for public use is not liable for any personal injury arising out of the injured person’s use of the land.  ORS 105.682(1).  The recreational use statute is a powerful and complete defense.

However, if the injured party paid money to use the land, the statutory immunity is not available to the defendant.  ORS 105.688(3).  In such cases, the possessor must rely on conventional defenses for premises liability.

Assumption of the Risk 

The doctrine of implied assumption of the risk has been abolished in Oregon.  ORS 31.620(2).  A defendant is prohibited from asserting implied assumption of the risk as an affirmative defense that might act as a complete bar to recovery.  Blair v. Mt. Hood Meadows Dev. Corp., 291 Or 293 (reh’g den, modified on other grounds by 291 Or 703 (1981)).  This statutory abolition was largely orchestrated by the powerful skiing industry–economically, the largest recreational industry in Oregon.

A defendant may choose to informally raise arguments that previously would have been allowed as affirmative defenses, e.g., implied assumption of the risk.  However, those arguments are now placed into the comparative fault equation.  In other words, if a defendant can establish that a plaintiff “voluntarily and unreasonably” undertook a risk created by the defendant’s conduct, the fact finder must consider such conduct in comparison to the defendant’s negligent acts.  Id. at 301.

Oregon Law Does Not Permit Experts to Testify in the Form of Legal Conclusions in Product Liability or Negligence Cases

Under Oregon law, witnesses are not allowed to testify as to legal conclusions.  See, e.g., Olson v. Coats, 78 Or App 368, 370 (1986) (excluding testimony by witness that certain road signs complied with statutory requirements).  “Each courtroom comes equipped with a ‘legal expert,’ called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards.” Burkhart v. Washington Metro. Area Transit Auth., 112 F3d 1207 (D.C. Cir. 1997).  Examples of inappropriate testimony in the form of legal conclusions include, but are not limited, to:

  • Defendants were clearly reckless, acted in a reckless manner, or acted in a grossly reckless manner;
  • Plaintiff was negligent; and
  • The helicopter/engine had a known and recognized defect.

Neither plaintiff nor defendant should be permitted to elicit such legal conclusions at trial.  An increasing number of products liability cases have excluded similar expert testimony.  A district court was held to have correctly excluded expert testimony that “the lack of adequate warnings and instructions constituted defects which made the products unreasonably dangerous.”  Strong v. E.I. DuPont de Nemours Co., 667 F2d 682, 685-86 (8th Cir. 1981).  Similarly, in Harris v. Pacific Floor Machine Mfg. Co., 856 F2d 64, 67 (8th Cir. 1988), a district court was held to have properly refused to permit the plaintiff’s expert to opine as to the adequacy of the particular warning on the product.

Likewise, expert testimony that a party was “willful” was excluded in United States v. Baskes, 649 F2d 471, 478 (7th Cir. 1980).  On similar grounds, a federal district court excluded expert testimony that the plaintiff was “negligent.”  The court’s ruling also encompassed “any testimony . . . that contains a variation of the term ‘negligent,’” or any opinions that certain conduct was the “direct, proximate and efficient cause” of an accident.  Hermitage Industries v. Schwerman Trucking Co., 814 F Supp 484, 487-88 (D. S.C. 1993).

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.


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.

Hoarding and its relation to fire, product liability, and personal injury cases

Tech room

Olson Brooksby regularly handles the defense in product liability and high-exposure negligence cases.  The purpose of this article is to make other defense firms aware of the new stand-alone designation for Hoarding presented in the latest (Fifth) version of the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM-V).

As we mentioned in a previous blog post, the new DSM-V, which was published in May, 2013, includes “Hoarding Disorder” (often abbreviated “HD” in the literature) as a stand-alone mental disorder for the first time in the history of the APA’s DSM publication.  Although HD had been discussed in earlier versions of the DSM as an aspect of Obsessive Compulsive Disorder (OCD), it did not provide anywhere near the detail of diagnostic criteria that the DSM-V provides.  Moreover, recent studies show that hoarding and OCD are not as similar as previously thought.

The new hoarding diagnosis could have important implications in the product liability defense context.  Some studies suggest that as many as six percent of all house fires are the direct result of hoarding.  With any product producing a heat source sufficient to cause a fire if used improperly, placing combustible materials in sufficient quantity, or sufficient proximity, to the ignition source has the potential to cause a fire.  This is often the scenario with fires involving hoarding behavior.

Will a hoarding diagnosis provide the product manufacturer a defense, based on misuse of the product, and thereby dispose a jury to allocate a significant percentage of comparative fault to a diagnosed hoarder?  Or will jurors be more inclined to sympathize with, or overlook, the hoarding behavior and be lenient in the assignment of comparative fault to the hoarder?  Since the hoarding diagnosis is new, this remains to be seen.

The Basic DSM-V Diagnostic Criteria

The basic criteria for a diagnosis of hoarding include:

  1.  Persistent difficulty discarding or parting with possessions, regardless of their actual value.
  2. This difficulty is due to a perceived need to save the items and to the distress associated with discarding them.
  3. The difficulty discarding possessions results in the accumulation of possessions that congest and clutter active living areas and substantially compromise their intended use.  If living areas are uncluttered, it is only because of the interventions of third parties (e.g., family members, cleaners, authorities).
  4. The hoarding causes clinically significant distress or impairment in social, occupational, or other important areas of functioning (including maintaining a safe environment for self and others).
  5. The hoarding is not better explained by the symptoms of another mental disorder (e.g., obsessions in obsessive-compulsive disorder, decreased energy in major depressive disorder, delusions in schizophrenia or another psychotic disorder, cognitive deficits in major neurocognitive disorder, or restricted interests in autism spectrum disorder).

The Essential Diagnostic Features

A complete treatment of the diagnostic features of this newly categorized stand-alone mental disorder is beyond the scope of this article.  The essential feature of hoarding disorder is “persistent difficulties discarding or parting with possessions, regardless of their actual value.  (Criterion A).  The word persistent indicates a long-standing difficulty rather than more transient life circumstances that may lead to excessive clutter, such as inheriting property.  The difficulty in discarding possessions noted in Criterion A refers to any form of discarding, including throwing away, selling, giving away, or recycling.  The main reasons given for these difficulties are the perceived utility or aesthetic value of the items or strong sentimental attachment to the possessions.  Some individuals feel responsible for the fate of their possessions and often go to great lengths to avoid being wasteful.


Approximately 80%-90% of individuals with hoarding disorder display excessive acquisition features.  The most frequent form of acquisition is excessive buying, followed by acquisition of free items (e.g., leaflets, items discarded by others).  Stealing is not common.  Some individuals may deny excessive acquisition when first assessed, but this symptomology may appear later during the course of treatment.  Individuals with hoarding disorder typically experience distress if they are unable to, or are prevented from, acquiring items.

Prevalence, Development and Course

Nationally representative prevalence studies of hoarding disorder are not available.  Community surveys estimate the point prevalence of clinically significant hoarding in the United States and Europe to be approximately 2% – 6%, or roughly between 6 and 15 million Americans.  Hoarding symptoms may first emerge between the ages of 11 and 15, start interfering with the individual’s function by the mid-20s, and cause clinically significant impairment by the mid-30s.  Most participants in clinical studies are in their 50s, with the severity increasing with each decade of life.  Hoarding symptoms appear to be almost three times more prevalent in older adults (ages 55 – 94 years) compared with younger adults (ages 34 – 44 years).  Most study participants report the disorder symptoms a nearly constant presence, and not episodic.

Pathological hoarding in children is easily distinguishable from developmentally saving and collecting behaviors.  Hoarding behavior is familial, with about 50% of individuals who hoard reporting having a relative who also hoards.  Twin studies indicate that approximately 50% of the variability in hoarding behavior is attributable to additive genetic factors.  Approximately 75 metropolitan communities in the United States have task forces to address this disorder.

Hoarding Disorder AS Distinct From Obsessive Compulsive Disorder

When defending a product liability case that resulted in a fire, it will be important to understand the new research distinguishing hoarding from OCD.  A new study, authored by Dr. David Tolin in the Journal of the American Medical Association, shows that patients with hoarding disorder exhibit different brain activity during decision making than patients with OCD, pointing to a biological distinction.  Dr. Jeff Szymanski of the International OCD foundation reported that after the study, they concluded that a hoarder is not a pack rat, a slob, or lazy.  “A part of their brain doesn’t work the way your brain works.”

Dr. Tolin used brain imaging (fMRI) to test how 107 people reacted when asked whether they wanted to keep a piece of junk mail or discard it.  Sometimes it was junk mail that belonged to the patient, and sometimes it belonged to someone else.  Forty-three participants had hoarding disorder and another 31 had OCD, or obsessive compulsive disorder, according to the study.

When the junk mail had a hoarding patient’s name on it, certain parts of that patient’s brain lit up, showing “abnormal activity” in the decision-making regions (the anterior cingulated cortex and the insula), according to the study.  When the mail listed someone else’s name, the same parts of the hoarder’s brain were abnormally quiet.  According to Tolin, “only hoarding patients showed this kind of activity, and OCD patients did not.


Now that Hoarding Disorder (HD) is a distinct, APA sanctioned, mental disorder, it will likely have ramifications in product liability cases for both plaintiffs and defendants.  Given the relatively high number of fires, usually implicating a product, defense attorneys involved in product liability litigation will need to understand the disorder in those cases where HD is suspected.  Because jurors may tend to sympathize with hoarders, who are often characterized by their counsel as suffering from something akin to a mental handicap (thereby – erroneously – relieving them of any fault), the impact of HD may be greater on product liability defense counsel than on plaintiffs’ counsel.

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.